Findings Of Fact At all times pertinent to the issues herein, Petitioner, Pinellas county School Board, operated the primary and secondary public school system for Pinellas County, Florida. Respondent, Herbert Latimore, was employed by the Petitioner as a continuing contract teacher of physical education at Tyrone Middle School, a school operated by Petitioner. On August 25, 1993, very early in the school year, Respondent made a presentation to a group of sixth grade students in a physical education class. In prior years, Respondent had experienced a reluctance on the part of some students to take showers after physical education classes, and to forestall that problem, he indicated verbally that he did not want the boys to stand outside the showers looking at each other because, "...there were no faggots around here." He also told the students he expected compliance and that he did not want parents calling the administration about student shower misconduct because that created problems for him and would get him "pissed off." It is also alleged that in the course of his presentation he told a group of male students who were not paying attention that he spoke clearly and did not talk like a "nigger." Respondent, who is, himself, African-American, denies making that comment though, according to Mr. Valdes, the vice principal, Respondent admitted doing so to him in an interview the day after the alleged incident took place. It is found that Respondent did, in fact, use the word, "nigger" in his discussion with the students, but it can not be said, under the circumstances, that it was used in a racist or manner derogatory toward any student or group of students. One of the students in the Respondent's class to whom he made the comments complained of was Stephanie Zavadil, a young female who did not want to be in a physical education class in the first place and who was supposed to be in a music class instead. The incident took place the first day of school which was, coincidentally, the first day of middle school for the students in this particular class. After school that day, Stephanie, who was quite upset by the Respondent's use of the language alleged, told her mother what had happened and indicated she would rather go to summer school than be in Respondent's class. She also cried when recounting the story and indicated she was so afraid of Respondent, she would not appear to testify at hearing even under subpoena. Mrs. Zavadil, herself a high school teacher in the Pinellas County system, after discussing the matter with her husband, reported it to the school principal, Ms. Desmond. She also indicated she did not want her daughter in Respondent's class. There is no indication any other student or parent has indicated a similar objection, though as a result of the press' attendance at a School Board meeting at which this matter was discussed, an article appeared in the Clearwater edition of the St. Petersburg Times reporting the incident. Before she could call Respondent in to discuss the matter, Ms. Desmond was approached by him in the school cafeteria the following day. Ms. Desmond, who was on cafeteria duty at the time, told Respondent she would discuss the matter with him later, but he followed her to the side of the room, still trying to talk with her. When she finally had the quiet to talk with Respondent, she reported to him the substance of the complaint she had received from Mrs. Zavadil and told him that in her opinion his use of the words alleged was inappropriate and a demonstration of bad judgement. Respondent acknowledged he had used the words. Thereafter, the matter was reported to the office of the Superintendent of schools, where the matter was investigated by Mr. Barker who interviewed Stephanie and other students involved. He also spoke with Respondent who admitted the use of all words alleged except "nigger." Mr. Barker also reviewed Respondent's personnel file in which he found two prior disciplinary actions taken against Respondent. In 1982, Respondent was reprimanded for pushing a student, and in 1992, was again reprimanded for using poor judgement in making inappropriate statements in front of a student and the use of physical force with a student. On the basis of his investigation, Mr. Barker, utilizing the school board's unwritten progressive discipline policy, recommended that disciplinary action to include a suspension without pay for five days be imposed. His recommendation was based on his conclusion that Respondent's effectiveness as a teacher had been impaired by his use of the words alleged. Mr. Barker is of the opinion that teachers should comport themselves in a manner which causes students to look up to them. Here, Respondent's comments could affect the way students perceived him and also might frighten some students who, as a result, might not want to take classes from him. Respondent's use of the word "faggot", as alleged here, complicates the already existing problem schools have regarding the reluctance of some elementary and middle school children to dress out for physical education training. Mr. Barker's opinion regarding Respondent's effectiveness was reinforced by those of Dr. Hinesley, Ms. Desmond, and Mr. Valdes. Dr. Hinesley believes that teachers should be role models and Respondent's use of the language alleged was a violation of the Teacher Code of Conduct which could undermine public support for the educational process if left unpunished. Ms. Desmond agrees with the proposed suspension because of her belief that Respondent's language was both frightening to the students and inappropriate. Students and their families discuss what happens at the schools and if Respondent, because of his language, were to develop an unfavorable reputation within the community, it would make it difficult for him to establish credibility and would also impact the school's effectiveness in the community. Respondent does not contest his use of the terms "pissed-off" and "faggot" but claims he has heard them used many times by other teachers and had never been told by the principal or anyone else that they were bad words. He claims that had he considered the words to be inappropriate, he would not have used them. He also claims, and it is so found, that he did not call any student either a "faggot" or a "nigger", not did he claim to be "pissed-off" at any particular student. Respondent has three daughters and professes to love children, asserting he would never intentionally use bad language to hurt anyone. With regard to his alleged admissions to Ms. Desmond and Mr. Valdes, he claims neither one specifically asked him about his use of the words alleged. Mr. Barker did do so, however, and Respondent admitted to the use of "faggot" and "pissed-off." He has been a teacher for 18 years and during that time has never received a bad evaluation. He claims he has never been cautioned about his language, and the reprimand administered in 1992 relates more to the use of poor judgement in attempting to intimidate student rather than to the use of "inappropriate" language.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Herbert Latimore, be suspended from employment as a teacher with the Pinellas County School Board, without pay, for a period of five (5) days. RECOMMENDED this 15th day of April, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 15th day of April, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5748 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 13. Accepted and incorporated herein. 14. & 15. Not relevant to the issues herein. FOR THE RESPONDENT: ARGUMENT paragraphs, unnumbered, as treated in sequence. Not a Finding of Fact but a Conclusion of Law. Accepted and incorporated herein. & 4. Accepted as a correct comment on the state of the testimony. 5. & 6. Accepted as a correct comment on the state of the evidence. Accepted and incorporated herein. Not evidence but argument and statement of position. Accepted as an accurate recounting of Respondent's testimony. Accepted as an accurate comment on the evidence. Accepted as Respondent's position. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County School Board 301 4th Street, Southwest Largo, Florida 34649-2942 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 J. Howard Hinesley, Ed.D. Superintendent Pinellas County Schools 301 4th Street, Southwest Largo, Florida 34649-2942
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner/Agency has established by preponderant evidence that there was just cause to dismiss Sakina A. Jones, the Respondent, for alleged misconduct in relation to her teaching of students in alleged violation of Rules 6B- 1.006(3)(a), and 6B-1.006(3)(e), Florida Administrative Code.
Findings Of Fact The Petitioner is the Duval County Florida School District or "School Board" charged with regulating the practice standards for teachers and the manner of practice of teachers who are employed by it in the Duval County School District system. The Respondent is licensed to teach in Florida, holding Florida Educator Certificate No. 831562, effective from July 1, 2000 through June 30, 2002. The Respondent has a Bachelor's Degree in Psychology received on December 11, 1998. She has worked as a substitute teacher for the Duval County School District between approximately September 4, 1998 and August 9, 2000, after which time she became a full-time elementary teacher at Annie R. Morgan Elementary School. The Respondent has a Bachelor's Degree in Psychology. Her training and experience in the field of education beyond college, at which she had no academic training as an educator, at the point she commenced her second year of teaching at Annie R. Morgan Elementary School, in August 2002, included the following: substitute teaching experience at elementary schools. teaching ESE students at DuPont Middle School as a substitute teacher. participation in the Teacher Induction Program during the 2000-2001 school year while full time teaching at Annie R. Morgan Elementary School. having a designated mentor (Mrs. Shipley) from whom to seek guidance. completion of a college level introduction to education course while teaching full time during the 2000-2001 school year. completion of a course in "Teaching Diverse Populations" in the summer of 2001. receiving a book called "Positive Discipline." attending a faculty meeting on classroom discipline which focused on steps that could be taken in the classroom before sending a child to the principal's office. The Respondent had no training in the specifics of teaching and disciplining either ESE students or the educable mentally handicapped (EMH) students which she was teaching at times pertinent to this case. The Teachers' Induction Program in which Ms. Jones participated during the 2000-2001 school year is a program for new teachers in the District which includes assessments involving at least two classroom visits a week. Six "domains" are covered in the program including classroom management, instructional planning and testing, some of which are presented in a workshop format. The program requires a year to complete, at the end of which the principal must assess whether a new teacher has passed or failed in her participation in the program. For the 2000-2001 school year Ms. Jones accepted a position as a full-time, third grade teacher at the Annie R. Morgan Elementary School. The principal that year was Delores Milton. After about five weeks, Ms. Jones was shifted to an ESE class, an area in which she had no training. Later that year she was assigned to an EMH class which she was even less qualified to handle in terms of having any specific training in teaching and disciplining EMH students. Ms. Jones, indeed, had serious reservations about taking the EMH job because of her lack of training or experience with EMH children and she related this to her principal and they had a discussion about it. Ultimately, the principal assured her that she could go to workshops and in other ways get additional training and so Ms. Jones accepted the position because it would guarantee her a position so that she would not be on the "surplus list" (being first subject to lay-offs). Carolyn F. Davis was assigned as Principal at Annie R. Morgan Elementary School on July 1, 2001, replacing Ms. Milton. Ms. Jones' EMH teaching assignment continued into the new 2001- 2002 school year. Her class included twelve boys and two girls ranging in advancement from grade one to grade three. A teacher's assistant was assigned to her on a full time basis. The teacher's assistant, at the beginning of the year, was Tiffany Bullard. Ms. Bullard had been working with Ms. Jones as a teaching assistant the prior school year from approximately November 2000 through the end of the school year in May 2001. That had been her first experience as a teacher's assistant. Due to budgetary cuts, Ms. Bullard was "surplused" (laid-off) on September 4, 2001. Several months later she was re-hired at a different school. A second teacher's assistant worked with Ms. Jones in her classroom after Ms. Bullard departed. This was Arnette Felton. Ms. Felton had a year's prior experience as a teacher's assistant at an elementary school as well as a prior year of such experience at Annie R. Morgan Elementary School. She worked with Ms. Jones from September 5, through October 16, 2001. She asked to be relieved when she claimed that Ms. Jones threw a bottle of "white-out" at a student who ducked, such that the bottle hit Ms. Felton. The totality of the credible testimony reveals that this incident did not happen at, least in that fashion, as Ms. Jones never intentionally threw a bottle of white-out at anyone. In reality, there appears to have been some personal friction between Ms. Felton and Ms. Jones which helped to cause Ms. Felton's departure. Ms. Jones' third teacher's assistant was Brenda Medlock. Ms. Medlock has approximately one year and a half of college and had been serving as a teacher's assistant for ten years in the Duval County School system. She remained with Ms. Jones until Ms. Jones was removed from her teaching duties on or about November 19, 2001. Ms. Medlock had no prior experience with EMH students although she had worked with ESE students and had some training of unknown amount and duration in behavior management while working as a teacher's assistant at a prior school. The EMH students in Ms. Jones class were all students with below average I.Q. who function at grade levels significantly below the norm for their age. Their I.Q. range was from 49 to 69. Greater patience is required in disciplining and instructing EMH students. Relevant federal law protects them from being disciplined for reasons of their disability. In all instances with respect to such students, a determination has to be made concerning whether the conduct for which discipline is about to be meted out is a manifestation of the disability, and if so, there can be no discipline. Some of the students had limited communication skills and difficulties with memory and Ms. Jones was aware of this information concerning her students upon getting to know them. Students with a low I.Q., such as Ms. Jones' students, should not appropriately be made to write sentences repetitively as a disciplinary measure. This is because they would typically not understand and cannot practicably execute the requirement. Upon learning that Ms. Jones had made students write sentences repetitively as a disciplinary measure, Principal Carolyn Davis instructed her not to use this form of discipline at a conference the two had on October 23, 2001. Student Raymond Houston testified. He was placed in the bathroom, which was in the classroom, a number of times for a few minutes as "time out" when he misbehaved. Although the light in the bathroom may have been turned off when this occurred, no one prevented any student, being placed in the bathroom as "time out," from turning the light on. Raymond Houston (R.H.) also stated that he and several other students had to do the "duck walk" or "jumping jacks" as discipline for misbehavior on a number of occasions. He was also required to write sentences such as "I will be good" or "I will pay attention" when he had misbehaved. The teacher's assistant, Ms. Bullard, confirmed that the Respondent had placed children into the classroom bathroom for "time outs." The totality of the credible testimony reveals, however, that these sessions lasted only from three to five minutes and no student had been placed in the bathroom as long as an hour or a half-day or anything of that nature. Ms. Jones also made certain male students do pushups for disciplinary reasons, such as R.H. and T.S. In this connection, some of the calisthenics her students performed were done as part of a fitness program she instilled in her daily lesson plan, including the exercise regimen known as "Tae Bo." Most occasions, when students did exercises such as pushups, were not for disciplinary reasons. Student R.H. also was required by the Respondent to wash at the lavatory and put on a clean shirt, which she had in the classroom to give him. This was because he had not bathed in several days and had a bad odor. While some other students may have observed this, it was done for hygiene reasons and was not done in order to berate the student or expose him to unnecessary embarrassment. During the 2001-2002 school year on one occasion, student "Shaquille's" book bag was taken from him by the Respondent and she put it in a trashcan. This was not a trashcan used for refuse or garbage, however, it was simply a trashcan type receptacle where she would keep students' book bags when they did not need them or when they were not supposed to be in possession of them. Ms. Jones also instituted a system which permitted the children to go to the bathroom three times per day. This system was implemented by having the students use tokens, three apiece, which they could use when they needed to go to the bathroom. This was done to help instill order in the classroom. However, those students who were unable, for various reasons, to comply with this bathroom schedule were allowed to go on an as-needed basis. In any event, the three-bathroom-visits policy was ended by the Respondent one month into that school year. All students at the Annie R. Morgan Elementary School receive a free breakfast every morning, at the beginning of the school day. Breakfast is provided in the classrooms to the students at their desks. Ms. Jones had a rigid five-minute time limit, enforced by a timer, during which the children were to eat their breakfast. She would have the students start in unison (those that were present) and when the timer rang after five minutes, she would make the children discard any portion of breakfast not eaten. Ms. Jones was not aware that there was any prohibition against the five-minute time limit for eating breakfast and for discarding unused food. After being instructed by her principal, at their meeting of October 23, 2001, that the students should be allowed fifteen minutes for breakfast, the Respondent complied. The only exception to this, established in the record, was when student James Brown arrived at school late and missed breakfast. This, however, was involved with an agreement the Respondent had with James Brown's mother, who had informed Ms. Jones that if he were late she could assume that he had already had breakfast, because his mother would ensure that he had already breakfast. The denial of his breakfast, on the day in question, was not due to any cruelty or other violation of the rules referenced herein, but rather because she knew that his mother would have already given him breakfast on that day when he was late. Although the Respondent was accused by witness Arnette Felton of throwing objects in the classroom at students, including pencils, chalk, an eraser and a white-out bottle, the preponderant, credible testimony indicates otherwise. Although the Respondent acknowledged tossing snacks, candy, chalk or pencils to students for them to use during the course of their classroom activities, she never purposely and forcefully threw any object at students in anger or as a misguided disciplinary measure or anything of the sort. Further, although as a classroom management technique the Respondent placed students in time-out in the restroom for a few minutes when she felt it necessary to restore order and decorum in the classroom, she never instructed her assistant to forcibly hold the bathroom door shut to "lock-in" a student for disciplinary reasons. Ms. Felton maintained that she observed Kenny Brown come to Ms. Jones' desk, when told not to, so that Ms. Jones, in anger, threw his book bag in the trash, took his folder out of the book bag and threw it in the sink, getting it wet. The most credible testimony does not support that assertion. It is determined this incident did not occur in this fashion. Rather, Ms. Jones, at most, took student K.B.'s book bag from him and placed it in the receptacle for holding book bags, which happened to be in the form of a trashcan, but which was not used as a trash or garbage can, as found in the other instance referenced above. It is true that Ms. Jones criticized Ms. Felton when she was unable to change a CD disc, calling her a "dummy." This was not done in a way that the other persons or students present in the classroom could hear, however. It is also true that Ms. Jones and Mr. Felton got into a verbal altercation in the classroom for which the Respondent, Ms. Jones, received a reprimand from the principal, Ms. Davis, for engaging in an argument in front of the students. Teacher's assistant Brenda Medlock succeeded Ms. Felton as the teaching assistant for the Respondent. She observed James Brown arrive at school, missing breakfast, on October 29, 2001, which has been discussed above. Withholding breakfast may have been contrary to the principal's instruction, but in this regard it was done for a justifiable reason because, due to the understanding with the student's mother, Ms. Jones knew that he had already had breakfast when he got to school that day when he arrived at school late. Ms. Medlock also observed, on October 29, 2001, that, after the students were disruptive, the Respondent put a sentence on the board, "I will pay attention," and required all of the students to write that sentence repetitively for approximately fifteen to twenty-five minutes. Some of the students had the ability to write the sentence only a few times or only once. This episode was in violation of instructions given by the principal at the meeting she had with the Respondent on October 23, 2001. The principal had a conference with Ms. Jones on October 23, 2001, in which Ms. Jones admitted that she had placed students in the bathroom for time-out for disciplinary purposes and that she had given children only five minutes in which to eat breakfast. She was informed that fifteen minutes were allowed for eating breakfast and she was directed not to use the bathroom for time-out disciplinary purposes anymore. She refrained from doing so thereafter. She was also directed not to withhold food from a child which she complied with thereafter, with the exception of the James Brown breakfast episode, which was adequately explained by the Respondent to not involve any disciplinary or disparagement reason for its occurrence. Ms. Jones did, as found above, violate the instruction from Ms. Davis about not requiring students to write sentences repetitively, as a disciplinary measure, by the incident she caused on October 29, 2001, found above. In summary, it is significant that the only sources of factual information are the testimony of the teacher's assistants who were assigned to the Respondent during the 2001- 2002 school year. An analysis of their testimony shows that none of them had any affection for the Respondent and it appears from examination of their testimony, and the Respondent's testimony, that each had specific reasons for harboring resentment or animosity toward the Respondent. Their attitudes towards the Respondent appeared less than friendly, so that their testimony, taken together, with the instances of admissions by the Respondent show that some of the situations described happened, but did not happen in the heinous way described in the testimony of the teacher's assistants Ms. Felton and Ms. Medlock. Although some of these situations, which occurred as part of the Respondent's attempt to properly deal with her classroom environment, may have justifiably resulted in criticism of the Respondent, the statement of the Petitioner's own witnesses show that there was no formal standard and no formal definition of acceptable versus unacceptable conduct imparted to the Respondent before she embarked on her duties with this EMH class. The Petitioner's representatives acknowledge that there was no advance training or instruction given to the Respondent. The Respondent was required to seek assistance and additional training largely on her own initiative with little support from the school administration. Consequently, as the Respondent attempted to develop techniques for the management of her classroom and for the instruction of her students, numerous events occurred that were later deemed inappropriate, although she had not been instructed in advance that they were inappropriate. Some of these occurrences or events were due to poor judgment on her part as well, and the resentment occasioned in her teacher's assistants or "para-professionals" was probably partly the result of her own failure to adequately control her temper on occasions. However, the fact remains that as soon as the Respondent was notified of any perceived inappropriate behavior, or classroom or student management techniques, she modified her conduct or techniques accordingly, so as to comply with those instructions. The only time she continued behavior that had been deemed unacceptable by the principal concerned the subject of the breakfast of one student, for whom she had a specific instruction from the student's parent that the student did not need to have breakfast when he arrived late, because he would already have had breakfast. The other occasion of continued behavior that was unacceptable was the single, October 29, 2001, requirement of students to write repetitive sentences, which was directly contrary to the instructions she received from the principal on October 23, 2001. Since the only complaints were made to the administration by the paraprofessionals and the investigation therefore concentrated on those individual's statements, there is no substantial, credible evidence that the Respondent's actions rose to the level of intentional embarrassment or disparagement of students or otherwise constituted a breach of the Code of Ethics for educators, as embodied in the rules on which the Respondent's termination was based. Although the Respondent's actions were mis-directed in several instances and constituted exhibitions of poor judgment on some occasions, they have not risen to the level of a violation of the ethical requirements imposed on teachers.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Duval County compensating the Respondent for the salary and benefits to which she is entitled from the date of her termination of employment (suspension without pay) forward to the end of the 2001-2002 School Year. DONE AND ENTERED this 14th day of November, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 14th day of November, 2002. COPIES FURNISHED: David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Ernst D. Mueller, Esquire City of Jacksonville Office of the General Counsel 117 West Duval Street Suite 480 Jacksonville, Florida 32202 John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable Charlie Crist Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether Respondent's teaching certificate should be disciplined for alleged violation of various provisions of Section 231.28, Florida Statutes, and Rule 6B
Findings Of Fact Respondent Clayton McWilliams holds Florida teaching certificate number 653517, covering the area of substitute teaching, which is valid through June 30, 1994. He is 27 years of 1989, from Valdosta State College in Valdosta, Georgia. After a few brief months employment in retail sales in Tallahassee, Florida, Respondent returned to Madison, Florida, where he was born and lived prior to attending college. Respondent returned to Madison in August of 1989, after being contacted by the high school coach there regarding the possible employment of Respondent as an assistant coach at the high school from which Respondent graduated. He was employed in the 1989 County School Board. Subsequently, he was employed by the Board during the 1990 high school. Respondent served as an assistant coach during this period. While serving as a substitute teacher during the 1989 Respondent was responsible for a ninth grade science class. Female students M.B., R.B., J.D., and R.C., were in a group surrounding Respondent's desk, talking with Respondent. All the students in the group were curious about Respondent and asked him such questions as what are you going to coach, are you married, do you have a girl friend, and why did you come back to Madison? Respondent knew many of the students on a first name basis and, in the course of bantering with the group, responded at one point to the students' questions about his private life by asking the students about their social lives, if they kissed their boy friends with their mouths open, and if they used their tongues. There was general laughter from the students, although R.B. didn't think the question was "any of [Respondent's] business." This was the only question or comment that Respondent ever made that bothered R.B. R.B. regarded Respondent's conduct in the ensuing two years as "flirting" and "didn't ever think anything bad about it." The next year when R.B. was in the tenth grade (1990 photograph. Respondent later told R.B. that he stared at the photograph every night. When R.B. was in the eleventh grade and not a student in a class taught by Respondent, Respondent jokingly asked R.B. in the presence of D.C., her boyfriend at the time and an athlete with whom Respondent enjoyed a rapport, why she wanted to date such a "big, old dummy." There were other times that Respondent would see R.B., tell her that she looked nice, wink at her and blow her kisses. During the 1990 M.B., by asking her if she kissed with her mouth open, and would she teach Respondent how to do this. Respondent also told M.B. that she looked beautiful. M.B. was not a student in a class taught by Respondent. During the 1991-1992 school year, M.B. was a high school junior and a varsity cheerleader. Respondent continued to speak to M.B., although she was not his student, when he saw her on the school campus or at sporting events. He continued to ask M.B. about kissing with her mouth open, whether she would teach Respondent how to do this, and when could she teach him. M.B. declined to specify any time or place to meet with Respondent. M.B. did not disclose Respondent's behavior to anyone at this time. On one occasion, M.B. and other eleventh grade students, including her boyfriend, were in the high school library, ordering their class rings. Respondent became involved in conversation with the students and asked M.B. again about teaching him to kiss open would lose his job for M.B. Although he heard these comments, M.B.'s boyfriend considered Respondent to be joking. In the fall of the 1991 Wakulla County for a game which would determine whether the team could compete in the district championship playoff. Upon boarding the bus after the game for the trip home, Respondent was asked by M.B. if he was going to sit with her on the bus. He replied that he would if she saved him a seat. Respondent stored the athletic equipment which he was carrying, returned to the forward section of the bus and assumed the vacant seat beside M.B. Since the team had lost the game, most passengers on the bus were despondent. In the course of the trip, M.B. and Respondent leaned their heads against the back of the seat in front of them and Respondent talked about college and how being from a small high school had been difficult when he had attended the University of Florida before transferring to Valdosta State. Respondent had his hands between his knees as he talked and at one point placed it on M.B.'s knee or patted her knee. She, feeling discomfited by the gesture, brushed his hand away. This was the only time that Respondent touched a student where such touching was interpreted by a student to have sexual significance. Respondent testified that he patted M.B. because she acted as though "something had been bothering her" and characterized the pat as something he would give "football players or baseball players at school." Eventually, M.B. became sleepy and rested her head against the bus window. Respondent in a normal tone of voice offered to let her place her head on his shoulder, but M.B. declined. During the 1991 photographs. On the back of his photograph, Respondent wrote: M., I remember when I first saw you, you struck me as beautiful. I really think you are. You are truly special to me. Please know that I love you. Stay sweet and pretty. Love, Clayton. P.S., Please teach me sometime. Mary Rice, a teacher at the high school, began teaching there at approximately the same time as Respondent. Rice, like Respondent, was single. Rice, like Respondent, enjoyed informal relationships with some students, such as the cheerleaders for whom she served as staff sponsor. The cheerleaders, similar to many students who called Respondent by his first name, referred to Rice as "Mary". She became engaged in October of 1991 to Scott Alley, another teacher who occasionally substituted at the school. Rice and Respondent had a normal collegial relationship. Prior to Christmas of 1991, Rice and Respondent were in the school office discussing what they were getting their significant others for Christmas. Respondent told Rice that he would tell her what he was getting his girl friend for Christmas if Rice would have sex with him. Later in the day, Respondent got down on his knees in the hallway outside of Rice's classroom in the presence of students and asked Rice to "go with me before you get married". While Respondent meant that he wanted to have sex with Rice, he did not explicitly state such in the hallway. Later, Respondent sent Rice a note containing four blanks for letters. According to Rice, the note stated that Respondent would tell Rice what he was getting for his girlfriend for Christmas if Rice would " ". Rice assumed the four blanks to represent a sexually suggestive word. Rice stored the note in her desk drawer. She determined not to tell anyone about the note. In February of 1992, her fiancee, Scott Alley, discovered the note in the desk while he was substituting for Rice. He showed the note to Debra Wetherington, a school secretary, and later asked Rice about the note. Rice was startled that Alley had found the note and became upset. Later, in a telephone conversation initiated by Respondent, he discussed the note with Alley. Respondent apologized to Alley for any misunderstanding about the note, stating that he had written it merely to get a laugh from Rice. Respondent told Alley that he, Respondent, just flirted with everyone and that was "how I broke the ice with everyone." After Respondent's apology, the two men agreed to remain friends. Subsequently, the note was destroyed by Alley. Debra Wetherington, the secretary at the high school, frequently interacts with the teaching staff. Initially, Respondent and Wetherington enjoyed a good working relationship no different than those she shared with other teachers. She had known Respondent all of his life. Over a period of time, Respondent began to flirt with Wetherington, asking her about open mouth kissing. At these times, Wetherington ignored his remarks or laughed them off as a joke. When his behavior persisted, she told him that his conduct bothered her and that he should stop. She never told her husband or any one else about Respondent's attentions, hoping to resolve the matter without confrontation and embarrassment. On or about February 25, 1992, Respondent came into the school office and physically put his arms around Wetherington in a "bear" hug and, according to Wetherington, tried to put his tongue in her ear. Also present in the room were the school resource officer and another office worker. No eyewitness corroboration of Wetherington's allegation that Respondent attempted to put his tongue in her ear was offered at the final hearing and she had not reported this detail in an earlier affidavit regarding the incident. Respondent denies he attempted to put his tongue in her ear. Respondent's testimony is more credible on this point and it is not established that he attempted to put his tongue in Whetherington's ear. Wetherington later complained about Respondent's conduct to Lou Miller, the school principal. Miller called Respondent into her office, discussed the incident with him, and directed him to have no such contact with Wetherington in the future. Respondent apologized for his conduct, both to Miller and Wetherington. While Respondent and Wetherington had no further contact, Wetherington later asked another teacher, Tony Stukes, if Respondent was angry with her since she had not seen or heard from him lately. On or about March 24, 1992, Respondent saw M.B. in the hallway outside the door of his classroom while classes were changing. Respondent spoke to M.B. and told her that he had a dream about her. M.B. went to see Mary Rice, the cheerleading sponsor, who had earlier asked M.B. if she was having any problems with a teacher. Rice had taken this action following the discovery of Respondent's note in Rice's desk by Rice's fiancee. M.B. had confided in Rice about Respondent's previous flirtatious behavior toward her. Rice told her to write down future incidents. After relating to Rice the comment of Respondent about having a dream, M.B. was asked by Rice to go back to Respondent and find out more about the dream. M.B. went into Respondent's class where the students were working on a geography project. An overhead projector displayed the continent of South America on a board. Some students were tracing the projection on the board, preparatory to cutting the shape out of the board. Other groups were cutting out other continents. The lights in the room were turned on. Respondent was sitting at his desk, cutting out the Asian continent. M.B. went to a chair by Respondent's desk and sat down. M.B. was on her lunch break and was not a student in the class. However, in the context of the situation, her entry into the classroom was not that unusual. Respondent had on previous occasions entered an art class where M.B. was a student and had spoken with her or, on some of these occasions, had also spoken with the teacher in the class. After seating herself by his desk, M.B. asked Respondent to tell her about his dream. Respondent replied that he couldn't, but M.B. persisted. Finally, Respondent wrote on a piece of paper, "I had a dream about you and me." M.B. then wrote on the paper, "Well, what happened?" The rest of the written exchange is as follows: Respondent: "Well, all I remember is you were teaching me." M.B.: "Teaching you what?" Respondent: "Guess." M.B. "I don't know. Why don't you tell me what I was supposedly teaching you." Respondent: "How to kiss with my mouth open. I liked it, too. I woke up sweating and holding my pillow to my mouth." M.B. then took possession of the piece of paper on which she and Respondent had been writing, left the class and went back to see Mary Rice. M.B. discussed the matter with Rice. After this discussion, M.B.'s feelings about Respondent solidified and she determined that she detested Respondent. At Rice's suggestion, she then went to see Principal Miller. Miller and School Superintendent Eugene Stokes confronted Respondent with the note. Respondent stated he meant no harm by his conduct, recognized that he had a problem and needed help for his aberrant behavior. After a discussion of options, including suspension or resignation, Respondent thought about the matter overnight and submitted his resignation to Stokes on March 27, 1992. Respondent was told that the matter must be reported to the Professional Practices Commission. Respondent was, however, under the impression that his resignation would conclude the necessity for any further proceedings of a disciplinary nature. Until the time of his resignation, Respondent had received good evaluations. His contract was renewed annually. However, as expressed at final hearing by Miller and Stokes, they would not rehire Respondent in view of his past behaviors which now, in their opinion, would reduce his effectiveness as a teacher at Madison High School. Subsequently, Respondent was informed on May 28, 1992, that an investigation regarding alleged misconduct been instituted by the Professional Practices Commission. In August of 1992, Respondent sought and was appointed to a teaching position in Hawthorne, Florida, at the combined junior/senior high school in that city for the 1992 completion of course work for issuance of a five year teaching certificate from the State of Florida which he received in October of 1992. Dr. Lamar Simmons, the supervising principal at the school in Hawthorne, Florida, where Respondent is presently employed is acquainted with Miller. Simmons contacted Miller at the Madison High School, prior to employing Respondent. Miller informed Simmons that Respondent had been a satisfactory employee. Miller did not disclose Respondent's alleged misconduct to Simmons because she assumed Respondent was receiving professional help for his problem and that the issuance of Respondent's five year certificate indicated that further disciplinary proceedings by the Professional Practices Commission had been abandoned. Respondent later disclosed the instant disciplinary proceeding to Simmons. To date of the final hearing, Respondent continues to teach at the school in Hawthorne without apparent incident.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the third, fourth, and fifth count of the Administrative Complaint, and placing Respondent's teaching certificate on probation for a period not to exceed three years upon reasonable terms and conditions to be established by Petitioner, including the following requirements: That Respondent present himself for psychological evaluation by a qualified professional selected by Petitioner. That Respondent complete such course of psychotherapy as may be prescribed as a result of that evaluation. That Respondent assume the cost of such evaluation and subsequent therapy, if any. That Respondent enroll and complete a minimum of six hours of continuing education courses in the area of professional conduct for educators. That in the event that Respondent fails to comply with any of the terms and conditions of probation, Respondent's teaching certificate shall be subjected to a period of suspension not to exceed two years, and that compliance with these conditions of probation serve as the prerequisite for any reinstatement of Respondent's teaching certificate in the event that suspension for noncompliance with these conditions occurs. DONE AND ENTERED this 1st day of June 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 1st day of June, 1993. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following constitutes my specific rulings on proposed findings of fact submitted by the parties: Petitioner's proposed findings 1.-12. Accepted. Rejected as to D.C.'s feelings, hearsay. Accepted. (Note: this is the second finding numbered 13.) Rejected as to "two or three times", accepted as to touching on the knee one time, on the basis of resolution of credibility on this point. (Note: this is the second finding numbered 14.) Accepted. Accepted in substance, not verbatim. 16.-18. Accepted. Rejected as to tickling reference since no sexual significance was ascribed by M.B. to this action, she did not supply a point in time when this occurred and inclusion would imply a significance not proven at the final hearing. Rejected, unnecessary. 21.-23. Rejected, subordinate to Hearing Officer findings on this point. 24.-42. Accepted, but not verbatim. 43. Accepted as to bear hug, remainder rejected on basis of creditibility. 44.-57. Accepted, but not verbatim. Respondent's proposed findings 1.-20. Accepted, but not verbatim. 21. Rejected, unnecessary. 22.-23. Accepted, but not verbatim. Rejected, unnecessary. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Thomas E. Stone, Esquire Post Office Box 292 Madison, Florida 32340 Karen Barr Wilde Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practice Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Sidney H. McKenzie, Esquire General Counsel Department of Education The Capitol PL-08 Tallahassee, Florida 32399-0400
The Issue Whether just cause exists for Petitioner, Polk County School Board, to terminate Respondent, Stacia Boyd from her employment as a teacher.
Findings Of Fact The School Board contends that just cause exists to terminate Ms. Boyd because her actions constitute “gross insubordination” or “willful neglect of duty,” as those terms are defined in section 1012.33(1)(a) and Florida Administrative Code Rule 6A-5.056(4) and (5).8/ Whether Respondent committed the alleged misconduct is a question of ultimate fact to be determined by the trier-of- fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Based on the evidence and testimony presented during the final hearing, the School Board failed to prove by a preponderance of the evidence that Ms. Boyd committed gross insubordination. However, the School Board proved by a preponderance of the evidence that Ms. Boyd committed willful neglect of duties. Accordingly, “just cause” exists for the School Board to discipline Ms. Boyd. § 1012.33(1)(a), Fla. Stat.
Recommendation Based on the foregoing Findings of Fact, Ultimate Findings of Fact, and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order upholding its decision to dismiss Respondent, Stacia Boyd, from her employment contract. DONE AND ENTERED this 18th day of December, 2018, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 18th day of December, 2018.
Findings Of Fact Petitioner is a speech-language pathologist employed by the Dade County Public schools. In April, 1986, she took the Communication Disorders Examination as part of her candidacy for the designation of associate master teacher pursuant to the 1985-86 State Master Teacher Program. She received a raw score of 90, which placed her in the 74th percentile on the examination. She challenges the best correct answers to questions numbered 72, 81, 95, and 117 on that examination. She also believes that she should receive credit for her answer to question numbered 33, which question was deleted from the examination prior to the examination being graded. The examination was not a test for beginning teachers or a minimum competency test. Rather, the purpose of the examination was to recognize the superior ability of experienced teachers. Excelling on the examination would require experience in a public school setting. The examination was a state-wide examination, reflecting state-wide policy issues and state guidelines. Under no circumstances was one school district's manuals or policies allowed to control the selection of the best answer to each of the multiple-choice questions. The Master Teacher Communication Disorders Examination was administered for the first time in March/April of 1986. A task force of professionals in communication disorders was selected to prepare a test blueprint defining the various topics to be covered by the examination and the relative weights to be given each. The writing team, although highly experienced in examination preparation, received training on how to write examination questions in order that uniform standards be utilized by each member of that committee. Questions were written by various members of the committee and reviewed by all other members of the committee. The questions were further reviewed by staff members of the Institute of Instructional Research and Practice at the University of South Florida, the unit designated by the legislature to assist Respondent in the creation of examinations pursuant to the Master Teacher's Program. Additionally, some questions were taken from the Georgia Beginning Teacher Competency Examination which has been extensively validated. After the questions were approved by all members of the writing team and had been edited to conform to national examination guidelines, they were submitted to a validation team which independently reviewed each of the test questions in the test pool. The persons involved in both the development and validation of the test questions were practitioners in the field. After the questions in the test pool were further refined by the validation team, they were submitted to "keyers", more practitioners in the field to ascertain if those persons would all agree on the best correct answer. Those questions which made it through the editing, validating, and keying processes without disagreement as to the best correct answer remained in the test pool. Pilot tests were then administered in a further effort to validate each item on the examination. The end product was an examination composed of questions and answers with subtle distinctions in order to identify the advanced or top-level teacher for merit pay. Since it was a merit pay test, it was impossible to field test the examination prior to its first administration since the people who would likely be candidates to take the test would be the only persons with whom the examination could be field tested. Accordingly, the first administration of the test became the field test, and the processees that would normally be done in a field test took place in the first administration. The test was administered and then scored but no individual candidate's data was processed at that time. Each test item was first statistically analyzed on the basis of pyschometric standards in order to determine the examination's reliability and validity. Any test items with unusual statistics were removed from the processing. Thereafter, the candidates' raw scores were obtained. Petitioner challenges herein the deletion of question numbered 33 from the examination. Question 33 was deleted prior to the actual scoring of the examination. The decision to delete question number 33 from the examination was made prior to the first administration of the test since disagreement had developed during the development and validation phase as to the best correct answer for that question. Question number 33 was simply not scored. The deletion of question number 33 from the examination without scoring that question was proper and in accordance with professional testing guidelines. Petitioner failed to select the best correct answer to questions numbered 72, 81, 95 and 117 on the examination. Although Petitioner defends her answers to two of those questions by relying upon Dade County policies, guidlines for any particular county were properly irrelevant in the determination of the best correct answer to those questions on this state-wide examination. The Communication Disorders Examination of March/April, 1986, was a valid and reliable test. It was properly administered, and it was graded correctly. It cannot be determined that one more correct answer by Petitioner would have raised her score so that she would have been in the 75th percentile on the examination. The legislature mandated that only persons receiving scores in the top 25 percent would receive merit pay, not that anyone with a score of 75 or better would pass the examination. Once the scores were computed for each candidate, a percentile ranking was then established in order to determine those persons with scores in the top quartile. Petitioner did not rank within the top quartile. No evidence was offered to show that Petitioner's percentile ranking would be effected favorably by her receiving credit for any of her incorrect answers. It is as likely that Petitioner's percentile ranking would have been affected unfavorably or not at all.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Petitioner's appeal of her raw score and percentile ranking on the March/April, 1986, Communication Disorders Examination. DONE and RECOMMENDED this 13th day of June, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Betty Castor, Commissioner Department of Education The Capitol Tallahassee, Florida 32399 Bruce Lamchick, Esquire 10725 Southwest 104th Street Killian Parkway Miami, Florida 33176 Charles S. Ruberg, Esquire Department of Education Knott Building Tallahassee, Florida 32399 Sydney H. MacKenzie, Esquire Department of Education Knott Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1988.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, as the Commissioner of Education, on behalf of the Education Practices Commission, is the state agency charged with the responsibility of disciplining teachers certified by the State of Florida. At all times material to the allegations of this case, Respondent held a Florida Educator’s Certificate, number 615411, covering the areas of physical education and health education which is valid through June 30, 2003. The juvenile justice system operates a facility for incarcerated minor males located in Okeechobee County, Florida. The facility, named the Eckerd Youth Detention Center (Eckerd), contracts with the Washington County School Program to provide educational services for the minor males. At all times pertinent to the allegations of this case, Respondent was employed by Washington County at Eckerd to teach physical education. On or about April 21, 1994, Respondent used inappropriate language toward an employee at Eckerd. Specifically, Respondent called a disciplinary dean a "nigger." During this heated encounter, which was provoked by Respondent, the dean also used inappropriate language toward Respondent and he was subsequently reprimanded for such conduct. Respondent told another employee at Eckerd that the dean "had a body odor that don’t stop." On another occasion, Respondent was unnecessarily loud in accusing an instructor in the Diversified Career Training (DCT) program of providing contraband to one of the students. This incident occurred in the office of the DCT administrator and, despite efforts to get the Respondent to be quiet, resulted in an inappropriate, public accusation of the painting instructor. During the 1993/94 school year, students complained that Respondent called them inappropriate names such as "crack babies." Two Eckerd employees overheard Respondent’s language and confirmed the allegations made by the students. It is not, however, confirmed that all student allegations were accurate. The students at Eckerd were there due to their serious behavioral problems. Many were aggressive. Some were violent. All were deemed less than credible on occasion. Had they been model students, they would not have been placed at Eckerd. Nevertheless, these students were entitled to the same considerations given to all students governed by state rules. That is, they should not be subject to disparaging remarks. Prior to the 1993/94 school year, Respondent was advised that she needed to improve areas of her performance at Eckerd. Specifically, Respondent was told of a need to maintain appropriate interpersonal relationships and to improve in the evaluation of students. Respondent was also advised that her abrasive and inappropriate vocabulary needed improvement. On March 29, 1994, the administrative staff of the Washington County School Board decided to not re-employ Respondent for the following school year. Notification of this decision was provided to Respondent on March 30, 1994. On May 10, 1994, Respondent was suspended from her duties for the remainder of the school year. Respondent argues that the actions of the school to terminate her employment (and inferentially this action) were in retaliation for Respondent’s claims of violations of various requirements concerning exceptional education students. Respondent suggested that various records were not maintained as required by law. Such argument has not been deemed credible or persuasive. Moreover, Respondent’s complaint with regard to these allegations was resolved in favor of the school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order reprimanding Respondent for the violations set forth above, requiring Respondent to take appropriate remedial courses to improve her interpersonal skills, and imposing an administrative fine in the amount of $1000.00. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 4th day of June, 1999. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Bruce P. Taylor, Esquire Post Office Box 131 701 Mirror Lake Drive Apartment 109 St. Petersburg, Florida 33731-0131 Sallie M. Smith 2605 Chesterfield Drive Fort Pierce, Florida 34982
Findings Of Fact Respondent is an employer as that term is used in Section 23.167, Florida Statutes. By memo dated November 6, 1981, all principals in Pinellas County were advised by Seymour Brown, Director, Secondary Placement and Substitute Teachers, that Thomas A. Rateau, Petitioner, was eligible to substitute in their schools as a teacher in business education and mathematics for grades 7 through 12. That substitute teacher offer was conditioned upon Rateau passing the November 11, 1981, physical examination. Rateau passed this examination. The principal at Dunedin Senior High School needed a teacher in business education to complete the semester ending January 25, 1982. He reviewed the applications on file in the office of Dr. Seymour Brown, interviewed Petitioner, and selected Petitioner to fill the vacancy at his school. The principal notified Dr. Brown of his choice and Petitioner was offered a contract for a teaching position in the Pinellas County school system for the 1981-82 school year for a period of 32 duty days beginning November 30, 1981, and ending January 25, 1982, which Petitioner accepted (Exhibit 2). This offer and acceptance were conditioned upon acceptable certification by licensed medical practitioner on a medical information form provided by the Personnel Department (Exhibit 2). At his option Petitioner took the medical information form to his attending physician, Dr. Guiterrez, who, on November 24, 1981, conducted a complete physical examination. Dr. Guiterrez summarized Petitioner's condition as "physically healthy." Following this entry the box checked provided: "Has permanent physical limitations acceptable for this job. Re-examine before transfer to another position." Dr. Guiterrez also completed the School Board form (Exhibit 6) in which he wrote or checked the following: Diagnosis: Status Post-spinal Surgery Prognosis: Fair Medication Prescribed: Bufferin Dosage: Restrictions, If Any: No heavy lifting Eligible To Work: Yes Under My Care: Yes The physical examination conducted by Dr. Guiterrez was forwarded' to the School Board examining physician, Dr. Joseph A. Baird. Dr. Baird had Petitioner complete the medical information part of Exhibit 12. Therein Petitioner acknowledged that he had had back surgery, that he has a current medical problem with his back, that he has received worker's compensation, and that he has physical limitations. In describing his worker's compensation claim (Exhibit 12), Petitioner stated that while employed by the U.S. Postal Service an industrial accident caused by a failure of equipment exacerbated an unknown, pre-existing condition which was determined to be a tumor growing in his spinal column. Surgery subsequently removed that part of the tumor that had grown out of the bottom of his spine. He was terminated by the postal service because he could no longer perform the continually heavy lifting required by his postal service job. Dr. Baird questioned Petitioner about his back problems and learned that if the tumor again grows out of his spine Petitioner may need additional surgery. Dr. Baird observed the scar on Petitioner's back, had Petitioner bend at the waist and checked his knee-jerk reflexes. This examination took less than five minutes. Dr. Baird then contacted Patricia Diskey, Employment Coordinator for the School Board, and discussed with her Petitioner's condition and asked her to provide him with the physical requirements for a teacher of business education in a Pinellas County high school. Following this discussion, Dr. Baird submitted the form letter to the office of Dr. Brown stating simply that Petitioner did not meet the physical requirements necessary for employment in the Instructional Department of the Pinellas County School Board (Exhibit 11). At the hearing Patricia Diskey testified that the job requirements for a high school business education teacher included the ability to do frequent and heavy lifting of typewriters, computer components, and other office equipment used to teach business education; to be able to bend down to clearly see the data processing screen used by the students; to move numerous books from classroom to classroom; to transport equipment to the school's service center several blocks distant, take the equipment into the center for repairs and return with replacement equipment; and to stand for long periods of time. She also testified that business education teachers would be required to lift and move equipment around the classroom weighing up to 100 pounds. However, no evidence was presented that a demonstration of such physical ability was ever required of a business education teacher in the Pinellas County school system. Dr. Baird never includes a muscle-tone test in the examinations he conducts for teacher applicants. Petitioner was not requested to demonstrate his capability or inability to lift equipment used in the classroom. Physically, Petitioner is a well-developed white male. Exhibit 12 shows him 5 feet eleven and one-half inches in height and weight of 225 pounds. He is not obese and gives the appearance of one having greater than average strength normally found in men his age. Respondent presented evidence that it has employed disabled persons, and a list of those handicapped persons employed in Respondent's secondary schools was presented as Exhibit 9. It is noted that the majority of those handicapped employees listed have permanent type disabilities such as blind in one eye, deformed arm, legally blind, uses crutches, part of limb missing, speech impediment, hearing problems, limps, crippled leg, etc. Respondent also presented evidence that persons suffering back problems were hired by the School Board (Exhibit 10), one of whom was a paraplegic confined to a wheelchair, but produced no evidence that it had employed a teacher so handicapped.
