The Issue Whether the Respondent, Kim Littrell, committed the acts complained of and should be terminated from her employment with the School District.
Findings Of Fact The Petitioner, St. Lucie County School Board, is the entity charged pursuant to Florida law to operate, govern and administer school personnel employed by the St. Lucie County School District (Petitioner or School District). At all times material to the allegations of this case, the Petitioner employed the Respondent to serve as a teacher at Westwood High School. The Respondent has been a teacher with the School District for 16 years. At all times material to the allegations of this case, Respondent held a professional services contract with the Petitioner. The Respondent’s seventh-period class on March 5, 2004, was composed of ninth-grade students. The class was designated as a creative writing course. The purpose of the class was to assist students with the Florida assessment known in this record as the “FCAT.” Students in the class were encouraged to develop “critical thinking” skills. Presumably such skills enhance performance on the FCAT examination. The Respondent was responsible for developing the curriculum for the class but was assisted by aides and instructive materials available through the school, the School District, as well as state resources. Although Respondent did not have a textbook for the “critical thinking” component of the class, appropriate resources were available from which appropriate educational materials could be prepared. For the subject lesson (seventh-period class, March 5, 2004), the Respondent elected to offer an assignment that she hoped would encourage “critical thinking.” In substance, the Respondent asked a series of questions and the students were asked to formulate an answer. The title of the subject lesson, “Is Your Mind Clean?” sought to elicit answers that were not profane or “dirty.” Respondent thought the subject lesson would be challenging and “fun.” The Respondent advised the students that none of the answers required the students to answer with profanity or improper language. The students were not supposed to verbally respond to the questions but were to write their answers on a sheet of paper. Although perhaps not verbatim, it is found that Respondent posed the following questions, in substantially this form, to her class during the “Is Your Mind Clean?” assignment: What is a four-letter word that ends in “k” and means the same as intercourse? What is it that a cow has four of and a woman has only two of? What can you find in a man’s pants that is about six inches long, has a head on it, and that women love so much that they often blow it? What word starts with “F” and ends with “u- c-k”? Name five words that are each four letters long, end in “u-n-t” one of which is a word for a woman? What does a dog do that you can step into? What four-letter word begins with “F” and ends with “k,” and if you can’t get one you can use your hands? What is hard, six inches long, has two nuts, and can make a girl fat? What four-letter word ends in “i-t” and is found on the bottom of birdcages? What is it that all men have one of; it’s longer on some men than on others; the pope doesn’t use his; and a man gives it to his wife after they’re married? Inappropriate responses were verbalized during the administration of the assignment. In many instances the most apparent answer to the question posed could be considered profane. The Respondent should have foreseen that students would react inappropriately to the questions. The students thought the assignment was unusual. The assignment made the students feel uncomfortable. Some students were unable to come up with any non-profane response. Some students were fearful their responses would get them in trouble. One student yelled out an inappropriate answer. Some students thought the answers to the assignment were the profane words. Teachers are required to get prior approval from school administrators if they want to use any teaching material that might be considered “controversial.” The Respondent was aware of the procedure to obtain such approval. The Respondent did not get prior approval before delivering the “Is Your Mind Clean?” assignment. When students responded with inappropriate answers, the Respondent laughed. The parent of one of the students complained to the principal regarding the “Is Your Mind Clean?” assignment. The complaint was the first notice the school administrators had regarding the subject lesson. The use of inappropriate words in the Respondent’s class was not permitted. Nevertheless, on more than one occasion the Respondent elected to explain the origins of certain words. For example, the Respondent lectured on the origin of the word “fuck.” Respondent claimed the word was an acronym for “fornication under command of the king” or “for unlawful carnal knowledge.” The Respondent believed that setting the record straight on the origin of the word would take the amusement value out of using the word such that usage would be deterred. Similarly, the Respondent instructed the class regarding the origin of the word “shit.” According to Respondent, historically, it was important that manure be “shipped high in transport.” Manure left in the lower cargo holds created problems. The origins of inappropriate words were not part of the Respondent’s curriculum. Moreover, the Respondent did not have approval to discuss the origins of such words with her class. When the school administration began to investigate the “Is Your Mind Clean?” assignment complaint, the Respondent confronted a student and claimed another student (the first student’s friend whose parent had made the complaint) was trying to get her in trouble. This encounter made the confronted student uncomfortable. The Respondent did not understand that the use of inappropriate words could and did make some students uncomfortable. Additionally, the Respondent did not comprehend that challenging the student about the complaint would also intimidate a student. The Respondent was disciplined in the past regarding her failure to create a learning environment that does not embarrass or disparage students. The Respondent knew or should have known that embarrassing students is not acceptable professional conduct. The Respondent knew or should have known that efforts to intimidate a student are not appropriate. In fact, reprimands issued to Respondent during 2000 cited unprofessional conduct directed toward students. In connection with prior conduct, the Respondent was required to complete a course on professionalism or ethics. The Respondent had a responsibility to protect students from conditions that would be harmful to learning. The Respondent had a responsibility to refrain from exposing students to unnecessary embarrassment or disparagement. After being fully apprised of the facts of this case, the Superintendent recommended that the Petitioner take action to suspend the Respondent from her employment without pay. In fact, the Petitioner approved that recommendation and initiated the instant action to terminate Respondent’s employment. The Respondent timely responded to the action and requested an administrative hearing to challenge the proposed action. The Respondent maintained that the “Is Your Mind Clean?” assignment was a reasonable effort to teach “creative thinking” and that none of the students were unduly embarrassed, disparaged, or humiliated by the assignment. Such assertion is contrary to the persuasive weight of the evidence presented in this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a Final Order sustaining the termination of Respondent’s employment. S DONE AND ENTERED this 1st day of April, 2005, 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 1st day of April, 2005. COPIES FURNISHED: Michael Lannon, Superintendent St. Lucie County School Board 4204 Okeechobee Road Fort Pierce, Florida 34947-0000 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Thomas L. Johnson, Esquire Chamblee, Johnson & Haynes, P.A. 215 West Verne Street, Suite D Tampa, Florida 33606 David Miklas, Esquire J. David Richeson & Associates, P.A. Post Office Box 4048 Fort Pierce, Florida 34948
The Issue The issues to be determined are whether Ms. Patti Guadagno (Ms. Guadagno or Respondent) violated sections 1012.795(1)(a), , or (j), Florida Statutes, and administrative rules,11 as alleged in the Amended Administrative Complaint; and, if so, what is the appropriate sanction?
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Ms. Guadagno holds Florida Educator's Certificate 608587, covering the area of elementary education with an endorsement for English for speakers of other languages (ESOL), valid through June 30, 2020. At all times relevant to the complaint, Ms. Guadagno was employed by the Miami-Dade County School District (District) in Florida, primarily as a teacher at either Douglas or Joe Hall Elementary School. 4. 2/ Ms. Guadagno was notified by certified mail dated March 6, 2012, that the Office of Professional Practices Services of the Florida Department of Education (DOE) had opened investigation Case Number 112-2307 into Ms. Guadagno's The letter did not note that those charges had been dropped about six months earlier. There was testimony from Student - that on one occasion during the academic year, Ms. Guadagno was upset with - and pushed 11111 binder off of - desk. - testified that when. stood up, she then "tossed" the chair to the side. There was no testimony at hearing that a desk was thrown. • was asked about other incidents in which Ms. Guadagno might have thrown a desk, but Student - had no direct knowledge of any: Q. You mentioned in your statement at page 78 that she threw a desk. Was that the same incident? A. No. Q. Okay. It was a separate incident? A. That was, like, a rumor that I heard or--it was a--because, like, all the classes would talk about, like, her and what she would do. So it was, like, someone had--was, like, doing something with a desk and she, like, pushed the desk into him. Q. Okay. A. But I didn't see it, so I don't know. Although the allegation in the Amended Administrative Complaint was that Ms. Guadagno "would throw binders and desks'' during class--suggesting it was a repeated behavior--the only competent witness on this allegation, Studen_t , testified as to only the throwing of a binder. Ms. Guadagno slid or threw Student - • s binder to the floor to embarrass or disparage in an attempt to get Student - to resume working. It was not clearly shown that Ms. Guadagno shoved paper down Student- •s shirt, as alleged. Student - testified at hearing that - saw Ms. Guadagno crumple up some paper and stuff it down Student - •s shirt, saying "she just got frustrated with .. ... This testimony was consistent with Student - • s earlier written statement, provided on May 8, 2012. While - Student - • s written statement, provided on April 9, 2013, did state that Ms. Guadagno shoved a paper in - shirt, this was hearsay and cannot be considered to supplement or explain the live testimony of Studen_t , which involved a different male student. There is no competent evidence as to the allegation involving Student - On , while teaching her fifth-grade class at Douglas, Ms. Guadagno instructed the students to rearrange their desks. Later, when Ms. Guadagno pushed Student - • s desk to get .. to move it back more quickly, some crayons fell. Student - knelt down to pick up the crayons. Ms. Guadagno and Student 1111 may have collided. Ms. Guadagno yelled at Student to get off of the floor and kicked - in the ribs. Student was not injured, stating that, "on a scale of one to ten, it was a four, it wasn't really painful." Ms. Guadagno screamed at the students, telling them they were ''animals" because they left trash on the floor. She was angry, and her face was red. On April 17, April 30, and May 8, 2012, student statements regarding the events of , were taken by police officers of Miami-Dade County Public Schools. In a long letter dated June 20, 2012, addressed to the Office of Professional Standards, Ms. Guadagno gave her version of the events of While this letter, admitted as Exhibit P-3, was identified by Petitioner as "Respondent's DOE Letter," it is not at all clear that this letter was submitted to DOE. In fact, considering when it was dated and how it was addressed, it appears more likely that it was submitted to the Office of Professional Standards of the Miami-Dade County Public Schools rather than the Office of Professional Practice Services of DOE. In this statement, Ms. Guadagno denied that she had kicked a student. She stated that she was under the impression that the investigation was to be closed due to inconclusive findings. She pointed out several discrepancies in student statements. She stated her belief that Student - made up the incident in retaliation for earlier discipline taken against 111111, specifically the writing of llll name on the board, which she claimed had the effect of making 1111 ineligible to go on an end- of-year trip to Disney World. She also noted that the students had time to fabricate their statements. In a "Conference for the Record" memorandum dated June 29, 2012, Dr. Milagros Hernandez, district director, reviewed Ms. Guadagno's employment history, summarized the investigative report of the April 16, 2012, incident, and advised Ms. Guadagno that District authorities would provide her with formal notification of disciplinary action. The memorandum also advised her that the investigative information would be provided to DOE for possible licensure action. In a letter dated August 30, 2012, Ms. Guadagno advised Ms. Ana Rasco, administrative director of the Office of Professional Standards of the Miami-Dade County Public Schools, that she agreed to accept a 30-workday suspension without pay in lieu of dismissal. On September 5, 2012, the Miami-Dade County School Board voted to suspend Ms. Guadagno from her teaching position at Douglas for a period of 30 workdays. It is not clear from the evidence at exactly what point the DOE case was expanded beyond the allegation of to include the incident of However, Mr. Clinton Albritton, investigator for the Department of Education, witnessed several student statements that were executed on April 9, 2013. On June 10, 2013, Principal Rodriguez provided an e-mail to Mr. Albritton, briefly describing what he knew of the kicking allegation and advising that Student - was a standard academic student with no outstanding behavior issues, but noting that Ms. Guadagno had prior issues that had been addressed through the Miami-Dade Office of Professional Standards. Then, by certified letter from DOE signed by Mr. Albritton dated June 12, 2013, Ms. Guadagno was afforded the opportunity to review materials collected and prepared in the investigation of Case Number 112-2307 and to submit documents to refute, explain, or mitigate the charges of misconduct against her. The letter also advised that an informal conference had been scheduled on July 1, 2013, to give her an opportunity to respond to the allegations. However, the letter did not describe the nature of the charges being investigated by DOE. While there is no evidence that she participated in an informal conference on July 1, 2013, Ms. Guadagno testified in her deposition that she participated in some sort of conference on July 12, 2013, and testified that she did submit a response. No copy of any submission by Ms. Guadagno in response to this opportunity appears in the record. About seven months later, on January 17, 2014, Ms. Guadagno signed an application for renewal of her educator's certificate, which was scheduled to expire on June 30, 2015. The application included numerous questions to be answered by checking blocks marked "Yes" or "No." Ms. Guadagno's application indicated a "no" response to the following two questions: Do you have any current investigative action pending in this state or any other state against a professional license or certificate or against an application for a professional license or certificate? Do you have any current disciplinary action pending in this state or any other state against a professional license or certificate or against an application for a professional license or certificate? The final page of the legal disclosure portion of the application for renewal contains the statements: I do hereby affirm by my signature that all information provided in this application and supplement is true, accurate, and complete. Warning: Giving false information in order to obtain or renew a Florida Educator's Certificate is a criminal offense under Florida Law. Anyone giving false information on this affidavit is subject to criminal prosecution, as well as disciplinary action by the Education Practices Commission. It is uncontested that Ms. Guadagno signed her name in the space provided immediately below these statements, and dated the form January 17, 2014. In her deposition of March 3, 2015, Ms. Guadagno testified that she knowingly answered these questions in the negative: Q: I would refer you to the last two questions. Uh-huh, which I know, absolutely. Q: And the no box is checked; is that correct? A: Uh-huh, that is correct. Q: That was your intention at the time? A: That was my intention. I had phoned my attorney and asked him what I would check in that situation and he had required that checking no was absolutely correct. Q: Which attorney was this? A: Branden Vicari. Later, following a ruling that Ms. Guadagno had waived any attorney-client privilege with respect to communications from or to her attorney regarding her responses to these two questions,31 Mr. Branden Vicari testified that he could not recall whether or not he had a conversation with Ms. Guadagno regarding the renewal of her application. The following colloquy then took place: Q: Okay. Well, the bottom line here is that she claims that you told her to answer those questions in the application. Do you recall telling her-giving her advice to that effect? A: I could say with 100 percent certainty that I did not give her advice to check off no on the two questions in question. Q: And why is that? A: I - I - well, I could tell you what I would have advised her if I did have a conversation with her. Q: All right. A: That would've been Q: But you would not have advised her to answer no? A: That's correct. Ms. Guadagno's testimony that Mr. Vicari advised her to answer the two questions "no" is not credible, and his testimony that he would not have given her that advice is credited. Ms. Guadagno's testimony during both her deposition and at hearing was argumentative, evasive, and generally not at all credible. At the time Ms. Guadagno was completing her renewal application, it is unclear whether the investigation was still ongoing or whether the investigation phase had ended and the decision to take disciplinary action had already been made. More significantly, there is no evidence in this record to indicate that Ms. Guadagno knew the status of the case against her. It was clearly shown, however, that Ms. Guadagno gave those answers in her application in order to obtain her license renewal with reckless disregard for the truth. Although Ms. Guadagno had already been suspended without pay for 30 days by Miami-Dade County Public Schools for the April 16, 2012, incident, and had completed that suspension over a year before, she knew at the time of her application that the District and DOE were separate entities. PRIOR HISTORY Ms. Guadagno has been employed by Miami-Dade County Public Schools for about 29 years. During that time, she has received many positive comments and accolades from her superiors in observation reports and performance reviews. The only "developing/needs improvement" rating in evidence was received by Ms. Guadagno in the category of "professionalism'' during the 2011- 2012 academic year, based upon district disciplinary action for some of the incidents discussed here. Since her subsequent transfer, at her request, to Joe Hall Elementary School, she has received only "effective" and "highly effective" ratings . Several letters were admitted into evidence from appreciative students and parents from various times throughout her teaching career, praising her for her teaching skills and dedication to students.
Conclusions For Petitioner: Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316 For Respondent: Melissa C. Mihok, Esquire Melissa C. Mihok, P.A. 201 East Pine Street, Suite 445 Orlando, Florida 32801
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission issue a final order finding Respondent, Patti Guadagno , in violation of sections 1012.795(1)(a) and (j), Florida Statutes , and Florida Administrative Code Rules 6B-1.006(3)(a) and (e) and 6A- 10.081 (5)(a) and (h). It is FURTHER RECOMMENDED that the Education Practices Commission suspend her educator's certificate for a period of one year. DONE AND ENTERED this 12th day of June, 2017, in Tallahassee, Leon County, Florida. F. SCOTT BOYD 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.s tate.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2017.
The Issue The issues in this case are whether Respondent, Debra E. West, a middle school teacher, made inappropriate or disparaging remarks to her students or exposed them to unnecessary embarrassment or disparagement; whether she failed to correct performance deficiencies; and, if so, whether the proposed penalty of dismissal is reasonable.
Findings Of Fact Respondent has been employed as a teacher in the Pinellas County School District since August 20, 1991. The allegations which are the subject of this case arose while Respondent was teaching sixth-grade physical education and health at Azalea Middle School (Azalea). Most of Respondent's students at Azalea are 12 years old. Before becoming a teacher at Azalea, Respondent was a physical education teacher at Gibbs High School. In 2001, the School Board administratively transferred Respondent to Azalea from Gibbs High School to provide Respondent a "fresh start," following numerous complaints from parents beginning in 1997 about Respondent's making inappropriate remarks to students and disclosing student grades at Gibbs High School. In 2003, the commissioner of education brought disciplinary action against Respondent for her alleged violations of state statutes and rules governing teachers during the time she was a teacher at Gibbs High School. On March 2, 2004, following an evidentiary hearing conducted by DOAH, the Education Practices Commission issued a Final Order suspending Respondent's educator's certificate for the 2004 summer session and placing Respondent on probation for two years. In his Recommended Order in the earlier case against Respondent, the Administrative Law Judge made the following findings: Respondent made derogatory comments to students during the [2000-2001] school year. The derogatory comments included terms such as: fat, little slacker, stupid, sorry bunch of kids, Gomer Pyle, and Dutch Boy. Respondent asked one of her students, "What's a black boy doing with a Dutch last name?" Respondent asked another student if the student was tired from walking the streets at night and called her "sleeping booty." * * * Respondent has made derogatory comments to students in previous school years. * * * Respondent read student grades aloud in class without the permission of the affected student in violation of District policy. Respondent also read the names of students receiving a grade of "A," "B," or "C" thereby disclosing the [identity] of students with lower grades. * * * Respondent has a history of disclosing student grades in class. * * * Respondent read to the class the grades of [five students]. Each had failing grades. Respondent passed a test completed by A.S. down a row of students so that each student could see the test score on the front of the test and stated audibly that the only thing A.S. "got right" on the test was the date. The comment embarrassed, upset, and humiliated A.S. At Azalea, parents continued to complain that Respondent was making disparaging remarks that upset and embarrassed their children. The complaints resulted in multiple conferences between Respondent and Azalea administrators and, ultimately, to her receipt of poor performance evaluations and official reprimands. Numerous students were transferred out of Respondent's classes at the request of parents whose children had complained to them about Respondent. On November 28, 2005, Superintendent Wilcox notified Respondent by letter of his intent to recommend to the School Board that Respondent be dismissed. At the School Board's meeting of December 13, 2005, the School Board accepted the superintendent's recommendation for dismissal. Respondent was suspended without pay beginning December 13, 2005, pending the outcome of this administrative proceeding to review the School Board's action. "Tiny Tot," "Shrimphead," and "Dumbo" T.J., who is small for his age, stated that Respondent called him "tiny tot" and "shrimphead," which embarrassed and upset him. T.J. also said Respondent called him "dumbo." Respondent denies calling T.J. by these names. No other student who testified at the final hearing said they heard Respondent call T.J. "tiny tot," "shrimphead," or "dumbo." No other student claimed that Respondent called him or her by one of these names. The evidence was insufficient to prove that Respondent called any student by another derogatory name. The only corroborating evidence presented by the School Board was the hearsay testimony of T.J.'s stepmother who said T.J. told her that Respondent called him by these names. Although T.J. might have been telling the truth,1 his testimony with regard to these insults, standing alone and taking into account his demeanor, was not persuasive. The School Board, therefore, failed to meet its burden to prove that Respondent called T.J. "tiny tot," "shrimphead," or "dumbo." "You must have studied in the dark." Respondent admits that she made the comment, "You must have studied in the dark," to T.J. and to other students on occasion, but denies that it was ever meant to disparage or to embarrass the students to whom the comment was directed. Of all the disparaging comments that Respondent is alleged to have made, this one is the most innocuous. It is difficult to imagine how teachers could be held to a standard of refraining from any comment of this kind or risk dismissal. However, many otherwise innocuous comments, if made in a disrespectful tone of voice, can be disparaging and can embarrass a student. The testimony from the parents of several students was hearsay with regard to what Respondent said to their children, but it was not hearsay with regard to the parents' observations of the emotional distress that Respondent caused to their children. The emotional distress reported by the parents and which resulted in numerous complaints made to Azalea administrators about Respondent's comments, therefore, is persuasive evidence that Respondent's comments were often made in a tone of voice and under circumstances that caused the students to feel disparaged and embarrassed. "Take your grow up pill." T.J. also stated that Respondent told him in front of his classmates to “Take your grow-up pill.” He took this comment to be a reference to his small size, and he said the comment upset and embarrassed him. Respondent concedes that she told T.J. that he "needed to grow up" because he was acting immaturely by frequently failing to bring his folder to class, but that she did not intend to belittle T.J. because of his size. Respondent, herself, is of small stature. Respondent told other students to "Grow up" from time to time when she thought they were acting immaturely. The preponderance of the evidence supports Respondent's contention that her comment to T.J. was not intended to belittle him for his small size. A teacher's comment to "Grow up," or even to "Take a grow up pill," is a relatively innocuous comment that under ordinary circumstances should not cause a student to feel disparaged unless they are particularly sensitive. However, like the comment "You must have studied in the dark," the tone of voice used and other circumstances could make any student perceive the comment as disparaging and cause them to be embarrassed. "Dumb boys make dumb babies." Several students testified that Respondent made the comment “Dumb boys make dumb babies” during her health class in the fall of 2005. Respondent admits making this comment and explained that it was intended to make her students think about the consequences of the choices they make in life. Respondent denies directing the comment to T.J. or to any other student in her class to indicate that she thought the student was dumb. This comment is another example of Respondent's habit of making a comment by which she intends to convey a legitimate message with humor, but using words that also convey disparagement. The School Board's evidence was not persuasive that Respondent directed this comment to T.J. or any other student in her class to indicate she thought that student was dumb. However, the comment, even as explained by Respondent, was inappropriate because it indicated that Respondent had a low opinion of certain boys that "hung out" in the lunch room. Although Respondent's intended message was a good one, it is never appropriate for a teacher to refer to any student as being dumb. Respondent presented the testimony of other teachers and school employees who said they sometimes observed Respondent's classes and never heard Respondent make inappropriate comments to her students. That evidence was not sufficient to rebut the School Board's evidence that Respondent made the inappropriate comments discussed above because the comments could have been made, and evidently were made, at times when Respondent was not observed by these other teachers and school employees. There was other evidence presented by Respondent to show that she has a number of good teaching skills and is appreciated and even loved by many of her students. That evidence is accepted as credible, but is not inconsistent with the charge that she made inappropriate and disparaging comments to some of her students. Telephone Calls to Parents During Class While teaching at Gibbs High School, Respondent would occasionally make a telephone call to parents during class, which Respondent considered to be an effective "classroom management technique," in the presence of students Connie Kolosey, an assistant principal at Azalea and Respondent's supervisor, said that when she discovered that Respondent had called a parent from the classroom, she directed Respondent not to do it anymore. Respondent admits that Ms. Kolosey told her that making calls to parents during class was "not done at Azalea," but Respondent claims she was not told to stop. The School Board presented evidence to prove that Respondent continued to call parents from her classroom to discuss their children's low grades or misbehavior in a manner that allowed students to hear the conversations or, at least, to know which students were the subject of the conversations. Respondent said she never called parents during class time. She said that she sometimes called parents from the telephone in her classroom, but not during class time. Respondent also denied ever divulging confidential information about a student in front of other students. However, there appeared to be agreement that, on one occasion, a student, J.T., called his mother during class and then handed the telephone to Respondent so she could talk to his mother. Even under Respondent's version of the event, having the telephone conversation with J.T.'s mother during class and within sight and hearing of the other students was inappropriate and reasonably calculated to embarrass J.T. In another incident in which the mother of a student complained that she was called by Respondent about her child during class, Respondent told Theresa Anderson, the principal of Azalea, that the call was not made during class. However, Ms. Anderson later discovered that Respondent had not made the call from a certain school phone as Respondent had claimed, but from Respondent's own cell phone. Respondent's version of the event, therefore, is discredited, and the more persuasive evidence establishes this as a second instance in which Respondent called a parent during class, which exposed the student to unnecessary embarrassment. Respondent admitted that she would occasionally pretend to call a parent from the classroom as a classroom management technique. According to Respondent, instead of actually calling a parent, she would dial her own mother's phone number or no number at all and then pretend to have a conversation about the low grade or misbehavior of a student. Although Respondent did this in a manner that purposely allowed her students to see her make the call and to hear enough to know that Respondent was having a serious discussion with a parent about a student, Respondent denies that any student in her class knew whose parent she was pretending to call. That claim is not credible because, unless Respondent made these pretend calls in conjunction with an event related to a student's low grade or misbehavior, it would not serve its purpose as a classroom management technique. In other words, it is more likely that when Respondent made a pretend call to a parent, the students in her class had some idea which student was in trouble and why.2 This practice of Respondent, therefore, was inappropriate and exposed students to unnecessary embarrassment. Discussing Low Grades in the Classroom Respondent denied ever divulging student grades in class but admitted that she rewarded students who received A's and B's by calling them to the front of the class and awarding them “Azalea bucks.” Students who received A’s were given two Azalea bucks, and students who received B’s were given one Azalea buck. Azalea bucks could be redeemed for ice cream. By calling up the A and B students, Respondent created a situation in which the students who made lower grades were also identified. No evidence was presented by the School Board about its policies regarding the recognition given to students who make good grades. The School Board did not dispute that Azalea identifies honor roll students. Any time that a school recognizes students for their academic achievement, that recognition will necessarily have the effect of identifying the students who have not done as well. That is a reasonable consequence and does not cause the recognition of the best students to be an act of disparagement against all the other students. Students N.R. and J.G. said Respondent read student grades out loud in class. J.G. said Respondent read the grades of students who received D’s and F’s. N.R. said Respondent would line students up according to the grades they got. Their testimony was persuasive to prove that Respondent conducted her classes in such a way that student grades, including low grades, were sometimes made known to other students. Failure to Correct Performance Deficiencies Administrative officials at Azalea spent a considerable amount of time responding to complaints from parents about Respondent, investigating allegations against her, as well as counseling and disciplining Respondent. Three consecutive "success plans" were developed for Respondent in an attempt to change her style of speaking to students to eliminate the disparaging remarks and to prevent any further disclosure of a student's low grade. When the findings of the prior administrative hearing involving Respondent's problems at Gibbs High School are compared to the findings set forth above regarding Respondent's problems at Azalea, it appears that Respondent's latest infractions are less egregious. However, Respondent's deficiencies have not been corrected. It is significant that Respondent's deficiencies have been moderated only a small degree from the past despite her being on probation and repeatedly disciplined. Although slightly moderated, Respondent's deficiencies continue to upset students, cause numerous complaints to be made by parents, and create considerable inconveniences for school administrators. Two assistant principals at Azalea and an administrator in the Pinellas County School District's Office of Professional Standards were all of the opinion that Respondent is ineffective as a teacher due to her performance deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County School Board issue a final order finding that Respondent violated School Board policies set forth in Sections 8.25(1)(n), (t), and (x) and dismissing her from her employment with the School Board. DONE AND ENTERED this 13th day of December, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 13th day of December, 2006.
The Issue Whether Carl G. Bott, Jr., is guilty of immorality, misconduct in office and/or gross insubordination?
Findings Of Fact During the period of time at issue in this proceeding, Carl G. Bott, Jr., was an employee of the School Board of Putnam County under a continuing contract. Mr. Bott has been employed as a teacher for approximately ten years. Mr. Bott was a teacher and Dean in the County Alternative School Program during the 1984-1985 through 1988-1989 school years. During the 1984-1985 and the 1985-1986 school years the County Alternative School Program was located on the second floor of the Campbell Administrative Building. The County Alternative School Program was renamed the District Opportunity Center and was located on the Davis Lake Road side of the campus of E. H. Miller School during the 1986-1987, school year. Mr. Bott continued to work at the District Opportunity Center during the 1987-1988 school year and part of the 1988-1989 school year. During the 1984-1985 through 1988-1989 school years Diane Wilkinson was employed as a secretary for the County Alternative School Program and the District Opportunity Center. Mr. Bott was her immediate supervisor and prepared Ms. Wilkinson's evaluations during this period of time. During the 1984-1985 and 1985-1986 school years Mr. Bott was in charge of the County Alternative School Program. During the 1984-1985 and the 1985-1986 school years Mr. Bott made comments to Ms. Wilkinson of a sexual nature. In particular, Mr. Bott told Ms. Wilkinson that she had a nice ass, but that [her] stomach needed to be tightened up; and he also made statements in regard to women's nipples showing through their clothes, that's a real turn on to him, for women to get cold on for their nipples to show through their clothing.." Page 199, lines 113-17, Transcript of Administrative Hearing. Sometime during the 1985-1986 school year Mr. Bott intentionally placed his hand on Ms. Wilkinson's right breast without permission, warning or provocation. Mr. Bott's act was a sexual advance toward Ms. Wilkinson. This incident occurred while Mr. Bott and Ms. Wilkinson were in Ms. Wilkinson's small office discussing business. When Mr. Bott touched Ms. Wilkinson, she said nothing and looked at him with a shocked expression. When Ms. Wilkinson did not respond to his advance, Mr. Bott removed his hand and left the room. Ms. Wilkinson did not report the incident to anyone. Nor was anything said about the incident by Ms. Wilkinson or Mr. Bott. Approximately six to nine weeks before the County Alternative School Program was moved to Davis Lake Road, Mr. Bott came into Ms. Wilkinson's office where she was typing, walked up behind her and reached over her shoulders and intentionally touched her breast from behind without permission, warning or provocation. Again, Ms. Wilkinson said nothing. She looked at him with a shocked expression and Mr. Bott then removed his hand and left the room. On the same day that the second incident occurred, Ms. Wilkinson called Evie Shellenberger, the Director of Personnel for the Petitioner, and set up an appointment for the next day to report the incident. The day after the second incident, Ms. Wilkinson told Mr. Bott that I can have your teaching certificate lifted for sexual harassment if you ever touch me again . Page 205, lines 9-10, Transcript of Administrative Hearing. Mr. Bott told Ms. Wilkinson that he realized that she was correct, he apologized to her and promised it would never happen again. Ms. Wilkinson kept her appointment with Ms. Shellenberger and reported both incidents. She did not, however, file a sexual harassment charge against Mr. Bott. Ms. Wilkinson did not file charges because Mr. Bott had apologized and promised not to touch her again and she did not want to harm his family or his career. Ms. Wilkinson was concerned for Mr. Bott because he had a son who had been sick and Mrs. Bott had had cancer. After moving to Davis Lake Road, Mr. Bott continued to make inappropriate comments to Ms. Wilkinson of a sexual nature. The frequency of the statements increased, especially during the 1987-1988 school year. In particular, Mr. Bott made the following statements to Ms. Wilkinson: That he had been a virgin until he was 21 years old, and therefore "he needed to get all the sex he could possibly get to make up for lost time." That he masturbated in the shower with hand cream. That he had had a wet dream about her and he had to get up and clean himself up and clean the sheets up. That "he had had a dream about [them] being in the back seat of a car and that [they] had made love, and that he had climaxed all over the bed, and that it seemed so real to him that he could even smell [her] cologne." That he had calluses on the palms of his hands from masturbating. That "he could really satisfy me [Ms. Wilkinson] sexually without his teeth, and that he knew how -- he could gum me [Ms. Wilkinson] to death, and that he really knew how to satisfy women without his teeth in." That his wife "was so fat and so ugly that he had a hard time making love to her, and that he had to really fantasize when he was having sex with her, to pretend he was with someone else instead of her, because she had dimples in her ass and she was so fat and so overweight it was like she had two sets of breasts, one in the front and one in the back behind her armpit in regard to a fatty kind of area on her." That "I intend to have you [Ms. Wilkinson] in bed before we go our separate ways." That he had made love with a woman (not his wife) in his boat and he had been afraid that he was not going to be able to get his clothes on before the Florida Marine Patrol caught him. That he needed "a piece of ass from someone 18 to 21 years old because he didn't want to get too old to go out and enjoy it." The more explicit sexual statements Mr. Bott made to Ms. Wilkinson were not made continuously. There would be periods of time when he would not make such statements. There were, however, periods of time when the types of statements quoted above would be made and then he would be quiet again. Ms. Wilkinson did not ask Mr. Bott to stop making the statements. She also did not tell anyone about the statements Mr. Bott was making to her. In approximately March, 1988, Ms. Wilkinson did talk to Rita Moody, president of the union to which Ms. Wilkinson belonged, about changing positions and informed her of Mr. Bott's behavior. There were not any positions available, however, and Ms. Moody suggested that Ms. Wilkinson should not "open a can of worms" by reporting the incidents. Despite the incidents related above involving Mr. Bott and Ms. Wilkinson, Ms. Wilkinson and Mr. Bott were friendly to each other and discussed personal matters as well as matters related to their work. They ate lunch with each other on occasion and Mr. Bott gave Ms. Wilkinson rides to and from her home and the office on occasion. Ms. Wilkinson also actively assisted Mr. Bott in protecting the program they worked in and assisted him in remaining with the program because she considered him an asset to the program. At the beginning of the 1986-1987 school year, Jean Herring was assigned as an Assistant Principal in charge of the District Opportunity Center. Ms. Herring was Mr. Bott's immediate supervisor during the 1986-1987 school year. Because Mr. Bott had previously been in charge of the program, he had some resentment about Ms. Herring's position. During the Spring of 1988, Ms. Herring received a complaint from Dana Hales, a female student at the District Opportunity Center. Ms. Hales alleged that Mr. Bott was using inappropriate language and discussing inappropriate topics with female students. (See findings of fact 23 and 24). Ms. Hales indicated that she felt uncomfortable in one-on-one counseling sessions with Mr. Bott. Based upon this complaint, Ms. Herring directed Mr. Bott not to conduct any one-on-one counseling sessions with female students without including Ms. Herring in the session. The next morning, Ms. Herring discovered Mr. Bott conducting a one-on-one counseling session with a female student in violation of her directive to him. Ms. Herring did not see Mr. Bott violate the directive again. Dana Hales complained to Ms. Herring because of statements Mr. Bott made to her of a sexual nature. Those statements included a statement "that he had an affair with a young girl from where he came from before and that he wished he could find a young girl here that he could trust that ... would not tell anyone." Page 142, lines 5-8, Transcript of Administrative Hearing. Mr. Bott also made comments to Ms. Hales concerning his wife. Mr. Bott told Ms. Hales that his wife "was ugly and that she was fat, and in the morning like in the daylight that she was very ugly and unattractive." Page 142, lines 15-17, Transcript of Administrative Hearing. Tonnette Sanders moved to Putnam County after the 1987-1988 school year had begun. Therefore, she was placed in the District Opportunity Center. She was not placed there for disciplinary reasons. Ms. Sanders was approximately 17 or 18 years of age. Mr. Bott was not one of Ms. Sanders' teachers. Mr. Bott and Ms. Sanders did become friends, however, and Mr. Bott provided counseling to Ms. Sanders. While walking into an office together, Mr. Bott patted Ms. Sanders on her buttocks. Ms. Sanders believed that the touching was a sexual advance and it made her feel uncomfortable. Ms. Sanders did not return to school for several days after the incident because she was upset. When she did return, Mr. Bott apologized to her for his action. Mr. Bott also told Ms. Sanders that she was the nicest looking black girl he had had ever seen." Cynthia Bartrum Schmurmand attended the District Opportunity Center during the 1986-1987 school year. Ms. Schmurmand was 14 or 15 year of age at the time. Mr. Bott provided GED preparation training approximately 45 minutes a day to Ms. Schmurmand and other female students. Initially there were four or five students who attended the sessions. Eventually, however, only Ms. Schmurmand and another student, Wendy Parker, attended the sessions. Mr. Bott did not always provide instruction to Ms. Schmurmand and Ms. Parker. Instead, Mr. Bott, Ms. Schmurmand and Ms. Parker would just talk. During these conversations, Mr. Bott told Ms. Schmurmand and Ms. Parker that he had been out with girls their age. He also told Ms. Schmurmand and Ms. Parker that they could get older and more mature men. Mr. Bott offered to take Ms. Schmurmand and Ms. Parker out on his fishing boat with the permission of their parents. Mr. Bott told them that "they would get some beer" even though Mr. Bott knew that they were not of legal drinking age. Mr. Bott allowed Ms. Schmurmand and Ms. Parker to smoke cigarettes in his office during at least one of the sessions. Mr. Bott provided the cigarettes. The use or possession of tobacco or tobacco products on school grounds was prohibited. Mr. Bott warned the students that if they ever let anyone know that they had been allowed to smoke, he would get into trouble and so would they. In addition to Mr. Bott's duties at the District Opportunity Center, he also taught health classes until December 1988 and for approximately three years preceding the 1988-1989 school year at the St. Johns River Community College. The courses taught by Mr. Bott were extra-credit classes taken by senior high students who needed additional credits to graduate from high school. During the Fall of 1988, Mr. Bott's health class was first aid. The class met from 3:30 p.m. until 6:00 p.m. on Monday and Wednesday. The students who attended the class were from Palatka High School and were 17 years of age or older. During the Fall of 1988, Mr. Bott made inappropriate statements to, or engaged in inappropriate conduct in front of, students in his first aid class as follows: Mr. Bott told students that his wife used to have a "nice ass" and "boobs" or "big melons", and now she is "fat and ugly." Mr. Bott wore a pin during class on his shirt which had the following words printed on it: "Sex Cures Headaches." Mr. Bott wore the pin for approximately thirty minutes. When a student asked about the pin, Mr. Bott took it off and indicated that he had forgotten he had it on. While discussing body lice, Mr. Bott told the class that he had once had "crabs." He indicated that he did not know how he had gotten them, implying that he had been involved with several different women. Mr. Bott cussed in front of the students. He used the words "dam", "ass", "bitch", "God damn" and "fuck." On one occasion Mr. Bott, while waking a student up, told the class that males have sexual fantasies every eleven minutes. Mr. Bott, while discussing the subject of drugs, told the class that marijuana makes women want to have sex or that smoking marijuana makes sex better. Mr. Bott told the students a story about a boy and girl who were riding in an automobile with the gear shift located on the floor of the automobile between the two front seats. Mr. Bott indicated that the boy was driving and the girl was sitting on a pillow between the two front seats. Mr. Bott told the class that the automobile was involved in a wreck or stopped suddenly for some other reason and that the gearshift "went up the girl" or that the "gearshift jammed up in her" and that "she took it whole." Mr. Bott also told the students a story about two couples who were riding in an automobile. Mr. Bott indicated that one couple was in the back seat of the car and they were "making out." Mr. Bott then told the class that the automobile was involved in a wreck and the boy "bit the girl's nipple off." He also said that the boy "swallowed it" and that the nipple was "a beautiful one." Mr. Bott also told this story during the 1987-1988 school year. Mr. Bott, while discussing genital injuries, told the class that he knew of a man who had sustained a genital injury. Mr. Bott stated that "his balls swelled up" and that they "were the size of baseballs." Mr. Bott told the class that "oysters put lead in the pencil." During the 1987-1988 school year, Dana Hales attended Mr. Bott's health class. Ms. Hales was walking to her automobile after one class when Mr. Bott told her that she "had the [tits or breasts] of a 25 year old." Mr. Bott also told Ms. Hales during the 1987-1988 school year that she would "stand out more" if she lost some weight. Mr. Bott was referring to Ms. Hales' chest when he made this statement. Vanessa Armster was an eighteen-year-old student at Palatka High School during the Fall of 1988. Ms. Armster attended Mr. Bott's health class during the Fall of 1988. In November, 1988, Ms. Armster missed four classes, in violation of Mr. Bott's policy that students could only miss three or less classes in order to pass the class. Mr. Bott, in deviation from his policy concerning absences, told Ms. Armster that she could make up her fourth absence by coming to his classroom at the District Opportunity Center after school the day after her fourth absence. Ms. Armster had a friend take her to the District Opportunity Center at 3:00 p.m. Mr. Bott gave her work to perform. Most of the time that Ms. Armster was at the District Opportunity Center no one was present in the room with her except Mr. Bott. While Ms. Armster was performing the work given to her by Mr. Bott, Mr. Bott made the following comments to her: Mr. Bott told Ms. Armster that he was scared for her to come to the District Opportunity Center because "he didn't know how he was going to react." Mr. Bott asked Ms. Armster "are those for real?" Mr. Bott was referring to Ms. Armster's breasts. Ms. Armster took these comments to be sexual in nature. Ms. Armster, as a result of Mr. Bott's comments, felt uncomfortable and scared in a one-on-one situation with Mr. Bott. The person who was suppose to give Ms. Armster a ride home did not arrive when she was ready to leave. Mr. Bott offered to give her a ride and Ms. Armster accepted. As Mr. Bott and Ms. Armster left the building, Mr. Bott noticed a football team practicing nearby and said that "someone might think something." Mr. Bott and Ms. Armster got into his pick-up truck. While in the truck Mr. Bott was telling Ms. Armster something about a heart attack and was referring to an area of his chest or side. While trying to indicate a location on his body, Mr. Bott moved his hand toward Ms. Armster. Ms. Armster jumped back when Mr. Bott moved his hand toward her. When Ms. Armster jumped, Mr. Bott said "oh, you just thought I was going to touch there" and intentionally put his hand on Ms. Armster's right breast. When Mr. Bott touched Ms. Armster she jumped back and he laughed. Following this incident, Mr. Bott dropped Ms. Armster off. Mr. Bott's actions have affected the way in which students view him as a teacher. In addition to the effects of Mr. Bott's actions already noted, Mr. Bott's actions had the following effects: At least two students perceived that Mr. Bott looked at Ms. Armster differently than he looked at other students; and Various students in Mr. Bott's health class found many of the sexual statements and incidents to be inappropriate and, in some cases, offensive and embarrassing. Mr. Bott's preoccupation with sexual matters was further evidenced by the following incidents which occurred during the period of time at issue in this proceeding: Mr. Bott told Beverly Emmons, a secretary at E. H. Miller School, that he like the blouses that Debbie Thomas, a teacher's aide, wore because her nipples stuck out. Mr. Bott made a comment about Debbie Thomas nipples being hard while she was lifting weights. This comment was made in front of Ms. Thomas and Diane Alred, an adaptive physical education teacher. Mr. Bott also patted Ms. Thomas on the buttocks. Mr. Bott was suspended with pay by the Superintendent of the Petitioner on December 2, 1988. At a regularly scheduled meeting of the Petitioner on December 5, 1988, Mr. Bott was charged with immorality, misconduct in office and gross insubordination and was suspended without pay. By letter dated December 5, 1988, Mr. Bott requested a formal administrative hearing.
Conclusions The District School Board of Putnam County hereby adopts and incorporates by reference the Conclusions of Law set forth in the Recommended Order. Based on the foregoing, and the recommendation made by the Hearing Officer in the above styled case, it is ADJUDGED that Carl G. Bott, Jr., is guilty of immorality and misconduct in office in violation of Florida Statutes Section 231.36(4)(c) and, accordingly, his suspension without pay from December 5, 1988 through January 5, 1990 is affirmed; it is further ADJUDGED that Carl G. Bott, Jr. is dismissed from his employment with the District School Board of Putnam County effective the date of this Order. DONE AND ORDERED this 12th day of January, 1990, in Palatka, Florida. District School Board of Putnam County Elaine Murray, Chairman
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued in this case finding that Carl G. Bott, Jr., is guilty of immorality and misconduct in office in violation of Section 231.36(4)(c), Florida Statutes, and dismissing him from his employment with the Petitioner. DONE and ENTERED this 21st day of November, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0572 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-4, 34. 2 39. 3 40. 4 41. 5 42. The last two sentences are cumulative and unnecessary. 6 See 42-44. 7 Hereby accepted. 8 44. Not relevant to this proceeding. See 50. The last sentence is not supported by the weight of the evidence. 11 45. 12 46. 13 47. 14 49. 15-27 These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order. 28 Hereby accepted. 29a 36b. 29b 36f. 29c 36j. The last sentence is not supported by the weight of the evidence. 29d 36i. 29e 36a. 29f 36c. 29j 36g and h. 29h 36e. 29i Not supported by the weight of the evidence. 29j 36d. 30 50. 31-33 See 50. These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order. 36h, 37-38. The statements were made, however, in 1987 and not in 1988. Not supported by the weight of the evidence. Hereby accepted. 37 2 and 22. 38 22. 39 23. 40 22. Hereby accepted. 22 and hereby accepted. 43 21-22. 44 22. 45 Hereby accepted. 46-49 Not relevant to this proceeding. 50 Hereby accepted. 51-54 Not relevant to this proceeding. 55-56 25. 57 26. 58-59 27-28. 60 29. 61 30. 62 29-30. 63 See 31. 64 32. 65-66 33. 67 Not relevant to this proceeding. 68 31. 69 50. 70 3-5. 71 2 and 5. 72 5. 73 7. 74 Hereby accepted. 75-77 8. Ms. Wilkinson did engage in personal and sexual conversations with Mr. Bott. 78 8-9. 79 10. 80 11. 81 11-12. 82 Hereby accepted. 83 13. 84 14. 85 15. 86 16. 87 16-17. 88 18. 89 19 and hereby accepted. 90-91 Hereby accepted. 92 51. The last two sentences of 92b are rejected as hearsay. 93-101 These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order. 102-104 Hereby accepted. Mr. Bott's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection See 50. Not relevant to this proceeding. 34 and 36 c and f. 35 and hereby accepted. See 36a. Taken into account in the weight that was given to the testimony concerning the incidents they testified about. 7-9 See 50. The last sentence of proposed finding of fact 7 and all of proposed findings of fact 8 and 9 constitutes a summary of testimony. This testimony was considered in making relevant findings of fact. 10-11 Not relevant to this proceeding. Not supported by the weight of the evidence. Hereby accepted. Taken into account in the weight that was given to the testimony concerning this incident. 15-17 See 50. 18 Hereby accepted. 19-20 See 50. Although it is true that Ms. Walker testified in this manner, the testimony was rejected. Not relevant to this proceeding. See 50. 24 2. 25 See 25-28 and 50. 26 Not supported by the weight of the testimony. 27-28 See 33. 29 37. 30 37-38. 31 Not relevant to this proceeding. 32-33 This testimony was rejected. 34-35 Hereby accepted. 36 22. 37-38 Hereby accepted. Not relevant to this proceeding. 20. The last sentence is not relevant to this proceeding. Not relevant to this proceeding. 42 5. 43-44 See 17-19. Ms. Wilkinson's testimony about not discussing personal matters with Mr. Bott was based upon her definition of "personal matters." 45 Not relevant to this proceeding. 46 19. 47-48 Not relevant to this proceeding. Hereby accepted. Not relevant to this proceeding. COPIES FURNISHED: Joe H. Pickens, Esquire Post Office Box 2128 Palatka, Florida 32078-2128 Lorene C. Powell, Esquire FEA/United 208 W. Pensacola Street Tallahassee, Florida 32399-1700 Mr. C. L. Overturf Superintendent Putnam County School Board 200 South Seventh Street Palatka, Florida 32177 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
The Issue The issue in this case is whether the Manatee County School Board (Petitioner) has just cause to terminate the employment of Teacher Karyn Cena (Respondent).
Findings Of Fact At all times material to this case, the Respondent was a first grade teacher employed by the Petitioner to work at Tillman Elementary School (Tillman) pursuant to a professional services contract. On May 11, 2010, the Tillman first grade students were gathered in an auditorium to rehearse for a musical program to be presented in celebration of Memorial Day. The students had been rehearsing for several days prior to May 11, 2010. As might be expected, some first grade students required occasional redirection. Such redirection was generally communicated by a teacher delivering a "stern look" to the non-complying student. If the correction was not successful, a non-complying student was directed to go to the back of the room and sit on a bench that essentially served as a "time out" area. At one point in the program, the students were standing, singing, and holding up their arms, pretending to waive American flags. The flags had not yet been distributed to the students. During this portion of the rehearsal on May 11, 2010, the Respondent apparently thought that one of the students ("S.M.") was playing and not pretending to wave the non-existent flag appropriately. The Respondent grabbed the student by the arm and quickly walked the student to the back of the room, where the Respondent placed the student forcefully on the time out bench. The student did not resist the Respondent in any manner. There was no credible evidence that the Respondent provided any redirection to the student prior to her physical interaction with the student. There was no evidence that the student was unable to comply with a verbal directive delivered by the Respondent or any other teacher. There was no evidence that the student was acting out or posed any threat whatsoever to himself or any other student, or to the Respondent or any other school employee. There was no evidence that any force or physical contact was necessary whatsoever to correct the student's behavior or to direct the student to the time out area. At the hearing, the Respondent was described by witnesses as appearing "angry" during the incident. Although the Respondent denied that she was angry with the child, the Respondent's interaction with the student was clearly inappropriate under the circumstances, and it is not unreasonable to attribute her behavior to anger. Observers of the incident testified that the student appeared to be embarrassed by the incident, sitting with his head bowed after being placed on the bench. Some teachers testified that they felt personal embarrassment for the student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order, terminating the employment of Karyn Cena. DONE AND ENTERED this 1st day of March, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2011.
Findings Of Fact Respondent, Jean-Baptiste Guerrier (Guerrier), holds Florida Teaching Certificate No. 59692 covering the area of English which is valid through June 30, 1995. Guerrier was employed as a teacher at Miami Edison Middle School during the 1992-93 school year. On September 20, 1993, the following disciplinary action was taken by the Dade County School System against Guerrier for conduct unbecoming a school employee: Directives were issued to Respondent to refrain from making inappropriate remarks. Respondent was issued a letter of reprimand. Respondent was placed on prescription. Respondent received an unacceptable rating for Category VII and an overall summary rating of unacceptable on his 1992-93 TADS Annual Evaluation. On November 29, 1994, the Commissioner of Education issued an Administrative Complaint against Guerrier alleging that he made inappropriate comments of a sexual nature to three eighth grade female students during the 1992-1993 school year. Based on the evidence presented Guerrier did not make such comments. The Administrative Complaint alleged that Guerrier engaged in inappropriate behavior of a sexual nature with two eighth female students during the 1992-1993 school year. Based on the evidence presented Guerrier did not engage in such behavior. A teacher at Miami Edison Middle School observed Guerrier putting his arm around female students during the changing of classes. He did not identify the students. During these occasions, Guerrier's back was turned towards the teacher. The teacher characterized Guerrier as a gregarious teacher. During the 1992-1993 school year, Guerrier had three female cousins who were attending Miami Edison Middle School. Guerrier would put his arm around his cousins' shoulders when he would see them at school. Guerrier did not put his arm around any other female students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint against Jean-Baptiste Guerrier be DISMISSED. DONE AND ENTERED this 24th day of July, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-649 Neither Petitioner nor Respondent filed proposed findings of fact. COPIES FURNISHED: Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald G. Stowers, Esquire Department of Education Suite 1701, the Capitol Tallahassee, Florida 32399-0400 William Du Fresne, Esquire 2929 Southwest 3rd Avenue, Suite One Miami, Florida 33129 Kathleen M. Richards, Administrator Professional Practices Services 352 Fla. Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent used inappropriate discipline techniques when he pushed an unruly student against a wall and back into his seat, in violation of Section 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and (e), Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact Respondent holds Florida Educators Certificate No. 725455. He is an assistant principal at Riverview High School. He has been a teacher for 18 years. He is in his seventh year in the Sarasota County School District. Prior to his employment with Sarasota County, Respondent was a physical education teacher and then an assistant principal in Illinois. He has never previously been the subject of disciplinary action. The principal at Riverview High School testified that Respondent enjoys good rapport with the students. Respondent is required to deal with disciplinary issues, and the principal testified that he has always done so professionally. The principal testified that Respondent maintains his composure when disciplining students. The Administrative Law Judge credits the testimony of the principal. On February 20, 1998, Respondent was summoned to a classroom being taught by Francis J. Baad, a teacher since 1948. A substitute teacher, Ms. Baad was teaching a freshman English class that had become disruptive, so she asked someone to summon an administrator to her room. Ms. Baad was showing a film of Romeo and Juliet. Part of the class was trying to watch the film, but part of the class was misbehaving. Several students were talking loudly, and one student was playing with a red laser pointer. The misbehaving students ignored repeated entreaties from Ms. Baad to settle down. When she threatened to summon an administrator, some of the students told her that she could not do so. When Respondent entered the classroom, the students quieted down. Respondent asked Ms. Baad to tell him the names of the students who had been misbehaving. Identification was slowed by Ms. Baad's unfamiliarity with the names of the students and the fact that several students had sat in seats assigned to other students and had given wrong names. As Respondent was writing down the names of the students who had disrupted the class, C. H. objected to the listing of another student, G. B., whom C. H. claimed had done nothing wrong, even though Ms. Baad had named him as one of the students who had misbehaved. Respondent replied to C. H. that it was none of his business. C. H. rose from his seat, and Respondent told him to sit down. Instead, C. H. said that he did not have to listen and began to walk up the aisle to leave the classroom. Respondent stepped toward C. H. and told him to return to his seat and be quiet. C. H. replied that Respondent could not tell him what to do. Saying, "Yes, I will tell you what to do," Respondent approached C. H. and backed him to his desk. Respondent then grabbed C. H.'s arms or shoulders and forced him down to his seat. At one point, Respondent threatened to call the school resource officer and have C. H. arrested. However, Respondent never did so, nor did he or anyone else discipline C. H. for this incident. Instead, Respondent remained in the classroom until the bell rang. Respondent did not disrupt the classroom; he restored order to the classroom so that learning could take place. Respondent did not endanger C. H.'s physical health or safety. Respondent did not disparage C. H. Respondent did not unnecessarily embarrass C. H.; C. H. embarrassed himself. Respondent gave C. H. every opportunity to behave himself. Rather than do so, C. H. unreasonably defied Respondent's authority.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 20th day of December, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 December, 1999. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission 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 224-E Florida Education Center 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, Attorney Post Office Box 131 St. Petersburg, Florida 33731-0131 Robert E. Turffs Brann & Turffs, P.A. 2055 Wood Street, Suite 206 Sarasota, Florida 34237
The Issue The issue is whether Petitioner terminated Respondent's annual contract as a teacher for just cause.
Findings Of Fact Petitioner hired Respondent, an inexperienced teacher who had recently graduated from college, and assigned him to teach and serve as an assistant basketball coach at Dixie Hollins High School during the 2000-01 school year. For the 2001-02 school year, Petitioner reassigned Respondent to Tarpon Springs High School, where Respondent assumed the duties of head basketball coach. During both school years, Respondent was on annual contract. Initially, an administrator at Tarpon Springs High School informed Respondent that he would teach American history and economics, which are the subjects that he had taught at Dixie Hollins High School. When Respondent reported for duty at Tarpon Springs High School, administrators did not give him a schedule until a couple of days before classes started. At that time, Respondent learned that, during the first quarter, he was to teach counseling and personal fitness, neither of which he had taught before. He also learned that, the following quarter, he was to teach Freshman Experience, which was a relatively new course, and personal fitness. In the third quarter, he was due to teach earth-space science in place of personal fitness. At least for the first two quarters, Respondent was assigned students in the GOALS program, which is designed for students who have not made substantial academic progress due to social problems. In this program, the students take only four classes per quarter. Each class runs one hour and forty-five minutes, five days weekly. Respondent had difficulties assembling materials for the peer counseling course. Teachers who had previously taught the course were not available. Extensive renovations at the school made it difficult to locate materials for this and other courses. Respondent finally visited a teacher at another school and obtained books, guides, and tests for peer counseling. These materials advised Respondent to help the students learn to settle their disputes peaceably without adult intervention and suggested that the teacher supplement the book with relevant movies dealing with peer pressures, conflict, and social issues. Respondent experienced similar difficulties with the personal fitness course, for which he had books, but no teacher edition or worksheets. However, Respondent's background in athletics presumably prepared him to teach this course. Although Respondent voiced similar complaints about Freshman Experience, he had a quarter to try to obtain materials. Also, no one else at the school had any experience with this course, which the District had abruptly required the high schools to teach. Similar to peer counseling, Freshman Experience is a motivational course that also covers personal and academic issues, as revealed by the titles of the required books, Chicken Soup for the Soul and Ten Steps for How To Manage Time. The seven charges listed in the Preliminary Statement fall into four groups. Charges 1 and 2 are the most serious; they allege that Respondent kissed two students and touched the vaginal area of one of these students. Charges 3 and 4 are also sexual in nature; they allege that Respondent made inappropriate comments to female students about their appearance and inappropriate sexual comments to or in front of students. Charges 5 and 6 pertain to classroom management; they allege that Respondent allowed students to come to his classroom for no legitimate purpose and encouraged students to leave campus to get him food. Charges 7-9 pertain to curriculum, administration, and instruction; they allege that Respondent used noncurriculum-related materials (such as videos), lacked appropriate recordkeeping, and lacked appropriate classroom instruction. Petitioner wisely dropped Charges 6, 8, and 9. No evidence in the record supported these allegations prior to Petitioner's announcement that it was not pursuing these allegations. Charges 5 and 7 require little more analysis. The evidence supports neither of these allegations. Concerning Charge 5, unenrolled students visiting Respondent's classroom included basketball players. While Respondent remained the basketball coach, these players briefly visited the room from time to time to discuss something about the basketball program. Petitioner did not show the extent of these visits or that they were illegitimate. Unenrolled students who were not participating in the basketball program infrequently visited Respondent's classroom. Although the principal testified that one of his assistant principals told him that there was a problem with unenrolled students visiting Respondent's classroom, he added that she rejected his offer to talk to Respondent and said she would handle it. After that conversation between the principal and assistant principal, the principal said the problem was eliminated. Interestingly, though, neither the assistant principal nor anyone else ever talked to Respondent about this issue, which appears not to have loomed large at the time. Concerning Charge 7, Petitioner never proved the rating of any of the films mentioned during the hearing as shown in Petitioner's classroom. Films mentioned during the hearing as shown in one of Respondent's classes include With Honors, Rudy (shown repeatedly), Finding Forrestor, Saving Private Ryan, The Hurricane, [The Mask of] Zorro, and assorted basketball videotapes. The record reflects disagreement among Petitioner's administrators as to the policy concerning the application of the District policy regarding R-rated films. According to the representative of the Office of Professional Standards, The Patriot (apparently an R-rated film) "could" violate this policy, but, according to the principal, who is now handling workforce development in the District office, The Patriot "probably" would not be a problem. Even if The Patriot were a problem, as an R-rated film, it would be so only if Respondent had not obtained permission slips from parents to show this and perhaps other R- rated films. Respondent testified that he did so. Notwithstanding the testimony of one student to the contrary, Petitioner never proved that Respondent failed to obtain permission slips. The issue of the relationship, if any, between the films and the courses fails because Petitioner failed to prove the contents of the films or to prove adequately the prescribed content of the courses, so as to permit a finding that the films were irrelevant to the courses. The broad outlines of peer counseling in particular, at least as established in this record, would appear to accommodate a vast array of films. A sufficient number of students testified in sufficient detail to a broad array of bookwork, class discussion, and other instructional and assessment methods in both peer counseling and Freshman Counseling to overcome whatever proof that Petitioner offered in support of Charge 7. The crux of this case lies in the charges involving sexual improprieties, as alleged in Charges 1-4. The quality of proof was considerably different between Charges 1 and 2, on the one hand, and Charges 3 and 4, on the other hand. Analyzing Charges 3 and 4 first may help explain the findings as to Charges 1 and 2. Concerning Charges 3 and 4, Petitioner proved that Respondent made numerous inappropriate comments to female students, of a sexual nature, that understandably made the students feel uncomfortable. Respondent directed three of these comments and one behavior to T. R., a junior. While walking around the track during the personal fitness class that T. R. was taking from Respondent, he asked her what she thought of a 26-year-old dating an 18-year-old. T. R. was either 18 years old or Respondent implied that the dating would await her 18th birthday; either way, T. R. reasonably believed that Respondent meant her. Although actually 29 or 30 years old at the time, Respondent typically told his students that he was only 26 years old, so T. R. reasonably believed that Respondent meant him. T. R. was so uncomfortable with this question that she mentioned it to a female teacher at the school, Cheryl Marks- Satinoff. Thoughtfully considering the matter, Ms. Marks- Satinoff found that the question was "odd," but not "extremely inappropriate" and "on the fence." Ms. Marks-Satinoff's characterization of the question, in isolation, is fair. In the context of other comments to T. R. and other female students during the relatively short period of two school quarters--little else, if any, of which was Ms. Marks-Satinoff was then aware--the comment acquires its proper characterization. To T. R., Respondent also said, "If I were still in high school, I'd be climbing in your window at night." T. R. was "shocked" by this comment, but her mother or stepmother, when told by T. R. about the comment--again, in isolation--did not attach much importance to it. On another occasion, when a female student asked why T. R.'s grade was better than D. P.'s grade, Respondent replied, "T. R. and I have an agreement." While taking Respondent for personal fitness, T. R. found Respondent staring at her repeatedly. Accordingly, T. R. switched from stretch pants to baggies. T. R.'s testimony is credible. She spoke with adults about two of the comments roughly at the time that they were made. Also, T. R. bore no grudge against Respondent. She said that she did not think twice about the dating comment, although she obviously gave it enough thought to raise it with Ms. Marks- Satinoff. T. R. freely admitted that Respondent made the comment about crawling into her window in a joking manner. She discredited D. P., who is the alleged victim of the most serious sexual incident, discussed below, as a person who always lies, convincingly. T. R. added that D. P. told her once that Respondent "tried" to kiss her and put his hand up her skirt and did not understand why D. P. confided in her initially. T. R. testified that she never heard Respondent do or say anything inappropriate in the personal fitness class that she took with D. P. T. R. testified that Respondent made her and her friends leave if they disturbed his class the few times they got out of their assigned class to visit his office and watch movies. T. R. described another female student, B. H., who testified to several inappropriate comments made by Respondent, as someone who "likes to stir the pot." To A. T., an 18-year-old who graduated from Tarpon Springs High School in June 2002, Respondent alluded to the size of her breasts, in front of the class, and used his hands to frame them. Although done in connection with a warning that A. T. was violating the school dress code due to the revealing nature of her shirt, Respondent delivered this warning in a sexual manner that was obviously unnecessary for the purpose of reminding the student to conform to the dress code. A. T. testified that she liked Respondent as a teacher, but he made her uncomfortable, and he should be more a teacher than a friend. Like T. R., A. T. seemed not to bear any negative feelings toward Respondent, but instead merely seemed to be describing an insensitive incident as it happened. To N. S., a junior at the time, Respondent said, upon learning that she had surgically implanted rods in her back, that he wanted to have sex with her. N. S. testified that she was not bothered by the remark. N. S.'s testimony is credited. She was friendly toward Respondent and had long dated Respondent's teacher assistant. To A. M., Respondent said that she looked pretty and could get any guy she wanted. A. M.'s testimony is credited. She did not have much interaction with Respondent and was not part of any group interested in causing him trouble. She seems simply to have truthfully reported an ill-advised comment that Respondent made to her, although she did not describe her reaction to the comment. To L. D., Respondent said that he had a bracelet of hers that she had lent him and that, whenever he looked at it, it reminded him of her. L. D. felt uncomfortable about this remark. L. D. also testified that Respondent sometimes tried to get the boys to treat the girls with respect, and her testimony is credited. Other witnesses, especially D. P. and B. H., described other comments, but their credibility is poor, and their testimony cannot be credited. The demeanor of two witnesses favorable to Respondent revealed something bordering on exasperation with him, even as they testified that he never said anything sexually inappropriate in class. The demeanor of each witness was consistent with someone who believed that Respondent was only joking around in class, when making sexually charged comments, and had suffered more than enough due to the consequences of lies told by two female students, as described below. In isolation, the comment about having sex with a student with orthopedic rods in her back is sexually offensive, as is the sexual comment and gesture framing a female student's breasts is sexually offensive. The comments about the agreement between T. R. and Respondent, the bracelet reminding Respondent of L. D., and A. M. being able to sufficiently pretty to get any boy are not sexually offensive, in isolation, but, even in isolation, betray a tendency by Respondent to regard certain of his female students as females more than students. With the exception of the comment to A. M., all of the comments, gesture, and behavior, in the aggregate during a relatively short period of time, depict a transformation by Respondent of the relationship between a teacher and several of his students to a more ambiguous relationship, at times resembling the relationship that might exist between these girls and the boys with whom they attended high school. Nearly all of these incidents embarrassed the female students; all of them, except perhaps A. M., reasonably should have been embarrassed by them. Several of these incidents suggest that Respondent regarded these female students as available for him in some role other than that of student--for instance, as females with whom to flirt. Petitioner has proved that Respondent exploited these female students, with the possible exception of A. M., for personal gain. This characterization of these comments, gesture, and behavior is confirmed by Respondent's implausible assertion that all of these students, except N. S., are lying. If confident that the comments, gesture, and behavior were innocuous or at least not improper, Respondent could have gained credibility by admitting these incidents and explaining their innocence. With one exception, Petitioner has not proved that Respondent sexually harassed or discriminated against his female students or these students in particular. The record does not suggest any quid pro quo in the sexual incidents, although the agreement with T. R. approaches the type of proof required. Nor does the record suggest that the sexual commentary, gesturing, or behavior were so pervasive as to create a hostile environment. Two students, N. S., A. M., and L. D., were each the subject of a single comment. One student, A. T., was the subject of a single incident, which consisted of a comment and gesture. On this record, Petitioner failed to prove that Respondent's treatment of these students rose to harassment or discrimination of them or of his female students in general. However, Respondent's treatment of T. R. rose to harassment and sexual discrimination because he made three sexually inappropriate comments and engaged in one sexually inappropriate behavior that caused her to alter her mode of dress. Respondent implicitly asked her to think about dating him--now or later--with the comment about a 26-year-old dating an 18-year-old. Respondent implicitly identified the possibility of their having sex with the comment about climbing in her window. Respondent alluded to the possibility of sex between T. R., a student, and himself, a teacher with the power of the grade, with the comment about her grade resulting from an agreement. And Respondent leered at T. R. sufficiently to cause her to change her workout clothes. In partial mitigation of the sexual comments, gesture, and behavior, but not the harassment or discrimination, no one seems to have provided Respondent with any timely feedback on this manner of interacting with certain female students. The only reports to adults seem to have been of isolated comments. In addition to the two reports noted above, a male student reported inappropriate comments, midway through the first quarter, to the teacher who was head of GOALS. Although the teacher did not describe the inappropriate comments, she said that she talked only to the two female students involved and evidently decided that the matter was not sufficiently important to discuss with Respondent or the administration. As noted above, Ms. Marks-Satinoff learned from T. R. of a borderline inappropriate comment. Sometime later, in January, she spoke briefly with Respondent and advised him to watch inappropriate comments. This marks the only feedback, and it was too late to alter the course of events. However, for the same reason that this lack of feedback does not mitigate at all the harassment and discrimination involving T. R., the value of this mitigation is largely undermined by the fact that the knowledge of the need to refrain from improper personal references to students is not granted only to the most experienced teachers or administrators. Perhaps Respondent was not fully aware that his comments, gesture, and behavior were sexually charged and did not realize the effects of these comments, gesture, and behavior on his students, as some teachers may not be fully aware of their sarcasm and its effect on their students. However, Respondent, as a teacher, remains responsible for determining the effect of his interaction upon his students and ultimately must bear the consequences if he fails to identify the problem. D. P. is the complainant in Charge 1. She was born in September 1984 and was a senior during the 2001-02 school year. Respondent taught her peer counseling during the first quarter and personal fitness during the second quarter. D. P. testified that on Monday, January 14, 2002, she approached Respondent to ask if she could exempt a final exam. She testified that he said to return after lunch. When she did, she testified that they met in his office where he kissed her and moved his hand up her leg until he digitally penetrated her vagina. D. P.'s testimony is unbelievable for several reasons. First, two different students testified that they heard her say that she would get Respondent into trouble. One of the students testified that he heard her say this immediately after an argument D. P. had with Respondent over absences and tardies. D. P. was upset with Respondent because her numerous absences and tardies prevented him from exempting her from the final examination in his class. D. P. did not tell anyone of the alleged incident until immediately after she found that she could not obtain an exam exemption from Respondent. Second, D. P.'s testimony is unusually inconsistent with other statements that she has given. Some inconsistencies are not fatal to credibility, but the number and importance of inconsistencies in her testimony and statements preclude a finding of credibility. Numerous material discrepancies exist between D. P.'s testimony at the hearing and her testimony in a prehearing deposition. Other discrepancies exist between her testimony at the hearing and earlier statements given to law- enforcement officers or made to others. These discrepancies include differences of two hours as to when during the day the incident occurred and one day as to which day on which it occurred. D. P.'s implausible implication is often that the persons taking down her version of events made a mistake. Third, D. P.'s testimony is improbable. First, Respondent was aware of the investigation into his dealings with female students by the morning of January 14. The investigation was already underway by the end of the prior week. For instance, D. P. had given her first statement on January 11. It is unlikely that Respondent would engage in such egregious sexual abuse of a student while he knew that he was under investigation. Second, Respondent's teacher assistant testified that he was in the office during the entire time that the incident supposedly would have taken place, and he never saw D. P. Fourth, D. P. has a poor reputation for honesty among her peers who know her well. D. P. testified that she told several persons about the sexual abuse, but they all denied such conversations. At one point during her testimony, she stated that everyone at school had his or her own opinion concerning rumors as to with which student Respondent was accused of having an improper relationship. As she testified, D. P. seemed clearly to have relished the attention that she had gained by making the charge. S. Y. is the complainant in Charge 2. S. Y. was born in April 1987 and was a sophomore during the 2001-02 school year. She was a student of Respondent. She testified that Respondent taught her Freshman Experience during the third quarter, although she was not a freshman and Respondent did not teach very long into the third quarter before he was terminated, as described below. S. Y. testified that Respondent kissed her one day while they were alone in his office. A number of reasons exist that undermine the credibility of this assertion. First, S. Y.'s testimony is also unusually inconsistent with other statements that she has given. At different times, she has attested that the kiss occurred between Thanksgiving and Christmas, before Thanksgiving, and in January. Second, S. Y.'s timing in reporting the kiss is suspect. First, three times she told investigators nothing about a kiss. Second, she reported the kiss only after she knew that D. P. had accused Respondent of sexual improprieties. S. Y. admitted that emotions were running "sky high" at the time. Unlike D. P., who did not like Respondent, S. Y. liked him, at one time even having a crush on him. S. Y. appeared capable of jealousy regarding her feelings about Respondent, as evidenced by the following facts. Third, S. Y. reported the kiss immediately after he referred her to the office for abruptly interrupting his class and loudly demanding that he tell her who else he was "fucking." Although she denied knowledge that Respondent was having sexual intercourse with any students, including herself, S. Y. admitted that the referral prompted her to report the kiss to an investigator. Fourth, S. Y. engaged in embellishment concerning her relationship with Respondent, as would be consistent with a fantasy attachment to him. Although S. Y. implausibly denied it, she told Ms. Marks-Satinoff that she had been to Respondent's home, which was in a poor section of Clearwater. Respondent's home is not in a poor section of Clearwater. S. Y. also has said that Respondent proposed that she and another girl perform in a porn movie that he would make. The reality is either that she proposed it to Respondent, who told her never to suggest such a thing again, or that a former boyfriend proposed the porn movie--without Respondent's involvement. For the reasons listed above, it is impossible to credit the testimony of D. P. or S. Y. that Respondent sexually abused them. Although the presence of multiple accusations of this type may sometimes be indicative of their reliability, they are more likely due to Respondent's sexual banter and flirtation and repeated failure to maintain appropriate boundaries between the professional and the personal. Both D. P. and S. Y. were doubtlessly aware of Respondent's tendencies in this regard, and, from this sexually charged atmosphere, which Respondent himself had helped create, they struck back at Respondent by making sexual allegations. D. P. chose to strike out at Respondent for not granting her an exemption to which she was not entitled, and S. Y. chose to strike out at Respondent for referring her to the office and not meeting the unrealistic expectations that she and her infatuation on Respondent had generated. Shortly after D. P. and possibly S. Y.'s charges emerged, law enforcement officers arrested Respondent, who remained in jail for nine days. In June 2002, the state attorney's office dropped the charges, although D. P. testified at the hearing that she intended to sue Respondent and Petitioner. Petitioner then terminated Respondent's employment six weeks prior to the end of the term of his annual contract. A proper penalty must reflect the nature of the offense and its impact on the students. Some students who were the subject of improper comments, gesture, and behavior denied embarrassment. Of those admitting to embarrassment, it does not seem to have been traumatizing or even especially painful. Not entirely without reason, some of the students implied that Respondent had already suffered enough, having been fired and served nine days in jail on accusations that were not established on this record. Also, the mitigation discussed above, as to the failure of authority figures to provide Respondent with timely feedback as to the improper comments, gesture, and behavior, but not harassment and discrimination, plays a role in setting the penalty. Petitioner's representative from the Office of Professional Standards testified that Charges 3 and 4 would suffice to warrant dismissal, depending on the frequency of the improper comments. The improper comments warrant, at most, an unpaid suspension of three days, but the harassment and discrimination involving T. R. warrant a more serious penalty. In the absence of the other sexually inappropriate comments and gesture, the harassment and discrimination involving T. R. probably would warrant a long suspension. However, two facts warrant termination. First, the harassment and discrimination involving T. R. are accompanied by the sexually inappropriate comments and gesture involving the other students. Second, still not grasping the requirements of a professional's proper relationship toward his students, Respondent has continued, implausibly, to deny all of the sexually inappropriate comments, except for an admission of a vague version of the comment about the orthopedic rod in N. S.'s back. By branding these students liars when he himself is lying, Respondent makes the case for Petitioner that termination is the proper remedy.
Recommendation It is RECOMMENDED that the Pinellas County School Board enter a final order dismissing Respondent from employment. DONE AND ENTERED this 13th day of February, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 13th day of February, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jacqueline M. Spoto, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942
The Issue The issue in this case is whether the School Board of Pinellas County (Petitioner) should suspend Christopher Lucibello (Respondent) from his position as a chemistry teacher at Gibbs High School for a period of three days, without pay, based upon actions he is alleged to have taken to cause three students to leave the school building after classes concluded on October 27, 1989.
Findings Of Fact Respondent is a teacher holding a teaching certificate issued by the State of Florida, and who, at all times material hereto, has been employed by the Petitioner under continuing contract as a chemistry teacher at Gibbs High School. At Gibbs High School, classes conclude at 2:30 p.m., and students then proceed to their lockers, pick up jackets and books, and leave the building. Student lockers are located in the hallway, outside of classrooms. On occasion, students remain after school to make up work, or take tests which they missed, and teachers generally remain after 2:30 p.m. to straighten up, grade papers, and prepare for the next day's classes. On Friday, October 27, 1989, classes concluded at 2:30 p.m., as normal, and Respondent remained in his chemistry classroom cleaning and straightening up the lab. At approximately 2:45 p.m., Respondent was disturbed by loud student laughter and talking in the hallway outside of his classroom. He stepped into the hallway and asked three female students, whom he did not know, to be quiet and to leave the building. One of the students told another student to go ahead and get her algebra book because Respondent could not make them leave until they got their books. There is no rule or policy at Gibbs High School requiring students to leave campus at any particular time after classes are over. When the three students did not immediately leave the building as he had asked, Respondent stated that he had something that would make them leave, and proceeded back into his lab where he obtained a bottle of butyric acid. He then approached the three students in the hallway holding the open bottle of butyric acid while blowing and fanning its fumes in the students' direction. Respondent got to within four to five feet of the students, and then followed them a distance of about five to six feet, blowing and fanning the fumes in their direction, until they left the building at approximately 3:00 p.m. The students did not know what chemical Respondent had exposed them to. Butyric acid is a volatile acid with a sickening odor, similar to vomit, that spreads rapidly. A safety data sheet for this chemical indicates that it is a strong irritant to body tissue and a stench agent, and warns to avoid contact or exposure to skin and body tissue. Respondent is familiar with this safety data sheet for butyric acid. Two of the students began to feel dizzy and to develop headaches immediately after exposure to the butyric acid, and the third student experienced nausea and skin irritation. These reactions are consistent with exposure to butyric acid fumes. None of the students sought medical attention as a result of the incident. The three students immediately went to the principal's office and reported the incident. The assistant principal noted that they were very upset and excited. Respondent does not dispute that he blew and fanned fumes of butyric acid in the direction of three female students as a means of getting them to leave the building after classes had concluded on October 27, 1989. However, he testified that this action presented no danger to the students. He uses butyric acid in his chemistry class, and exposes students to its fumes during class as a means of demonstrating how organic acids smell. None of his students has ever gotten sick as a result of such exposure. The particular bottle involved in this incident is over 18 years old, and has been diluted over the years with the addition of water. Respondent has no idea how strong the concentration of butyric acid is in the bottle he used. During an investigation of this incidents Respondent admitted to Petitioner's representatives that he was "burned out" and had simply gotten angry at these students. Petitioner seeks to suspend Respondent for three days, without pay, as a result of this incident. Although Respondent and another teacher testified that there had been a recent problem with noise in the hallway outside Respondent's classroom in the afternoon after classes concluded for the day, and they had warned students about making too much noise in the hallway after classes, no reports of this problem had been made to the principal. Administrators were present in the school at the time of this incident, but Respondent did not attempt to contact them for assistance in dealing with this noise problem. Several means exist at Gibbs High School by which teachers can contact the administration for help, including a panic button, telephone and intercom. Students involved in this incident testified that it has given them a negative impression of Respondent as a teacher. Parents and guardians of these students complained to the school administration about this incident, and testified that they consider Respondent's action to be irresponsible. Parental concern was expressed about Respondent's ability to control himself. The principal of Gibbs High School, John Demps, testified that he considered Respondent's action in this incident to be unprofessional and harmful to the school's relationship with these students, their parents and the community. According to the expert testimony of Steven Crosby, Respondent's behavior diminishes his effectiveness as a teacher because it creates a poor image of instructors at the school, and causes concerns among parents for the welfare of their children. Respondent has been employed by the Pinellas County school system for 18 years. During the month of June 1983, Respondent received a written reprimand following an incident in which he became upset in class, and struck a yard stick on a desk, breaking it and causing it to fly in the direction of student, resulting in injury to that student. Previous to this written reprimand, Respondent had been orally warned by his principal on several occasions to control his temper and refrain from yelling at students, or otherwise embarrassing them.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order suspending Respondent for two days, without pay. DONE AND ENTERED this 19th day of June, 1990 in Tallahassee, Florida. DONALD D. CONN 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 19th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-0515 Rulings on Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding 1. 3-4. Adopted in Finding 11. 5. Adopted in Findings 2, 3. 6-10. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 5. Adopted in Finding 8. 14-15 Adopted in Finding 6. Adopted in Finding 5. Adopted in Finding 9. Rejected as not based on competent substantial evidence. Adopted in Finding 8. Adopted in Finding 6. Adopted in Finding 10. Rejected as immaterial hearsay. Adopted in Finding 7. Adopted in Finding 8. 25-32. Adopted in Finding 10, but otherwise Rejected as unnecessary. Adopted in Finding 9. Rejected as unnecessary. Rulings on Respondent's Proposed Findings of Fact: Adopted in Findings 1, 11. Adopted in Finding 8. Adopted in Finding 9, but otherwise Rejected as unnecessary and immaterial. Adopted in Findings 3, 4, but otherwise Rejected as unnecessary and immaterial. Adopted and Rejected, in part, in Findings 6, 7. Adopted in Findings 5, 8, but otherwise Rejected as immaterial. Adopted in Finding 3. Adopted and Rejected, in part, in Finding 10, and otherwise as not based on competent substantial evidence. COPIES FURNISHED: Bruce P. Taylor, Esquire P. O. Box 4688 Clearwater, FL 34618 Mark F. Kelly, Esquire P. O. Box 75638 Tampa, FL 33657-0638 Dr. Scott N. Rose Superintendent P. O. Box 4688 Clearwater, FL 34618 =================================================================
