Findings Of Fact On June 12, 1983, Respondent moved to Miami from Jamaica where he was in the ninth grade. He enrolled in a summer school session at North Miami Beach Senior High School in the summer of 1983, where he attended classes regularly and was successful in that program. In September 1983, Respondent enrolled at John F. Kennedy Junior High School, where he was placed in the ninth grade. Although Respondent speaks English, he was placed in a remedial English class, the lowest level English class, comprised of only approximately 20 students. On September 23, 1983, Respondent was involved in a fight with a female student in the hallway at John F. Kennedy Junior High School. After observers terminated the fight, Jimmy Dukes, an assistant principal at John F. Kennedy Junior High School, interviewed the two students involved in the fight and the witnesses to the fight. Based upon that information, Dukes suspended both students for five days. After the suspension, Dukes conferred with Respondent's father regarding the incident. On October 31, 1983, Respondent skipped his science class and left the school grounds without permission. Dukes later had a conference with Respondent about this behavior and assigned him to a three-day indoor suspension. On November 3, 1983, while Respondent was serving his three-day indoor suspension, he was reported to Dukes as having become disruptive in the suspension hall. On November 5, 1983, Dukes held a conference with Respondent and a conference with Respondent's father about Respondent's behavior at that school. A warning was given to Respondent regarding any continued disruptive behavior. On December 7, 1983, Respondent was again referred to Dukes' attention for disruptive behavior; i.e., for refusing to follow a teacher's instructions and then refusing to report to the principal's office. Respondent was again counseled by Dukes and was warned regarding his behavior. Additionally, Dukes held a conference with Respondent's father that same day. On December 13, 1983, Respondent again skipped class. A conference was held by Dukes with Respondent on December 14, and Dukes telephoned Respondent's father and conferred with him. As a result, Respondent was again assigned to the indoor suspension hall. On January 22, 1984, Respondent was truant. On January 23, 1984, Dukes held another conference with Respondent, at which time Respondent presented Dukes a note, allegedly from Respondent's father, excusing Respondent from school. Due to the spelling errors contained within that note, Dukes telephoned Respondent's father, who verified that he had not written the note. Respondent then left the school grounds and could not be found. He was later assigned again to the indoor suspension hall, and another conference with his father was held. On February 8, 1984, Respondent again skipped school. Dukes had previously advised him that skipping school again would be considered insubordination and would result in an outdoor suspension. Accordingly, Respondent was given an outdoor suspension of ten days. On February 15, 1984, Petitioner notified Respondent's father that Respondent was being reassigned to the Miami Douglas MacArthur Senior High School-North alternative education program effective immediately. On May 10, 1984, the day before the formal hearing in this cause and during a time when Respondent was assigned to the alternative program at MacArthur, Respondent was found trespassing on the school grounds of John F. Kennedy Junior High School. During the time that Respondent was assigned to John F. Kennedy Junior High School, he failed all of his classes. When Respondent first came to the attention of Dukes, Dukes conferred with Respondent's teachers and was advised that Respondent had no learning disability and was capable of performing academically. Dukes had subsequent conferences with Respondent's teachers as Respondent's behavior pattern continued and received the same information. Additionally, throughout the conferences held by Dukes with Respondent's father, Dukes asked if Respondent had any special problems or needs which required attention. Respondent's father answered in the negative. Since Respondent's attendance record and academic record had not improved at MacArthur by the time of the formal hearing in this cause, his attorney had arranged for testing by a school psychologist. However, none of that testing had been done by the time of the formal hearing in this cause.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered approving the assignment of Respondent to the opportunity school program at Miami Douglas MacArthur Senior High School-North. DONE and RECOMMENDED this 22nd day of June, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 9184. COPIES FURNISHED: Mark A. Valentine, Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Daniella Levine, Esquire Legal Services 149 West Plaza, Suite 210 7900 North West 27th Avenue Miami, Florida 33147 Mr. Rexford Foster 1371 North East 157th Street North Miami Beach, Florida 33162 Phyllis O. Douglas, Esquire Dade County Public Schools 1410 North East Second Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools 1410 North East Second Avenue Miami, Florida 33132
The Issue Whether Respondent Gadsden County School Board (the School Board or Respondent) discriminated against Petitioner Ronald D. Jones by terminating him on the basis of his gender in violation of the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes
Findings Of Fact Petitioner is a male, who, in the past, has held a professional teaching certificate from the Florida Department of Education. Petitioner held a professional teaching certificate from July 1, 1994, until June 30, 1999, with a certification to teach social science to students in grades five through nine. Petitioner's professional teaching certificate expired on June 30, 1999, and, as a result, Petitioner was no longer deemed eligible to teach by the Florida Department of Education. Petitioner, however, was still eligible to be employed as a substitute teacher. The School Board is the governing body responsible for the administration of public schools in Gadsden County, Florida. The Discrimination Complaint filed by Petitioner alleges: I believe I was terminated because of my sex (male). I was initially hired as a substitute teacher in March 2007 and received an appointment to an instructional position on February 26, 2008. I received a letter from Superintendent Reginald James dated July 29, 2008 informing me that I would not be reappointed for the 2008-2009 school term. I was replaced by a female employee. Petitioner's Discrimination Complaint is based upon the fact that he was not reappointed at George Munroe Elementary School (George Monroe) for the 2008-2009 school year. Petitioner initially worked at George Monroe beginning March 2007, as a substitute teacher. For the 2007-2008 school year, Petitioner continued to work as a substitute for George Monroe until he was hired on January 14, 2008, to an instructional position, left vacant by the resignation of another teacher. In this position, Petitioner taught fourth grade from February 28, 2008, until the end of the school year. At the time he was hired to the instructional position, Petitioner did not hold either a temporary certificate or a professional certificate to teach in Florida. Rather, Petitioner had applied to obtain another certificate to teach social science for grades 5 through 9 and held an Official Statement of Status of Eligibility (Official Statement) from the Florida Department of Education dated August 1, 2007. According to the Official Statement, in order to obtain a three-year nonrenewable Temporary Certificate covering Social Science (grades 5-9), Respondent needed to submit: a) verification of employment and request for issuance of certificate on the appropriate form from a Florida public, state-supported, or nonpublic school with an approved Professional Education Competence Program; and b) the results of his fingerprint processing from the Florida Department of Law Enforcement and FBI. In addition to the submissions required for a temporary certificate, the Official Statement advised that in order for Petitioner to receive a Professional Educator Certificate valid for five years covering Social Science (Grades 5-9), Petitioner must also submit: a) a completed CG-10 Application Form; b) a $56 fee; c) a passing score on the Professional Education Test; d) a passing score on the social science (grades 5-9) subject area examination; e) evidence of completion of an approved competence program; and f) evidence of additional semester hours or teaching experience in specified areas. At the time that Petitioner was hired to the instructional position in January 2008, because George Monroe was experiencing a shortage of teachers, it was possible for individuals with an application pending with the Florida Department of Education to be placed in an instructional position where there was an immediate need, pending completion of all requirements. Therefore, even though Petitioner did not have either a temporary certificate or professional certificate, Petitioner was hired to the instructional position because there was an immediate need and he had a pending application. His hiring, however, was also considered an "out-of-field" placement because he did not hold either a current or a pending certificate to teach the fourth grade. Near the end of the 2007-2008 school year, George Monroe began preliminary classroom and grade assignments in preparation for the 2008-2009 school year. Petitioner was preliminarily assigned to a fifth-grade position pending appointment by the Superintendent. This preliminary assignment was reflected in the agenda and supporting materials for a faculty meeting held May 28, 2008, at George Monroe to discuss the upcoming year. The grade and room assignments showed Petitioner as tentatively transferring from teaching fourth grade in B3 room 6 to teaching fifth grade in room P 99-08. In addition to Petitioner's tentative assignments, there were a number of other preliminary grade and tentative room assignments reflected in the agenda and supporting materials for the May 28, 2008, faculty meeting. In addition to Petitioner being preliminarily assigned to fifth grade, Ms. Avila and Mr. Clum were tentatively transferred to fourth grade, and Ms. Sylvester was moved from fourth grade to fifth grade. The agenda and supporting materials also reflect new room assignments for those teachers. Being given a preliminary grade or tentative room assignment as reflected on the agenda and supporting materials was not a guarantee of continued employment. Because of budget constraints for the upcoming 2008- 2009 school year, George Monroe's school district (School District) instructed its school principals to reduce staff. Staff reduction strategies from the School District included the suggestion that principals recommend to the Superintendent for termination those teachers who were not certified or were teaching out-of-field. Teaching "out-of-field" occurs when a teacher, although holding a temporary or professional teaching certificate, is not certified to teach the particular subject area or grade level to which they have been assigned. In Florida, teachers are not considered highly qualified if they are teaching out of field. The strategy of recommending for termination those teachers who are uncertified or teaching out-of-field was designed to meet budget constraints by first reducing teachers who were not highly qualified. Ida Walker, who at the time was the principal of George Monroe, met with Petitioner at the end of the 2007-2008 school year, but prior to June 30, 2008,1/ to discuss the status of his teaching certificate. During that meeting, Petitioner acknowledged that he was having problems obtaining his temporary certificate, and Ms. Walker reminded him that in order to teach, he had to have the paperwork to show that he was qualified to teach. Ms. Walker, together with School District staff, recommended to School Board Superintendent Reginald James (Superintendent) that he not reappoint six teachers at George Monroe, including Petitioner, who had not provided evidence of a valid teaching certificate or who otherwise did not meet the requirements for certification set forth in their individual statements of eligibility received from the Department of Education. Consistent with that recommendation, in a letter dated July 10, 2008, the Superintendent informed Petitioner that Petitioner would not be re-appointed for an instructional position for the 2008-2009 school year.2/ Unknown to Ms. Walker or the Superintendent, on July 7, 2008, prior to the date of the July 10, 2008, letter from the Superintendent, the Florida Department of Education (Department) issued Petitioner a temporary certificate certifying Petitioner to teach social science for grades five through nine. There is no evidence, however, that Ms. Walker, the School District, the School Board, or the Superintendent received notice that the temporary certificate had been issued. The Department, as a matter of course, does not provide such notification. Rather, it is the responsibility of the applicant, in this case, Petitioner, to provide such notification. In a letter to the School Board dated July 29, 2008, the Superintendent listed the names of various teachers and other personnel employed by the School Board that he recommended for termination. Petitioner's name, as well as the names of five other teachers at George Monroe that had been earlier identified by Ms. Walker and District staff for non- reappointment, was included on the Superintendent's list of recommended terminations. The other five teachers from George Monroe on the Superintendent's termination list were all female. At the School Board meeting held July 29, 2008, the School Board approved the Superintendent's recommended terminations. Of the six teachers from George Monroe who were not initially reappointed, two, not including Petitioner, were subsequently rehired by the School Board after they provided proof of proper certification, reapplied to a particular school, and were accepted by a receiving principal. Prior to the final hearing in this matter, Petitioner never provided a copy of his temporary certificate that was issued by the Department on July 7, 2008, to anyone in an effort to be reappointed to teach at George Monroe. In fact, November 15, 2010, the date of the final hearing in this case, was the first time that either Ms. Walker or the School Board was made aware of the fact that Petitioner had been issued a temporary certificate on July 7, 2008.3/ Even if Petitioner had provided George Monroe or the School Board with a copy of his temporary certificate, he still would not have been reappointed to George Monroe for the 2008- 2009 school year. That is, because Petitioner's certification is in social science, not elementary education, and his continued teaching at George Monroe would have been considered out-of-field. In addition, the evidence does not support Petitioner's allegation that he was replaced by a female employee. Although Petitioner was teaching fourth grade at the end of the 2007-2008 school year and was preliminarily assigned to the fifth grade, Petitioner was not guaranteed a position teaching fourth or fifth grade at George Monroe for the next school year. The evidence shows that there were two teachers, one male and one female, moved from the third grade to teach fourth grade, and one new female teacher from another school hired to teach fifth grade at George Monroe. All three teachers had valid professional teaching certificates in elementary education and were qualified to teach in the grades they were assigned at George Monroe. In contrast, Petitioner failed to demonstrate that he was qualified to teach elementary school at George Monroe for the 2008-2009 school year prior to his termination. There was otherwise no evidence submitted by Petitioner indicating that his termination was based on anything other than his failure to submit proof of his qualifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 19th day of January, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 19th day of January, 2011.
The Issue The issue presented is whether Respondent should be terminated from his employment with the Leon County School Board based upon the charges in the Notice of Final Disciplinary Action.
Findings Of Fact After serving ten years with the United States Marine Corps, Respondent Lester L. Hall became a firearms instructor for a Maryland police department. He also began to work with at-risk children. After he returned to Leon County, Florida, in 1996, he began working with at-risk children at DISC Village and worked there until 2005. In 2003 Respondent began his college education at Tallahassee Community College. He is now in his last year at Flagler College, which has a satellite branch on the community college's campus. He is majoring in elementary education and exceptional student education. Sometime in 2006, Respondent began working as an instructional aide at Gretchen Everhart School. Everhart is a special day school with approximately 250 students. Those students are primarily moderately to severely mentally handicapped, and some are also physically handicapped. On July 26, 2006, Respondent was promoted to assistant director of the Students Motivated in Learning at Everhart (SMILE) after-school program. He was terminated from his position as of October 13, 2006, for reasons unrelated to the allegation which gives rise to this proceeding. In January 2007 Respondent began working at DeSoto Trail Elementary School as an instructional aide. Renee Gadson has worked for the Leon County School Board as a substitute teacher since 1992. During the 2006-07 school year and thereafter she worked at several different schools within Leon County, including Everhart. On September 13, 2008, Gadson saw Respondent at Everhart talking with some adults and then helping to load a student into a van. The next day she again saw Respondent at Everhart. After seeing Respondent at Everhart two days in a row, she then went to Pam Jameson, the site coordinator for the SMILE program, demanding to know why Respondent was at the school and why he was allowed to be near children. Jameson inquired as to why Gadson was so upset. Gadson related to Jameson that two years earlier, Gadson had gone to Everhart to pick up her nephew from the SMILE program and upon entering the classroom saw a young female with her head in Respondent's crotch area. Jameson told Gadson to report this to the Principal. Late that day Gadson spoke with Principal Jane Floyd- Bullen. Gadson told the Principal what she had told Jameson. According to Gadson, Respondent was standing just three feet inside the open classroom door and that in addition to the young female and Respondent, two other students were present in the classroom: Gadson's nephew and another boy who was in a wheelchair. She further explained that as she and Respondent made eye contact, Respondent pushed the girl away, turned away from Gadson, and adjusted his clothing. Respondent then turned to Gadson and began talking to her about how her nephew's day had gone. A few minutes later, the pregnant mother of the boy in the wheelchair arrived to pick up her son, and Gadson left the classroom. She said that she looked for program director Jameson, but Jameson was not there so Gadson left the school. Gadson explained that after a few more days she did not see Respondent at Everhart any more so she assumed the problem had been taken care of until she saw him there two years later. Floyd-Bullen asked Gadson if she had reported what she saw to anyone at the time, and Gadson said she thought she had but could not remember to whom she had spoken. Since it was late Friday afternoon when Gadson came to her, on Monday morning Floyd-Bullen contacted James Parry, the School Board's Chief of Labor and Employee Relations to report this conversation. Two investigations ensued: one by the School Board's Department of Safety and Security and one by the Leon County Sheriff's Office. On September 17, 2008, Respondent was given a letter telling him he was being placed on administrative leave with pay pending resolution of an investigation. Respondent was not told the subject of the investigation until he was summoned to the Sheriff's Office for questioning and was told then. Investigating Gadson's allegation was difficult because it was two years later, and the date of the incident she reported could only be narrowed down to late-September or early- October 2006. Further, although it was easy to identify the boy in the wheelchair, identifying the young girl was difficult. Gadson made the identification based upon looking at pictures in the most-recent Everhart yearbook. She identified a girl who had an unusual gait. The girl identified by Gadson has an I.Q. of 24 or 25 and is non-communicative, as are Gadson's nephew and the boy in the wheelchair. The girl she identified was not in the SMILE program during the time period of the alleged incident but "could" have been there if no one was at her home when the school bus delivered her there and if the bus driver had returned her to Everhart and taken her to the SMILE classroom. During the investigation Gadson remembered that she had reported the incident in 2006 to Joanne Kilpatrick, an employee at Everhart. When questioned, Kilpatrick did not remember any such conversation. During the investigation Gadson described what the girl was wearing, what Respondent was wearing, and what she was wearing two years earlier. She explained that she was wearing tennis shoes so her footsteps walking to the classroom made no noise and that the electric-powered doors to the hallway where the classroom was located were partially opened and so she opened them manually, thus preventing the motor to make its usual noise. She admitted that she had not seen Respondent's penis and the little girl was not moving during the incident which she described. During the investigation Gadson was asked by the detective investigating the case to take a computerized voice stress analyzer test. Among the questions she was asked during the test were two very specific questions which included Respondent's name, her nephew's name, and the classroom as the location. Her answers were considered to be "non-deceptive" by the person who administered the test and the person who read the computer print-out. When Respondent was informed of the allegation against him, he became extremely upset and frightened. His demeanor varied during the interview among being calm, being frightened, being angry, and crying. He denied the allegation but was unable to tell the detective why Gadson would make such an allegation if it didn't happen. He asked if he could be given a lie detector test and was offered the computerized voice stress analyzer test. Among the questions he was asked, the only two relevant questions were general in nature, unlike the very specific questions asked Gadson. Respondent, who was then a 43-year-old, unmarried, full-time college student, was asked: "Have you ever exposed your penis to a student?" and "Have you ever had a student perform oral sex on you?" His answers were determined to be "deceptive" by the person who administered the test and the person who read the computer print-out. At the final hearing Respondent explained the physical location of the SMILE classroom, the second classroom on the left, in a hallway with other classrooms and with an outside entrance to the building at the rear and another in the front of the building. At the time of the alleged incident, there were 17 students enrolled in the SMILE program, which ended at 6:00 p.m. Between the hours of 5:00 p.m. and 6:00, the time of the alleged incident, the classroom is busy with parents, staff, and students coming in and going out. The mother of the boy in the wheelchair regularly brought her young daughter with her when she picked up her son. Respondent had a teasing relationship with the girl and even had a nickname for her. Since her mother was 8 1/2 months pregnant at the time and moved slowly, the girl would usually arrive at the classroom before her mother. Respondent thinks it is possible that the girl ran into the classroom and hugged Respondent just as Gadson appeared in the doorway and saw a girl with her head in Respondent's crotch area. That girl was the age of the girl described by Gadson, but the girl identified by Gadson was several years older than the age of the girl Gadson described. At the conclusion of the Sheriff's Office investigation, the State Attorney's Office declined to prosecute. Although Gadson, as she repeats her story, is credible, it is determined that her allegation has become true to her over time, but was not true at the time of the alleged incident. Her behavior at the time is inexplicable if she saw what she now says she saw. She came into the classroom through its open door. She said and did nothing to confront Respondent about what would constitute not just child abuse but a serious crime. She did nothing to comfort the girl or remove the girl from Respondent's presence. She simply chatted with Respondent for a few minutes and left, assumedly leaving the girl with Respondent. When she was unable to find Jameson, she simply left the school without contacting anyone at the School Board, calling the abuse hotline, or contacting the police. In short, she did not report what she now says she saw to anyone in a position of authority to do something, including the principal at Everhart who testified that Gadson regularly came to her to voice concerns about other matters. Her testimony that she assumed Respondent had been dealt with since she didn't see him at Everhart after a few more days is also strange for two reasons. First, the conversation she says she had with Kilpatrick which Kilpatrick doesn't remember was simply saying that Respondent had done something inappropriate. Thereafter, since no one ever asked her what she had seen, it would have been clear to a reasonable person that there was no one looking into her vague report. Second, her testimony means that she was not bothered by the fact that Respondent was still at Everhart after the alleged incident, even for a few days. Gadson's behavior on the day of the alleged incident and thereafter can only be justified if she didn't think at the time that she had seen an abusive and criminal act taking place even though she has apparently convinced herself she had two years later. Gadson has been an educator for many years, and it is beyond belief that she would react as she did if she believed that she had witnessed what she later described and yet simply left the child to be alone in the classroom with Respondent when the mother removed her son in the wheelchair. After Respondent quit his job at DISC Village, he filed a complaint with the Florida Commission on Human Relations alleging discrimination. An evidentiary hearing was conducted by this forum and resulted in a Recommended Order recommending that Respondent's complaint be dismissed. That recommendation was adopted by the Commission. (DOAH Case No. 06-1052, Final Order entered October 12, 2006). The findings of fact in the DOAH Recommended Order entered July 20, 2006, reflect that an investigation of Respondent was about to commence when Respondent left his employment. There is no evidence that an investigation was already underway. When Respondent was terminated from his position as the assistant director of the SMILE after-school program, he filed a complaint with the Florida Commission on Human Relations. An employee there conducted an investigation and determined that there was no reasonable basis for believing that an unlawful employment practice had occurred. Respondent did not pursue his claim any further. Respondent's March 8, 2007, application for employment by the School Board of Leon County in Section III asks for employment history. Respondent left blank the reason(s) for leaving his prior positions. In question numbered 2 Respondent answered in the affirmative that he had been terminated in October 2006. Questions numbered 3 and 4 asked if he had left a job by mutual agreement or under unfavorable circumstances. While it can be argued that Respondent's answers to these questions in the negative were technically correct but conceptually incorrect, his answers do not reflect on his credibility in this proceeding. Despite his only-arguably- incorrect answers, Respondent's testimony is more credible than Gadson's.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the charges against Respondent and reimbursing him for lost wages and benefits from the date of termination until the effective date of his non-reappointment. DONE AND ENTERED this 27th day of July, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 27th day of July, 2009. COPIES FURNISHED: Lester L. Hall 810 Wadsworth Street, Apartment 113-B Tallahassee, Florida 32304 J. David Holder, Esquire J. David Holder, P.A. 1400 Village Square Boulevard, Suite 3-196 Tallahassee, Florida 32312 Jackie Pons, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Did the Lee County School Board (Board) have just cause to suspend Respondent without pay for ten days?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is a corporate and governmental agency duly empowered by the Constitution and statutes of the State of Florida to administer, manage, and operate the public schools within Lee County, Florida. At all times pertinent to this proceeding, Respondent was employed by the Board as an Assistant Principal at Lehigh Senior High School (LSHS). At all times pertinent to this proceeding, Respondent was employed by the Board under an administrator's contract as defined in Section 230.36(3)(a), Florida Statutes. Respondent has taught in the public school system of Florida for 30 years, and in the Lee County school system for the last 18 of those 30 years. During his 30-year career, Respondent has no disciplinary incidents on his record and his evaluations were either satisfactory or above average. Respondent began his tenure with the Board as a teacher and swimming coach at Cape Coral High School on August 17, 1983. On August 9, 1994, Respondent applied for, and was appointed to, the position of Assistant Principal of Student Affairs at LSHS. At the beginning of the 1999-2000 school year, Respondent occupied the position of Assistant Principal for Curriculum at LSHS. During his tenure with the Board, Respondent applied for numerous positions within the Lee County School system. Several of those applications resulted in Respondent being assigned to different positions. However, there were 17 applications filed by Respondent with the Lee County school system that did not result in any kind of a response from the Superintendent's office. Some of these applications were submitted as late as the 1998-1999 school year. By the beginning of the 1999-2000 school year, Respondent had become frustrated because he had not received the courtesy of a response, not even a negative one, to his many applications. As a result of his frustration, Respondent, at the beginning of the 1999-2000 school year, made some inappropriate remarks which resulted in Dr. Harter's suspension of Respondent for 10 days with pay, pending a predetermination investigation and predetermination hearing. As a result of the investigation and hearing, John V. Hennebery, Director of Public Relations, advised Respondent by letter of September 3, 1999, of the recommended disciplinary action to be taken against Respondent. This recommended disciplinary action was that: (1) the letter of discipline was to be placed in Respondent's personnel file; Respondent was to continue counseling until successful completion of the Employee Assistance Program (EAP) is provided indicating that Respondent was able to return to work; (3) a recommendation for 10-day suspension without pay be brought forward to the Board; and (4) upon eligibility to return to work, Respondent would be reassigned to a position of an 11 1/2-month assistant principal on assignment for the remainder of the 1999-2000 school year. By letter dated September 20, 1999, Superintendent Harter notified Respondent that he would be recommending to the Board that Respondent be suspended for 10 days without pay from his position as assistant principal of Lehigh Senior High School. This letter also advised Respondent of his right to contest the Superintendent's decision. By letter addressed to Victor Arias, staff attorney of the Lee County School District, dated September 21, 1999, Respondent, through counsel, requested an administrative hearing on the matter. Respondent submitted to a psychiatric examination by Dr. Newman, Psychiatrist of the Employee Assistance Program, who certified Respondent safe to return to work without any restrictions. Respondent did not undergo any psychiatric treatment. When Respondent returned to work after his suspension with pay, he was assigned as assistant principal at the Alternative Learning Center High School. On September 24, 1999, Superintendent Harter filed a Petition For Suspension Without Pay with the Board requesting that Respondent be suspended without pay for 10 days. Petitioner's Exhibit D is Kimberly McGlohon's notes of her recollection of the comments made by Respondent concerning Lynn Strong on August 12-13, 1999, and the comments made by Respondent on August 11, 1999, concerning Superintendent Harter. These notes were apparently made contemporaneously to the time of the comments. McGlohon's notes indicate that Respondent made the comment, "I am waiting for someone to go down and shoot Dr. Harter." Furthermore, McGlohon's notes indicate that she was outside the Student Affairs office along with Respondent when he made this comment and that Eric McFee, another assistant principal, also heard the comment. On direct examination, McGlohon testified that she was in the Student Affairs office on August 11, 1999, when she heard Respondent, who was in the hallway, say "that someone needed to shoot-go down and shoot Dr. Harter." On cross- examination, McGlohon testified that what she had written in her notes ("I am waiting for someone to go down and shoot Dr. Harter.") was correct rather than her statement made on direct examination. McGlohon's notes indicate that Eric McFee was in the room with McGlohon and heard Respondent's statement concerning Dr. Harter. McFee's notes make mention of this incident, but indicate that the incident occurred on Thursday, August 12, 1999, rather than August 11, 1999. In his direct testimony concerning this incident, McFee testified that he was in the Student Affairs room in August, 1999 (no specific date) with McGlohon when Respondent came into the room and made the statement: "Does anyone want to bet who will shoot Dr. Harter?" McGlohon testified that on August 12, 1999, while attending a district leadership meeting at Three Oaks Middle School, she overheard Respondent make the statement: "Someone needs to shoot Lynn Strong." Sitting at the table with McGlohon were Herman Williams, assistant principal, and Respondent. Williams testified that he also heard Respondent make basically the same statement. Respondent's recollection was that someone said, "They should give Lynn Strong a hand for all she had done." Respondent admitted that he replied: "I would rather someone give her a bullet." On August 13, 1999, at an administrative meeting in the conference room at Lehigh Senior High School attended by McGlohon, Williams, McFee, and Peter Folaros, Principal of LSHS, McGlohon heard Respondent mumbling something but could not make out what he was saying. After this meeting, while following Williams and Respondent down the hallway, McGlohon thought she heard Respondent say that he wanted to shoot Lynn Strong. Williams' recollection was that he thought Respondent said: "Someone should shoot Lynn Strong." Respondent's recollection of this incident was that he was walking down the hall by himself and did not make any comment concerning Dr. Harter or Lynn Strong. Both Williams and McFee recollect that Respondent made inappropriate remarks concerning Lynn Strong and Dr. Harter at the meeting on August 13, 1999, to the effect that "someone needs to shoot Lynn Strong" and "someone needs to shoot Dr. Harter." Neither in his notes nor in his testimony does Folaros, who also attended this meeting, indicate that he heard any inappropriate remarks concerning Dr. Harter or Lynn Strong during the meeting at LSHS on August 13, 1999. None of the individuals (McGlohon, Williams, and McFee) who heard Respondent make the remarks concerning Dr. Harter or Lynn Strong considered the remarks threatening to either Dr. Harter or Lynn Strong but were the result of Respondent's frustration with the system. Around 12:00 noon on August 13, 1999, McGlohon and Williams approached Folaros concerning the inappropriate remarks about Lynn Strong and Dr. Harter made by Respondent. Folaros assured McGlohon and Williams that he would talk to Respondent concerning these remarks. Subsequently, Folaros talked with Respondent about the remarks and advised him of that such remarks could result in dire consequences. Respondent assured Folaros that any remarks made by him were purely off-the-cuff or off-hand remarks and were in no manner meant to be threatening. Additionally, Respondent assured Folaros that he would cease making such remarks. After discussing the matter with Respondent, Folaros called Debbie Diggs, in staff development, who had already been informed of this matter by McGlohon. As a result of the conversation with Diggs, Folaros called Lynn Strong and was advised by Strong that an investigation would be initiated. Although Folaros had assured both McGlohon and Williams that he would talk with Respondent and have the matter investigated, McGlohon took it upon herself to call Lynn Strong, apparently at her home, and tell her the "whole story" on Strong's answering machine. After Respondent's suspension, McGlohon was appointed to fill his position as assistant principal of curriculum at Lehigh Senior High School. Clearly, Respondent's remarks concerning Dr. Harter and Lynn Strong were inappropriate. However, it is equally clear that those remarks were made out of frustration with the system and not intended as threats to either Dr. Harter or Lynn Strong and should be considered as off-the-cuff or off- hand remarks Although Respondent's remarks were inappropriate, the evidence does not establish that Respondent's remarks or behavior jeopardized the life and safety of Dr. Harter, Lynn Strong, or any other staff member of the school district. Likewise, the evidence does not establish that Respondent's remarks or behavior caused fear or disruption in the work environment within the school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order dismissing Superintendent Harter's Petition For Suspension Without Pay filed against Respondent. DONE AND ENTERED this 28th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2000. COPIES FURNISHED: Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. Bruce Harter Superintendent Lee County School District 2055 Central Avenue Fort Myers, Florida 33901-3988 Victor M. Arias, Esquire School District of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Harry A. Blair, Esquire 2180 West First Street, Suite 401 Fort Myers, Florida 33901
Findings Of Fact Based upon my observation of the witnesses, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Richard A. Cohan, was employed by the Dade County School Board as a classroom teacher continuously from the time of his initial hiring in August 1970 until November 19, 1986, when he was suspended by Petitioner. During Respondent's employment with the Dade County School Board, he has taught at Shenendoah Junior High School, Booker T. Washington Junior High School, Kinloch Park Junior High School, Kensington Park Elementary School and Miami Edison Senior High School. Respondent was employed as a continuing contract teacher at Miami Edison Senior High School at all times relevant to the alleged misconduct herein. 1984-85 School Year Respondent's performance as a classroom teacher was satisfactory until the 1984-85 school year when he was absent 41 days from school. Frederick Sturgeon, Principal of Miami Edison Senior High School, made a notation concerning the absences on the Respondent's 1984/85 annual evaluation. 1985-86 School Year The Respondent's absenteeism continued into the 1985-86 school year. On November 5, 1985, Sturgeon held a conference for the record with Respondent because he had been absent 27.5 days since the beginning of the school year. Sturgeon was also concerned because Respondent failed to follow established school procedures when reporting his absences. During the 1985-86 school year, teachers who anticipated an absence were required to call a specific telephone number at the school and leave a taped message. The school secretary could check the messages during the night and arrange for any needed substitutes. The Respondent, however, usually called the school on the morning of the day he was absent. Thus, the school would have very little time in which to secure a substitute teacher who was specifically suited to teach the subject matter of the Respondent's classes. At the November 5, 1985 conference, Respondent was given specific instructions by Sturgeon to: Report any future absences to Assistant Principal Weiner personally and to discontinue calling the tape recording machine to report absences; Ensure that weekly lesson plans were available so that a substitute teacher would be able to continue with the lesson for that day; and Have on file with the school three days of "emergency lesson plans" dealing with general academic skills. On February 28, 1986, Sturgeon held another conference with the Respondent. The Respondent had been absent 5 times since the November 5, 1985 conference. On three of the days, Respondent did not call to report his intended absence. Sturgeon reiterated the same directives given Respondent during the November 5, 1985 conference. As of April 24, 1986, Respondent had been absent 58.5 days since the beginning of the school year. Because Respondent's absence pattern made it difficult to schedule a face to face conference, Sturgeon wrote a letter to Respondent expressing his concern over the high number of absences and the fact that from March 18, 1986 through April 24, 1986, there were 26 days during which the Respondent had not furnished lesson plans for his classes. Sturgeon again reiterated the directives of the November 5, 1985 conference. On May 12, 1986, a conference for the record was held with Respondent at the school board's Office of Professional Standards. Present at the conference were Assistant Principal Weiner, the Respondent, Dr. Gil (a coordinator in the office), and a union representative. The conference was held to discuss Respondent's performance assessment and future employment with the school board. The Respondent indicated his absences during the year were due to his grandmother's illness, the fact that he was not functioning well and the fact that he was taking medication for an upper respiratory illness. At the May 12, 1986 conference, the Respondent was directed to call Ms. Weinter directly to report any absences and to return his grade book to the school by May 13, 1986. Dr. Gil also determined that Respondent should be evaluated by a physician and an appointment was scheduled for the Respondent with Dr. Roger Rousseau, a psychiatrist. The Respondent first saw Dr. Rousseau on May 15, 1986. On May 20, 1986, the Respondent had still not furnished the grade book to the school. Ms. Weiner directed Respondent, by way of a memorandum, to produce the grade book as previously requested. On May 30, 1986, Sturgeon completed an annual evaluation in reference to Respondent's teaching performance. Respondent was rated "unacceptable" in the category of professional responsibility. On June 4, 1986, Sturgeon discussed with Respondent his most recent absences (May 29th to June 3rd) and the fact that he had not called Ms. Weiner to report them, had not provided lesson plans for two of the days and had still not provided the grade book to the school. The Respondent stated that he would comply with the directives in the future and provide his grade book to the school. Respondent was absent from June 6, 1986 until June 19, 1986. By letter dated June 11, 1986, Sturgeon requested that Respondent provide final examinations for his students and again directed that Respondent furnish the school with his grade book. On June 19, 1986, Sturgeon held a conference with the Respondent. The Respondent had not provided final examinations for his classes (one of the other teachers had to prepare the final exams), had not produced the grade book and had not provided lesson plans for use during his absences. The Respondent indicated to Sturgeon that on occasions, he attempted to contact Ms. Weiner but was unable to get through to her and at other times he forgot to contact her. The Respondent also informed Sturgeon that he was having a personal problem that he could not share with the school, and that the personal problem was having such an effect on him that he didn't feel that he could comply with the directives. On July 17, 1987, a conference was held at the school board's Office of Professional Standards, between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to review Respondent's performance over the previous school year. In Sturgeon's opinion, the Respondent's students had not been graded properly during nearly the entire year, final exams had to be administered which did not adequately assess the students' progress and the students had not reached the course objectives. At this time, the Respondent was a little more specific about the problem that he had mentioned to Sturgeon earlier and stated that he was having a mental problem and that he had experienced a series of traumatic experiences which had affected his ability to attend school. At the conclusion of the July 17, 1987 conference Sturgeon decided to recommend a short term of suspension, a medical examination and a period of controlled monitoring during the next school year. The recommendation was approved by the school board and Respondent was suspended for ten work days beginning the 1986-87 school year and was placed on probation for a 45 day monitoring period. The Respondent did not contest the suspension. 1986-87 School Year The Respondent returned to work from his suspension on September 16, 1987. Classes for the new school year had already commenced. Prior to returning to work, Respondent had gone to school and was given a teacher handbook in biology by Ms. Weiner. Respondent prepared lesson plans and tests based on the teacher handbook he had been given. When Respondent returned to school, he was given a new teacher handbook for biology. Respondent had to re-do all of his lesson plans and tests. In addition, he discovered that none of his classes had been issued textbooks. Respondent also received a folder filled with five classes worth of work for the proceeding 15 days which was assigned by the substitute teacher. On September 29, 1986, Ms. Weiner conducted an observation of Respondent's class. Respondent was rated "acceptable" in five categories but "unacceptable" in the area of assessment techniques. This rating was based on the fact that there was no work done by the students contained in the student folders, his grade book contained only one entry grade per student for only one week and students were allowed to grade other students' essay-type examinations. Weiner gave Respondent a prescription for improving his deficiencies which included the directive that he conduct at least two formal assessments of student progress per week and maintain student folders to keep evaluative items. During October 1986, the Respondent was absent 15 days. Most of the absences were due to a severe intestinal flu which Respondent contracted. The Respondent failed to report his absences directly to Ms. Weiner as previously directed. On some occasions, the Respondent attempted to call Ms. Weiner, but could not get through to her on the telephone. When Respondent was unable to contact Ms. Weiner he would sometimes call the answer phone and leave a recorded message. On October 27, 1986, a conference for the record was held at the Office of Professional Standards between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to discuss Ms. Weiner's observation of Respondent, his continued failure to contact Ms. Weiner directly regarding absences and his failure to file emergency plans. On November 3, 1986, Sturgeon conducted an observation of the Respondent's classroom. Sturgeon rated the Respondent "unacceptable" in the area of assessment techniques. This unacceptable rating was based on the fact that Respondent did not have any student folders and had not assigned any homework. School policy required that teachers assigns homework at least twice a week. Respondent was also rated unacceptable in the area of professional responsibility. On November 14, 1986, Ms. Weiner conducted an observation of Respondent's class and rated him "unacceptable" in the area of assessment techniques. The Respondent had no student folders, did not conduct at least two formative assessments of the students per week and there were no summative assessments of the student's progress. The Respondent admitted that he did not have formal folders and that his evaluation techniques were deficient. The Respondent stated that he was unable to employ the student assessment procedures recommended given by Ms. Weiner during the first few months of the 1986-87 school year because he was in the process of "catching up" after his return from suspension and was unable to do all of those things in such a short period of time. In addition, Respondent was hindered in his attempt to catch up because he was unable to have a lot of needed items copied because at times the machines were broken and at other times teachers with current items requiring reproduction were given priority. On November 19, 1986, Petitioner suspended Respondent from his position at Miami Edison Senior High School. Beginning in the 1984-85 school year and continuing through to the 1986-87 school year, Respondent suffered from a dysthymiac disorder referred to as neurotic depression. Respondent's condition was first diagnosed by Dr. Roger Rousseau, a psychiatrist, on May 15, 1986. At the insistence of Dr. Gil, Respondent went to Dr. Rousseau's office for an examination. Dr. Rousseau was chosen from a list provided to Respondent by Dr. Gil. Dr. Gil personally made the appointment for Respondent to see Dr. Rousseau. Respondent at first did not realize or believe that he was suffering from a mental illness and initially resisted the treatment provided by Dr. Rousseau. However, Dr. Rousseau was able to establish a psychotherapeutic relationship with the Respondent after a short period of time. After the doctor-patient relationship was established, Respondent decided to continue seeing Dr. Rousseau and kept weekly appointments from June, 1986 until November, 1986. Respondent was treated with individual psychotherapy and antidepressant medication. In November of 1986, Respondent stopped seeing D. Rousseau because Respondent moved to Atlanta, Georgia, shortly after being suspended. Neurotic depression is a serious mental illness of a cyclical nature which may be physically disabling while the afflicted person is in a pathological state of depression. The symptoms of a neurotic depression include extreme sadness, apathy, lack of motivation, inability to concentrate, psychomotor retardation, insomnia and loss of appetite. Respondent's periods of pathological depression were characterized by feelings of helplessness, hopelessness and an apathy toward outside activities, including his employment. During Respondent's depressive states he would isolate himself at home, withdraw from all social contact, neglect his nutrition and hygiene and suffer insomnia. At times, Respondent would be unaware of the passage of time and would have crying spells. In his depressive condition, sometimes Respondent knew what he was required to do, such as calling in to report an absence, but because of his despair and dejected mood, was unable to motivate himself to do anything. Respondent's apathy and inability to attend to his necessary duties was a direct result of his neurotic depression. Due to the depressive symptomatology, a neurotically depressed person might fail to perform required duties for a number of reasons. As a result of an inability to concentrate, the depressed person may be unable to receive and assimilate instructions. The depressed person having a desire to complete a required duty may lack the physical capacity to perform because mentally he or she feels unable to do so. Further, because of an unconscious, passive- aggressive need for punishment, a depressed person may neglect to perform a required duty. The Respondent was examined by Dr. Albert Jaslow, a psychiatrist, on September 15, 1986 at the request of Dr. Gil of the Office of Professional Standards. Dr. Jaslow confirmed that Respondent was suffering from a mental illness and found that Respondent had made progress with his treatments from Dr. Rousseau. Dr. Jaslow noted that Respondent had reached a state of "relative adjustment" and had begun to realize that it would be necessary for him to be involved in a psychotherapeutic relationship in order to control the negative behavioral aspects of his periods of depression. Dr. Rousseau believes that Respondent responded well to treatment after an initial period of resistance and lack of insight (which is a part of the depressive symptomatology). Dr. Rousseau feels that the Respondent was getting better during the course of therapy but will need to continue taking his medication and receiving psychotherapy in order to fully complete the recovery process and control any recurring symptoms of depression.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: Respondent be dismissed from employment; however, said dismissal shall be held in abeyance for 2 years from the date of the Final Order contingent on the following: Respondent's present suspension shall remain in effect until the commencement of the 1987-88 school year when Respondent shall return to work; Respondent shall continued treatment with Dr. Rosseau or another qualified psychiatrist of his choice; Respondent shall maintain acceptable performance evaluation reports during the school year, overall acceptable annual evaluations and be recommended for employment by his school principal at the end of the 1987-88 and 1988-89 school years. The Office of Professional Standards, Dade County Board, shall monitor the Respondent's progress and fulfillment of the terms of the Final Order. If the Office of Professional Standards provides information by letter or motion to the school board that the Respondent has failed to meet any of the terms of this Order, the school board shall, if satisfied that the information is correct, immediately effectuate Respondent's dismissal by majority vote. If Respondent meets the requirements of the Final Order, the dismissal shall be remitted without further action. DONE and ORDERED this 28th day of July, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4805 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Addressed in Procedural Background section. Addressed in Procedural Background section. (No finding of fact 3) Addressed in Procedural Background section. Adopted in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 8. Adopted in substance in Findings of Fact 9, 10 and 11. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 14. Adopted in substance in Finding of Fact 15. Rejected as unnecessary and/or subordinate. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 23. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 24. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 6. Adopted in substance in Findings of Fact 8-21. Adopted in substance in Finding of Fact 9. Adopted in substance in Findings of Fact 9 and 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 29. Rejected as subordinate and/or unnecessary. Addressed in Procedural Background section. Adopted in substance in Finding of Fact 31. Addressed in Conclusions of Law section. COPIES FURNISHED: Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 William duFresne, Esquire 2950 Southwest 27th Avenue Suite 310 Coconut Grove, Florida 331133 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 Northeast Second Avenue Miami, Florida 33136 Dr. Patrick Gray Division of Professional Standards Dade County Public Schools 1550 North Miami Avenue - Suite 100 Miami, Florida 33136 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1550 North Miami Avenue Miami, Florida 33136
Findings Of Fact Dr. Bert, a white woman, has been employed 25-1/2 years by the Department of Education (hereinafter "DOE"). Dr. Bert earned a Bachelor's of Science (1950), a Master's of Science in home economics education (1963), and a Ph.D. in home economics (1967) from the College of Economics at Florida State University. Beginning in 1950, Dr. Bert was employed as a teacher of high school home economics first at Union County High School (3 years), and then at Havana High School until 1965, when she took leave to finish her Ph.D. courses and write her dissertation. Dr. Bert first went to work for DOE in 1967 as a Vocational Studies Assistant. In 1975, she was promoted to the position of Program Director and worked in the area of research and development. While there, she helped Florida bring in over $30 million in federal grants for various vocational education programs (including home economics). During the period 1980-1985, when the federal government cut back the funds available for educational research and development, the R & D program was phased out; however, Dr. Bert remained as a Program Director in the R & D position, writing grants and seeking funds from other sources. In 1985, DOE was reorganized. Dr. Bert was laterally reassigned and given the job of Program Director I in home economics education by the Division Director, Dr. Joe Mills. Dr. Mills knew that Dr. Bert had earned her Ph.D. in home economics and asked her to take the position. As Program Director for Home Economics Education, Dr. Bert supervised a staff of four other professionals (Program Specialist III's) and was responsible for monitoring and administering the Florida and Federal government programs in home economics education, occupational education and homemaking education in all of the 67 local school districts. The Federal government provides Florida and other states with most of the monies needed for the administration of these programs, collectively referred to as "consumer and homemaking education." DOE's function is to establish the minimum education standards and curricula required in each area and otherwise to carry out the intent of Federal and Florida Law. As Program Director, Dr. Bert voiced repeatedly her concerns in 1992 regarding expenditures of federal funds earmarked for the Consumer and Homemaking Education Program which she described as illegal to Jerry Barnett, DOE's Budget Officer. The June 1993 report of audit on federal financial assistance programs at DOE for fiscal year 1992 confirmed that DOE was mis-spending federal monies, as Dr. Bert had pointed out. Dr. Bouie is a black woman, who had worked for DOE 14 years. She earned a Bachelor's of Science from Florida A&M University in home economics education (1967), a Master's of Science in home economics education from Tuskeegee Institute (1974), and a Ph.D. from Florida State University College of Education in administration and supervision (1983). From 1970- 1979, Dr. Bouie was a home economics instructor in Volusia County, Florida. Dr. Bert and Dr. Bouie were employed in 1992 in the Bureau of Vocational Programs and Services, which is within the Division of Vocational, Adult, and Community Education (the Division's name has now changed to "Division of Applied Technology and Adult Education" but will be referenced by its former name herein, or called the "Division"). Pat Hall (hereinafter "Hall") is the Bureau Chief of the Bureau of Vocational Programs and Services within the Division, and Lanny Larson (hereinafter "Larson") is the Director of the Division. On July 20, 1992, Castor issued a memorandum to the "Policy Group." The subject matter of the memorandum concerned the possible loss by minority employees of their positions or opportunities for advancement due to attrition and downsizing. The memorandum closed by announcing that Herb Parker (hereinafter "Parker") would be meeting with managers to development strategies to reduce the effect of attrition and downsizing and to enhance the composition of the work force. Hall, who was not a member of the policy group, was not aware of the July 20th memorandum, and never met with Parker. Neither Parker, Castor, nor Larson suggested to Hall that she promote a Black. Larson, as a member of the policy group, had seen the July 20th memorandum. Larson was never pressured by Castor to hire a Black and had never met with Parker pursuant to the memorandum. Larson was the Division Director of Vocational Adult Community Education and a member of Commissioner Castor's "Policy Group." He was aware of Castor's policy guidance not to reduce the number of Blacks in the process of downsizing the Department and in promoting Blacks at DOE. In the first week of October of 1993, Hall learned that her Bureau might have to leave five vacant positions unfilled and subject to elimination because of a legislative mandate. Not filling positions vacated by resignations and retirements was the primary means used to achieve the new manning levels of the Departmental reorganization. Hall analyzed her Bureau as to work-load issues, functions required, and expertise areas of remaining staff to insure that the Bureau's work could be covered with available personnel without laying anyone off. Hall's bureau was tasked to search out, apply and complete for Federal, state, and private grants, and to research new and merging issues in vocational education. No new personnel would be available to perform these new resource development duties. Hall's personnel review showed that Dr. Bert had worked 16 years in and was ultimately the Program Director of Research and Evaluation, which included resource development for 16 years. Dr. Bert had an extensive background, broad experience and considerable expertise in this area; and she was the only person in the Bureau with such experience. Hall's review also showed that Dr. Bouie had worked as a home economist for the Agricultural Extension Service, was a Junior and Senior High School home economics teacher, and was Chairperson of her Home Economics Department of her high school in Volusia County, Florida. Dr. Bouie also had a solid background in programs designed for the disadvantaged and the limited English proficient, together with programs administered through the Community Based Organizations Delivery System. She had developed a reputation for being a team player. Hall was of the opinion that this experience would be invaluable to the Bureau's Home Economics Section. The economic development and demographic trends in Florida resulted in the need for extensive restructuring and changes to the program offerings in each vocational area, to include Home Economics. Hall, at Larson's request, previously had asked Dr. Bert to look into changing the Home Economics curriculum. Dr. Bert refused, and Hall asked Shirley Lee, one of Dr. Bert's subordinates, to review the curriculum for change. Dr. Bert refused to allow Lee to conduct the project during normal working hours. Dr. Bert's refusal to consider changing the curriculum was, in Hall's opinion, an example of Dr. Bert's lack of receptiveness to change. In Hall's opinion, Dr. Bert was not the best person to initiate and develop those changes because Dr. Bert had, in the past, not been receptive to new initiatives for Home Economics. Larson was of the same opinion. Hall recommended to Larson that Dr. Bert be transferred to the new position of Program Specialist IV in Resource Development and that Dr. Bouie be placed in the Program Director I position. The decision to transfer Dr. Bert and Dr. Bouie to their new positions was jointly made by Hall and Larson based on Hall's review and recommendation. Both transfers were at the same pay grade. Thirty (30) such lateral transfers have been made due to reorganization in the Division over the last two years. Hall met with Dr. Bert on October 21, 1992 to notify and explain to Dr. Bert her pending transfer. Dr. Bouie was notified of the transfer on or about the same date. Dr. Bouie had not asked for and did not want to make the transfer. The fund-raising position into which Dr. Bert was transferred was a newly created position, having no support staff. Unlike her previous R & D position at DOE, Dr. Bert was given little or no assistance, met infrequently with Larson, and was given no extraordinary resources to perform the duties of her new job. Her transfer was a demotion. Dr. Bouie would retain certain duties she was already performing, as well as assuming those previously performed by Dr. Bert. Louis Davidson, the Health Occupations Program Director, and Loretta Costin, the Marketing Program Director, were also required to take on additional duties within the Bureau. Both Davidson and Costin are white. In late October, 1992, Dr. Bert learned from Dr. Mae Clemons that a group of Blacks at DOE had been communicating with Betty Castor, the Commissioner of Education, regarding the lack of Blacks in administrative positions given the number of Blacks with doctorate degrees. Dr. Clemons showed Dr. Bert an anonymous letter written sometime in 1992 to Betty Castor, containing the name of Blacks seeking promotions at DOE. Dr. Connie Hicks-Evans' and Dr. Bouie's names were two of the names listed in the anonymous letter to Commissioner Castor as having doctorates. Commissioner Castor called Dr. Hicks-Evans about the letter, and then faxed a copy to her. Dr. Hicks-Evans then called the meeting of Blacks holding doctorate degrees at DOE to discuss the issues and decide how to respond to Castor's inquiry. A group of black employees met in the DOE cafeteria to discuss informally the situation in October, 1992. Dr. Hicks- Evans discussed at the meeting the fact that Blacks were being denied promotions. Although this had not happened to her, it had happened to Rufus Ellis, James Scruggs and Baxter Wright. Dr. Bouie attended this meeting. She had never seen the anonymous letter before that meeting. Dr. Bouie believed that Blacks had applied for various positions and were not considered. She and other black employees wanted to find out what was happening in the Department. The subject of Dr. Bouie's transfer into Dr. Bert's position was not discussed at the group meeting. Dr. Bouie had not been told about her transfer at the time of the meeting. On November 2, 1992, Betty Castor met with a group of Blacks within DOE to discuss their concerns regarding promotions and other issues. The nine Blacks listed as "present" at the November 2 meeting were: Dorothy Bouie; Rufus Ellis, Jr.,; Connie Hicks-Evans; James A. Scruggs; Baxter Wright; Mae Clemons, Adeniji Odutola; Herb Parker; and Jean Williams. Dr. Bouie asserts she did not attend the November 2nd meeting with Commissioner Castor because she was sick that day. Her statement is deemed credible. Almost a year after the transfer was effective (December 21, 1992), the Program Director I position was upgraded to Program Director II, and Dr. Bouie's pay grade was increased from pay grade 25 to 27. Dr. Hicks-Evans did not know if any of the Blacks other than Dr. Bouie had been promoted at DOE since the anonymous letter was written and the meetings were held. Dr. Larson is the division Director of Vocational Adult Community Education which has four bureau. Two of the bureau chiefs are black (Leatricia Williams and John Lawrence), one is hispanic (Glenn Thomas), and the fourth is white (Pat Hall). Larson acknowledged that the decision to reassign Dr. Bouie into Dr. Bert's position and, subsequently, upgrading the position to promote Dr. Bouie, met the guidance of Castor regarding promotions for Blacks holding doctorate degrees; Dr. Bouie was not reassigned and promoted because of the Blacks' efforts in October and November, 1992. Larson was also aware of the 1992 movement by Blacks holding doctorate degrees, who were seeking promotions, prior to his decision to reassign Dr. Bert and place Dr. Bouie in Dr. Bert's position. There was never any pressure by the Commissioner on Dr. Larson to promoted Blacks because he had already met his EEO goals. The promotion of minorities at DOE was discussed quarterly as an issue related to performance appraisal and performance appraisals of all Division Directors at DOE by Castor. In July, 1992, Larson promoted a Black (Leatricia Williams) to one of his Bureau Chief jobs to replace another Black (Jim Barg). Although Dr. Larson could have reassigned Ann Rushing, a qualified white female, to the resource development position, he felt that Dr. Bouie was a better candidate for that position. Paulette Mainwood, Charlotte Gore, and Nancy Phelps were other qualified whites in the division whom Dr. Larson did not consider for the resource development position. Dr. Parker, a black male, has been DOE's Director of Administration for three years. He was promoted to the position by Castor and replaced by Larson, who was reassigned. Parker's job includes running the DOE's affirmative action program, and he attended the November 2, 1992 meeting with the other Blacks and Castor. The first informal group meeting of Blacks occurred about two weeks prior to the November 2, 1992 meeting with Castor. The anonymous letter had to have been sent before then. Parker met with all Division Directors regarding promotion of Blacks within the Department because he was the Chairman of the EEO Committee, and Betty Castor was concerned about promotion of minorities within the Department. The Department had goals established, and progress was discussed quarterly at executive steering committee meetings. Attainment of departmental affirmative action and EEO goals were not required by any law, according to Parker.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Florida Commission on Human Relations Commission enter its Final Order finding no cause regarding the Petitioner's complaint. DONE and ENTERED this 15th day of June, 1994, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-5812 Both Parties submitted proposed findings of fact which were read and considered. The following states which of their findings were adopted, and which were rejected, and why: Petitioner's Proposed Order: Findings: Paragraph 1 Subsumed in 1 Paragraphs 2-7 Paragraphs 3-7 Paragraphs 8,9 Irrelevant Paragraphs 10, Subsumed in 7,8,9 11,12 Paragraph 13 Paragraph 22 Paragraph 14 Paragraph 10 Paragraph 15 True, but Bert was qualified as the resource person, and Bouie was qualified as the Home Economics Director. Paragraphs 16,17 Subsumed in 21-24 Paragraphs 18,19 Paragraphs 25,26 Paragraphs 20,21 Paragraph 32 Paragraphs 22,23 Paragraph 10 Paragraphs 24-27 Paragraphs 27-31 Paragraphs 28,29 Paragraphs 33,34 Paragraphs 30,31 Paragraphs 27,28 Paragraphs 32,33 Paragraphs 11, 15-18 Paragraph 34 Irrelevant Paragraph 35 Subsumed in 15-18 Paragraphs 36-44 Paragraphs 35-41 Paragraphs 45-51 Paragraphs 42-46 Respondent's Proposed Order: Findings: Paragraph 1 Paragraph 1,2 Paragraph 2 Paragraph 11 Paragraph 3-6 Paragraph 15-18 Paragraph 7 Paragraph 24 Paragraph 8 Paragraph 19 Paragraphs 9-11 Paragraphs 20-22 Paragraphs 12,13 Subsumed in 25-28 Paragraph 14 Irrelevant Paragraph 15 Paragraph 12 Paragraph 16 Paragraph 13 Paragraph 17 Irrelevant COPIES FURNISHED: Bruce A. Minnick, Esquire 660 East Jefferson Street Post Office Box 11127 Tallahassee, FL 32399-3127 William H. Roberts, Esquire Department of Legal Affairs The Capitol, PL-01 Tallahassee, FL 32399-1050 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Dana C. Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue The issue in this case is whether the Application to Participate in Educational Scholarship Programs submitted by the Petitioner, Hodge Pavilion Stem Academy (6402), should be approved.
Findings Of Fact The John M. McKay Scholarships for Students with Disabilities Program (McKay) and the Florida Tax Credit Scholarship Program (FTC) provide state funds to pay private school tuition to qualified students. Private schools must apply to, and obtain approval from, the Respondent to participate in the scholarship programs. Approval of an application authorizes the private school to receive the scholarship funds. Individual scholarship checks are made payable to the parent of each qualified student and the name of the student’s private school. The parent endorses the check and provides it to the school. In the spring of 2013, Mr. Jenkins and an associate, Ayesha Hackman, founded a private school identified as the “Harmon-Hodge STEM School.” The Harmon-Hodge STEM School submitted an application to participate in the McKay and FTC programs. The Respondent approved the application. Not long after the Harmon-Hodge STEM School was founded, Mr. Jenkins and Ms. Hackman began to disagree about the direction of the school. When Ms. Hackman sought to obtain control over the school, Mr. Jenkins announced to her that he was severing his ties with the school. At Ms. Hackman’s request, Mr. Jenkins agreed to continue his employment with the school. During the summer of 2013, Mr. Jenkins and an associate, Tami Robinson, began to organize another private school, the Petitioner in this proceeding. By August of 2013, Ms. Hackman consolidated her control of the Harmon-Hodge STEM School. She amended the corporate documents to designate herself as the chief executive officer, to identify Mr. Jenkins as the school principal, and to delete the hyphen from the school name (now identified as the “Harmon Hodge STEM School.”) Students began attending the Harmon Hodge STEM School in August of 2013. One month later, the school started accepting scholarship checks payable to the “Harmon-Hodge STEM School.” Mr. Jenkins came into possession of an FTC scholarship check for $1,183.40, made payable to the parent of an enrolled student and to the Harmon-Hodge STEM School. In early October of 2013, Mr. Jenkins opened an account at a Wells Fargo bank in the name of Harmon Hodge STEM School and deposited the check into the account. Mr. Jenkins designated only himself as the authorized signatory on the account and did not advise Ms. Hackman that he had opened the account. Very shortly after the account was opened, Wells Fargo notified Mr. Jenkins that the account was being closed. At the hearing, Mr. Jenkins testified that the account closure was related to a previous incident of identity theft involving his personal bank account. Wells Fargo returned the deposited funds to Mr. Jenkins in the form of cash. At the hearing, Mr. Jenkins testified that he used some of the cash to pay Harmon Hodge STEM School vendors who, he said, had not been paid by the school. No documentation was offered to support the testimony. Mr. Jenkins testified that the vendors did not present bills for services, and no receipts for payment were obtained from the vendors. Mr. Jenkins’ testimony is not credible. Mr. Jenkins testified that he retained the remainder of the cash because he believed it was owed to him. There was no credible evidence that the Harmon Hodge STEM School owed Mr. Jenkins any funds or that he was entitled or authorized to retain any state scholarship funds for his personal use. After the Wells Fargo account was closed, Mr. Jenkins came into possession of two FTC scholarship checks totaling $2,400 that were payable to the parents of enrolled students and to the Harmon-Hodge STEM School. Mr. Jenkins then opened a bank account at Bank of America in October of 2013, again in the name of Harmon Hodge STEM School. Mr. Jenkins again designated only himself as the authorized signatory on the account and did not advise Ms. Hackman of the account. As was the case with the Wells Fargo account, Bank of America notified Mr. Jenkins shortly after the account was opened that the account was being closed. Mr. Jenkins testified that this account closure was also related to a previous incident of identity theft involving his personal bank account. Bank of America returned the deposited funds to Mr. Jenkins in the form of a bank check made payable to Harmon Hodge STEM School. Using the Bank of America bank check, Mr. Jenkins opened a third account, still in October of 2013, in the name of Harmon Hodge STEM School, this time at Chase Bank. Mr. Jenkins again designated only himself as the authorized signatory on the account and did not advise Ms. Hackman of the account. Mr. Jenkins used a debit card issued on the Chase account to withdraw cash from the account and to spend the funds in the account. Mr. Jenkins again testified that he used some of the cash withdrawn from the Chase account to pay Harmon Hodge STEM School vendors. No documentation was offered to support the testimony. Mr. Jenkins’ testimony is not credible. Mr. Jenkins testified that he retained the remaining Chase deposit because he believed it was owed to him. There was no credible evidence that the Harmon Hodge STEM School owed Mr. Jenkins any funds or that he was entitled or authorized to retain any state scholarship funds for his personal use. Towards the end of October, Ms. Hackman became aware of the unauthorized banking activity and filed a report with local law enforcement. Criminal charges were filed against Mr. Jenkins related to some of the banking activities referenced herein. The charges were pending at the time of the hearing. On October 30, 2013, Mr. Jenkins submitted an application on behalf of the Petitioner seeking approval to participate in the McKay and FTC scholarship programs. By letter dated January 8, 2014, the Respondent, aware of the banking activities referenced herein, notified Mr. Jenkins that the application was denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education enter a final order denying the Petitioner's Application to Participate in Educational Scholarship Programs. DONE AND ENTERED this 17th day of June, 2014, 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 17th day of June, 2014.
Findings Of Fact The Respondent, Thomas B. Ferris, holds Florida teaching certificate number 286085 issued by the Florida Department of Education covering the area of physical education and junior college. The Respondent has held a valid teaching certificate since 1971. The Respondent began teaching in 1971 in the field of physical education at Hollywood Park Elementary School in Hollywood, Florida. He later taught at Sterling Elementary School in Fort Lauderdale, Florida, for one year, and for five years at Stephen Foster Elementary School in Fort Lauderdale. The Respondent's latest employment was as a physical education teacher at Spring Hill Elementary School in Hernando County for over 3 academic years. The Respondent's teaching performance and ability have never been less than satisfactory, and he received satisfactory teaching evaluations during his last employment at Spring Hill Elementary School. The principal of Spring Hill Elementary School had the opportunity to observe the Respondent for approximately one and one-half years, and during this time completed two performance evaluations of the Respondent. He is an enthusiastic teacher who works effectively with children. The Respondent also served as teacher-in- charge in the absence of the principal. The Respondent and the subject minor male student first met during the 1979-1980 school year while the Respondent was teaching physical education at West Hernando Elementary School, now named Spring Hill Elementary School. This minor was a student in the Respondent's physical education class, and also became a physical education helper in this fifth grade class. The Respondent and the minor became good friends. During the ensuing four years they participated in various recreational activities together. The minor and the Respondent frequently went jogging, bike riding, motorcycling, canoeing, lifted weights, and played basketball. In the summer of 1983, they engaged in a lawn mowing business and purchased a motorcycle together. The minor babysat for the Respondent and his wife frequently during his seventh, eighth, and ninth grade years, and in 1983 he babysat for them approximately three or four times a month until August. Between 1982 and 1983, the minor's relationship with the Respondent and his family intensified. The minor began to call the Respondent's home, and visit with the Respondent and his family so frequently that the Respondent started to avoid these telephone calls. The minor was visiting at the Respondent's home, or they would see each other, nearly every day. During the summer of 1983 the Respondent and the minor terminated their lawn mowing business. At about the same time the Respondent and his wife began to indicate to the minor that he was spending too much time with the Respondent and his family, and they suggested that he spend more time with his own mother and father. The minor's involvement with the Respondent's household began to decrease at this point, which was around the end of August, 1983. On the evening in late August, before school started in 1983, which is the occasion of the first allegation of sexual misconduct against the Respondent, the minor was babysitting for the Respondent and his wife at their home. They returned at approximately 11:30 P.M., and found the minor asleep on the couch in the living room. This was not unusual, as the Respondent and his wife would often find the minor asleep on the couch while babysitting, if they returned home at a late hour. After a brief conversation, the minor retired upstairs to the bedroom of Douglas, the son of the Respondent. After using the bathroom, the Respondent retired to the parents' bedroom on the first floor; his wife followed shortly thereafter. The Respondent did not leave his bedroom during the night. Neither did he proceed upstairs during the night, awaken the minor, and bring him downstairs. Several undisputed facts lead to this finding. The Respondent's wife is a very light sleeper. When the Respondent arises during the night, she is aware of it. She is often awakened by sounds in the house, especially from her children upstairs. The Respondent is a heavy sleeper who normally does not arise during the night. Moreover, the Respondent's bedroom is adjacent to the living room, where the alleged misconduct occurred. While in this bedroom, noise and voices from the adjacent living room are easily heard. The room of the Respondent's son, Douglas, is directly over the Respondent's bedroom. While in the Respondent's bedroom, noise and sound from the son's bedroom, including footsteps, can be heard. From the Respondent's bedroom, the sound of anyone using the adjacent staircase can be heard. Yet the Respondent's wife heard no sound or voices during the night, either from her son's bedroom upstairs, or from the staircase. Neither did she hear voices or sound from the adjacent living room during the night. On a Thursday night, October 6, 1983, the minor and the Respondent attended a concert in Lakeland, Florida. The minor had the permission of his parents to attend this concert. On the way home after the concert, they stopped at Bennigan's on Dale Mabry in Tampa, and ate dinner. They had agreed previously that the minor would pay for the concert tickets and the Respondent would pay for the dinner. Bennigan's was the only stop made by the Respondent and the minor while enroute from the concert to the Respondent's home. The Respondent and the minor arrived at the Respondent's house after the concert at approximately 12:30 A.M. Earlier on this evening, the Respondent's wife attended a painting class in Inverness, which had been meeting once a week on Thursday nights. She was in the kitchen at home working on a class craft project which she had not finished, when the Respondent and the minor arrived. The three of them engaged in a general conversation for approximately a half hour while sitting at the kitchen table. The minor then retired to the upstairs bedroom of Douglas, while the Respondent and his wife remained downstairs. The Respondent spent no time alone in the living room with the minor. The Respondent then retired to his bedroom, and his wife followed shortly thereafter. The Respondent did not arise during the night and leave the bedroom. His wife heard no voices or noise during this night either from the stairs above the bedroom, or from the adjacent living room. The Respondent bad no sexual contact with the minor during either August or October, 1983, or at any other time. These are the relevant facts pertaining to the charges of sexual misconduct which are found from the evidence presented. The minor student testified that one evening near the end of August, but before school started in August of 1983, he babysat for the Respondent. The Respondent's two children went to bed around 9:00 P.M., and because the Respondent and his wife were out late, the minor went to bed in the upstairs bedroom of the Respondent's son. Sometime after the Respondent and his wife returned home, the Respondent awakened the minor and brought him downstairs. The Respondent's two children were upstairs asleep, and his wife had retired for the evening. Once downstairs, the Respondent began massaging the minor's back, then his stomach, and then masturbated him. The minor testified that while doing so, the Respondent told him that he loved him more than just as a friend. The minor testified further, that on October 6, 1983, he and the Respondent attended a concert in the Lakeland Civic Center. He and the Respondent drove to Lakeland alone in the Respondent's automobile. The concert began around 7:00 or 8:00 P.M. and ended approximately 10:00 or 10:30 P.M. After the concert, they drove to a Bennigan's Restaurant in Tampa. Because he is a minor and it was after 9:00 P.M., he was refused admission. The Respondent and the minor left Bennigan's and drove back to Brooksville. On the way, the Respondent stopped at a convenience store and purchased two beers, one for the minor and one for himself. This convenience store is located approximately 20 to 30 miles outside Brooksville, but was not further identified clearly. Because of the lateness of the hour, it had been pre-arranged that the minor would spend the night at the Respondent's house. During this night, in the Respondent's living room, he again began massaging the minor, and masturbated him, and this time also performed oral sex upon the minor. In order to make the findings of fact set forth in paragraphs 1 - 13 above, it is not essential that this testimony of the minor be rejected as false. There simply is not sufficient evidence in this record to corroborate the minor's testimony. There is no evidence of any previous sexual misconduct on the part of the Respondent in the twelve years he has been teaching physical education. There is no evidence of any sexual misconduct with the subject minor throughout their years of close relationship, except the two incidents described, even though better opportunities for such misconduct existed frequently. Even on the night of the concert in Lakeland, there were opportunities to abuse the minor in a parking lot or along the road during the trip, instead of in the Respondent's house only a wall away from the eyes and ears of his lightly sleeping wife. The guidance counselor at Spring Hill Elementary School who receives complaints of sexual molestation received none concerning the Respondent. Neither the principal of Spring Hill Elementary School nor the assistant superintendent of the Hernando County School Board received any such complaints concerning the Respondent. The evidence discloses that the Respondent has a reputation for being a law abiding citizen in both his local community and his teaching community. In summary, the evidence, apart from the allegations in this case, is that the Respondent has never made any sexual contact with any minor. Based upon the allegations of sexual misconduct made against him, the Respondent was arrested on December 22, 1983, and charged by information with the offense of sexual battery. On the advice of his attorney, the Respondent entered a plea of no contest, and on April 18, 1983, the Circuit Court entered its order withholding adjudication, placing the Respondent on probation for three years, and assessing court costs of $515.00 against him. Following the Respondent's arrest, various newspaper articles were published reporting the allegations, his prosecution, and his suspension from the teaching position he held. As a result, the local teaching community as well as the student body became aware of the Respondent's situation. Nevertheless, the principal of Spring Hill Elementary School and the assistant superintendent of the Hernando County School Board testified that if the charges against the Respondent were proven to be true, then his effectiveness as a teacher would be seriously impaired, and the principal would not want the Respondent to return to school as a teacher if the allegations were proven to be true. Based upon the failure of the weight of the evidence to support a factual finding that these allegations are true, this testimony is not relevant. Moreover, there is no evidence in this record to support a finding that the Respondent would not be effective as a physical education teacher under the factual situation that is found above, based on the weight of the credible evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed by the Education Practices Committee against the Respondent, Thomas B. Ferris, be dismissed. And it is further RECOMMENDED that the charges against the Respondent, Thomas B. Ferris, brought by the Hernando County School Board, be dismissed. And it is further RECOMMENDED that the Respondent, Thomas B. Ferris, be reinstated by the Hernando County School Board with full back pay from the date of his suspension. THIS RECOMMENDED ORDER entered this 30th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1985. COPIES FURNISHED: J. David Bolder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 33512 Perry Gall Gruman, Esquire 202 Cardy Street Tampa, Florida 33606
Findings Of Fact Respondent was an employee of the School Board of Dade County, Florida, more particularly a Title One teacher at Miami Carol City Senior High School during the 1981-1982 school year. On May 6, 1982, John Cohn was a student in Respondent's fourth period class. Arnold Coats was a substitute teacher working with Respondent in Respondent's classroom on that day. After Respondent had given the students an assignment, Cohn requested and received permission to leave the classroom to go to the bathroom. While absent from the classroom, Cohn decided he wished to speak with Ronald Golemhieski, another teacher at Miami Carol City Senior High School. Cohn returned to Respondent's classroom to request permission. Coats came to the door and gave Cohn permission to go talk to Golembieski, but Cohn decided he should get permission from Respondent since Respondent was the teacher of the class. Cohn waited in the doorway of Respondent's classroom. When he finally got Respondent's attention, he beckoned with his finger, requesting Respondent to come to the doorway. Respondent went to the doorway, and Cohn requested Respondent's permission to go talk to Golembieski. Respondent grabbed Cohn, pulling him forcefully into the classroom. Commotion broke out in the classroom, and someone yelled for assistance. Golembieski heard the commotion, as did Victoria Bell, the hall monitor. When they arrived at Respondent's classroom, Respondent and Cohn were struggling with each other. They were face to face, and Respondent had his arm around Cohn's neck with his hand on Cohn's throat in a choking manner. Golembieski grabbed Cohn away from Respondent and, after separating them, took Cohn to his classroom to calm him down. Bell and Coats pushed the rest of the students back into their seats and restored order in Respondent's classroom. When the altercation ended, Cohn's shirt was torn and he had scratches on his chest. Just prior to Respondent's outburst, Cohn did nothing to provoke Respondent in any way and was not disrespectful to Respondent. When Cohn got Respondent's attention, Respondent both looked at Cohn and walked to the doorway in a normal manner, thereby giving no warning that he intended to touch Cohn in any way. Respondent interpreted Cohn's beckoning with his finger as an invitation to fight, although Respondent admits that Cohn said nothing to him indicating that he wished to fight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Notice of Charges, approving Respondent's suspension and dismissing him as an employee of the School Board of Dade County, and denying any claim for back pay. DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Ellen L. Leesfield, Esquire 2929 SW Third Avenue, Fifth Floor Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132
