The Issue Whether Respondent violated Lake County School Board Policy 2.71 as described in letters from the Lake County Superintendent of Schools dated January 2, 2007, and January 7, 2007, and if so, what penalty should be imposed.
Findings Of Fact The School Board of Lake County is the corporate body politic responsible for the administration of schools within the Lake County School District. At all times material to this proceeding, Paul Ogles was employed as an English/speech teacher at the Curtright Center of Eustis High School in the Lake County School District. Mr. Ogles, a Caucasian male, has been employed as a teacher for the District for nine years. At all times material to this proceeding, Ms. Bernetta McNealy, an African-American woman, was employed as a teacher at the Curtright Center of Eustis High School. Ms. McNealy's classroom is adjacent to Mr. Ogles' classroom. During the 2005-2006 school year, Ms. Tess Rogers was an assistant principal at Eustis High School and one of Mr. Ogles' supervisors. Mr. Michael Elchenko was Principal at Eustis High School during this time, and Ms. Rebecca Nelsen was the Director of Compensation and Employee Relations for Lake County School District. Mr. Ogles' first teaching position was as a teaching assistant with Project Outward Bound at Morris Brown College, a historically black college in Atlanta, where he prepared high school students for college. Mr. Ogles returned to teaching twenty years later after running his own textbook company. Mr. Ogles has received excellent evaluations during his employment by the Lake County School District. Once a teacher receives a rating or twelve (the highest rating possible) for two consecutive years, the educator may choose to participate in a PG-13 Appraisal of Professional Growth/Career Development instead of receiving the normal educator evaluation. Mr. Ogles qualified for this type of evaluation and successfully participated in the PG-13 appraisal process for several years. Mr. Ogles has sponsored or assisted with many school organizations such as the Beta Club; the Chess Club; the Key Club; the High Q Club; and the Speech and Debate Club. He used personal funds to support the students' activities, including paying $300.00 to rent a bus so students could attend a competition. Mr. Ogles was one of two Team Leaders on campus and in that capacity worked with the assistant principal to try to upgrade the quality of the school and to increase interaction between students and teachers. He also volunteered for bus duty before and after school. While performing bus duty, it was often Mr. Ogles' responsibility to enforce the school's dress code as students arrived on campus. Eustis High School has a policy of prohibiting students from wearing clothing with symbols or messages that may be considered disruptive to the learning environment. Students are not necessarily disciplined for wearing such clothing, but are requested to remove the offensive clothing, turn it inside out so as to hide the offensive message, put other clothing on over it or call home to have alternate clothing provided. The Confederate flag is one such symbol that is not allowed to be displayed on clothing worn to school. Dixie Outfitters is a line of clothing that sometimes bears the Confederate flag. Mr. Ogles was aware that the school policy forbade the wearing of the Confederate flag and he often was involved in enforcing the policy against students wearing the symbol. On or about May 19, 2006, Mr. Ogles was using his computer to search for project ideas for the following year while his students were taking a test. He was looking at a website called www.cagle.com, a political website from which he has gotten cartoons in the past. Several cartoons from this website are posted in his classroom, and there was no evidence presented to indicate that anyone had ever complained about their display. While viewing the website, he saw a cartoon that depicted a Confederate flag. However, instead of the traditional "stars and bars," the cartoon showed black arms crossed, with stars imprinted on them. The hands were extended beyond the flag, with the wrists shackled. The cartoon was originally published in approximately 2000, as a means of protesting the consideration by several southern states to display the Confederate flag at state buildings. When Mr. Ogles first saw the cartoon, he thought that it was "strong art" depicting the Confederate flag as a symbol of racism. In between classes, he showed the cartoon to Ms. McNealy. He asked her if she was familiar with students wearing Dixie Outfitters clothing. She indicated she was not. He stated that perhaps this cartoon could be placed on a new line of clothing for black students to wear in response to the "heritage" argument white students used to defend the wearing of the Confederate flag. The conversation was very short, as the bell was ringing for the next class to begin. Ms. McNealy did not respond to Mr. Ogles or give him any indication that she was offended or bothered in any way. There is also no evidence that she ever discussed her feelings about the cartoon with Mr. Ogles at any later time. Mr. Ogles testified, and his testimony is credited, that he believed that because the cartoon advocated a position against the display of the Confederate flag, that it would support what he believed to be Ms. McNealy's position on this issue. It is his view that African-Americans have as much ownership of the Confederate flag as anyone else, and should be able to use the image to express their views. While Ms. McNealy did not tell Mr. Ogles that she was offended by the cartoon, she did make her feelings known to Ms. Rogers, the assistant principal and Michael Rivers, a guidance counselor at the Curtwright Center, almost immediately. Ms. Rogers is Caucasian and Mr. Rivers is African-American. Both found the cartoon to be offensive. After speaking with Ms. Rogers and Mr. Rivers, Ms. McNealy left campus for the day. About an hour after he showed Ms. McNealy the cartoon, he was asked to come to the office and was informed by Ms. Rogers and Mr. Jones, another administrator, that Ms. McNealy was upset about the cartoon and had left campus. Mr. Ogles did not realize that Ms. McNealy would be offended by the cartoon and had he realized she would be offended, he would not have shown it to her. On May 22, 2006, Mr. Elchenko, the Principal of Eustis High School received a written complaint from Ms. McNealy about Mr. Ogles' showing her the cartoon.1/ Mr. Elchenko determined Mr. Ogles' conduct to be unprofessional and issued a Professional/Personal Action Report Relating to Work Experience (Appraisal II form) and Prescription/Assistance Form to Mr. Ogles. Both documents directed him to stop giving materials to co-workers that could be considered offensive. Mr. Ogles has complied with these directives. After Mr. Elchenko completed his investigation, Mr. Elchenko reported the allegations to the School Board's District office because he believed the allegations in Ms. McNealy's complaint rose to the level of racial harassment. Rebecca Nelsen conducted an investigation on behalf of the School District. Mr. Ogles was reassigned from his teaching position at Eustis High School to the County Copy Center by letter dated July 17, 2006, and remains in that placement today. Ms. Nelsen determined that Mr. Ogles' conduct created an intimidating, hostile or offensive work environment on the basis of race, which is prohibited by School Board policy. Ms. Nelsen recommended to the Superintendent that Mr. Ogles' employment be terminated. A separate investigation was conducted for the School Board by a private entity called the Robert Lewis Group. The findings and recommendations of that investigation are not part of this record. By letter from the Superintendent dated January 2, 2007, Mr. Ogles was suspended without pay for the period from January 8, 2007 through January 12, 2007, and was directed to receive cultural sensitivity training for violating School Policy 2.71. There is no evidence submitted to indicate that the Superintendent's decision was approved or ratified by the Lake County School Board. Mr. Ogles served his period of suspension and successfully completed cultural diversity training. Before this incident, Mr. Ogles had never been accused of making any appropriate racial remarks and was not considered to be a racist individual. He had expressed the view that racism should hold no place in education. His principal did not question his competence as an educator.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the charges against Respondent, and rescinding all discipline previously imposed. DONE AND ENTERED this 12th day of June, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2007.
The Issue The issue in this case is whether the School Board of Pinellas County (Petitioner) should suspend Christopher Lucibello (Respondent) from his position as a chemistry teacher at Gibbs High School for a period of three days, without pay, based upon actions he is alleged to have taken to cause three students to leave the school building after classes concluded on October 27, 1989.
Findings Of Fact Respondent is a teacher holding a teaching certificate issued by the State of Florida, and who, at all times material hereto, has been employed by the Petitioner under continuing contract as a chemistry teacher at Gibbs High School. At Gibbs High School, classes conclude at 2:30 p.m., and students then proceed to their lockers, pick up jackets and books, and leave the building. Student lockers are located in the hallway, outside of classrooms. On occasion, students remain after school to make up work, or take tests which they missed, and teachers generally remain after 2:30 p.m. to straighten up, grade papers, and prepare for the next day's classes. On Friday, October 27, 1989, classes concluded at 2:30 p.m., as normal, and Respondent remained in his chemistry classroom cleaning and straightening up the lab. At approximately 2:45 p.m., Respondent was disturbed by loud student laughter and talking in the hallway outside of his classroom. He stepped into the hallway and asked three female students, whom he did not know, to be quiet and to leave the building. One of the students told another student to go ahead and get her algebra book because Respondent could not make them leave until they got their books. There is no rule or policy at Gibbs High School requiring students to leave campus at any particular time after classes are over. When the three students did not immediately leave the building as he had asked, Respondent stated that he had something that would make them leave, and proceeded back into his lab where he obtained a bottle of butyric acid. He then approached the three students in the hallway holding the open bottle of butyric acid while blowing and fanning its fumes in the students' direction. Respondent got to within four to five feet of the students, and then followed them a distance of about five to six feet, blowing and fanning the fumes in their direction, until they left the building at approximately 3:00 p.m. The students did not know what chemical Respondent had exposed them to. Butyric acid is a volatile acid with a sickening odor, similar to vomit, that spreads rapidly. A safety data sheet for this chemical indicates that it is a strong irritant to body tissue and a stench agent, and warns to avoid contact or exposure to skin and body tissue. Respondent is familiar with this safety data sheet for butyric acid. Two of the students began to feel dizzy and to develop headaches immediately after exposure to the butyric acid, and the third student experienced nausea and skin irritation. These reactions are consistent with exposure to butyric acid fumes. None of the students sought medical attention as a result of the incident. The three students immediately went to the principal's office and reported the incident. The assistant principal noted that they were very upset and excited. Respondent does not dispute that he blew and fanned fumes of butyric acid in the direction of three female students as a means of getting them to leave the building after classes had concluded on October 27, 1989. However, he testified that this action presented no danger to the students. He uses butyric acid in his chemistry class, and exposes students to its fumes during class as a means of demonstrating how organic acids smell. None of his students has ever gotten sick as a result of such exposure. The particular bottle involved in this incident is over 18 years old, and has been diluted over the years with the addition of water. Respondent has no idea how strong the concentration of butyric acid is in the bottle he used. During an investigation of this incidents Respondent admitted to Petitioner's representatives that he was "burned out" and had simply gotten angry at these students. Petitioner seeks to suspend Respondent for three days, without pay, as a result of this incident. Although Respondent and another teacher testified that there had been a recent problem with noise in the hallway outside Respondent's classroom in the afternoon after classes concluded for the day, and they had warned students about making too much noise in the hallway after classes, no reports of this problem had been made to the principal. Administrators were present in the school at the time of this incident, but Respondent did not attempt to contact them for assistance in dealing with this noise problem. Several means exist at Gibbs High School by which teachers can contact the administration for help, including a panic button, telephone and intercom. Students involved in this incident testified that it has given them a negative impression of Respondent as a teacher. Parents and guardians of these students complained to the school administration about this incident, and testified that they consider Respondent's action to be irresponsible. Parental concern was expressed about Respondent's ability to control himself. The principal of Gibbs High School, John Demps, testified that he considered Respondent's action in this incident to be unprofessional and harmful to the school's relationship with these students, their parents and the community. According to the expert testimony of Steven Crosby, Respondent's behavior diminishes his effectiveness as a teacher because it creates a poor image of instructors at the school, and causes concerns among parents for the welfare of their children. Respondent has been employed by the Pinellas County school system for 18 years. During the month of June 1983, Respondent received a written reprimand following an incident in which he became upset in class, and struck a yard stick on a desk, breaking it and causing it to fly in the direction of student, resulting in injury to that student. Previous to this written reprimand, Respondent had been orally warned by his principal on several occasions to control his temper and refrain from yelling at students, or otherwise embarrassing them.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order suspending Respondent for two days, without pay. DONE AND ENTERED this 19th day of June, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-0515 Rulings on Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding 1. 3-4. Adopted in Finding 11. 5. Adopted in Findings 2, 3. 6-10. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 5. Adopted in Finding 8. 14-15 Adopted in Finding 6. Adopted in Finding 5. Adopted in Finding 9. Rejected as not based on competent substantial evidence. Adopted in Finding 8. Adopted in Finding 6. Adopted in Finding 10. Rejected as immaterial hearsay. Adopted in Finding 7. Adopted in Finding 8. 25-32. Adopted in Finding 10, but otherwise Rejected as unnecessary. Adopted in Finding 9. Rejected as unnecessary. Rulings on Respondent's Proposed Findings of Fact: Adopted in Findings 1, 11. Adopted in Finding 8. Adopted in Finding 9, but otherwise Rejected as unnecessary and immaterial. Adopted in Findings 3, 4, but otherwise Rejected as unnecessary and immaterial. Adopted and Rejected, in part, in Findings 6, 7. Adopted in Findings 5, 8, but otherwise Rejected as immaterial. Adopted in Finding 3. Adopted and Rejected, in part, in Finding 10, and otherwise as not based on competent substantial evidence. COPIES FURNISHED: Bruce P. Taylor, Esquire P. O. Box 4688 Clearwater, FL 34618 Mark F. Kelly, Esquire P. O. Box 75638 Tampa, FL 33657-0638 Dr. Scott N. Rose Superintendent P. O. Box 4688 Clearwater, FL 34618 =================================================================
Findings Of Fact Respondent Will H. McRaney has been employed by petitioner Bay County School Board at Rutherford High School since 1965. In the past, he has worked as a coach and as a classroom teacher at Rutherford. During the current school year, respondent was job entry coordinator; in this capacity, he had responsibilities in connection with the vocational counseling of Rutherford seniors. Darlene Ann Peeples is an eighteen year old senior at Rutherford High School. In her junior year, she had been a student in a class respondent taught. On January 17, 1977, when she arrived at her fourth period class, friends told her that respondent had come by looking for her and for another student, and wanted to see them in his office. Her friends also told her that the other student summoned by respondent had gone to lunch, so Ms. Peeples went to respondent's office by herself. When she arrived, respondent was seated behind a desk in his office, facing sideways. He invited her in, asked her to close the door behind her, and told her to take the empty seat beside him. Respondent's office at Rutherford High School was small and windowless, except for a window in the door which was covered over from the inside. There were only two chairs in the office on January 17, 1977. The chair to which respondent directed Ms. Peeples was very near his; when she sat down one of her knees touched respondent. She asked why she had been sent for, and respondent mentioned some job possibilities. Conversation turned to the school's Christmas ball, at which Ms. Peeples had been chosen Christmas ball queen. Respondent allowed as how her selection did not surprise him, because she had a nice personality and a nice body. In the course of discussing Ms. Peeples' plans for the future, respondent learned that her family was slated to move to England and offered to let Ms. Peeples live with him in his home, when her family left. Respondent took one of Ms. Peeples' hands in his, and remarked on its warmth. Then he cupped one hand round the back of her head, and drew her head down to the vicinity of her knees, doubling her over. When she succeeded in sitting up straight again, respondent kissed her full on the mouth. Immediately afterwards, he said he was sorry, and he repeated the apology when the interview concluded. Within a half hour of their occurrence, Ms. Peeples gave tearful accounts of these events to her boy friend, and to her fifth period teacher, Mrs. Gail Fischer. In 1975, respondent worked in petitioner's summer recreation program as a swimming instructor at the swimming pool at Mosley High School. Among the children he taught was Macy Ellis, who was born on October 7, 1965. There were from 10 to 25 children in Macy's swimming group. Some 40 other children in other groups and at least two other adults used the swimming pool at the same time respondent taught Macy's group. On July 2, 1975, respondent was supervising an underwater swimming drill. Macy and the other children in her group stood in the water along the edge of the swimming pool; they took turns doing "fish dives" and swimming through respondent's spread legs, while he stood in the middle of the pool in about five feet of water. When Macy went underwater, she noticed that respondent's swimming trunks, although fastened at the waist, were unzipped, and she saw respondent's penis. As she swam face down between respondent's legs, respondent placed his hands on her back to steady her. Otherwise, there was no physical contact between them. Respondent did not intend that any of the children see his genitalia, and it was only by accident that they happened to be visible to Macy Ellis. Statement Required By Stuckey's of Eastman, Georgia v Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976) The first paragraph of petitioner's proposed fact findings has been adopted, in substance. The second paragraph of petitioner's proposed fact findings has been rejected because the only witness whose testimony tended to establish the occurrence, Debbie Holt, was not worthy of belief, in the hearing officer's opinion. She was adamant about such details as the color of respondent's bathing suit, even though her testimony contradicted that of the other witnesses. She and Macy Ellis were playmates who confided in one another and, according to Macy Ellis, it was when Debbie learned what Macy had seen that Debbie made her accusations against respondent. Finally, testimony was adduced to the effect that Debbie Holt's reputation for truth and veracity is not good. The substance of the third paragraph of petitioner's proposed fact findings has been largely adopted, except that the proof failed to establish any intent on respondent's part, and except for the date, which is immaterial. The number of people in the pool area, the size of the pool, the fact that other children were lined up waiting their turns, the fact that Macy told her father that she saw respondent tuck his penis back in his swimming trunks, all persuaded the hearing officer that the incident was accidental.
Findings Of Fact At all times pertinent to the issues herein, the School Board of Pinellas County was the agency of county government responsible for the provision of public primary and secondary education in Pinellas County, operating Gibbs High School in the City of St. Petersburg. Respondent, Paul McDermond, was employed as a teacher by the Pinellas County School District since 1974. During the 1993 - 1994 school year, he was serving as an industrial arts teacher at Gibbs High School under a continuing contract. On October 11, 1993, Frankie McDermond, Respondent's son and an 11th grade student at Gibbs High School, was involved in a fight with another student, Aaron Simmons, and sustained some injury to his eye, including a fracture of the orbital bone. Respondent, who was in his classroom at the time, was summoned by some of the students to the quadrangle on campus where the fight had taken place and where the two participants were still located. Upon notification, Respondent left his classroom and went to the fight scene where he saw his son. After pushing his way through the crowd of students who had gathered as the scene, he approached his son and asked him. "Who did this?" Frankie indicated Simmons had done it and pointed in the direction of a nearby wall where Simmons was standing. Several other students also pointed in that direction. Respondent left his son and began moving toward Simmons. He appeared angry. Approaching to within three to four feet of Simmons, Respondent was grabbed by some students and restrained. The evidence indicates that Respondent was swinging his arms around at the time, but is not clear whether this was an attempt to break free of those holding him or a real attempt to get at Simmons and strike him. No contact was made with Simmons by the Respondent who said nothing all during this time. Some students and faculty called to the scene indicate Respondent was trying to get at Simmons to strike him. Ms. Shorter, the Principal, who spoke by phone with Respondent late in the afternoon of the incident, claims Respondent told her he wanted to strike Simmons but was restrained from doing so. On the other hand, Respondent claims he was trying to get to the crowd to which some of the students had pointed when asked who had assaulted his son, but denied even knowing that Simmons was the one who inured his son until, at Ms. Deleanis' direction, he went inside and then returned outside to get Frankie. It was only then, when he and Frankie had gone back inside, he claims, that he found that Simmons was the perpetrator. Clearly, this does not track with the other evidence of record. It is found, therefore, that Respondent knew after first speaking with his son that Simmons had injured him, and he was trying to get to Simmons who had been identified to him by other students, to apprehend him. Respondent admits to being very upset at the condition in which he found his son and wanted to take action against the individual responsible for that. It is possible that at some time, during the course of his movement from his son toward Simmons, Respondent intended to strike Simmons if he could. This is a perfectly natural reaction and it is so found. However, whether his anger cooled of its own accord, or whether, being restrained by students and intercepted by members of the administration he changed his mind, it is clear that by the time he reached the group in which Simmons was located, Respondent's desire to strike Simmons had abated, and his struggles as described by the students restraining him were more an effort to release himself from the hands of the students than an attempt to assault Simmons. It is impossible to know exactly what was in Respondent's mind at the time, but the fact remains that no contact was made between Respondent and the student. Respondent has been the subject of two previous disciplinary actions during his teaching and coaching career. In September, 1976, some seventeen years prior to the instant situation, Respondent assaulted and committed a battery upon a student who had stolen his car. Later that same month, he also threw to the ground a student who was disrespectful and defiant to him, as coach, during a football practice. For both these offenses Respondent received one combined letter of reprimand for exercising poor judgement. In February, 1985, nine years later, he subjected a female student to unnecessary disparagement and embarrassment in class, for which he was given a 30 day suspension without pay. Nothing untoward has been made a matter of record since that time. Petitioner claims it is School Board policy to take graduated action in matters of staff discipline. The documentation of other actions taken by the Board regarding other faculty members, however, does not show this policy to have been regularly or evenly applied. The incident with Simmons was made a matter of public knowledge when the Board's suspension action was reported in the local newspaper. All the faculty personnel who testified for the Board unanimously concluded that Respondent's actions severely compromised his effectiveness as a teacher. Teachers cannot, ideally, allow their students to learn what actions will cause the teacher to lose control - to identify their buttons, so to speak. All of the administrators and the Board staff who testified at hearing believe that by reacting as he did, Respondent's effectiveness as a teacher was destroyed. It is clear this is too quick a judgement to make. Numerous students testified at the hearing on Respondent's behalf, and there is evidence that a wave of support for Respondent manifested itself in the circulation of a student petition to save Respondent's employment with the school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the School Board of Pinellas county enter a Final Order finding the Respondent, Paul McDermond, guilty of misconduct in office based on a lack of judgement in his aggressive approach to a student, Aaron Simmons, and suspending him from duty without pay for a period of 15 days. RECOMMENDED this 25th day of May, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-6425 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. - 6. Accepted and incorporated herein. 7. - 10. Accepted and incorporated herein. 11. - 13. Accepted and incorporated herein. & 15. Accepted. Rejected as not supported by evidence of record. Accepted and incorporated herein. 18. & 19. Accepted. 20. Accepted. 21. Accepted. 22. & 23. Accepted and incorporated herein. 24. Accepted and incorporated herein. FOR THE RESPONDENT: Respondent's Proposed Findings of Fact are not numbered. Therefore, they will be referred to as the appear in the Proposal. Accepted and incorporated herein except for the last sentence of the paragraph which is merely a restatement of testimony. Conclusions are accepted and incorporated herein. However, the comments on the state of the evidence are disregarded. Not a Finding of Fact but a comment on the evidence. Not a Finding of Fact but a comment on the evidence, except for the finding that Simmons was not struck by Respondent. COPIES FURNISHED: Keith B. Martin, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Kelly & McKee, P.A. 1718 East Seventh Avenue Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 34649-2942
The Issue The issue in this case is whether the Florida teaching certificate of Respondent, Edith E. Gonzalez, should be revoked, suspended or otherwise disciplined for the alleged violations set forth in an Administrative Complaint entered on September 21, 1992.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent hereto, Respondent has been a certified teacher in Florida holding Certificate No. 194394. Respondent is certified in the areas of administrative supervision, elementary education, varying exceptionalities, French, Spanish, gifted and special learning disabilities. Her certificate is valid through June 30, 1996. At all times pertinent hereto, Respondent was employed as a teacher at Miami Carol City High School (the "School") in the Dade County School District. The students enrolled in the Dade County Public School System hail from a variety of ethnic and cultural backgrounds. Miami Carol City High School has a student population that is predominantly black. Respondent is 62 years old and will be 63 in December. She is an immigrant from Lima, Peru and Spanish is her native language. Respondent has been a teacher for the School Board for 24 years. She also taught for 5 years in Catholic schools. In addition, she has taught in Korea and Ecuador. The evidence indicates that from 1985 through 1992, the School Board received various complaints regarding Respondent and/or her conduct in the classroom. Except as set forth below, the specific nature of those complaints was not established in this proceeding. In 1987, Respondent was investigated by the Professional Practices Services of the Education Practices Commission for inappropriate discipline techniques. As a result of that investigation, Respondent entered into a settlement agreement pursuant to which Respondent was placed on probation for one and a half years and issued a letter of reprimand. During the 1991/92 school year, the School Board was requested by the School to investigate allegations of inappropriate and derogatory comments purportedly made by Respondent. A formal fact finding investigation was conducted by the School Board. After the investigation was completed, a "conference for the record" was held between Respondent and School Board officials during which the investigative report was reviewed and Respondent's entire record with the School Board was discussed and considered. Respondent did not have an opportunity to review or provide input into the investigation until the conference for the record. During the conference, the School Board advised Respondent that the investigative unit concluded that the allegations of inappropriate and derogatory comments were true. Respondent was further advised that the Regional Supervisor for the School Board was going to initiate the steps necessary to suspend and dismiss her from employment. The evidence established that the School Board's decision to seek termination of Respondent's employment was based upon a review of her entire employment record with the School Board. The School Board investigation was completed on February 10, 1992, and the School Board moved to suspend Respondent and terminate her employment on or about April 1, 1992. While Respondent initially challenged the termination of her employment, on or about June 4, 1992, she decided to resign her position without a hearing. As a result, she never had an opportunity to confront the witnesses and/or challenge the investigation conducted by the School Board. The only direct evidence presented in this case regarding racial slurs and/or inappropriate and derogatory comments by Respondent was testimony from D. P., who was a student in Respondent's fourth period Spanish Class during the 1991/92 school year, and from Roxanne Mendez, who worked as a Media Specialist at the School. Their testimony was insufficient to establish that Respondent was racially prejudiced, or that she intentionally belittled, degraded, or made fun of students. The evidence established that Respondent's fourth period Spanish class was very difficult to control and included many students who misbehaved on a regular basis. Respondent admittedly had a difficult time in dealing with the class. On a couple of occasions, out of frustration, she told the students they were acting like "animals" or "savages" and told them they needed to be locked in a cage. While these comments may have been insensitive, they were not intended as racial slurs. The only student in the class who testified admitted that the comments were only made when the class was acting up and he was not personally offended by them. The evidence also established that, on some occasions when Respondent could not remember the name of a student, she would refer to them as "boy" or "girl". These comments were made to both black and white students and were not intended to be racially disparaging. While Petitioner contends that Respondent advised her students that she was prejudiced against blacks, the evidence established that any such comments were made sarcastically and/or in jest and were not taken seriously by the students. On one occasion when the students were particularly rambunctious, Respondent reprimanded them and told them they were acting "like a bunch of Haitians just off the boat." The exact circumstances surrounding this comment were not clearly established. Apparently, the aunt of one of the students was present when this remark was made and took great offense. As a result of this incident, Respondent's effectiveness as a teacher at the School was reduced. No evidence was presented of any other incidents which would justify discipline or revocation of Respondent's teaching certificate. Respondent clearly had a difficult time dealing with the serious discipline problems that existed at the School. Many of the students made virtually no effort to learn. On several occasions, students deliberately disrupted classes and Respondent's class in particular. Some of the students referred to Respondent as "Taco Bell." Based upon the evidence presented, it is concluded that Respondent was a dedicated teacher who was trying her best in a difficult situation. Respondent often emphasized to her class the need to be tolerant and overlook cultural differences with other individuals. R. W. was one of Respondent's students during the 1991/92 school year. Even though she was not in the fourth period class, her testimony was very persuasive and is given great weight. She testified that at no time during that year did she ever feel uncomfortable in any way by what the Respondent said or did in the classroom. She also testified that the Respondent never showed disrespect toward her or the class and that the Respondent never referred to students in any way which would indicate that she was prejudiced against black children. The only other student who testified, D. P., confirmed that Respondent did not make him feel ill at ease or uncomfortable or hurt or sad or offended in any way. According to him, the only critical comments made by Respondent were directed to students who were misbehaving. While on some occasions Respondent's comments may have been insensitive and ill- advised, the evidence was insufficient to establish that Respondent was racially prejudiced, and/or that she intentionally embarrassed students or deliberately made racial slurs or disparaging comments. The evidence presented regarding Respondent's personal life confirmed that she harbors no racial prejudices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 231.28(1)(f), Florida Statutes, as alleged in Count I of the Administrative Complaint, but dismissing the remaining Counts. As a result of her violation of Section 231.28(1)(f), Florida Statutes, Respondent should be reprimanded and placed on probation for one year. DONE and ENTERED this 18th day of August 1993, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1993.
The Issue The issues are whether Respondent failed to accommodate exceptional education students, directed derogatory comments to students, and disclosed test grades in class in violation of Subsections 1012.795(1)(c), (f), and (i), Florida Statutes (2000), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e); and, if so, whether the proposed penalty is reasonable. (Statutory references are to Florida Statutes (2000). References to rules are to rules promulgated in the Florida Administrative Code in 2000.)
Findings Of Fact Respondent is authorized to teach physical education in Florida pursuant to Florida Educator's Certificate Number 666407. The Certificate is valid through June 30, 2007. The Pinellas County School District (the District) employed Respondent as a physical education teacher at Gibbs High School (Gibbs) during the 2000-2001 school year (the school year). Respondent's students included students in the exceptional student education program at Gibbs (ESE students). Faculty and staff at Gibbs had tested ESE students in Respondent's classes, identified them as disabled, developed an individual education plan (IEP) for each student, and placed each student in a special education program. The IEPs for some students allowed the students to leave the classroom during testing for a learning lab or other supervised environment. Respondent refused to allow several ESE students to leave the classroom during testing. The students are identified in the record as A.A., A.S., J.T., and J.F. in order to protect their confidentiality. Respondent sometimes afforded ESE students an opportunity to hear their tests read to them at the front of the class. That opportunity violated each student's IEP. Respondent did not have discretion to deviate from an IEP. Some ESE students transferred from Respondent's class. Other ESE students refused to enroll in Respondent's class because of Respondent's reputation among ESE students for refusing to accommodate ESE students during testing. A number of parents complained to school officials about Respondent's failure to accommodate ESE students. Faculty and staff attempted to correct Respondent's behavior through informal conferences. A varying exceptionalities specialist, a teacher assistant, and an administrator with the Office of Professional Standards (OPS) each met with Respondent. Respondent answered an allegation and complaint from one parent by stating to a Gibbs administrator that the student was not an honor roll student, so Respondent's refusal to accommodate the student did not make a difference. Respondent complained to an assistant principal at Gibbs that, "They are ESE students. What are they doing here [in Respondent's class]? They shouldn't be here anyway." Respondent made derogatory comments to students during the school year. The derogatory comments included terms such as: fat, little slacker, stupid, sorry bunch of kids, Gomer Pyle, and Dutch Boy. Respondent asked one of her students, "What's a black boy doing with a Dutch last name?" Respondent asked another student if the student was tired from walking the streets at night and called her "sleeping booty." Respondent directed derogatory comments to students identified in the record as D.V., M.F., J.I., and A.W. Respondent referred to D.V., an African-American, as Dutch Boy because D.V.'s last name sounded Dutch to Respondent. Respondent suggested that D.V. should change names with a white student having a last name that Respondent believed was more appropriate for an African-American. Respondent used the terms "fat" and "stupid" when referring to M.F. and other students in M.F.'s class. Respondent used the term Gomer Pyle to refer to J.I. because J.I. was in the Reserve Officers' Training Corps. (ROTC) program at Gibbs. Respondent told A.W. that larger people don't belong in the physical education class. The derogatory comments degraded students, embarrassed them, were inflammatory to some students, and violated District policy. Respondent violated the Code of Ethics and the Principles of Processional Conduct for Educators by making embarrassing or disparaging remarks and by failing to make reasonable efforts to protect students from mental harm. Respondent has made derogatory comments to students in previous school years. During the 1997-1998 and 1998-1999 school years, an assistant principal received complaints from students about Respondent's use of derogatory comments toward students. The assistant principal held a conference with Respondent on September 15, 1997, and completed a Conference Summary that instructed Respondent to use better communication with students and parents; and to be more professional in addressing students. The complaints against Respondent continued. On September 30, 1997, an assistant principal held a formal conference with Respondent to discuss Respondent's use of derogatory comments to students. The assistant principal again instructed Respondent to refer to students only by their given name and use more professionalism in addressing students. An assistant principal met with Respondent on October 1 and 7, 1997; and on February 13, April 1, and May 4, 1998. In addition to several "walk-throughs," the assistant principal visited Respondent's classroom for an evaluation on March 31, 1998. The annual evaluation for the 1997-1998 school year rated Respondent's judgment as an "I," meaning that improvement was expected in addressing students. The "I" on Respondent's annual evaluation required school administrators to prepare a "Success Plan" to help Respondent address the issues that resulted in the "I" rating. The Success Plan that Respondent signed required Respondent to use positive comments that enhance the self worth of students. Respondent's use of derogatory comments toward students continued during the 1998-1999 school year. An assistant principal held conferences with Respondent on: October 12, 26, and 27, 1998; November 11, 1998; and January 28, March 11, Aril 15, May 3, and May 4, 1999. The assistant principal visited Respondent's classroom on: November 3, 1998; and January 28, March 1, March 11, and April 7 and 15, 1999. Respondent's annual evaluation for the 1998-1999 school year contained more "Is" than the previous evaluation. Respondent received an "I" rating for: (1) Instructional Strategies Conducive to Learning and Critical Thinking; (2) Assessment of Students; and (3) Judgment and Professional Ethics. During the school year at issue, the OPS administrator and Respondent discussed a letter from a parent regarding Respondent's use of derogatory comments. The parent complained that Respondent asked H.T., the parent's daughter, if H.T. was going to be a dentist. H.T.'s last name is related to a dental term. Respondent denied she ever made the comment and then told the OPS administrator, "I can look at her mouth and tell you no." Respondent subsequently told H.T. not to go running to H.T.'s mom if H.T. had a problem with Respondent. Respondent read student grades aloud in class without the permission of the affected student in violation of District policy. Respondent also read the names of students receiving a grade of "A," "B," or "C" thereby disclosing the names of students with lower grades. Disclosing the grades of students in class without the permission of the student invades the privacy of the student and exposes the student to embarrassment. Respondent has a history of disclosing student grades in class. On May 17, 2000, the OPS administrator issued a letter of reprimand to Respondent for disclosing student grades during the 1999-2000 school year. In relevant part, the letter of reprimand stated: I advised you that one concern was related to your announcing student grades of students in front of the entire class. You said that the Governor had given schools grades and that you could tell students their grades. I advised you that was not so; that student information was protected and confidential and I directed you to refrain from the practice. You said that you didn't read all of the grades. I noted that students said you read grades of students who had A's, B's, and C's. I said that some students who had lower grades were embarrassed. I again reiterated that you should cease reading the grades. Respondent continued to disclose student grades during the school year at issue. Respondent read to the class the grades of A.A., A.S., A.W., C.A., and M.F. Each had failing grades. Respondent passed a test completed by A.S. down a row of students so that each student could see the test score on the front of the test and stated audibly that the only thing A.S. "got right" on the test was the date. The comment embarrassed, upset, and humiliated A.S. The District placed Respondent on administrative leave in October 2000. After Respondent returned from her administrative leave, the OPS administrator received more complaints about Respondent's behavior, and issued another letter of reprimand to Respondent on April 27, 2001. Respondent wrote the following message on the letter prior to returning the signed copy to the OPS administrator: "This is BS. Thank you [OPS administrator]." The District transferred Respondent from Gibbs to a school where Respondent works with another teacher. The transfer shows that Respondent had lost her effectiveness at Gibbs, but not as an employee. The District had a lot of complaints at Gibbs about Respondent. There were issues with Respondent's effectiveness at the school. The District determined that a transfer to another school might help Respondent "get a new start."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Subsections 1012.795(1)(c) and (f); guilty of violating Subsection 1012.795(1)(i) and Rule 6B-1.006(3)(a) and (e); suspending Respondent's Florida Educator's Certificate during the summer session after the current school year; and, on the date of the Final Order, placing Respondent on probation for two consecutive years, including the period of suspension, subject to the conditions prescribed in Petitioner's PRO. DONE AND ENTERED this 21st day of October, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2003. COPIES FURNISHED: Kelly B. Holbrook, Esquire Broad and Cassel 100 North Tampa Street, Suite 3500 Post Office Box 3310 Tampa, Florida 33602-3310 Robert F. McKee, Esquire Kelly & McKee 1718 East 7th Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated Florida Administrative Code Rules 6B-1.001, 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(f), 6B-1.006(3)(g), and 6B-1.006(3)(h), and, if so, whether such conduct is just cause for dismissal of Respondent pursuant to Subsection 1012.33(6)(a), Florida Statutes (2003).
Findings Of Fact During the 2002-2003 school year, Gary was employed by the School Board as a band and orchestra director at James Madison Middle School (Madison). Gary had been employed by the School Board for two years previous to the 2002-2003 school year. Prior to the incidents which are at issue in this case, Gary had been thought of by the Madison school administrators, students, and parents as an excellent teacher, who was able to inspire and motivate students. Gary taught C.J., a ninth-grader, advanced band and intermediate band during the 2002-2003 school year. Sometime during that school year, Gary noticed a dead dragonfly on a window in the band classroom. The dragonfly was removed from the window and placed in a trash receptacle. C.J. said that he would eat the dragonfly for a dollar. Another student said that he would give C.J. a dollar, and Gary said, "Okay." C.J. retrieved the dead dragonfly from the trash can and ate the insect. Gary gave C.J. a dollar. C.J.'s parents learned of the dragonfly incident through a younger cousin of C.J., who also attended Madison. C.J.'s mother went to see Gary to discuss the incident. Gary indicated to the mother that he was sorry for what had happened and that it was poor judgment on his part. C.J.'s mother felt that they had addressed the issue during their conversation and left the meeting satisfied about the issue. Gary did not advise school administration about C.J. and the dragonfly. After the dragonfly incident another situation arose involving Gary and C.J.'s eating an inappropriate item. Gary and some students, including C.J., were eating lunch in the cafeteria. Gary was eating baked ziti and began chewing on a particularly hard piece of ziti. He removed the ziti from his mouth and placed it on the side of his plate. Gary offered C.J. 12 dollars to eat the ziti, saying, "I bet you won't eat this piece of baked ziti." C.J. replied, "Oh, yes, I will." Gary then told C.J. not to eat the chewed food. Other students were egging C.J. on to eat the ziti, and C.J. picked the food off Gary's plate and ate it. One of C.J.'s cousins related the ziti incident to C.J.'s mother, and C.J.'s mother paid Gary another visit. The mother was not happy about the ziti episode and spent more time discussing the issue with Gary than she did when she visited him concerning the dragonfly. Gary told C.J.'s mother that he had bet C.J. 12 dollars to eat the ziti. The mother told Gary not to pay C.J. the money. Before she left the school on the day of the ziti discussion, she went to see Gary a second time to inquire about the status of his health because C.J. had eaten food that had previously been in Gary's mouth. Gary assured her that he was in good health. Gary did not advise school administration about the ziti incident. Gary was provided a copy of the school district's "Code of Ethics" which contained a section entitled "How to Use Common Sense and Professional Judgment to Avoid Legal Complications in Teaching." On of the admonishments in this section was "[k]eep your hands and other parts of your body to yourself." During the 2002-2003 school year, Gary put his hands inside students' pockets and searched for candy, chewing gum, notes, and money. He admitted searching the pockets of D.B., S.D., M.R., N.M., D.R., and L.B. Such actions were inappropriate and caused some of the students to feel uncomfortable. If a teacher suspects that a child has candy, chewing gum, or notes in his pocket, the correct procedure is to have the child empty his pockets so that the contents can be viewed. The teacher is not to put his hands in the student's pockets. L.D. was a student at Madison during the 2002-2003 school year, and Gary was her band instructor. L.D. considered Gary to be a "really good friend" as well as a teacher. During the 2002-2003 school year, L.D. was sitting on the stairs in the band room playing her band instrument. She played incorrectly, Gary came up to her, aggressively grabbed her neck, and said "urrr." She told him to stop, and he did. She did not think that his actions were sexual in nature, but did feel that they were inappropriate for a teacher. During the 2002-2003 school year, J.W. attended seventh grade at Madison. Gary was her band teacher. J.W. has hugged Gary, and he has hugged her back. J.W. has seen Gary hug other students at Madison. D.B. was a honor roll student at Madison. During the 2002-2003 school year, she was in Gary's first period orchestra class. She played the violin, and, during a two-week period when her violin was broken, she helped Gary in his office. Gary's office was located within the band room. The office had a door with a glass window, which took up at least three-quarters of the upper half of the door. Adjacent to the door, there was a large picture window which was on approximately the same level with the door window, but which was almost twice the size of the door window. A desk with a computer on it was located underneath the picture window. The top of the computer monitor came just below the bottom of the picture window. Occupants of the office could be seen from the band room; however, the evidence does not establish that the occupants could be seen fully from the band room. Gary made inappropriate comments to D.B., including telling her that she had sexy lips and telling her that she smelled good. These comments made D.B. feel uncomfortable. Gary also inappropriately touched D.B. While she and Gary were in his office, Gary "touched her inner thigh" and "rubbed it" and asked her if she knew how beautiful she was. In a second incident, Gary held her hand and rubbed her arm while she in his office to file papers during first period orchestra. During a third incident, Gary put his fingers inside her shorts at her waist, pulled her toward him, and asked her what she wanted. This incident took place when the door to the office was open. In another incident, D.B. asked Gary to tune her violin, and he put his hand up the bottom of her shirt. All the incidents happened during first period orchestra class when students were in the band room. Gary argues that D.B.'s testimony is not credible because of a conversation D.B. had with some fellow classmates. J.D., a classmate of D.B., was talking with D.B. and another classmate K.S. during fifth period of the 2002-2003 school year while Gary was still teaching at Madison. K.S. said, "You know what's being said about Mr. Gary is not true," and D.B. said, "Yeah, it's not true, don't say anything." The evidence did not establish what was being said about Gary and whether it concerned D.B.'s allegations against Gary. Thus, the evidence does not establish that D.B. was fabricating her allegations about Gary. Gary admits that he may have touched D.B. on occasion, but that the touching was not sexual in nature or inappropriate. M.R. was enrolled in Gary's second period and sixth period band classes during the 2002-2003 school year. She alleged that beginning in January 2003, Gary inappropriately touched her person. M.R. alleged that on two occasions when she was in Gary's office with the office door open and other students were present in the band room, Gary touched the outside of her clothing in her vaginal area. She also alleged that in a third incident that Gary placed his hand inside her pants underneath her underwear and rubbed her vagina. The third incident allegedly took place in the office with the door open and while other students were present in the band room. On a fourth occasion, M.R. alleged that Gary came up behind her in the filing room, placed his hands inside her shirt, and touched her breasts. The alleged incidents supposedly happened during third period lunch when other students were in the band room eating lunch or practicing. Of the students who testified at the final hearing and spent most of their lunch periods in the band room, none saw any inappropriate contact between Gary and M.R. M.R. had wanted to be first chair flute in her band class, but Gary made another student first chair. M.R. was angry about Gary's selection for first chair and told her friend J.W. sometime after Christmas 2002 that she was going to get even with Gary for not making her first chair. K.M., who was a student at Madison, overheard M.R. tell another student that the allegations and problems facing Gary were "what he deserves for not promoting me up in chair." M.R. does not have a good reputation in the community for truth and veracity. Her testimony concerning inappropriate touching by Gary is not credible, and it is found that those incidents did not happen. The School Board established other incidents of inappropriate behavior by Gary. Such behavior included telling a student that he could not wait until she was 21 so that he could be all over her and that it was a good thing that she was pretty because her brains would not get her anywhere; tickling her at the end of class; pulling her against her will onto his lap, and placing his arms around her arms and waist. Gary would also sit with students in the same chair in his office. Gary failed to tell school administrators of possible sexual misconduct between two students in the student restroom, when he became aware that some misconduct probably occurred between the two students. Although, the School Board proved these incidents, the School Board failed to allege the incidents in the Petition for Dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order dismissing Benjamin Leon Gary for just cause from his employment as a teacher with the School Board. DONE AND ENTERED this 24th day of June, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2004. COPIES FURNISHED: Harold T. Bistline, Esquire Stromire, Bistline, Miniclier & Griffith 1970 Michigan Avenue, Building E Post Office Box 8248 Cocoa, Florida 32924-8248 Mark S. Levine, Esquire Levine, Stivers & Myers 245 East Virginia Street Tallahassee, Florida 32301 Benjamin B. Garagozlo, Esquire 3585 Murrell Road Rockledge, Florida 32955 Dr. Richard A. DiPatri, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6699 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact During the 1981-1982 school year, Dwayne G. White was a seventh grade student assigned to North Miami Junior High School. On September 15, 1981, Respondent failed to return from lunch. On September 30, 1981, Respondent was sent to the office by his math teacher for playing around in class and pinching people. On October 9, 1981, Respondent was disciplined for making an improper proposition to a teacher. On October 20, 1981, his Spanish teacher reported Respondent for cutting class. On October 26, 1981, Respondent was again reported by his Spanish teacher for failing to return from lunch. On January 5, 1982, Respondent was paddled pursuant to a request from his math teacher, who reported Respondent for disrupting the class and not doing his work. On January 18, 1982, a note was sent to the Respondent's mother, pursuant to the request from Respondent's math teacher, advising her that Respondent was constantly talking, playing and singing in class. On January 22, 1982, Respondent was issued an indoor suspension for disrupting his science class. On February 4, 1982, Respondent received another indoor suspension for disturbing his science class. On February 9, 1982, Respondent was sent to the office for slapping a student in math class. On February 16, 1982, Respondent was issued a detention for becoming involved in a name-calling argument with another student in math class. On May 14, 1982, Respondent refused to take a spelling test and was sent to the office by his reading teacher. On May 21, 1982, Respondent was again reported by his reading teacher for having a temper tantrum in class, for throwing a chair in class, and for not working. 15 On June 15, 1982, the last day of school that year, Respondent received a one-day suspension as a result of his disruptive behavior. During the 1981-1982 academic year, Respondent failed four of his six courses the first semester, and he failed six of his six courses during the second semester. He was, accordingly, retained in the seventh grade for the 1982-1983 school year at North Miami Junior High School. On September 8, 1982, Respondent's mother was contacted because he refused to do his work in his reading class. On September 16, 1982, Respondent was counseled for cutting his physical education class. On September28, 1982, Respondent's physical education teacher reported him for refusing to participate and for being late for class. On October 28, 1982, Respondent's social studies teacher reported him for cutting class and refusing to do his school work. On December 7, 1982, Respondent was issued a three-day indoor suspension for disturbing class and being disrespectful to his physical education teacher. On January 17, 1983, Respondent was counseled for lack of cooperation in his social studies class. On January 19, 1983, pursuant to a request from a substitute teacher, Respondent was issued a two-day indoor suspension for cutting class and disturbing another class of which he was not a member. On February 1, 1983, Respondent was counseled and issued an indoor suspension for being disrespectful to a teacher. On that same day, Respondent was issued a ten-day suspension as a result of his unprovoked assault on a female student. A conference was scheduled with Respondent's mother to discuss assignment of Respondent to an opportunity school. However, his mother failed to appear for that conference. At the end of the first semester of the 1982-1983 school year, Respondent failed three of his six subjects.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered assigning Respondent Dwayne G. White to Petitioner's opportunity school program at Jan Mann Opportunity School North. DONE and RECOMMENDED this 14th day of June, 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 14th day of June, 1983. COPIES FURNISHED: Mark A. Valentine, Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Emma White 7415 NW 23rd Avenue Miami, Florida 33147 Phyllis O. Douglas, Esquire Assistant School Board Attorney Dade County School Board 1410 NE Second Avenue Room 200 Miami, Florida 33132
Findings Of Fact Allan Bonilla, currently Principal of Riviera Junior High School, was one of at least two assistant principals who attempted to work with Venus Tara Rodriguez during her 7th grade experience there in the 1984-1985 regular school year. He has been employed four years at that facility. Immediately prior to the winter vacation (commonly known as the extended Christmas holidays), on December 20, 1984, Venus left the campus without prior permission, this activity resulted in a two-day indoor suspension. In February, 1985, she received a three-day indoor suspension as the result of tardiness which culminated in an outdoor suspension the same month because her behavior at the three-day indoor suspension was so disruptive that it was deemed ineffective for her and the other students. In March, 1985, her rude and disruptive classroom behavior resulted in two indoor suspensions. In April 1985, as a result of her refusal to work during the last indoor suspension, she was assigned an outdoor suspension. Mr. Bonilla did not work with Venus as regularly as another assistant principal who was not available for hearing, but he expressed personal knowledge of the foregoing events and had interacted with Venus on several occasions for being out of class and boisterous. His assessment was that Venus could do the work required of her but that her behavior was so disruptive in the classroom that at the conclusion of the regular 1984-1985 school year she was failing two out of six subjects and was doing approximately "D" work in the rest. He agreed with the decision to assign her to an alternative school program, which decision was made because of Venus' need of individual attention and smaller class due to her habit of "acting out" in large groups. Venus' parents were contacted concerning each suspension. Mr. Bonilla testified that Venus has successfully finished 7th grade during the 1985 summer school session at GRE Lee opportunity School and he has received notice she will be reassigned and enrolled at Riviera Junior High School for the 1985-1986 school year commencing in September 1985.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Venus Tara Rodriguez to Riviera Junior High School. DONE AND ORDERED this 29th day of August, 1985, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 29th day of August, 1985. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N. E. Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 Mark A. Valentine, Esquire 3050 Biscayne Blvd. Suite 800 Miami, Florida 33137-4198 Ms. Wilhelmina A. Rodriguez 4110 S. W. 104th Place Miami, Florida 33165 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1510 N. E. Second Avenue Miami, Florida 33132
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the School Board of Pinellas County dismiss the charges against Respondent, Larry J. Spann, in this case. RECOMMENDED this 8th day of July, 1985 in Tallahassee, Florida. J. LAWRENCE JOHNSON 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 8th day of July, 1985.
