The Issue The issue presented is whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At the time the Administrative Complaint was filed in this case, Mr. Tullos held Florida teaching certificate number 165642, covering the areas of administration and physical education, which was to expire in June 1995. 2/ At all times material to this proceeding, Mr. Tullos was employed as an assistant principal of student services at Glades Central High School ("Glades Central") in the Palm Beach County School District. He was employed pursuant to a three-year contract commencing in July 1990 and terminating in July 1993. 3/ Mr. Tullos has been employed since 1965 at what is now known as Glades Central, where he served as dean of boys until the title was changed to assistant principal some twelve years ago. He received appreciation awards for his work with students at Glades Central every year from 1987 through May 1991. Mr. Tullos has had regular contact with female students for many years in his positions as dean of boys and assistant principal of student services. In September 1991, Calvin Taylor issued a "Warning Letter" to Mr. Tullos expressing concerns about his behavior with students. At the time, Mr. Taylor was assistant superintendent for personnel relations with the Palm Beach County School Board. The letter was issued following an informal hearing regarding complaints from several students. These complaints were basically the same as those which are the subject of the instant proceeding. Mr. Taylor's role was to hear the evidence and determine what type of discipline to recommend to the school superintendent. Upon consideration of the evidence presented by the school board investigator and by Mr. Tullos, Mr. Taylor recommended that the appropriate discipline was the issuance of the "Warning Letter." In the letter, Mr. Tullos was admonished to "[b]e very careful about the manner in which you touch and associate with students." In May 1992, Mr. Tullos received an "At Expectation" performance evaluation from Dr. Effie C. Grear, principal of Glades Central. During the 1992-1993 school year, Mr. Tullos was one of three assistant principals at Glades Central and was assigned to work with all ninth-grade students. Lois Lewis and Willie McDonald, the other two assistant principals, were assigned to work with all tenth-grade and one-half of the eleventh-grade students and with all twelfth-grade and one-half of the eleventh-grade students, respectively. Mr. Tullos's duties included student discipline, monitoring the halls and cafeterias, loading and unloading students on the school buses, issuing passes, making arrangements for medical care for students injured on campus and contacting the parents, making arrangements to have unruly students removed from campus, and performing teacher evaluations. Each school day, Mr. Tullos monitored the cafeteria during breakfast. When the bell rang for first period, he, Ms. Lewis, and another school administrator monitored the halls and wrote late passes for students who were tardy. Mr. Tullos wrote a pass for any student who approached him, regardless of grade level. Once the halls cleared, Mr. Tullos usually returned to his office, where he wrote passes for other late students who came to his office and worked on discipline referrals. Mr. Tullos and Ms. Lewis also monitored the cafeteria during the two lunch periods. For most of his work day, Mr. Tullos worked in his office on student discipline referrals, averaging fifty to sixty per week. Discipline referrals are made by teachers, who complete a form giving an explanation of the disciplinary problem with a particular student; the form is normally given to the student who is the subject of the referral, who must take it to the assistant principal assigned to work with the students of his or her grade. Sometimes, teachers ask a student to take a discipline referral form to the office even though that student is not the subject of the referral. Mr. Tullos conducted a conference with the students and/or parents for all referrals within his jurisdiction. Student W. K. 4/ W. K. was a ninth-grade student at Glades Central during the 1992-1993 school year. She was often in trouble at school during that year and had many discipline referrals. Since she was in the ninth grade, she took the referrals to Mr. Tullos, so she came into frequent contact with him. One day, after she had been repeatedly late to one particular class, she and another student, S. S., were sent to Mr. Tullos's office with discipline referrals. When W. K. was alone with Mr. Tullos in his office, he commented on her legs, saying something to the effect that she had "fine" legs or that her "fine" legs could carry her to class on time, and he told her that she shouldn't be late to class. She thought nothing of the remark about her legs because she had known Mr. Tullos in the community since she was a child and had known him as a nice man. On two other occasions when she was in his office with discipline referrals, Mr. Tullos told her that he would "smooch" her if she got another referral. She understood this to mean that he would kiss her, but, again, she thought nothing of the remark because she did not take it in a negative way. She thought that being kissed by Mr. Tullos would be disgusting and that he was threatening to kiss her so she would not get into trouble again. W. K. had heard other girls talk about Tullos but she never saw him do the things they described. She also heard around school that girls who took discipline referrals to Tullos wouldn't get in trouble. W. K. did not take offense at Mr. Tullos's comment about her legs or his threats to smooch her, but she did think that this behavior was not appropriate for a school administrator. Although she talked about the incidents to all her friends at school, she did not go to anyone in authority to complain. At some point during the 1992-1993 school year, Ms. Lewis, the assistant principal in charge of the tenth- and part of the eleventh-grade students, called her in and asked her about the incidents with Mr. Tullos and asked if she knew any other students who had similar experiences. Shortly after she spoke with Ms. Lewis, she was called into the office of LaVoise Smith, the guidance coordinator at Glades Central, where she told Ms. Smith about the incidents. Student S. S. S. S. was a ninth-grade student at Glades Central during the 1992-1993 school year. She now attends the Choice school, which is in the Palm Beach County School District. As noted in paragraph 11 above, S. S. was the student who was sent with W. K. to Mr. Tullos's office with discipline referrals for being repeatedly late to one class. According to S. S., when she and W. K. were both in Mr. Tullos's office, he told them that they had pretty legs and were pretty girls. She could not, however, remember his exact words. She felt uncomfortable when he commented on her legs because she had heard other girls talk about Mr. Tullos and the things he would say to them. On another occasion, a teacher asked S. S. to take a discipline referral on another student to Mr. Tullos's office. When she entered his office, he glanced at the form in her hand and told her that, if the referral was for her, he would have to "smooch" her to make her do better. As S. S. was leaving Mr. Tullos's office, Mr. Tullos was leaving as well. S. S. went out of the door first, and Mr. Tullos stopped her by touching the top of her shoulder. When she turned around, his hand dropped to brush the top of her breast. She is not certain that he deliberately dropped his hand from her shoulder. Several times when Mr. Tullos saw S. S. with her boyfriend, he would tell the boyfriend to "leave that girl alone" or something to that effect. Even though he made these remarks in a joking manner, S. S. felt uncomfortable. In fact, she felt uncomfortable "every time he said something." In yet another incident, S. S. and Mr. Tullos were standing in the hallway outside his office when Mr. Tullos told her that her boyfriend was no good for her and that she should give all her "good loving" to him. After this last incident, S. S. and some of her friends discussed their experiences with Mr. Tullos. They decided that someone had to go to the office and report Mr. Tullos's behavior. Shortly after one of the girls reported Mr. Tullos to Ms. Smith, S. S. was called into Ms. Smith's office and interviewed. Student Y. J. Y. J. was a ninth-grade student at Glades Central during the 1992-1993 school year. Sometime around Christmas, Y. J. was in the cafeteria at lunchtime and asked Mr. Tullos for a quarter. He responded by asking what she would give him in return. She did not know what he meant by this remark, but it made her feel uncomfortable. On another occasion, Mr. Tullos had scheduled a conference with Y. J.'s mother to discuss a discipline referral. Y. J. forgot to tell her mother about the conference, and she used the telephone in Mr. Tullos's office to call her. Y. J. was wearing a low-cut v-necked shirt and a necklace which hung in the cleavage of her breasts. While she was on the telephone, Mr. Tullos commented that the necklace was "a pretty charm," and he reached over and picked the necklace up. As he did so, his hand "slightly" brushed her breast. She was alone with Mr. Tullos in his office, and he was sitting behind the desk while she was standing on the side of the desk. Y. J. does not know if he touched her breast intentionally, and she did not report the incident to school authorities. Sometime around Easter, Y. J. took a discipline referral to Mr. Tullos. They were alone in his office. He asked her when she was going stop giving her "loving to the guys and give him some." This made Y. J. so uncomfortable that she reported the incident to Ms. Lewis either the same day or the next day. After this last incident, but before she went to Ms. Lewis, she talked with a group of her friends about Mr. Tullos's behavior. Several of the girls claimed to have had similar experiences with Mr. Tullos, and some of them said that they blackmailed Mr. Tullos into giving them what they wanted by threatening to tell the administration about his behavior. Up until this time, however, none of the girls had reported Mr. Tullos. When Y. J. said she was going to go to Ms. Lewis to complain, several of the other girls said they would complain also. Y. J. spoke with Ms. Lewis, who sent her to Ms. Smith, the school's guidance coordinator. Y. J. gave Ms. Smith the names of the other girls she knew who had encounters with Mr. Tullos, and they were called in to talk with Ms. Smith. Student T. S. T. S. was a ninth-grade student at Glades Central during the 1992-1993 school year. She knew Mr. Tullos because teachers would ask her to take discipline referrals regarding other students to him and because she would ask him for a late pass if he was the first dean she saw in the hall. On several occasions during the 1992-1993 school year, when T. S. approached Mr. Tullos in the hall to obtain a late pass, Mr. Tullos made her wait until last, when there were not many people in the hallways. He then made remarks to her which made her feel uncomfortable, such as telling her after spring break that he missed her, telling her that he was jealous because he saw her hugging a boy (her cousin) in the hall, and telling her that she had to give him a kiss in order to get a late pass. She did not think he was joking about giving him a kiss because he said it on several different occasions. These remarks made her feel very uncomfortable. On "about" four occasions, when she approached him in the hall to obtain a late pass and he made her wait until last, Mr. Tullos hugged her. She felt very uncomfortable because these were not "ordinary" hugs like other teachers gave; rather, "[w]hen he grabbed me he just rubbed." On yet another occasion, a teacher asked T. S. to take a discipline referral regarding another student to Mr. Tullos. She took the referral to his office, and he told her to close the door. She felt that this was not necessary, and she gave him the referral and left his office. T. S. did not discuss her experiences with Mr. Tullos with her girl friends at school, nor did she personally report him. She eventually told her mother, who called the school to report Mr. Tullos's behavior. Student N. B. N. B. was a ninth-grade student at Glades Central during the 1992-1993 school year. Sometime during that year, N. B. went to Mr. Tullos's office with a discipline referral. She has a lot of jewelry and was wearing several necklaces on that day. He was sitting behind his desk, and she was standing across from him, in front of the desk. Mr. Tullos asked N. B. to give him one of her necklaces, and she told him no. He then asked if she would give him "something else," and reached over the desk as if to grab one of the necklaces. N. B. had heard that Mr. Tullos got "fresh" with girls, and she stepped back and left his office. N. B. went directly to Ms. Lewis's office and told her about this last incident. Afterwards, she talked with Ms. Smith. N. B. did not discuss the incident with her girl friends until after she had spoken with Ms. Lewis. Student T. F. T. F. was a ninth-grade student at Glades Central during the 1992-1993 school year. Sometime during that school year, T. F. had a "stop order" issued against her because she had missed detention. In order to go back to class, she had to obtain a pass from Mr. Tullos, which she would take to each of her teachers. She went to Mr. Tullos's office, and, when she asked for the pass, he asked her what she would give him. T. F. took this as a "sexual gesture" because of the way he said it and the way he looked at her; she did not respond. Mr. Tullos then called her aunt for an explanation of why she missed detention and gave her the pass. During the incident, she and Mr. Tullos were alone in his office. On another occasion, Mr. Tullos caught N. B. cutting into the lunch line. He pulled her out of the line and took her ten to twenty feet away from the line. He remarked that her boyfriend must be teaching her to do "stuff like that" and told her that she wasn't supposed to have any boyfriend but him. He also asked if she would go out to dinner with him and if she was ashamed to ride in his truck. He did not specify a date or time for dinner but asked if she liked Red Lobster. She turned down the invitation and walked away. During this exchange, T. F. and Mr. Tullos were standing in the cafeteria, which was packed at the time with students eating lunch. Although Mr. Tullos was not whispering to her, he was not talking loudly, either. On another occasion, she and a girl friend were in the hall, and they asked Mr. Tullos for a quarter so they could use the telephone. He responded by asking what they were going to give him in return. They told him to keep his quarter and borrowed a quarter from a friend. T. F. had heard from other students about Mr. Tullos's behavior, but she decided to give him the benefit of the doubt. A few weeks after the incident involving T. F. related in paragraph 39 above, the incident described in paragraph 26 above occurred between her friend, Y. J., and Mr. Tullos. After she heard about this, T. F. told her aunt and Y. J. about her encounters with Mr. Tullos. She and Y. J. talked it over and decided to talk with Ms. Lewis. Student M. R. M. R. was a ninth-grade student at Glades Central during the 1992-1993 school year. M. R. was late for class many times. On one occasion during the second half of the school year, she approached Mr. Tullos for a late pass. He told her that he would give her an "unexcused" pass but that, if she gave him a hug, he would give her an "excused" pass. She refused to give him a hug, and he gave her an "unexcused" pass. She did not think anything of this incident; she just took her pass and went to class. 5/ M. R. did not report the incident, but, at some point, she spoke to Ms. Smith about it. Ms. Smith has been employed as guidance coordinator at Glades Central for the past nine years. One of her duties is to work with female students who have problems. On May 3, 1993, Y. J., S. S., and T. F. came to Ms. Smith complaining that Mr. Tullos had made improper comments to them and/or had touched them in a way that they thought was inappropriate and that made them uncomfortable. When she asked if there were any other students who had similar experiences with Mr. Tullos, she was given several names. She called these students to her office and, from them, got the names of still other students. She spent the day interviewing all of the students whose names she had been given, and she took statements from ten students who she thought had complaints which should be further investigated. At the end of the day, she telephoned the Department of Health and Rehabilitative Services and the school board's security office to report the complaints. She also talked with Dr. Grear, the principal of Glades Central, and gave her the statements she had obtained. Dr. Grear handled the investigation from this point forward. In a performance evaluation dated May 28, 1993, Dr. Grear rated Mr. Tullos "At Expectation," commenting that he "works well with other members of the administrative staff and faculty." Mr. Tullos's behavior toward the seven students who testified at the hearing was unprofessional and inappropriate. The evidence is clear and convincing that his conduct seriously reduced his effectiveness as an employee of the school board. He repeatedly committed serious offenses against students who had been given into his care, and he exposed himself to the derision of the students who had been the objects of his indecent remarks and touches. His behavior was the subject of discussion among students, and some students even claimed to have gotten special treatment because they threatened to report him. The evidence is also clear and convincing that he harassed the seven students who testified at the hearing on the basis of their sex. He made remarks to them which were explicitly or implicitly sexual in nature, and he touched several of them in ways which were improper and offensive. 6/ Mr. Tullos's conduct made several of the seven students who testified at the hearing uncomfortable and/or angry, but others either did not take him seriously or were not bothered by his behavior. There is no clear and convincing evidence that the students' scholastic endeavors were affected or that they suffered any mental or physical harm as a result of his actions. The lack of mental harm was also apparent from the demeanor of the students as they testified at the hearing. Likewise, there is no clear and convincing evidence that any of the students were exposed to embarrassment or disparagement as a result of Mr. Tullos's actions; in fact, most of the students testifying at the hearing willingly and openly discussed their experiences with their friends at school. And, while he may have tried to exploit his relationship with the seven students as the assistant principal in charge of their grade, there is no clear and convincing evidence that Mr. Tullos obtained any personal gain or advantage.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Virgil Wayne Tullos guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board of Palm Beach County, in violation of section 231.28(1)(f), and of harassing students W. K, S. S., Y. J., S., N. B., T. F., and M. R. on the basis of sex, in violation of rule 6B- 1.006(3)(g) and, therefore, of section 231.28(1)(i). It is further RECOMMENDED that the following administrative sanctions be imposed: Suspension of Mr. Tullos's teaching certificate for a period of one (1) year; and, Upon reinstatement of his teaching certificate, placement of Mr. Tullos on probation for a period of three (3) years, with Mr. Tullos being required, as a condition of probation, to submit to psychological examination and to any recommended treatment through the recovery network program established in section 231.263, Florida Statutes. DONE AND ENTERED this 3rd day of July, 1996, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 3rd day of July, 1996.
Findings Of Fact Introduction At all times relevant hereto, respondent, Jack E. Ferrell, was a teacher at Parkway Junior High School (PJHS) in Miami, Florida. He holds Florida Teacher's certificate Number 107694 issued by petitioner, Department of Education, Education Practices Commission (Commission). The certificate was reissued in 1987 and covers the areas of health education, physical education and mathematics. With the exception of a short break in the 1960s, respondent has been a teacher in Dade County, Florida since 1959. He taught at PJHS from school year 1967-68 until January 10, 1986 when he was reassigned to administrative duties at a Dade County School Board area office. The school has a racial composition of at least ninety percent black students. On February 18, 1986, Ferrell retired rather than face disciplinary action by the Dade County School Board which might have culminated in his dismissal and loss of retirement benefits. As a condition of accepting his resignation, the School Board stipulated that Ferrell would not be rehired by that school district. At the same time, the charges which prompted his retirement were referred to the Commission. On November 10, 1987, or some twenty-one months later, an administrative complaint was issued against Ferrell charging him with various violations of general law and agency rules. As amended on March 8, 1988, the complaint alleges that Ferrell, who is white, (a) used excessive corporal punishment on a black student and called that student a "nigger" on December 20, 1985, (b) called a black student a "dummy, gorilla and nigger" on December 18, 1985, (c) showed unprofessional conduct at a parent-teacher conference on December 19, 1985, (d) failed to follow school policies and procedures, used unprofessional conduct and defied school personnel, all of which resulted in a letter of reprimand on April 15, 1985, (e) argued with a fellow teacher on June 5, 1984, (f) was guilty of direct insubordination by refusing to accept a student into his classroom on December 14, 1984, and (g) committed battery upon another teacher on April 23, 1982. 1/ These charges will be discussed separately hereinafter. The December 20 Incident On December 20, 1985 Ferrell was teaching a mathematics class when J.W., then a fourteen year old black student, was brought to his classroom by Mr. Robertson, a school security guard. The student had been caught skipping class earlier and was sent to Roy Scott, an administrative assistant, who gave a "shot" (paddling) to J.W. and several other students. When J.W. entered Ferrell's class, Ferrell asked him "What happened to you?" J.W., who was upset and teary eyed from his paddling, responded "I just got a shot." Ferrell replied "You should have been suspended." J.W. then said words to the effect "Don't worry about me," and went to his desk which was in the back corner of the classroom. Ferrell, who did not hear J.W.'s last remark, asked "What did you say?" When J.W. did not respond Ferrell went to the student's desk and lifted it slightly once or twice and again asked him to repeat his comment. J.W. would not respond and told Ferrell to leave him alone. Using both hands, Ferrell picked up J.W. by his shirt and asked him to repeat his comment. During the process of picking up J.W., Ferrell's hands ended up around the upper chest area or lower part of J.W.'s neck. J.W., who by now was angry and even more upset, tried to break loose but Ferrell pushed him against the wall resulting in J.W. accidentally bumping his head. After Ferrell asked J.W. what he intended to do, J.W. threatened to tell his mother but Ferrell replied that he didn't care. When J.W. again attempted to break away, Ferrell pushed him against the wall a second time. At that point, Ferrell thought he heard J.W.'s shirt tear and released the student. He told a security guard to take J.W. to the principal's office. He later gave J.W. a detention for coming to class without a book. Although at hearing J.W. claimed that Ferrell had called him a "nigger" and "boy," this contention is rejected since J.W. did not allege this in his initial statements and interviews, and nearby students who witnessed the event did not hear Ferrell use those words. 2/ After J.W. related the event to the school administrators, the administrators concluded that J.W. was "okay," and he was sent to his next class, a physical education class. During the interview, one of the school officials noted a small bump on the back of J.W.'s head where it had struck the wall and accordingly reported Ferrell to the Department of Health and Rehabilitative Services for child abuse (excessive corporal punishment) However there is no evidence that formal charges were ever filed against Ferrell by the agency or state attorney. According to J.W., the bump "hurt" and stayed on his head for "about a week." However, he did not ask for nor was he given medical assistance for his injury. In a meeting later that day, Ferrell admitted to the assistant principal in charge of administration, Kenneth Jaworski, that he had pushed J.W. against the wall, that the child may have bumped his head, and that his hands may have slid up around J.W.'s throat area. At that time, Ferrell blamed the incident on a "wise" statement made by the student. In early January, 1986, or some two to three weeks later, school officials contacted J.W.'s mother and told her of the incident. According to school policy, a teacher should never place his hands on a student unless he is in fear of bodily harm from a student or unless a student is about to inflict bodily harm on another student. Since neither situation was present, Ferrell violated school policy. Had Ferrell considered J.W.'s conduct to be disruptive or defiant, Ferrell should have either referred him to the principal's office or contacted a security guard who would escort J.W. to the principal's office. These procedures are outlined in the faculty handbook, and Ferrell was aware of such policies. Finally, under School Board Rule 6Gx13-5D- 1.08 appropriate corporal punishment was considered to be paddling. If corporal punishment was justified, only two persons designated by the principal at PJHS were authorized to administer such punishment and then only under certain conditions prescribed within the rule. Ferrell was not one of the two designated hitters. At hearing, Ferrell contended that he was simply "restraining" J.W. when the student attempted to leave the room and that he did not physically pull the student up with his hands or deliberately shove his head against the wall. He did concede it was possible that J.W.'s head could have accidentally hit the wall during the confrontation. Ferrell strongly disagreed with the contention that his actions equated to excessive corporal punishment and characterized it instead as an effort on his part to restrain the student from leaving class. It was his contention that the definition of corporal punishment was vague but was generally interpreted only to be paddling. He also said his actions were necessary in order to maintain control and discipline in his classroom. The December 18 Incident During the first semester of school year 1985-86, N.W. was a twelve year old black student at PJHS enrolled in Ferrell's sixth period mathematics class. Around 7:00 a.m. on the morning of December 18, N.W. was standing with two other black female students outside the school building when Ferrell walked by on the way into his classroom. There may have been as many as ten or twenty other black students who were within hearing distance of Ferrell but the exact number, if any, is unknown. One of the students, S.W., called out to Ferrell "Do you have a brother named Fred?" Ferrell replied "No, do you have a brother named Dummy?" He also asked S.W. if she was in his class. The student then retorted "No, but you remind me of Fred Flintstone." Ferrell replied "You remind me of a nigger." The evidence is conflicting as to whether Ferrell used the word "gorilla" during the incident, but it is found he did not. N.W. told her mother of the incident that day. Even though she was extremely upset with Ferrell, the mother chose not to bring the matter up until after the Christmas holidays. On January 9, 1986 N.W.'s mother met with Ferrell and a counselor, who was also black, to discuss her daughter's poor grades and the name-calling incident that occurred on December 18, and to request that her daughter be transferred out of Ferrell's classroom. At the conference, Ferrell acknowledged to both N.W. and the counselor that he had used the word "nigger." However, he explained that he was from North Carolina, that the word was always used to describe blacks and that the term was not used in a derogatory sense. In a conference with the principal, Fred Damianos, Ferrell freely admitted he had used the word "nigger" in his exchange with the three black students but, as he had told the mother, stated the word was a common one in North Carolina and was not meant to be derogatory. The principal did not consider this to be justification for his conduct and had a letter of reprimand placed in Ferrell's file. At hearing, Ferrell agreed his use of the word showed a lack of good judgment and could have offended the students in question. Direct Insubordination On December 14, 1984 Ferrell sent N.C., a female student, to Jaworski's office for using profanity in class. She had already been sent out of class on several prior occasions for disciplinary reasons. Ferrell did not want her back in class until after a parent-teacher conference had been held. However, Jaworski was "extremely busy" at the time and sent her back to the classroom with a note requesting that Ferrell take her, and they would talk about the student's situation later on. When N.C. returned to his class, Ferrell refused to accept her and sent her back to Jaworski's office with a note saying he would not admit her. Jaworski considered Ferrell's refusal to accept N.C. to be in defiance of his authority and therefore direct insubordination. Jaworski explained that, under then-existing school procedures, if the student continued to be a disciplinary problem, Ferrell should have prepared another referral slip rather than simply refusing to accept her. Jaworski discussed the incident with Ferrell that afternoon and later placed a memorandum describing the matter in Ferrell's file. However, the memorandum did not constitute disciplinary action since Jaworski had no authority to discipline Ferrell. Ferrell considered N.C. to be a persistently disruptive student who had to be removed from the classroom. He also felt his conduct in the matter was consistent with the school's Code of Student Conduct which authorized a teacher to temporarily remove that type of student from the classroom, request a parent-teacher conference, and to send the student to a predesignated area determined by the school principal. In Ferrell's view, Jaworski overreacted to the situation and had failed to give consideration to all the facts before the memorandum was written. Angry Parent-Teacher Conference On December 19, 1985, Ferrell held a parent-teacher conference with a Mr. and Mrs. Sterling and a school counselor. The conference concerned the Sterlings' son, R.S., who had been a disciplinary problem in one of Ferrell's classes. The mother carried a small baby with her to the conference. The four (plus baby) met in the counselor's 8'x 10' office which was approximately twenty feet from Jaworski's office. After the meeting had been underway for some time, another administrator asked Jaworski to check out the loud voices emanating from the counselor's office. When Jaworski went over to see what was happening, he found what he considered to be a "heated" meeting taking place. He described Ferrell's tone of voice as being loud and aggressive. After a few minutes had passed, Ferrell stood up and, in an irritated manner, said words to the effect "I can't add anything else, I don't know what else to say" and departed the meeting. As Ferrell left, Mr. Sterling said he had heard that Ferrell was "prejudiced." Upon hearing this comment, Ferrell returned to the doorway and said "If you believe that, you're as immature as that baby." At that point Jaworski, who was still standing near the office, felt that there was going to be a physical confrontation between Ferrell and Mr. Sterling and placed his arm across the doorway to prevent Ferrell from entering the room. Ferrell then left the area. However, Ferrell did not "physically push" Jaworski as alleged in the complaint. At hearing Ferrell admitted the conference "did not go well" and that, at one point, he and Mr. Sterling may have been "trying to out talk the other." Ferrell's contention that he did not use "threatening" words at any time was corroborated by Jaworski. Ferrell also pointed out that between September 5, 1985 and January 10, 1986, he had twenty-six parent-teacher conferences and only this conference drew a complaint from administrators. Even so, Ferrell was cited for unprofessional conduct in a memorandum prepared by Damianos on January 9, 1986. Battery on a Teacher On April 23, 1982 Ferrell was involved in an altercation with another teacher named Bellis. The incident occurred around 9:00 a.m. that day when some students left Bellis' classroom and congregated in the hallway outside of Ferrell's classroom. Because this disturbed his class, Ferrell first complained to Bellis, who did nothing about the matter. Ferrell then complained to the principal (Mr. Hanna) A short time later, the three men met in the hallway in front of Ferrell's classroom and, when Bellis turned and began walking away, Ferrell grabbed his upper bicep and told Bellis to turn around and tell Hanna the truth about the situation. Because Ferrell had touched him, Bellis filed criminal battery charges against Ferrell. However, there is no evidence that Ferrell was ever prosecuted for this crime. Even so, Ferrell was administratively charged with battery by school administrators and was suspended from school without pay for ten days. Ferrell contends he accepted the punishment only because he was promised a reassignment to another school. The promised reassignment did not materialize. Failure to Follow School Policy, Etc. The complaint alleges that Ferrell was guilty of "tearing up three discipline referrals in front of (Damianos) during a fit of anger." In the spring of 1985, a new countywide school policy was implemented requiring teachers to contact the student's parents before referring the student to the principal's office for "minor infractions." This policy was explained to all PJHS teachers, including Ferrell, at a faculty meeting on March 26, 1983. However, Ferrell had referred three students to the principal's office during the week preceding the meeting without first making such parent contact. By March 27, Ferrell had contacted the three sets of parents, albeit after the referrals had already been sent to the principal's office. On March 27, Ferrell and Damianos met in the school cafeteria to discuss the three referrals and the need to follow the new procedure. When the meeting ended, Ferrell was "upset," but not in "a fit of anger," and as he walked out of the cafeteria, he tore up the referrals and threw them in the wastebasket. Damianos considered this to be "unprofessional conduct" and "immature" and Ferrell's way of showing the administration that he was "upset." Ferrell justified his tearing up the forms on the ground the forms were no longer necessary since they failed to comply with the new school directive. He added that he meant no disrespect towards Damianos. Ferrell admitted being late to his classroom a few times in the spring of 1985 due to heavy traffic and parent- teacher conferences that lasted beyond the school starting hour. He also acknowledged that he had told another teacher (Scott) that Jaworski was "fat and lazy." In hindsight, Ferrell realizes he may have been "a little off base" for doing so. Unfortunately for Ferrell, his comments were relayed to Jaworski. Ferrell was charged with having received a letter of reprimand dated April 15, 1985 for various matters, including those discussed in findings of fact 17-19. He was also placed on two weeks' prescription in May, 1985 and satisfactorily completed all conditions by the prescribed time. Other than Ferrell's admission of being late, calling Jaworski certain names, and tearing up the three referral forms, there was insufficient evidence to support findings concerning any other incidents which form the basis for the reprimand and prescription. Incident on May 4, 1984 The complaint charges that Ferrell and Bellis supposedly had another altercation on June 4, 1984 albeit one of a purely verbal nature. No specifics are of record, and Ferrell's contention that he was completely exonerated was not contradicted. Indeed, the assistant principal did not dispute this contention and admitted that Bellis was an "unusual" person who had a tendency to lie. Loss of Teacher Effectiveness According to the testimony of various administrators, Ferrell's conduct in its totality, if shown to be true, has resulted in the loss of his effectiveness as a teacher in the public school system. Ferrell's Case Ferrell contended that all allegations were either untrue or exaggerated. He suggested the School Board of Dade County began compiling a paper trail in 1984 in an effort to dismiss him. According to Ferrell, this began when Ferrell met with the area superintendent in July, 1984 after the second Bellis incident. The superintendent told him that if one more incident occurred, Ferrell was "through as a teacher in Dade County." Ferrell also attributed many of his problems to a personality conflict with Jaworski and Damianos. Ferrell admits that he is a strict disciplinarian in class and assigns a great deal of homework. As a result, he is unpopular with many students. Ferrell's reputation as a strict disciplinarian was corroborated by one administrator who described Ferrell's class discipline as "extremely good." Ferrell also describes himself as "blunt," "frank," "to the point," and "very firm" in dealing with students, parents and teachers. However, these characteristics have tended to cause strained relations with his counterparts. Except for the December 18, 1985 incident, Ferrell denies ever using derogatory terms during his lengthy school tenure. This was corroborated by Jaworski and Damianos to the extent that they had contact with Ferrell while they were at PJHS. Indeed, they stated that Ferrell never gave any prior hint of racial bias. Ferrell was also described as an adequate teacher in terms of teaching skills as evidenced by his continuous receipt of satisfactory annual evaluations during his tenure with the school system. Further attributes included his never being absent and a willingness to stay after regular school hours to tutor students. Finally, Ferrell was offered the opportunity by Damianos in both 1984 and 1985 to teach extra classes because of the principal's confidence in his capabilities. Ferrell has not taught since his retirement in February, 1986 but wishes to retain his teacher's certificate. He thinks revocation of his certificate is too harsh a penalty given his otherwise satisfactory twenty-five year tenure as a teacher.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Jack E. Ferrell be found guilty of violating Subsections 231.28(1)(c), (f) and (h), Florida Statutes (1987), as more specifically discussed in the conclusions of law, and that his teaching certificate be suspended for three years retroactive to his date of retirement in February 1, 1986. DONE AND ORDERED this 4th day of May, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 4th day of May, 1988.
The Issue The issue is whether Petitioner terminated Respondent's annual contract as a teacher for just cause.
Findings Of Fact Petitioner hired Respondent, an inexperienced teacher who had recently graduated from college, and assigned him to teach and serve as an assistant basketball coach at Dixie Hollins High School during the 2000-01 school year. For the 2001-02 school year, Petitioner reassigned Respondent to Tarpon Springs High School, where Respondent assumed the duties of head basketball coach. During both school years, Respondent was on annual contract. Initially, an administrator at Tarpon Springs High School informed Respondent that he would teach American history and economics, which are the subjects that he had taught at Dixie Hollins High School. When Respondent reported for duty at Tarpon Springs High School, administrators did not give him a schedule until a couple of days before classes started. At that time, Respondent learned that, during the first quarter, he was to teach counseling and personal fitness, neither of which he had taught before. He also learned that, the following quarter, he was to teach Freshman Experience, which was a relatively new course, and personal fitness. In the third quarter, he was due to teach earth-space science in place of personal fitness. At least for the first two quarters, Respondent was assigned students in the GOALS program, which is designed for students who have not made substantial academic progress due to social problems. In this program, the students take only four classes per quarter. Each class runs one hour and forty-five minutes, five days weekly. Respondent had difficulties assembling materials for the peer counseling course. Teachers who had previously taught the course were not available. Extensive renovations at the school made it difficult to locate materials for this and other courses. Respondent finally visited a teacher at another school and obtained books, guides, and tests for peer counseling. These materials advised Respondent to help the students learn to settle their disputes peaceably without adult intervention and suggested that the teacher supplement the book with relevant movies dealing with peer pressures, conflict, and social issues. Respondent experienced similar difficulties with the personal fitness course, for which he had books, but no teacher edition or worksheets. However, Respondent's background in athletics presumably prepared him to teach this course. Although Respondent voiced similar complaints about Freshman Experience, he had a quarter to try to obtain materials. Also, no one else at the school had any experience with this course, which the District had abruptly required the high schools to teach. Similar to peer counseling, Freshman Experience is a motivational course that also covers personal and academic issues, as revealed by the titles of the required books, Chicken Soup for the Soul and Ten Steps for How To Manage Time. The seven charges listed in the Preliminary Statement fall into four groups. Charges 1 and 2 are the most serious; they allege that Respondent kissed two students and touched the vaginal area of one of these students. Charges 3 and 4 are also sexual in nature; they allege that Respondent made inappropriate comments to female students about their appearance and inappropriate sexual comments to or in front of students. Charges 5 and 6 pertain to classroom management; they allege that Respondent allowed students to come to his classroom for no legitimate purpose and encouraged students to leave campus to get him food. Charges 7-9 pertain to curriculum, administration, and instruction; they allege that Respondent used noncurriculum-related materials (such as videos), lacked appropriate recordkeeping, and lacked appropriate classroom instruction. Petitioner wisely dropped Charges 6, 8, and 9. No evidence in the record supported these allegations prior to Petitioner's announcement that it was not pursuing these allegations. Charges 5 and 7 require little more analysis. The evidence supports neither of these allegations. Concerning Charge 5, unenrolled students visiting Respondent's classroom included basketball players. While Respondent remained the basketball coach, these players briefly visited the room from time to time to discuss something about the basketball program. Petitioner did not show the extent of these visits or that they were illegitimate. Unenrolled students who were not participating in the basketball program infrequently visited Respondent's classroom. Although the principal testified that one of his assistant principals told him that there was a problem with unenrolled students visiting Respondent's classroom, he added that she rejected his offer to talk to Respondent and said she would handle it. After that conversation between the principal and assistant principal, the principal said the problem was eliminated. Interestingly, though, neither the assistant principal nor anyone else ever talked to Respondent about this issue, which appears not to have loomed large at the time. Concerning Charge 7, Petitioner never proved the rating of any of the films mentioned during the hearing as shown in Petitioner's classroom. Films mentioned during the hearing as shown in one of Respondent's classes include With Honors, Rudy (shown repeatedly), Finding Forrestor, Saving Private Ryan, The Hurricane, [The Mask of] Zorro, and assorted basketball videotapes. The record reflects disagreement among Petitioner's administrators as to the policy concerning the application of the District policy regarding R-rated films. According to the representative of the Office of Professional Standards, The Patriot (apparently an R-rated film) "could" violate this policy, but, according to the principal, who is now handling workforce development in the District office, The Patriot "probably" would not be a problem. Even if The Patriot were a problem, as an R-rated film, it would be so only if Respondent had not obtained permission slips from parents to show this and perhaps other R- rated films. Respondent testified that he did so. Notwithstanding the testimony of one student to the contrary, Petitioner never proved that Respondent failed to obtain permission slips. The issue of the relationship, if any, between the films and the courses fails because Petitioner failed to prove the contents of the films or to prove adequately the prescribed content of the courses, so as to permit a finding that the films were irrelevant to the courses. The broad outlines of peer counseling in particular, at least as established in this record, would appear to accommodate a vast array of films. A sufficient number of students testified in sufficient detail to a broad array of bookwork, class discussion, and other instructional and assessment methods in both peer counseling and Freshman Counseling to overcome whatever proof that Petitioner offered in support of Charge 7. The crux of this case lies in the charges involving sexual improprieties, as alleged in Charges 1-4. The quality of proof was considerably different between Charges 1 and 2, on the one hand, and Charges 3 and 4, on the other hand. Analyzing Charges 3 and 4 first may help explain the findings as to Charges 1 and 2. Concerning Charges 3 and 4, Petitioner proved that Respondent made numerous inappropriate comments to female students, of a sexual nature, that understandably made the students feel uncomfortable. Respondent directed three of these comments and one behavior to T. R., a junior. While walking around the track during the personal fitness class that T. R. was taking from Respondent, he asked her what she thought of a 26-year-old dating an 18-year-old. T. R. was either 18 years old or Respondent implied that the dating would await her 18th birthday; either way, T. R. reasonably believed that Respondent meant her. Although actually 29 or 30 years old at the time, Respondent typically told his students that he was only 26 years old, so T. R. reasonably believed that Respondent meant him. T. R. was so uncomfortable with this question that she mentioned it to a female teacher at the school, Cheryl Marks- Satinoff. Thoughtfully considering the matter, Ms. Marks- Satinoff found that the question was "odd," but not "extremely inappropriate" and "on the fence." Ms. Marks-Satinoff's characterization of the question, in isolation, is fair. In the context of other comments to T. R. and other female students during the relatively short period of two school quarters--little else, if any, of which was Ms. Marks-Satinoff was then aware--the comment acquires its proper characterization. To T. R., Respondent also said, "If I were still in high school, I'd be climbing in your window at night." T. R. was "shocked" by this comment, but her mother or stepmother, when told by T. R. about the comment--again, in isolation--did not attach much importance to it. On another occasion, when a female student asked why T. R.'s grade was better than D. P.'s grade, Respondent replied, "T. R. and I have an agreement." While taking Respondent for personal fitness, T. R. found Respondent staring at her repeatedly. Accordingly, T. R. switched from stretch pants to baggies. T. R.'s testimony is credible. She spoke with adults about two of the comments roughly at the time that they were made. Also, T. R. bore no grudge against Respondent. She said that she did not think twice about the dating comment, although she obviously gave it enough thought to raise it with Ms. Marks- Satinoff. T. R. freely admitted that Respondent made the comment about crawling into her window in a joking manner. She discredited D. P., who is the alleged victim of the most serious sexual incident, discussed below, as a person who always lies, convincingly. T. R. added that D. P. told her once that Respondent "tried" to kiss her and put his hand up her skirt and did not understand why D. P. confided in her initially. T. R. testified that she never heard Respondent do or say anything inappropriate in the personal fitness class that she took with D. P. T. R. testified that Respondent made her and her friends leave if they disturbed his class the few times they got out of their assigned class to visit his office and watch movies. T. R. described another female student, B. H., who testified to several inappropriate comments made by Respondent, as someone who "likes to stir the pot." To A. T., an 18-year-old who graduated from Tarpon Springs High School in June 2002, Respondent alluded to the size of her breasts, in front of the class, and used his hands to frame them. Although done in connection with a warning that A. T. was violating the school dress code due to the revealing nature of her shirt, Respondent delivered this warning in a sexual manner that was obviously unnecessary for the purpose of reminding the student to conform to the dress code. A. T. testified that she liked Respondent as a teacher, but he made her uncomfortable, and he should be more a teacher than a friend. Like T. R., A. T. seemed not to bear any negative feelings toward Respondent, but instead merely seemed to be describing an insensitive incident as it happened. To N. S., a junior at the time, Respondent said, upon learning that she had surgically implanted rods in her back, that he wanted to have sex with her. N. S. testified that she was not bothered by the remark. N. S.'s testimony is credited. She was friendly toward Respondent and had long dated Respondent's teacher assistant. To A. M., Respondent said that she looked pretty and could get any guy she wanted. A. M.'s testimony is credited. She did not have much interaction with Respondent and was not part of any group interested in causing him trouble. She seems simply to have truthfully reported an ill-advised comment that Respondent made to her, although she did not describe her reaction to the comment. To L. D., Respondent said that he had a bracelet of hers that she had lent him and that, whenever he looked at it, it reminded him of her. L. D. felt uncomfortable about this remark. L. D. also testified that Respondent sometimes tried to get the boys to treat the girls with respect, and her testimony is credited. Other witnesses, especially D. P. and B. H., described other comments, but their credibility is poor, and their testimony cannot be credited. The demeanor of two witnesses favorable to Respondent revealed something bordering on exasperation with him, even as they testified that he never said anything sexually inappropriate in class. The demeanor of each witness was consistent with someone who believed that Respondent was only joking around in class, when making sexually charged comments, and had suffered more than enough due to the consequences of lies told by two female students, as described below. In isolation, the comment about having sex with a student with orthopedic rods in her back is sexually offensive, as is the sexual comment and gesture framing a female student's breasts is sexually offensive. The comments about the agreement between T. R. and Respondent, the bracelet reminding Respondent of L. D., and A. M. being able to sufficiently pretty to get any boy are not sexually offensive, in isolation, but, even in isolation, betray a tendency by Respondent to regard certain of his female students as females more than students. With the exception of the comment to A. M., all of the comments, gesture, and behavior, in the aggregate during a relatively short period of time, depict a transformation by Respondent of the relationship between a teacher and several of his students to a more ambiguous relationship, at times resembling the relationship that might exist between these girls and the boys with whom they attended high school. Nearly all of these incidents embarrassed the female students; all of them, except perhaps A. M., reasonably should have been embarrassed by them. Several of these incidents suggest that Respondent regarded these female students as available for him in some role other than that of student--for instance, as females with whom to flirt. Petitioner has proved that Respondent exploited these female students, with the possible exception of A. M., for personal gain. This characterization of these comments, gesture, and behavior is confirmed by Respondent's implausible assertion that all of these students, except N. S., are lying. If confident that the comments, gesture, and behavior were innocuous or at least not improper, Respondent could have gained credibility by admitting these incidents and explaining their innocence. With one exception, Petitioner has not proved that Respondent sexually harassed or discriminated against his female students or these students in particular. The record does not suggest any quid pro quo in the sexual incidents, although the agreement with T. R. approaches the type of proof required. Nor does the record suggest that the sexual commentary, gesturing, or behavior were so pervasive as to create a hostile environment. Two students, N. S., A. M., and L. D., were each the subject of a single comment. One student, A. T., was the subject of a single incident, which consisted of a comment and gesture. On this record, Petitioner failed to prove that Respondent's treatment of these students rose to harassment or discrimination of them or of his female students in general. However, Respondent's treatment of T. R. rose to harassment and sexual discrimination because he made three sexually inappropriate comments and engaged in one sexually inappropriate behavior that caused her to alter her mode of dress. Respondent implicitly asked her to think about dating him--now or later--with the comment about a 26-year-old dating an 18-year-old. Respondent implicitly identified the possibility of their having sex with the comment about climbing in her window. Respondent alluded to the possibility of sex between T. R., a student, and himself, a teacher with the power of the grade, with the comment about her grade resulting from an agreement. And Respondent leered at T. R. sufficiently to cause her to change her workout clothes. In partial mitigation of the sexual comments, gesture, and behavior, but not the harassment or discrimination, no one seems to have provided Respondent with any timely feedback on this manner of interacting with certain female students. The only reports to adults seem to have been of isolated comments. In addition to the two reports noted above, a male student reported inappropriate comments, midway through the first quarter, to the teacher who was head of GOALS. Although the teacher did not describe the inappropriate comments, she said that she talked only to the two female students involved and evidently decided that the matter was not sufficiently important to discuss with Respondent or the administration. As noted above, Ms. Marks-Satinoff learned from T. R. of a borderline inappropriate comment. Sometime later, in January, she spoke briefly with Respondent and advised him to watch inappropriate comments. This marks the only feedback, and it was too late to alter the course of events. However, for the same reason that this lack of feedback does not mitigate at all the harassment and discrimination involving T. R., the value of this mitigation is largely undermined by the fact that the knowledge of the need to refrain from improper personal references to students is not granted only to the most experienced teachers or administrators. Perhaps Respondent was not fully aware that his comments, gesture, and behavior were sexually charged and did not realize the effects of these comments, gesture, and behavior on his students, as some teachers may not be fully aware of their sarcasm and its effect on their students. However, Respondent, as a teacher, remains responsible for determining the effect of his interaction upon his students and ultimately must bear the consequences if he fails to identify the problem. D. P. is the complainant in Charge 1. She was born in September 1984 and was a senior during the 2001-02 school year. Respondent taught her peer counseling during the first quarter and personal fitness during the second quarter. D. P. testified that on Monday, January 14, 2002, she approached Respondent to ask if she could exempt a final exam. She testified that he said to return after lunch. When she did, she testified that they met in his office where he kissed her and moved his hand up her leg until he digitally penetrated her vagina. D. P.'s testimony is unbelievable for several reasons. First, two different students testified that they heard her say that she would get Respondent into trouble. One of the students testified that he heard her say this immediately after an argument D. P. had with Respondent over absences and tardies. D. P. was upset with Respondent because her numerous absences and tardies prevented him from exempting her from the final examination in his class. D. P. did not tell anyone of the alleged incident until immediately after she found that she could not obtain an exam exemption from Respondent. Second, D. P.'s testimony is unusually inconsistent with other statements that she has given. Some inconsistencies are not fatal to credibility, but the number and importance of inconsistencies in her testimony and statements preclude a finding of credibility. Numerous material discrepancies exist between D. P.'s testimony at the hearing and her testimony in a prehearing deposition. Other discrepancies exist between her testimony at the hearing and earlier statements given to law- enforcement officers or made to others. These discrepancies include differences of two hours as to when during the day the incident occurred and one day as to which day on which it occurred. D. P.'s implausible implication is often that the persons taking down her version of events made a mistake. Third, D. P.'s testimony is improbable. First, Respondent was aware of the investigation into his dealings with female students by the morning of January 14. The investigation was already underway by the end of the prior week. For instance, D. P. had given her first statement on January 11. It is unlikely that Respondent would engage in such egregious sexual abuse of a student while he knew that he was under investigation. Second, Respondent's teacher assistant testified that he was in the office during the entire time that the incident supposedly would have taken place, and he never saw D. P. Fourth, D. P. has a poor reputation for honesty among her peers who know her well. D. P. testified that she told several persons about the sexual abuse, but they all denied such conversations. At one point during her testimony, she stated that everyone at school had his or her own opinion concerning rumors as to with which student Respondent was accused of having an improper relationship. As she testified, D. P. seemed clearly to have relished the attention that she had gained by making the charge. S. Y. is the complainant in Charge 2. S. Y. was born in April 1987 and was a sophomore during the 2001-02 school year. She was a student of Respondent. She testified that Respondent taught her Freshman Experience during the third quarter, although she was not a freshman and Respondent did not teach very long into the third quarter before he was terminated, as described below. S. Y. testified that Respondent kissed her one day while they were alone in his office. A number of reasons exist that undermine the credibility of this assertion. First, S. Y.'s testimony is also unusually inconsistent with other statements that she has given. At different times, she has attested that the kiss occurred between Thanksgiving and Christmas, before Thanksgiving, and in January. Second, S. Y.'s timing in reporting the kiss is suspect. First, three times she told investigators nothing about a kiss. Second, she reported the kiss only after she knew that D. P. had accused Respondent of sexual improprieties. S. Y. admitted that emotions were running "sky high" at the time. Unlike D. P., who did not like Respondent, S. Y. liked him, at one time even having a crush on him. S. Y. appeared capable of jealousy regarding her feelings about Respondent, as evidenced by the following facts. Third, S. Y. reported the kiss immediately after he referred her to the office for abruptly interrupting his class and loudly demanding that he tell her who else he was "fucking." Although she denied knowledge that Respondent was having sexual intercourse with any students, including herself, S. Y. admitted that the referral prompted her to report the kiss to an investigator. Fourth, S. Y. engaged in embellishment concerning her relationship with Respondent, as would be consistent with a fantasy attachment to him. Although S. Y. implausibly denied it, she told Ms. Marks-Satinoff that she had been to Respondent's home, which was in a poor section of Clearwater. Respondent's home is not in a poor section of Clearwater. S. Y. also has said that Respondent proposed that she and another girl perform in a porn movie that he would make. The reality is either that she proposed it to Respondent, who told her never to suggest such a thing again, or that a former boyfriend proposed the porn movie--without Respondent's involvement. For the reasons listed above, it is impossible to credit the testimony of D. P. or S. Y. that Respondent sexually abused them. Although the presence of multiple accusations of this type may sometimes be indicative of their reliability, they are more likely due to Respondent's sexual banter and flirtation and repeated failure to maintain appropriate boundaries between the professional and the personal. Both D. P. and S. Y. were doubtlessly aware of Respondent's tendencies in this regard, and, from this sexually charged atmosphere, which Respondent himself had helped create, they struck back at Respondent by making sexual allegations. D. P. chose to strike out at Respondent for not granting her an exemption to which she was not entitled, and S. Y. chose to strike out at Respondent for referring her to the office and not meeting the unrealistic expectations that she and her infatuation on Respondent had generated. Shortly after D. P. and possibly S. Y.'s charges emerged, law enforcement officers arrested Respondent, who remained in jail for nine days. In June 2002, the state attorney's office dropped the charges, although D. P. testified at the hearing that she intended to sue Respondent and Petitioner. Petitioner then terminated Respondent's employment six weeks prior to the end of the term of his annual contract. A proper penalty must reflect the nature of the offense and its impact on the students. Some students who were the subject of improper comments, gesture, and behavior denied embarrassment. Of those admitting to embarrassment, it does not seem to have been traumatizing or even especially painful. Not entirely without reason, some of the students implied that Respondent had already suffered enough, having been fired and served nine days in jail on accusations that were not established on this record. Also, the mitigation discussed above, as to the failure of authority figures to provide Respondent with timely feedback as to the improper comments, gesture, and behavior, but not harassment and discrimination, plays a role in setting the penalty. Petitioner's representative from the Office of Professional Standards testified that Charges 3 and 4 would suffice to warrant dismissal, depending on the frequency of the improper comments. The improper comments warrant, at most, an unpaid suspension of three days, but the harassment and discrimination involving T. R. warrant a more serious penalty. In the absence of the other sexually inappropriate comments and gesture, the harassment and discrimination involving T. R. probably would warrant a long suspension. However, two facts warrant termination. First, the harassment and discrimination involving T. R. are accompanied by the sexually inappropriate comments and gesture involving the other students. Second, still not grasping the requirements of a professional's proper relationship toward his students, Respondent has continued, implausibly, to deny all of the sexually inappropriate comments, except for an admission of a vague version of the comment about the orthopedic rod in N. S.'s back. By branding these students liars when he himself is lying, Respondent makes the case for Petitioner that termination is the proper remedy.
Recommendation It is RECOMMENDED that the Pinellas County School Board enter a final order dismissing Respondent from employment. DONE AND ENTERED this 13th day of February, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jacqueline M. Spoto, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942
The Issue The issue in this case is whether the Manatee County School Board (Petitioner) has just cause to terminate the employment of Teacher Karyn Cena (Respondent).
Findings Of Fact At all times material to this case, the Respondent was a first grade teacher employed by the Petitioner to work at Tillman Elementary School (Tillman) pursuant to a professional services contract. On May 11, 2010, the Tillman first grade students were gathered in an auditorium to rehearse for a musical program to be presented in celebration of Memorial Day. The students had been rehearsing for several days prior to May 11, 2010. As might be expected, some first grade students required occasional redirection. Such redirection was generally communicated by a teacher delivering a "stern look" to the non-complying student. If the correction was not successful, a non-complying student was directed to go to the back of the room and sit on a bench that essentially served as a "time out" area. At one point in the program, the students were standing, singing, and holding up their arms, pretending to waive American flags. The flags had not yet been distributed to the students. During this portion of the rehearsal on May 11, 2010, the Respondent apparently thought that one of the students ("S.M.") was playing and not pretending to wave the non-existent flag appropriately. The Respondent grabbed the student by the arm and quickly walked the student to the back of the room, where the Respondent placed the student forcefully on the time out bench. The student did not resist the Respondent in any manner. There was no credible evidence that the Respondent provided any redirection to the student prior to her physical interaction with the student. There was no evidence that the student was unable to comply with a verbal directive delivered by the Respondent or any other teacher. There was no evidence that the student was acting out or posed any threat whatsoever to himself or any other student, or to the Respondent or any other school employee. There was no evidence that any force or physical contact was necessary whatsoever to correct the student's behavior or to direct the student to the time out area. At the hearing, the Respondent was described by witnesses as appearing "angry" during the incident. Although the Respondent denied that she was angry with the child, the Respondent's interaction with the student was clearly inappropriate under the circumstances, and it is not unreasonable to attribute her behavior to anger. Observers of the incident testified that the student appeared to be embarrassed by the incident, sitting with his head bowed after being placed on the bench. Some teachers testified that they felt personal embarrassment for the student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order, terminating the employment of Karyn Cena. DONE AND ENTERED this 1st day of March, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2011.
The Issue The issues are whether Respondent verbally disparaged students or grabbed their clothing and, in one case, stepped on a student's foot, so as to fail to protect students from conditions harmful to learning, in violation of Florida Administrative Code rule 6A-10.081(2)(a)1., or to intentionally expose students to unnecessary embarrassment or disparagement, in violation of rule 6A-10.081(2)(a)5., and thus violate section 1012.795(1)(j), Florida Statutes; if so, an additional issue is what penalty should be imposed, pursuant to section 1012.795(1).
Findings Of Fact At all material times, Respondent has held educator certificate 989254. For over 13 years, she has been employed as a teacher by the Miami-Dade County School District. During the 2016-17 school year, Respondent was teaching fifth grade at a Miami-Dade County elementary school. Approximately 28 students were assigned to her class. On October 11, 2016, Respondent walked her students from the basketball court to her classroom in preparation for the start of instruction at 8:35 a.m. One or more of a small group of students sitting with S.L., also a student, complained to Respondent that S. L. was bothering other students. Directing herself to the class in general, Respondent told the students to stop disrupting and settle down for class. She warned the class that, if she received one more complaint, the misbehaving student would have to change seats. After receiving this warning, another student complained about S.L., so Respondent directed him to take a seat at an empty table. S.L. initially refused to move, but eventually did so. However, he continued to disrupt other students by calling them names, exhibiting aggressive body language, and even getting out of his seat, as though to charge a student. Respondent directed S.L. to stop misbehaving. He retorted, "you're not smart, and the kids are dumb." Trying to restore order, Respondent approached S.L.'s table with a mirror used for science class. Placing it within his reach and extending his comment that his classmates were "not smart," Respondent said words to the effect, "if you could see your behavior, you'd know it's not smart." By using "not smart," rather than a negative term, such as "stupid," to describe misbehavior, Respondent attempted to convey a positive message while trying to reshape S.L.'s behavior. Without permission, S.L. got up from his desk; walked to the door; announced that he was going to the principal's office to complain that Respondent had disparaged him, adding that the principal had told him to come anytime, so she could fire Respondent; defiantly stuck out his buttocks toward the class; and left the classroom. By the time that Respondent was able to call the office to advise that S.L. was headed their way, the principal's secretary advised that he was already there. Having lodged his complaint with the principal, S.L. returned to class, resumed his seat, and, using a sharp object, carved onto the desktop, "Stupid Anderson popo." "Popo" is slang for "police," although Respondent thought that it meant something about shooting. Respondent never abused the children with demeaning terms, such as "pig," "dumbass," "fat," or "ugly," although S.L. used some of these terms when verbally assaulting his classmates. The facts set forth in the preceding six paragraphs track Respondent's testimony, which has been credited. In opposition to this version of events, Petitioner called a single eyewitness, T.F., who was a student in the classroom during the incident in question. By the time of the hearing, T.F. was attending a Miami-Dade middle school, and S.L.'s school assignment was not disclosed in the record. T.F. gave two statements. The first statement, which was typewritten by a Department of Education investigator, was given on October 28, 2016. The second statement, which is in T.F.'s handwriting, was given on October 14, 2016, and the purpose for which this statement was made is undisclosed in the record. The typewritten statement consists of questions and answers. In this statement, with the questions and one irrelevant answer omitted, T.F. asserts: [Respondent] is always calling [S.L.] names. She calls him fatty and ugly. She even put a mirror in front of his face and said, "Look at your ugly face." She did this in front of all of us and I felt really bad for him. She also calls us names. She calls us dumb, stupid and ugly. She even called me dumb and stupid. I went to the bathroom to cry. She made me feel bad. She also calls the boys pigs. * * * . . . she curses at us when she is mad and says we are doing crap, screams and yells a lot, and she told [S.L. and another student identified only as H.] to shut up their fat lips. She also hit [J.F.] and [M.B.] all the time. She grabbed [J.F.] hard by the arm and squeezed his arm and she also hit [M.B.] hard on the head with a closed fist. * * * When she is really mad at us she screams, yells, calls us names, and hits the students. She hits the boys on the head and the arm. * * * . . . I am afraid of her, and she makes me feel bad when she calls me stupid and dumb. I cry all the time. We are all happy in the class when she does not come to school. [S.L.] was the one she mistreated the most. When [S.L.] was in a fight and bleeding, she was laughing because he was hurt. The handwritten statement states in its entirety: The Class/P.E. Court in the class [S.L.] came out of nowhere and start crusing [cursing] my mom my family and puting his body in my face and saying kiss his body and lick his private part. Saying nasty stuff in creol calling me pig stink bug [doudon?] head hiting me. In P.e. he got a stick and treating [threatening] that he is going to cut my neck of [off] and pock [poke] my eyes. whene I don't give him something he get's mad and say lick his boody [body? booty?] and he Hit me with a basketball. when I wrote the bully fomr [form] he got mad and took the form and rip it and he spit in my face whenever I talk to [S., another student] or other people some time he makes me cry. T.F.'s direct testimony consisted entirely of her agreeing with everything in the typewritten statement, although it was unclear, during her testimony, if she independently recalled the comments and actions described in the statement. Also, most of the questions posed to T.F. on direct were leading. On cross examination, T.F. identified her signature on the handwritten statement and recalled some, but not all, of its contents. Specifically, she admitted that S.L. had bullied her and made her cry. Initially, T.F. denied that S.L. had spit in her face, but then recalled that he had done so by accident. She testified that she could not recall that S.L. had threatened to cut her neck with a stick, even though such an action would typically be memorable to the victim. The reference in the handwritten statement to a bully form is a form that T.F. and a few other students submitted, at the urging of Respondent, a few days after the October 11 incident, but the record does not disclose what action, if any, the school or district administrators took in response to these complaints about S.L.'s bullying. In testifying, T.F. withdrew her typewritten statement about Respondent's calling her dumb and stupid and instead stated that she liked Respondent as a teacher. Also, T.F. testified that S.L. had called the entire class dumb, as Respondent testified. On redirect, T.F. admitted, evidently as to the handwritten statement, "most of this stuff I don't remember." As noted above, the hearing took place three years after the earlier of the two alleged incidents, and it is obvious that the 2016-17 school year had presented some challenges for T.F. T.F. impressed the administrative law judge as a child who was trying to tell the truth, but was under considerable pressure in October 2016 and continuing pressure, even through the time of the hearing. When T.F. testified that she had cried, not from Respondent's actions, but from the bullying of S.L., her father interjected by asking his daughter why she had not told him about this, and she replied that "you wouldn't care." T.F.'s father was not a witness, and his statement is not noted to support a finding that T.F. did not tell him about the bullying; however, his interjection and T.F.'s response depicted some of the stress to which T.F. has been subjected over the matters described above. In general, the typewritten statement lacks the spontaneity and inattention to grammar and diction that characterize the handwritten statement. It is questionable whether one word in the typewritten statement--"mistreated"-- would be a word chosen by T.F. It is not so much that the word requires an advanced vocabulary, but the word requires a level of abstraction that is not evidenced in the handwritten statement, which is graphically episodic. It is impossible to find by clear and convincing evidence that the typewritten statement records the words of T.F., free of substantial editing by the investigator. Additionally, the handwritten statement effectively impeaches the typewritten statement. S.L. bullied T.F. to the point of making her cry at school. The handwritten statement suggests the possibility that S.L. forcefully tried to intimidate T.F. in her effort to report his bullying. Significantly, S.L. still had daily access to T.F. when she gave the typewritten statement. Lastly, T.F.'s testimony was unpersuasive. She did not appear to recall independently what she testified to on direct. It did not appear that she was even willing to read aloud her typewritten statement, as she was willing only to agree to it in response to a series of leading questions. For reasons undisclosed in the record, Respondent, who was represented by a union representative, agreed to a suspension of 25 workdays without pay for the October 11 events. Respondent did not try to explain her choice not to contest the charges, nor is it necessary to infer one, because any weight that could be assigned to such a choice, on these facts, does not establish or help to establish clear and convincing evidence of wrongdoing. This suspension seems to have followed an earlier job action removing her from student contact for 90 days, based on a verified finding of mental injury to S.L. by a protective investigator employed by the Department of Children and Families (DCF)--an administrative action that is entitled to no weight for the reasons set forth in the Conclusions of Law. Petitioner has failed to prove by clear and convincing evidence any of the allegations arising out of the October 11, 2016, incident. Respondent testified that she did not grab students by their collars or step on their feet. The only evidence to the contrary is the discredited evidence provided by T.F. As was the case with the October 11 incident, Petitioner did not call as witnesses the alleged victims in this April 6, 2017, incident. The Miami-Dade County School District issued a reprimand for the alleged April 6 incident. Nothing in the record suggests that Respondent had a right to contest this charge, and, given the mildness of the punishment, it is impossible to infer that she did; but, again, a choice not to contest this charge would not support an inference of guilt by clear and convincing evidence. Petitioner has failed to prove by clear and convincing evidence any of the allegations involving grabbing students by their collars or stepping on the foot of a student.
Recommendation It is RECOMMENDED THAT the Education Practices Commission enter a final order finding Respondent not guilty of the allegations set forth in the Administrative Complaint, as amended. DONE AND ENTERED this 10th day of December, 2019, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 10th day of December, 2019. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 (eServed) Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 (eServed)
The Issue The issues to be determined are whether Respondent, Mr. William Doran, violated sections 1012.795(1)(g) or (j), Florida Statutes (2012),1/ and implementing administrative rules, as alleged in the Administrative Complaint, and, if so, what is the appropriate sanction?
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Mr. Doran holds Florida Educator's Certificate 1013018, covering the areas of general science, social science, and exceptional student education, which is valid through June 30, 2019. At all times relevant to the complaint, Mr. Doran was employed as a teacher at Southport Middle School in the St. Lucie County School District. On or about May 3, 2013, Mr. Doran became involved in a verbal altercation with M.M., a 13-year-old male student. Student A.L. was present in the classroom on May 3, 2013. She made a video recording of a portion of the altercation between Mr. Doran and M.M. on her cell phone. Shortly after the altercation, school authorities took A.L.'s phone. Later, at hearing, A.L. viewed a video and credibly testified that it was the video recording that she had made. A.L. identified Mr. Doran and M.M. on the video. That video, offered into evidence, was the entire video that she recorded. It is clear under all of the circumstances that it fairly and accurately represented the portion of the altercation that A.L. videotaped. A.L. testified that she was aware that she violated a rule of the St. Lucie County School Board that did not allow her to use her cell phone in class. A.L. did not ask Mr. Doran if she could take the video. She testified that no one knew that she was videotaping the incident. There is no evidence that Mr. Doran, occupied with the confrontation with M.M., was aware that he was being recorded. However, Mr. Doran's recorded oral communications took place in a public school classroom, his place of employment. The statements were made publicly in the presence of many students other than M.M., the student he was addressing. Mr. Doran had no reasonable expectation that those comments would remain private between M.M. and himself. The altercation arose as a result of students playing a slap game in which they touch hands and strike each other until one suffers enough pain to let go. As Mr. Doran described in testimony under oath in an earlier proceeding, the incident began after Mr. Doran directed M.M. and another student to stop playing the game: Q: Did they? A: Yes. M.M. did. Although he then told me, "Well, I like playing this game because it makes me feel good, Mr. Doran." Q: What did you reply? A: I said, "I don't care how much you like it. I don't care if you like jumping off a bridge, you're not going to do it in this classroom." Q: Did Mr. M.M. respond? A: He then – he then responded, "Oh, you want me to jump off of a bridge." And I said, "No, that isn't what I said." * * * Well, M.M. continued to protest and I asked him to please quiet down and allow the class to continue its work and I did this a couple of times. He refused to do it and he finally said, "Get out of my face." As Mr. Doran described, he was four to five feet away from M.M. when M.M. said this, but he then moved closer to M.M. and asked M.M., "Well, what are you going to do about it?" M.M. then repeated "get out of my face" several times and began using obscenities in the classroom. During the course of the altercation with M.M., Mr. Doran called M.M. a coward. During the course of the altercation with M.M., Mr. Doran stood over M.M. and repeatedly told M.M. to "[g]o ahead and hit me." During the course of the altercation with M.M., Mr. Doran told M.M., "Come on big man--what you are going to do about it, hit me?" During the course of the altercation with M.M., Mr. Doran told M.M. to hit him because it would "make my day." It is clear that Mr. Doran's response to M.M.'s inappropriate attitude and language did not defuse the situation, and in fact had the potential to escalate it. Mr. Doran's behavior changed the nature of the incident from one of a student defying institutional authority into a personal, potentially physical, confrontation between M.M. and Mr. Doran as an individual. On or about March 7, 2014, Mr. Doran told his students that he was getting a new male student in the class, that it was more common for male students to be disabled (ESE), that the student's name indicated he was black, and that the student had a behavior plan. On or about November 5, 2014, Respondent resigned from his teaching position with the St. Lucie County School District. Prior History On November 9, 2010, Mr. Doran received a Summary of Conference from his principal, Ms. Lydia Martin, for making inappropriate comments to students. On May 2, 2011, Mr. Doran received a Letter of Concern from Ms. Martin for abusive or discourteous conduct toward students. On February 13, 2012, Mr. Doran received a Letter of Reprimand from Ms. Martin for violating a directive by discussing a matter under investigation and taking pictures of misbehaving students. On May 5, 2012, Mr. Doran received a Recommendation for Suspension from Ms. Martin for failing to comply with directives. Mr. Doran received satisfactory ratings in every category on his evaluation forms for school years 2006-2007 through 2010-2011 (the years admitted into evidence). He received a few Above Expectation ratings and only one Improvement Expected rating in 2006-2007 and gradually improved through 2009-2010, when he received a majority of Above Expectation ratings, with only a few Meets Expectation ratings. In 2010-2011, he received several Above Expectation ratings, a majority of Meets Expectation ratings, and one Improvement Expected rating.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent, Mr. William Doran, in violation of section 1012.795(1)(j), Florida Statutes, and implementing rules. It is further RECOMMENDED that the Education Practices Commission revoke his educator's certificate for a period of two years, at the expiration of which time he may receive a new certificate by meeting all certification requirements at the time of his application, subject to terms and conditions determined by the Education Practices Commission to be reasonably necessary to ensure that there will be no threat to students and that he will be capable of resuming the responsibilities of an educator. DONE AND ENTERED this 20th day of June, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2016.
The Issue The issue presented here concerns an Administrative Complaint brought by Ralph D. Turlington, as Commissioner of Education, against Willie Lynn Brown, calling for the revocation, suspension or other appropriate disciplinary action against the Respondent's teaching certificate issued by the State of Florida. The contention in this Administrative Complaint is that the Respondent, while employed at the A. D. Harris Sixth Grade Center, conducted physical acts with a minor male student, involving the student sitting on the Respondent's lap and the Respondent taking one of the student's hands and rubbing it against the Respondent's genital area. For these alleged acts of misconduct, the Petitioner attempts to discipline the Respondent, in keeping with the provisions of Section 231.28, Florida Statutes, in that the Respondent is reputedly guilty of gross immorality and an act of moral turpitude and conduct which seriously reduces his effectiveness as an employee of the Bay County School Board and further the Petitioner, in keeping with the Provisions of Section 231.09, Florida Statutes, claims that the conduct on the part of the Respondent is conduct which fails to provide a proper example for students.
Findings Of Fact This matter is here presented for consideration following an Administrative Complaint brought by Ralph D. Turlington, as Commissioner of Education, State of Florida, vs. Willie Lynn Brown, Respondent. The dispute concerns the allegations as alluded to in the Issues statement of this Recommended Order. The Administrative Complaint is dated April 9, 1981. After receipt of the Administrative Complaint, the Respondent requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. In turn, the Petitioner in this action asked that the matter be conducted by the Division of Administrative Hearings, this request being forwarded on May 14, 1981. After consideration of certain preliminary matters, the final hearing in this cause was conducted on July 10 and 14, 1981. The Respondent holds Florida Teaching Certificate No. 385083, valid through June, 1985, and covering the areas of elementary education, early childhood education and administration/supervision. At all times pertinent to this matter, the Respondent Willie Lynn Brown, was employed by the Bay County School Board as a teacher at the A. D. Harris Sixth Grade Center. In the school year 1980-81, a local civic club in Panama City, Florida, held an oratorical contest for the benefit of students in the Bay County School System. Among the participants in that contest were students from the A. D. Harris Sixth Grade Center where the Respondent taught. Brown acted in the capacity as advisor to those students and met with the students from the Harris Center on several occasions to aid the students in the preparation of their speeches, and in the presentation of those speeches. One of the students participating in the oratorical contest was Steve William Rudd, a minor. Rudd was not a student in Brown's regular academic classes. The involvement Rudd had with Brown prior to the oratorical contest was merely to the extent of knowing that Brown was a teacher at Harris. On the first occasion of Rudd's participation with Brown in the speech contest, Brown met with Rudd and other students in the auditorium at the school and listened to their speeches and critiqued their presentation. The next occasion in which Brown took part in the preparation of the students for the oratorical contest occurred in Brown's homeroom, at which time the general nature of the relationship between Brown and the students was as occurred at the auditorium session. On the third occasion in which the Respondent met with Rudd there was also in attendance a second student, William Arnold Stevenson. This session was held in the classroom of another teacher. On that occasion Stevenson was allowed to present his speech while Brown listened and Rudd waited for his turn. When Stevenson had concluded his speech, he left the room leaving Brown and Rudd alone. Rudd then commenced his speech standing at the front of the room, and he concluded that presentation while Brown moved around the room listening to the speech. Brown then made certain suggestions to Rudd about correcting Rudd's speech presentation and then asked Rudd to move to the back of the classroom. Rudd complied with that request. Rudd then began to give his speech again while standing at the back of the room in the area of a desk. At this time the Respondent was moving around the room and eventually approached Rudd. At that point, Brown placed his folded arms on the back of Rudd at Rudd's shoulder level. At this juncture, Rudd was facing the front of the classroom and the Respondent was directly behind him. The front of Brown's body was touching the back of Rudd's person. Brown remained in this position until Rudd had concluded his speech. During this interval, Brown made no comment. The interval for this occurrence was approximately two or three minutes. After Rudd had presented his speech for the second time, the Respondent went and took a seat in a chair in the back of the classroom. The Respondent then instructed the student to sit on the Respondent's lap. Rudd complied and seated himself on the Respondent's leg, in the area of the Respondent's knee. The Respondent then gestured with his hands, pointing in the direction of the Respondent's groin area, meaning the genital area, and said to the student, "sit right here." The Respondent then pulled the student toward his body and at that time the student was seated on the Respondent's genital area with his back against the Respondent's chest. No comment was made during this part of the episode, which lasted a short time. Brown then moved Rudd back away from his body into the original location near his knee. He then took the student's right hand and with the student's hands stroked Brown's genital area. This maneuver with the student's hand was a momentary event. While the student was seated on the Respondent's lap, he was concerned for his welfare and in particular worried about the door which had been locked by the Respondent. The student thought that the door was locked such that he, the student, could not exit. In fact, the door was locked barring entry from persons outside the room. Brown released Rudd's hand and told Rudd that he could get out and that Brown was sorry for what had occurred. He told the student this several times, once when the student got up, once when the student was midway in the classroom approaching the door, and once when the student got to the door. On the same day as the event transpired, Rudd reported the incident to the Principal at Harris Center, one James Griffin. Griffin then confronted the Respondent with the student's allegations by asking Brown if the story that Rudd had told about the incident was true. Brown responded, "Yes, it is." When Griffin asked him why he did it, Brown said, "I don't know." Griffin then commented to Brown that the matter was a very serious offense and that Brown might be suspended or dismissed from the school system, to which Brown replied, "I know this." Griffin then asked Brown if he was prepared to face the consequences, and Brown replied, Yes, I guess I am." Since the time of the event, some of the other students in the sixth grade center have referred to Rudd as a "gay boy," meaning that Rudd was a homosexual, due to his circumstance with Brown and that Rudd "felt Mr. Brown off," meaning that Rudd had manipulated the Respondent's penis. Rudd had bean teased about the event by other students, and the students did not talk to him. Rudd has felt insecure in his home and has desired to sleep on the floor in a sleeping bag with the lights on because of this event with the Respondent. Rudd has felt as if someone were watching him even in his home, in particular that the person was the Respondent. The student has also felt that he did not wish to sleep by a window and has chosen to sleep in the middle of the room, and at times has slept on a couch in the living room of his home. The aforementioned treatment of the student by other children in the sixth grade center led Rudd's parents to change his bus transportation to avoid a confrontation with the children. Nonetheless, it has not been necessary for the student to seek psychiatric assistance and he is recovering from the trauma of the subject occurrence. In spite of attempts by the school authorities to deter publication of this incident, students, teachers, parents, staff and other persons within the community have learned of the incident and Principal Griffin is of the persuasion that there would be dissension with teachers, parents and students should Brown be allowed back as an instructor in the school. Griffin feels that there would be a lack of trust in that Brown has lost his effectiveness as an instructor. Likewise, Bay County Superintendent Holman who is familiar with the case facts, is of the persuasion that Brown's effectiveness as a teacher in Bay County has been seriously reduced. Nothing offered in defense rebuts the opinion of these educators. Following the incident, a meeting was held on March 6, 1981, between the Respondent and Pete Holman, Superintendent of Schools in Bay County, Florida, with the Principal Griffin being in attendance. At that time Brown again admitted that the incident had occurred and subsequent to this meeting Brown was suspended from his teaching duties in the Bay County system. There ensued an administrative complaint brought by Ralph D. Turlington as Commissioner of Education in the State of Florida, and the Bay County School Board took action to discharge the Respondent as an employee.
Recommendation Upon consideration of the facts of this case, the conclusions of law reached in matters in aggravation and mitigation, it is RECOMMENDED: That the Respondent, Willie Lynn Brown, have his teacher's certificate in the State of Florida, revoked permanently. 1/ DONE and ENTERED this 21st day of September, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, 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 21st day of September, 1981.
The Issue Whether or not Respondent is guilty of misconduct and/or immorality in office (in the nature of suggestive and degrading sexual innuendoes and remarks to several female students) pursuant to Section 231.36(6)(a) F.S. and Rules 6B- 1.001, 6B-1.006, and 6B-4.009 F.A.C. so as to be subject to dismissal by the Nassau County School Board. Although some evidence of other years was presented, the August 8, 1991 Statement of Charges herein covers only the 1990-1991 school year. Accordingly, only evidence from that school year may be considered for purposes of discipline in this proceeding.
Findings Of Fact At all times material, Respondent was a teacher at the Hilliard Middle- Senior High School and the holder of a professional services contract with Petitioner Nassau County School Board. He is certified by the State of Florida in the areas of mathematics, psychology, and broad field social studies. Respondent had been employed by Petitioner for the nine years immediately preceding his suspension for the charges involved in this case. During the whole of that time he received good job evaluations. He has had no prior disciplinary charges against him. On or about May 9, 1991, Petitioner, pursuant to the recommendation of the Nassau County Superintendent of Schools, suspended Respondent without pay. This followed the Superintendent's suspension of Respondent with pay on May 2, 1991. During his employment with Petitioner, Respondent has taught geometry, algebra II, trigonometry, one class of general math, and a class of compensatory mathematics. Respondent has had a practice of greeting his students at random as they enter the classroom each day and while they are taking their seats and settling down to work. At all times material, these greetings were offered in the presence of students of both genders. Respondent teased the boys about sports and commented on the girls' appearance. The comments made most frequently by the Respondent to the football players were that they had not done well in the immediately preceding game. The comments made most frequently by the Respondent to all the female students were, "You're looking good; you're looking fine; you're looking hot;" or, more simply, "you're fine; you're hot." None of the comments were exclusive to any particular female student. All comments were made out in the open, without any physical touching or aggression on Respondent's part. He made these comments with no intended sexual connotation, and no female student ever expressed to him directly that she objected to these greetings either because they sounded sexual in nature, were too familiar, or were made in the presence of the female students' male peers. Generally, Respondent's comments were recognized as kidding and not taken seriously or considered objectionable by the students. There is no evidence that the Respondent's comments delayed the commencement of class, caused disruptive behavior on the part of either the male or the female students who heard them, or inhibited any student learning the academic material. One female student who testified that she found the foregoing practice objectionable was Shannon Lysitt, a student of Respondent's during both the 1989-1990 and the 1990-1991 school years. Ms. Lysitt testified at formal hearing that she "took [these comments] to be sexual but not as in a sexual manner." She considered the comments embarrassing and a display of inappropriate conduct by a teacher but knew Respondent was being friendly and joking. Ms. Lysitt admittedly never told Respondent she felt embarrassed or asked him to stop making such comments. Although she was used to his comments from the previous school year, Ms. Lysitt did not request to be assigned to another class for the 1990-1991 school year. In one isolated conversation, Respondent told Ms. Lysitt that, due to her poor math grades, she would probably wind up as a secretary being chased around a desk by her boss instead of achieving her desired career of psychiatrist. The Respondent denied making that comment specifically, but testified that he had made chiding or derrogatory comments about career plans of college preparatory students to motivate them to do better on tests when they had been doing poorly. By all accounts, Ms. Lysitt was doing all right in Respondent's course but could have done better. Ms. Lysitt's testimony was credible as to what was said, but Respondent's testimony was equally credible as to why he said it. Upon the evidence as a whole, it is found that the Respondent's comment may have been temporarily embarrassing to Ms. Lysitt, and may have, as she testified, made her feel bad or stupid for a short time, but that it did not degrade or humiliate her or adversely affect her classroom performance or overall self-image. Sherry Meziere was a student in Respondent's fourth period general math II class during the 1990-1991 school year. She also was embarrassed by Respondent's compliments to her, but she never told him so. When Ms. Meziere complained to Respondent that her semester grade was a "C" rather than the "B" she wanted, he told her she could stay after school and she would get her "B". Ms. Meziere is a particularly sensitive and shy teenager, and she took offense at the Respondent's comment because she interpreted it as a sexual come-on. Respondent denied having any sexual intent behind his comment to Ms. Meziere. At formal hearing, he explained that Ms. Meziere would have been entitled to a "B" if she had turned in all her homework, as required, but she had not. Because her grade was borderline due to the missing homework, Respondent had meant by his remark to Ms. Meziere that if she would come to the classroom after school and work the homework problems in his presence, he would retroactively give her credit for doing the homework and turning it in and this would accordingly alter her semester grade to a "B". Respondent's explanation for why he took this approach is reasonable: he would not accept students bringing in the homework later from home because it might be done anew or copied from someone else. Perhaps Respondent fell short in not clearly indicating all his reasoning and purpose to Ms. Meziere, but he also had no notice from her that she had misunderstood his offer. On balance, Ms. Meziere's explanation of why she took Respondent's neutral remark sexually is weak. She testified, A: I took it sexually. I don't know. Q: Why did you take it sexually? What is it about it that made you think that because you would agree, wouldn't you, that that could also be nonsexual the way you stated it, correct? A: Yes. Q: So what was it about the way he said it that made you think that it was sexual? A: I don't know. I just didn't feel comfortable with it. Q: But he didn't say anything explicit-- A: No. Q: --about sex or anything like that? A: No. (Exhibit P-2, page 10) Ms. Meziere considered Respondent a good teacher, not really strict, and pretty friendly. She felt he was giving her and one of her girl friends many more compliments of the nature described above in Finding of Fact 5 than he was giving other female students in their particular class. Respondent conceded that perhaps he had complimented Ms. Meziere more than some other female students in her class because he had tried to build up Ms. Meziere's self-esteem while the class was going to and from the cafeteria during the lunch recess which occurred in the middle of that class period, so that she would eat and not diet excessively. When she felt "uncomfortable" about Respondent's offering to see her after school, Ms. Meziere was not aware that Respondent frequently tutored students after school. Shanna Higginbotham, another one of Respondent's female students, confirmed that she had been tutored by him after school on several occasions, without any sexual innuendoes or overtures. Although what Respondent did not do with Ms. Higginbotham is not corroborative of Respondent's testimony that he did not intend his remark to Ms. Meziere to be sexual, it is supportive of his testimony that he was in the habit of having one or more students in his classroom after school. It also supports a reasonable inference that the Respondent's classroom was hardly the place for a private rendezvous. Respondent was approached during an inactive period in one of his classes by a senior mathematics student named Monica Adamczewski, who was simultaneously taking a college-level psychology class in child development at Florida Community College, Jacksonville, Florida. Ms. Adamczewski, knowing of Respondent's background in psychology, addressed a question to Respondent involving Freudian theory and child psychology on the issue of whether or not little children have sexual feelings, as hypothesized by Freud. Respondent responded by describing how he had handled an incident involving his own four year child's masturbation. Although the conversation was conducted in low tones with Ms. Adamczewski and Respondent in their respective desks, another student, Darlene Kelly, came up to Respondent's desk in the course of the conversation and heard only part of the conversation. Ms. Kelly was not aware of the context in which the subject arose, did not approve of certain language Respondent employed in discussing his child's activity, and felt it was an inappropriate conversation for the classroom, but Ms. Kelly also testified that the conversation did not embarrass her. There is conflicting evidence as to whether the foregoing incident occurred during the period covered by the Statement of Charges in this case. It is found that it did not occur during the period of time covered by the charges and accordingly that it cannot constitute grounds for disciplining Respondent in this proceeding. Jessica Smith testified to three incidents that allegedly occurred during the 1989-1990 school year. Because the Statement of Charges against the Respondent is silent as to any allegations of misconduct or immorality that occurred other than during the 1990-1991 school year, these incidents may not be used to discipline Respondent in this proceeding. 1/ Tammy McClamma graduated from Hilliard Middle-Senior High School in May 1990. She was not one of Respondent's students in either her junior or senior year, but she knew him from being around school. The events she described also could not have occurred during the time frame set out in the Statement of Charges and therefore cannot be used to discipline the Respondent in this proceeding. 2/ Respondent acknowledged that he may have been careless and used poor judgment in some of the statements he made to his female students. However, he never intended to harm or embarrass any of them and was simply guilty of allowing himself to get too close to the students as friends rather than maintaining the appropriate distance required of the student-teacher relationship. All the student witnesses, including those who were offended by isolated remarks they regarded as inappropriate, agreed that Respondent has a friendly and jocular manner in and out of the classroom. Respondent's classroom clearly has a "laid back" style. Overall, his students seem to appreciate and enjoy his familiar manner and to learn well in his classes. The consistent testimony of the students was that he is generally well-regarded and "everybody's favorite teacher." Superintendent Marshall opined as a professional educator that the Respondent's effectiveness as an educator had been undermined and eliminated by a continuing pattern of serious misconduct. However, no evidence of lost effectiveness beyond the temporary embarrassment and self-doubt experienced by Ms. Lysitt appears of record, and Mr. Marshall's opinion as rendered at formal hearing was based in part upon incidents outside the dates alleged in the Statement of Charges and also based in part upon the total investigation of this case, which investigation clearly included material not in evidence here.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Nassau County enter a final order dismissing the charges against Respondent and returning him to full duty with all back pay and benefits retroactive to May 9, 1991. RECOMMENDED this 5th day of March, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1992.
The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes, against teachers holding Florida educator's certificates. Respondent, who has no prior disciplinary history, holds Florida Educator's Certificate 709850, covering the area of mathematics, which is valid through June 30, 2014. The Events The incident that gives rise to this proceeding occurred during the morning of April 8, 2011, at Dillard High School ("Dillard"), where Respondent has taught mathematics since 2004. At that time, Respondent was lecturing to his Algebra I honors class, which comprised approximately 15 students. During the lecture, one of the male students, 15-year- old D.P., took out his cell phone and viewed it, contrary to one of Respondent's classroom rules. Respondent immediately directed D.P. to put the phone away, and the student complied; a few moments later, however, D.P. again took out his phone, which resulted in the same reaction from Respondent. For reasons known only to D.P., he took out his phone a third time——conduct that prompted Respondent to confiscate the item. Later, during the same class period, D.P. inquired of Respondent as to when his phone would be returned. Respondent replied that the phone could be retrieved at the end of the day from Mr. Levinsky, one of Dillard's assistant principals. None too happy with this turn of events, D.P. stewed for several minutes, at which point he got up from his table and approached the front of the room, where Respondent was seated behind his desk. Suspecting that D.P. might attempt to recover the phone (which lay on Respondent's desk), Respondent picked it up. At that point, and in an audacious move, D.P. grabbed Respondent's cell phone off the desk and stated, in an angry tone, that he would return Respondent's phone when Respondent relinquished possession of his (D.P.'s). Understandably disinclined to negotiate, Respondent calmly directed D.P. to return his property. D.P. refused. Respondent again asked, to no avail, that D.P. place the phone on the desk. After a third request, which, like the others, went entirely unheeded, Respondent stood up, walked around his desk, positioned himself near D.P., and instructed D.P.——for the fourth time——to put down the phone. D.P. complied, only to pick up the phone once again just seconds later. (While doing so, D.P. remarked that he was not going to return Respondent's "mother-fucking phone.") It is at this point that the witness' accounts diverge: D.P. and student S.H. contend that Respondent reached out with one hand and, in an unprovoked act of violence, grabbed D.P. by the throat and pushed him backwards, which resulted in D.P. falling over several desks that had been placed together; students A.A., R.B., and A.P. claim that Respondent, without provocation, slammed D.P. onto the desks after taking hold of the student's throat; finally, Respondent asserts——as corroborated by student T.F.——that D.P. moved toward him in a threatening manner and that he (Respondent) simply defended himself5/ by extending his arm, which made contact with D.P.'s upper chest or neck area. Respondent and T.F. further testified that, as a result of the defensive contact, D.P. moved backward and either tripped or fell over the desks. Before the undersigned resolves the question of how D.P. wound up on the floor, a brief rehearsal of the relevant subsequent events is in order. Moments after the physical encounter, Respondent informed D.P., who was uninjured, that he intended to escort him to one of Dillard's administrators. Enraged, D.P. removed his shirt and followed Respondent into the hallway; as D.P. did so, he directed several vulgar threats toward Respondent, such as, "I'm going to fuck you up" and "I'm going to kill you." Moments later, Respondent encountered one of Dillard's security guards, Noel Buhagiar, from whom Respondent requested assistance. Mr. Buhagiar proceeded to restrain D.P., at which point Respondent made his way to school administration. Once in the front office, Respondent provided a brief description to Mr. Levinsky (as noted previously, an assistant principal) concerning his incident with D.P. Mr. Levinsky instructed Respondent to return to class and issue D.P. a referral. While en route to his classroom, Respondent walked by D.P., who, still restrained, repeated his earlier crude threats. From what can be gleaned from the record, D.P.'s behavior ultimately earned him a five-day suspension from school. Shortly after the incident, Respondent was questioned by Edward Jackson, a school resource officer assigned to Dillard. During the interview, Respondent explained that D.P. had approached him in a "fighter's stance" and that, as a result of this aggressive behavior, he feared for his safety and used an open hand (which made contact with D.P.'s neck) to ward D.P. away. Subsequently, Officer Jackson conducted an interview of D.P. in the presence of Mr. Levinsky and the student's father, during which D.P. provided a description of the incident that largely coincided with Respondent's version of events. These statements were credibly recounted during the final hearing by Officer Jackson, who testified: The child told me, in front of his father, and A.P. [Levinsky], that there was a conversation about a cell phone. He went to get his cell phone back, in an aggressive manner, and that's when [Respondent], fearing for his safety, extended his arms out, and I guess in such force, that he caused the student to fall over some chairs. I then asked, well, Mr. [Levinsky] asked the student, did at any time, did [Respondent] use his hand to choke, choke you. And D.P. answered, to the question, indicating that [Respondent] did not use his hands to choke him. And that was said in front of his father, and in front of Mr. Levinsky, so, there was no choke at all. Final Hearing Transcript, p. 173 (emphasis added). Upon the conclusion of his investigation, Officer Jackson charged D.P. with misdemeanor assault,6/ at which time the matter was forwarded to the State Attorney's Office.7/ Ultimate Findings It is determined, as a matter of ultimate fact, that Petitioner has failed to adduce clear and convincing evidence of the Amended Administrative Complaint's principal allegation—— namely, that Respondent grabbed D.P. in a "choking manner and pushed him onto [a] desk." In so finding, the undersigned rejects the testimony of Petitioner's witnesses on this issue, which, for several reasons, is less persuasive than that of Respondent and T.F. First, had Respondent committed the act alleged, it is reasonable to expect that D.P. would have suffered some form of harm, particularly since Respondent, a football coach, outweighed D.P. by at least 608/ pounds. Yet, and as D.P. conceded during the final hearing, he sustained no marks, bruises, or injuries of any kind.9/ In addition, D.P.'s present description of the event is highly dubious in light of Officer Jackson's credible testimony, which establishes D.P.'s admission during the police interview that he (D.P.) had moved toward Respondent aggressively and that Respondent had merely extended his arm for protection. Finally, D.P.'s wholly outrageous conduct, both before and after the incident——taking Respondent's property and refusing to return it, removing his shirt, and threatening to "kill" Respondent——is far more suggestive of his culpability as the aggressor. Owing to the undersigned's crediting of Respondent's final-hearing testimony, it necessarily follows that Respondent's report of the incident to law enforcement, in which he claimed self-defense, was in no manner false or dishonest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission dismissing the Amended Administrative Complaint. DONE AND ENTERED this 30th day of May, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2013.
