The Issue The issue in this case is whether Petitioner, Polk County School Board ("School Board"), had just cause to terminate Respondent, Blanca R. Ortiz' ("Respondent"), employment as a teacher.
Findings Of Fact At all times relevant to this proceeding, Respondent was employed by the School Board as a teacher at Lakeland High School, where she taught spanish. Respondent currently holds a professional services contract pursuant to Section 1012.33, Florida Statutes (2007).1 On February 6, 2008, Chelsey Etgen, a Lakeland High School student in Respondent's fourth-period class, left her packback in Respondent's classroom during the lunch period. The backpack contained Ms. Etgen's iPod Touch ("iPod"). When Ms. Etgen returned to the classroom from lunch, an unidentified male student, who was sitting near her, handed her (Etgen) a graph and a calculator and asked if those were her items. Ms. Etgen recognized both the graph and calculator as items that belonged to her and that had been in the same "pocket" of her backpack as her iPod. Ms. Etgen immediately checked her backpack and, upon doing so, discovered that her iPod was missing. Immediately after Ms. Etgen discovered that her iPod was missing, she notified Respondent. Respondent had the students in the class empty their pockets, but the iPod was not found. Respondent then instructed Ms. Etgen to notify appropriate school officials that the iPod had been taken from her backpack. On February 7, 2008, Ms. Etgen reported to the school resource officer ("resource officer" or "officer") that the iPod was missing from her backpack. Ms. Etgen's iPod was black with a silver face/screen. About a week after Ms. Etgen reported that her iPod was stolen, Respondent asked Ben Brown and another student in Respondent's third-period Spanish I class if they could unlock her iPod. Respondent told Mr. Brown and the other student that her daughter had taken the iPod to school and tried the password so many times that it (the iPod) had "locked up." Mr. Brown and several other students attempted to "unlock" the computer, but were unsuccessful in doing so. Almost two weeks after Ms. Etgen's iPod was reported as missing, Ms. Etgen told Mr. Brown that she thought Respondent had her (Etgen's) iPod. The two students then arranged for Mr. Brown to check the serial number on the iPod that Respondent stated was hers with the serial number of Ms. Etgen's stolen iPod. Mr. Brown agreed to get the serial number off the iPod. As a security measure, Mr. Brown told Ms. Etgen that after he obtained the serial number from the iPod, he would e-mail half of the serial number to her and indicated that she should provide the other half of the serial number to him. On or about February 20, 2008, and after the conversation described in paragraph 8, Mr. Brown went to Respondent's third-period class. The iPod, which Mr. Brown had been trying to "unlock" for Respondent, was still in Respondent's classroom. That day, Mr. Brown was able to hold and look at the iPod and to obtain the serial number of the iPod. Ms. Etgen obtained the serial number of her stolen iPod from the box in which the iPod had come. On February 20, 2008, Mr. Brown and Ms. Etgen exchanged a series of text messages in which each of them provided parts of the serial number of the iPod that was in Respondent's classroom. After doing so, Mr. Brown and Ms. Etgen confirmed that the serial number of the iPod that Respondent had said was hers matched the serial number of Ms. Etgen's stolen iPod. The iPod from which Mr. Brown obtained the serial number discussed above, looked identical to the one that he had been trying to "unlock" for Respondent. After confirming that the iPod in Respondent's classroom matched her iPod serial number, Ms. Etgen told school officials that she believed Respondent had her (Etgen's) iPod. Ms. Etgen also delivered to resource officers, Stacy Pough and Steve Sherman, the box for her iPod that had the serial number which Ms. Etgen believed matched the iPod in the possession of Respondent. On February 20, 2008, soon after receiving information from Ms. Etgen about the matching iPod serial numbers, Officers Pough and Sherman went to Respondent's classroom to ask her about the missing/stolen iPod. Upon entering the classroom, the officers approached Respondent and Officer Sherman asked Respondent about Ms. Etgen's missing iPod and asked if she had the iPod. In response, Respondent told the officers that she did not have the iPod. The resource officers then left the classroom and went into the hall and reported what they had been told to Lakeland High School administrators, Mr. Thomas, then principal, and Tracie Collins, then assistant principal of curriculum. When the resource officers made the initial contact with Respondent, Lakeland High School students, Tyler Qualls and Barbara Duckstein, were among the students in Respondent's classroom. Both Mr. Qualls and Ms. Duckstein overheard the conversation between the resource officers and Respondent described in paragraph 14. Although Respondent told the officers that her iPod was at home, both Mr. Qualls and Ms. Duckstein had seen Respondent with an iPod earlier that day. In fact, that same day and before the officers came to Respondent's classroom, Respondent had asked Ms. Duckstein to see if she could unlock Respondent's iPod. Ms. Duckstein then attempted to "unlock" what she believed to be Respondent's iPod,2 but was unsuccessful in doing so. Soon after the resource officers left Respondent's classroom, Ms. Duckstein left the classroom and told the officers that Respondent had an iPod in the classroom. After Officers Pough and Stewart completed their initial interview with Respondent and left her classroom, Mr. Quall observed Respondent remove the iPod from her desk drawer and put it in her black tote bag. After the resource officers' initial interview with Respondent, the students in Respondent's classroom were released early for lunch. Ms. Collins told Respondent that a student had "something" missing and asked her if the officers could come in and look around the classroom. Respondent agreed to allow the officers to search the classroom. Ms. Collins then authorized the resource officers to search Respondent's classroom. During the search, Ms. Collins observed Respondent move a stack of papers and folders from her desk into a bag. The manner in which Respondent moved the items made Ms. Collins suspicious, so she asked Officer Pough if he had looked in the bag. Officer Pough told Ms. Collins that he thought he had, but would look again. While looking through the bag, Officer Pough found the iPod that belonged to Ms. Etgen. At the hearing, Respondent testified that she did not take Ms. Etgen's iPod and that she did not know how the iPod got in her tote bag. Respondent also testified that she had received an iPod for Christmas and that she had asked the students to "unlock" the iPod that she believed was hers. Respondent's testimony implied that her iPod was identical to Ms. Etgen's iPod and that this may have been a source of confusion as to which iPod she had asked the students to "unlock." However, Respondent provided no evidence to support her claim that she had an iPod.3 In attempting to explain how Ms. Etgen's iPod came into her possession, Respondent then testified that on February 20, 2008, she confiscated several electronic devices, including an iPod, from students who were using them in class and placed the items on her desk. Respondent testified that at the end of the class, the students were allowed to come and retrieve the items, but apparently one unidentified student did not retrieve the iPod, but left it on Respondent's desk. Respondent suggested that perhaps it was that unidentified student who brought Ms. Etgen's iPod into Respondent's classroom on August 20, 2008.4 Respondent's testimony was confusing, vague, and unpersuasive. Ms. Collins, now principal of Lakeland High School, testified that the success of a teacher is tied to his or her credibility (character and integrity) with the students. The evidence supports the allegation that Respondent stole a student's iPod. Moreover, the evidence established that the incident occurred at school and that students at the school, as well as administrators, knew about the incident. Given the foregoing, Respondent is no longer an effective teacher. As a result of the subject incident on or about November 5, 2008, Respondent was convicted of petit theft in a criminal proceeding in Polk County, Florida.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order dismissing Respondent, Blanca Ortiz, from her position as a teacher. DONE AND ENTERED this 31st day of December, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 31st day of December, 2008.
Conclusions After receiving notice from Petitioner that she no longer wished to pursue this cause, the Division of Administrative Hearings relinquished jurisdiction to the Department for the entry of a Final Order.
Other Judicial Opinions Unless expressly waived by a party such as in a stipulation or in other similar forms of settlement, any party substantially affected by this final order may seek judicial review by filing an original Notice of Appeal with the Agency Clerk of the Department of Management Services, and a copy, accompanied by filing fees prescribed by law, with the Clerk of the appropriate District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days of rendition of this order, in accordance with Rule 9.110, Fla. R. App. P., and section 120.68, Florida Statutes. CERTIFICATE OF SERVICE I HEREBY CERTIFY that this Final Order was filed in the official records of the Department of Management Services, and copies distributed by U.S. Mail to the parties below, on the g day of _\ Wy); Cem he ~~, 2011. fe : ebbie Shoup k Department of Management Services Copies furnished to: Judy A. Wright 1611 Second St. S.E. Winter Haven, Florida 33880 Jddge R. Bruce KcKibben ivision of Administrative Hearings 1230 Apalachee Parkway Tallahassee, FL 32399-3060 Thomas E. Wright Asst. General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, FL 32399-0950
The Issue Whether Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a) of the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida as alleged in Petitioner?s June 6, 2012, notice of recommendation of termination and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Lake County, Florida. Art. IX, § 4(b), Florida Constitution; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. §1012.22(1)(f), Florida Statutes. At all times relevant to this proceeding, Respondent was a teacher of K-3 students with Autism Spectrum Disorder (ASD). During the 2011-2012 school year, Respondent?s class had between two and seven students. Respondent holds a bachelor?s degree in elementary education and a master?s degree in special education. Respondent received her Florida teaching certificate in 2008. Petitioner has completed the coursework for the autism endorsement, but has not yet added it to her teaching certificate. Petitioner also received annual Crisis Prevention Intervention (CPI) training, which is a nonviolent crisis intervention and restraint training. CPI teaches ways to restrain or calm an autistic child when the child is “coming at you physically.” Respondent started her teaching career in Lake County in December 2008 at Eustis High School, where she taught ninth grade ESE students. She taught at the Spring Creek charter elementary school for the 2009-2010 school year, where she taught a self-contained K-6 class of approximately fifteen students having various disabilities. Respondent was hired at Fruitland Park Elementary School for the 2010-2011 school year, and was assigned to teach a K-3 level class for ASD students. Most of the students in Respondent?s class were kindergarten-level students. Respondent was retained at Fruitland Park Elementary School for the 2011-2012 academic school year pursuant to a professional services contract, entered on August 15, 2011, which provided that: The Teacher shall not be dismissed during the term of this contract except for just cause as provided in sections 1012.33, Florida Statutes, and such other provisions as prescribed by state law, School Board Policy, and the District?s Instructional Personnel Evaluation System. “Just cause” includes, but is not limited to the following: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude. Respondent received “acceptable” evaluations while at Fruitland Park Elementary School, which was the highest rating at the time. Respondent was the subject of no parent complaints. Respondent was well regarded as a good and effective teacher, firm in discipline, and knowledgeable in her field. Prior to the incidents that are the subject of this proceeding, Respondent was not subject to any disciplinary action. Students with ASD have difficulty controlling their behavior, often act out in a physical manner, and are frequently non-verbal. Respondent?s classroom was located in a portable classroom building. Thus, if a student was outside of the classroom, he or she was physically outside, and not in an interior hallway of a larger building. The classroom backed up to the PE field. Respondent was assigned one full-time and one part- time teacher?s assistant (TA) to help with her ASD students. Elizabeth Price was Respondent?s full-time assistant for the 2010-2011 and 2011-2012 school years. Ms. Price claimed that she was “verbally abused” by Respondent during the 2011-2012 school year as a result of an October 2011 discussion, initiated by Respondent and directed at Ms. Price?s “negative attitude.” Ms. Price was overtly critical of Respondent to others during the course of the school year, including the classroom behavior analyst, Ms. Rose. In addition to her testimony as to the criticism leveled at Respondent by Ms. Price, Ms. Rose testified as to her impression that Ms. Price wanted more independence to implement her own strategies, but that Respondent guided her “in staying with the protocols that she had in the classroom.” Ms. Rose?s testimony is not accepted to prove the truth of the matters asserted, but rather as evidence of Ms. Price?s feelings of ill-treatment at the hands of Respondent. Ms. Price testified that she felt unable to complain to the administration because Respondent “had a personal relationship with our assistant principal” and that, if she complained, her job would be in jeopardy. The testimony of Ms. Price as a whole, and her written statement provided to the school on May 2, 2012, leaves the undersigned with the distinct impression of a personal animus by Ms. Price against Respondent. The part-time TAs varied throughout the year. Sharon Rogers was assigned as a part-time TA to Respondent?s classroom at the beginning of the 2011-2012 school year. She was only in the class for a few weeks. Ms. Rogers was replaced by Lauren Atwood, who was in the class from September 27, 2011, to January 30, 2012, at which time she accepted a full-time position as a K-2 teacher for intellectually disabled students at Fruitland Park Elementary. Prior to being placed in Respondent?s classroom, Ms. Atwood had never worked in a unit with autistic children. During the time Ms. Atwood was in Respondent?s class, she never saw Respondent strike a student, never saw Respondent roughly handle a student, and never saw Respondent grab a student by an arm or leg. Ms. Atwood was replaced by Helen Johnson. Ms. Johnson was the part-time TA at the time Respondent was removed from the classroom. From November 2011 until late April, 2011, Lisa Bass was a TA in Jacqueline Dobbs? class for emotionally disturbed children. In late April 2012, Ms. Bass was assigned to replace Ms. Price as a TA in Respondent?s class. Ms. Bass was asked by Candice Benjamin, the Fruitland Park ESE specialist, to report anything “untoward and unprofessional” that happened in Respondent?s classroom. Ms. Bass testified that Ms. Benjamin?s request “was very cryptic” and that she felt as though she was acting “cloak and dagger.” Ms. Bass served as a TA for approximately five days, and on May 2, 2012, reported the conduct that resulted in Respondent?s removal from the classroom. The TAs were typically with Respondent at all times, and assisted with the “centers” where the students did their work. Respondent was, as a rule, alone with the students for no more than 15 minutes per day, when one TA would go to lunch, and the other would go to pick up lunches for the students, who ate in the classroom. During the times they were assigned to Respondent?s classroom, none of the TAs held teaching certificates, and none were certified in any behavioral specialties. In addition to the TAs, Respondent?s class was visited on a regular basis by a speech therapist. The speech therapist missed Respondent?s classroom visit at least once a month, and sometimes more, for reasons that varied. Since the absences often occurred on Wednesdays, Respondent tried to make alternative arrangements for a student who had her speech therapy on Wednesdays and who Respondent felt was being short- changed as a result. Respondent complained to the ESE specialist regarding the absences. In late April, 2012, the school decided to rotate TAs to different classes. Respondent felt that practice disrupted her classroom, which in some measure depended on stability and familiarity of the teachers to the students. Respondent complained about the practice in late April 2012. There were no complaints made against Respondent by her TAs or anyone else until Ms. Bass reported her complaint on May 2, 2012. No TAs complained until Ms. Dejarlais called them in for interviews. Ms. Nave, the Fruitland Park Elementary School assistant principal, observed Respondent in the classroom “many times”. She never observed Respondent engaging in any inappropriate behavior, including slapping, kicking, or grabbing of students. Ms. Linson, the School Board ASD Program Specialist, occasionally observed Respondent in the classroom. She never observed inappropriate behavior in Respondent?s classes. The notice of recommendation of termination that forms the basis for this proceeding alleged that Respondent “slapped, squeezed faces, and pulled forcibly on the arms of the students” and created “a culture of silence . . . in your classroom which discouraged other staff from coming forward with the allegations.” Allegations of Slapping Ms. Atwood testified that she saw Respondent slap one student?s hands “a few times.” The incidents occurred when a particular student took something that was not his, or tried to place his hands on or hurt another student. The slaps were not hard, and triggered no concern that the incidents should be reported. Other than slapping hands, Ms. Atwood knew of no other incidents of Respondent striking a student. Ms. Johnson testified that she observed Respondent slap a student?s hand on one occasion. The incident occurred after the student struck Respondent on the back. Ms. Johnson testified that Respondent slapped the student?s hand and said “don?t hit.” The incident left no mark on the student?s hand. Ms. Johnson did not contemporaneously report the incident. Ms. Johnson also testified that Respondent slapped a student?s hand when he pinched her nipple. Ms. Johnson understood the slap to be a reflexive reaction to the pain. The undersigned does not consider a mild human response to a personal and painful event to constitute a violation of the disciplinary standards at issue in this case. Other than the single incident of slapping the student?s hand in response to being struck on the back, Ms. Johnson never observed Respondent roughly physically handling any student. Ms. Price testified that, on one occasion during the 2011-2012 school year, Respondent slapped a student on the arm while engaged in a “tug of war” over a bin where the student sat. She stated that the slap was, in her opinion, harder than necessary. The slap left no mark on the student?s arm. Ms. Price could not recall when the alleged incident occurred, being unable to narrow it even to a six month window. Ms. Price did not contemporaneously report the incident. Respondent testified that she never struck a student. Respondent testified that she occasionally had to deflect student attempts to strike her, but that physical contact was done as an avoidance technique or when a student was perceived to be a threat to others. ASD teachers are taught to fend off attempts by students to strike the teacher or others by the use of blocking techniques in which the kicks and hits are deflected. The impression conveyed to the undersigned was one of a “wax on-wax off” motion. The attempts are physically blocked, and the target moved. Respondent testified that her attempts to deflect and redirect blows by pushing away a student?s hand could be conceived as a slap. Respondent testified that she is hit and kicked by her students almost as a matter of course. Her testimony was supported by that of Ms. Linson, who noted that ASD students frequently hit teachers, and Ms. Rose, who commented that Respondent turned her back to the students when they struck her, and as a result “often got hit in the back.” Respondent generally ignored the frequent incidents. The evidence as to the slapping of students? hands was contradictory. The analysis of the evidence was made more difficult by the fact that Respondent had specialized training in dealing with ASD students and the TAs had none, and by the fact that blocking techniques could be misconstrued as slapping by those unfamiliar with the intervention. The evidence indicates that at least some of the small handful of incidents were taken to prevent a student from harming other students. Nevertheless, Petitioner proved, by a bare preponderance of the evidence, that Respondent slapped the hands of one or more students in something more than a purely defensive or protective manner on, at most, a very few occasions, including the incident described by Ms. Johnson in which Respondent slapped the hand of a student after having been hit on the back. The evidence demonstrates such incidents were isolated and mild. There was no evidence introduced to support a finding that the incidents were harmful to any student?s learning, or that the incidents adversely affected any student?s mental or physical health, or their safety. Allegations of Squeezing Student?s Faces Two days after she was placed in Respondent?s classroom, Ms. Bass testified that she observed Respondent grab a child?s face. The incident purportedly occurred when a student was running with a toy. Respondent wanted the student to settle down, which he would not do. The student fell and began to cry. Ms. Bass testified that Respondent grabbed the student?s face and said, in a voice between calm and yelling, something to the effect of “I am in charge. You?re not in charge here. You will do as I say.” Ms. Bass stated that “[i]t appeared from my perspective she was squeezing his cheeks.” The incident left no marks on the student?s face. Ms. Bass reported the incident to Ms. Dejarlais and Ms. Nave. Respondent generally denied the description of the event provided by Ms. Bass, and specifically denied ever having squeezed a student?s cheeks. Respondent testified that she would occasionally hold a student?s face in her hands, and direct the student?s eyes to hers while speaking. In directing eye contact, she exerted no pressure on the student?s cheeks or face. That intervention technique was done to gain the attention of the student and remove what may have been distracting them. Based on her education and experience, Respondent understood that technique to be an acceptable way to direct eye contact. Her testimony was more credible than that of Ms. Bass. Ms. Rose agreed that it is an acceptable research- based intervention to orient a student?s face, deliver instruction, and then provide reinforcement. In implementing that “shadowboxing technique,” it is appropriate to use physical guidance, i.e. holding the student?s face, to get eye contact. That approach is “in the scaffolding of prompting, physical prompting,” and is not outside the scope of what the research indicates is effective. Ms. Rose testified that with younger children it is often more appropriate to start with the most prompting and fade to the least prompting, an intervention described as “errorless learning.” Using that model, physical prompting as a first resort is an effective method and it is supported by the research. Based on the foregoing, Petitioner has failed to prove by a preponderance of the evidence that Respondent squeezed students? faces as alleged in the notice of recommendation of termination. Allegations of Pulling Forcibly on the Arms of the Students Ms. Price provided the only evidence that Respondent pulled forcibly on the arm of any student. The alleged incident occurred after a student had eloped from the classroom. The student was sitting, cross-legged, on the landing outside the portable classroom. The landing is not gated or otherwise secured, and there is nothing to prevent one from walking from the landing to the PE field or beyond. Ms. Price testified that Respondent got her body in the doorway, grabbed the student by the arm, and pulled him back into classroom “more forcefully than necessary.” Ms. Price characterized the event as aggressive in nature. When asked whether Respondent tried other methods to get the student to return to the classroom, Ms. Price testified that “I?m sure that she did. She typically did,” but that “I don?t recall. I was doing something else.” Ms. Price?s lack of direct attention to the incident leads the undersigned to question her account. Respondent testified that she never pulled a child in from outside through door. In cases of elopement, she would usually try to hold the student by the hand or wrist to guide them back in, but never jerked or pulled on the arm of any student. Her testimony was more credible than that of Ms. Price, and is accepted. Ms. Linson testified that in cases of elopement, it is appropriate to take a student by the hand or wrist to guide them back inside. She stressed that “we have to be careful around wrists and arms” to avoid concerns with dislocation of the shoulder, but gave no suggestion that guiding by the wrist was inappropriate. Ms. Linson also testified that if a student is trying to run away, it is appropriate to apply the “children?s control position” as taught as part of the CPI. In that intervention, an adult, with his or her arms crossed and elbows locked, would hold the student on the adult?s side. The intervention is appropriate only for small children, but is an approved restraint. Ms. Linson recognized that human reflex can occasionally result in the restraint being imperfectly, but still appropriately, administered. Ms. Atwood testified that Respondent occasionally had to move a student to time-out when the student had engaged in behavior warranting discipline. She testified that Respondent generally just guided the student, but that when the student would not go willingly, she might put her arms through the student?s arms and move the student to time-out. Ms. Atwood took the required annual CPI course offered to teachers and TAs, but that even with that one-day training, she was not sure how to handle autistic students, and did not know whether the method used by Respondent to move recalcitrant students to time-out was correct or not. In any event, the method described by Ms. Atwood does not meet the allegation that Respondent “pulled forcibly on the arms of the students.” Respondent testified that she occasionally had to physically move a student if he was injuring himself or others, and it was not possible to get others away. In such an instance, Respondent and a TA would implement an approved intervention to move the student to time out, but in no instance would she or anyone else in her classroom pick a student up by the arm, or otherwise pull a student by the arm. Based on the foregoing, Petitioner has failed to prove by a preponderance of the evidence that Respondent “pulled forcibly on the arms of the students” as alleged in the notice of recommendation of termination. Allegation of Creating a Culture of Silence The allegation that Respondent created a culture of silence was based on a statement, frequently repeated at various places, that “what happens in Vegas, stays in Vegas” or “what happens in the classroom stays in the classroom.” The allegation suggested that Respondent made the statement with the intent to discourage the TAs or others from reporting abusive conduct. Ms. Atwood testified that she never heard the “Vegas” statement, but that in any event she was not intimidated by Respondent, and was never discouraged from reporting inappropriate activities. Ms. Nave overheard the “Vegas” conversation at the bus loop in the fall of 2011. The TAs and Respondent were laughing about it, and she perceived nothing of importance or significance about the statement. She understood it to apply to “some silly things that were happening in the classroom.” Ms. Johnson testified that she heard the “Vegas” statement, but was confused about it, and did not know what it meant. Ms. Johnson offered no testimony to support a finding that Respondent intended the statement to discourage her from reporting abusive conduct. Ms. Price offered the only suggestion that the “Vegas” statement was intended to discourage reporting unprofessional or inappropriate activities in the classroom. Ms. Price testified that she “took it” to mean that Respondent was telling her not to bring any complaints against her. She did not testify that Respondent made any direct statement to that effect, but based her testimony on her own subjective belief. Ms. Price did not mention Respondent having discouraged the reporting of inappropriate conduct by means of the “Vegas” statement or otherwise in her May 2, 2012, written witness statement. Rather, she only raised it when her supervisors at the school district told her to think about it. Ms. Price?s testimony and written statement that Respondent intended the oft-repeated “Vegas” statement to be an effort to mask abuse in the classroom, taken as a whole and in conjunction with her general degree of antipathy towards Respondent as described above, is not credible. Respondent and others testified convincingly that the concept of “what happens in Vegas, stays in Vegas” was intended to allow the teachers and TAs to discuss personal matters, and even gossip about other school employees, without fear of their comments being spread around. Respondent testified that the statement was not intended to act as a shield for unprofessional or abusive conduct occurring in the classroom. Respondent?s testimony is accepted. Based on the foregoing, Petitioner has failed to prove by a preponderance of the evidence that Respondent created “a culture of silence . . . in your classroom which discouraged other staff from coming forward with the allegations” as alleged in the notice of recommendation of termination. Unpled Issues Ms. Atwood, Ms. Johnson, and Ms. Price each alluded to a degree of “yelling” in Respondent?s class that was greater than they believed should occur in a “normal” class. In her written statement, Ms. Atwood stated that “at times [it] seemed to be a little too much.” Ms. Johnson felt that it “was, to me, over the top.” However, no TA saw fit to report Respondent?s yelling at any time prior to May 2, 2012. No one described what was meant by “yelling” except in the most general and subjective way. No witness testified as to any standard or criteria regarding “yelling” in an ASD class setting. No evidence was elicited as to whether “yelling” might be appropriate at times. Respondent admitted that she raised her voice on occasion to get the students? attention when the classroom was loud or to make a point, but gave no suggestion that it was contrary to any standard. Although Ms. Linson testified that “yelling” is not appropriate in any class, she did not define “yelling,” nor does she have an autism endorsement to her teaching certificate that might provide additional weight to her testimony as applied to the unique challenges of an ASD class. Despite the volume of the evidence and testimony regarding “yelling,” the fact is that it was not pled as a basis for Respondent?s termination. Had it been pled, the Petitioner failed to prove, by a preponderance of the evidence, that the “yelling” violated any standard warranting discipline against Respondent. During the course of the proceeding, references were made to Respondent having moved the furniture from her classroom. The evidence was conflicting as to whether the removal of the furniture was known or authorized by the school administration. However, it appears that there was a sound, safety-based reason for removing the furniture and gradually reintroducing it to the classroom. Despite the discussion regarding the removal of furniture from the classroom, that issue was not pled as a basis for Respondent?s termination. Had it been pled, the Petitioner failed to prove, by a preponderance of the evidence, that the removal of the furniture violated any standard warranting discipline against Respondent. Discipline Petitioner has adopted, as policy section 6.361 of the School Board of Lake County, an Employee Discipline Plan. The plan provides that “[w]hen discipline of any employee becomes necessary, such action should be in proportion to the employee?s offense or misconduct ” The Employee Discipline Plan includes a Progressive Discipline Method by which sanctions are scaled based on the severity of the occurrence, and on whether it has recurred. The purpose of the policy is to let employees know the nature of the violation and provide an opportunity to correct the behavior. The Progressive Discipline Method includes five steps: Counseling, Level I Reprimand, Level II Reprimand, Suspension and Termination. The Method provides that: Because of the severity in the loss of one?s job employees should be terminated only after thorough investigation. The investigation should conclude that: The employee did, in fact, commit the act; Evidence of guilt is available; The employee?s entire work record, positive and negative, has been considered; The same rules are applied uniformly to other employees; and The penalty of dismissal is reasonably related to the seriousness of the offense. The Employee Discipline Plan provides that: The Superintendent is not required to use this Progressive Discipline Method and may administer discipline at any level, including termination, based on the nature of the offense and the particular circumstances. Examples of actions resulting in immediate suspension or dismissal include, but are not limited to, the following: immorality, gross insubordination, willful neglect of duty, incompetence, substance abuse including alcohol, being convicted or found guilty of or pleading guilty to (regardless of adjudication of guilt) any crime involving moral turpitude. Respondent did not commit any of the specified offenses that constitute “examples of actions resulting in immediate suspension or dismissal.” The School District did not exercise the Progressive Discipline Method, but proceeded directly to termination of Respondent. Ms. Dejarlais did not know why the progressive disciplinary policy was not followed in Respondent?s case. The school officials elected to have the investigation done at the county level, rather than at the school level. It was not explained why such an investigative procedure was undertaken, or whether it was a deviation from the normal disciplinary practice of the school. Since most of the allegations against Respondent were not proven, including those that would normally be understood to be the most serious, there is no reasonable basis to disregard Petitioner?s adopted Employee Discipline Plan and Progressive Discipline Method. Petitioner failed to prove, by a preponderance of the evidence, that Respondent committed the acts alleged, with the exception of a few instances in which she slapped students? hands. The slaps, which were themselves mild, may have been misconstrued defensive blocking techniques. In any event, the instances were isolated, and formed no pattern of unprofessional or inappropriate conduct. Petitioner failed to demonstrate that it considered Respondent?s entire work record, positive and negative, during the investigation. Petitioner failed to demonstrate that it applied the same rules that led to Respondent?s termination to other employees. However, since most of the allegations against Respondent were disproven, any analysis of the violations -- as charged -- would be of limited value. As to the issue of slapping hands, the only evidence in the record as to the sanction for that type of incident was the testimony of Ms. Linson, who was not aware of any instance in which a teacher was terminated for slapping the hand of a student. Petitioner failed to demonstrate that the sanction of termination was reasonably related to the seriousness of the offense, especially given that most of the allegations upon which the decision to terminate was based were not proven. Given the isolated nature of the hand slaps, the mild nature of the slaps, and the possibility that the slaps were misperceived blocking techniques, the undersigned finds that the sanction of termination was not reasonably related to the seriousness of the offense. The evidence demonstrates that, upon her removal from the classroom, Respondent was assigned to the school Copy Center at full pay and benefits pending the outcome of this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Lake County School Board, enter a final order: dismissing those allegations in the notice of recommendation of termination that Respondent squeezed faces, pulled forcibly on the arms of the students, and created a culture of silence which discouraged other staff from coming forward with allegations of misconduct; finding that Respondent slapped the hands of students, but that such incidents were isolated, mild, and may have been a misperception of an otherwise acceptable defensive blocking technique; reinstating Respondent to a position equivalent to that previously held with the Lake County School District; imposing the Step I sanction of counseling as set forth in Petitioner?s Progressive Discipline Method; and to the extent Respondent lost wages or benefits, award full back pay and benefits from the time she was removed from the classroom in May 2012, until the date of her reinstatement. DONE AND ENTERED this 14th day of November, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 14th day of November, 2012. COPIES FURNISHED: Stephen W. Johnson, Esquire McLin and Burnsed, P.A. Post Office Box 491357 1000 West Main Street Leesburg, Florida 34749-1357 Alfred Truesdell, Esquire Jill S. Schwartz and Associates, P.A. Suite 212 655 West Morse Boulevard Winter Park, Florida 32789-3745 Susan Moxley, Ed.D., Superintendent Lake County School Board 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Pam Stewart, Interim Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the Superintendent of Hamilton County Schools recommended that the Respondent enter into a professional services contract with the Petitioner, Gene Starr?
Findings Of Fact Gene A. Starr has been continuously employed by the School Board of Hamilton County as an agriculture teacher since the 1985-1986 school year. On March 18, 1988, the principal of Hamilton County High School recommended to the Superintendent of the Respondent that the Respondent enter into a professional service contract with Mr. Starr. At a meeting of the Respondent held on April 12, 1988, the Superintendent made recommendations to the Respondent concerning reappointment of a number of employees. The Superintendent specifically recommended that Mr. Starr receive a professional service contract. A motion was made and seconded by members of the Respondent to accept the recommendations of the Superintendent. The following events took place, as reported in the minutes of the Respondent's April 12, 1988, meeting: At the Board's request, Mr. Lauer [the Superintendent] appeared to discuss the recommendation of Gene Starr. The consensus of the Board was that the agriculture program has not progressed as per expectations, and that Mr. Starr's coaching duties conflict with his duties as an agriculture teacher. It was the opinion of some members that there should be more emphasis on crop production and harvesting and on supervision of home projects. Following the discussion of the Superintendent's recommendation concerning Mr. Starr, the Superintendent "asked for and was granted permission to withdraw his recommendation on & Mr. Starr and to resubmit another recommendation on him at a subsequent meeting." The Superintendent then "amended his recommendation to omit Mr. Starr" and the motion to accept the Superintendent's recommendations was amended to reflect this change. The Respondent then approved the Superintendent's recommendations, as amended. The Respondent did not consider whether there was "good cause" to reject the Superintendent's recommendation concerning Mr. Starr. At a May 10, 1988, meeting of the Respondent the Superintendent recommended that Mr. Starr be reappointed to an instructional position for the 1988-1989 school year and that Mr. Starr serve in the instructional position for a fourth year on annual contract instead of being granted a professional services contract. The recommendation was withdrawn on advice of counsel for the Respondent. At a May 23, 1988, meeting of the Respondent Mr. Starr and the Respondent agreed that Mr. Starr would agree to a fourth year on annual contract, "subject to and without prejudice to a formal hearing on his right to a professional services contract." Mr. Starr was informed of this action in a letter dated May 31, 1988. Mr. Starr filed a Petition for a Formal Hearing challenging the Respondent's action with regard to the Superintendent's recommendation to the Respondent that Mr. Starr receive a professional services contract. In the Petition, Mr. Starr specifically requested the following relief: That the matter be assigned to the State of Florida Division of Administrative hearings [sic] for the assignment of a hearing officer. That a formal hearing be held on this particular petition pursuant to Sec. 120.57(1), Fla. Stat. as to Petitioner's entitlement to employment under a professional services contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the recommendation of the Superintendent of Hamilton County Schools be accepted by the School Board of Hamilton County unless the School Board of Hamilton County concludes that there is good cause for rejecting the recommendation. DONE and ENTERED this 18th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4116 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-9. 3 10. 4-8 Statement of events which occurred at the formal hearing and some of the arguments advanced by the parties at the formal hearing. COPIES FURNISHED: Edwin B. Browning, Jr., Esquire Post Office Drawer 652 Madison, Florida 32340 Donald K. Rudser, Esquire Post Office Drawer 151 Jasper, Florida 32052 Owen Hinton, Superintendent Hamilton County School Board Post Office Box 1059 Jasper, Florida 32052 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether Respondent, Walt Disney World, violated Section 760.08, Florida Statutes (2006), as alleged in the Petition for Relief in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a Caucasian male, born in Puerto Rico. He is an amateur photographer. He had visited Walt Disney World at least ten times prior to December 1, 2006. Respondent owns and operates a theme park in Orange and Osceola Counties, Florida. Respondent employs individuals with the job title, "security host," with the responsibility of maintaining security in the theme park. This category of employees is licensed by the State of Florida, and they receive training in "abnormal behavior of guests," threat analysis, surveillance, intelligence, and other job-related skills incidental to maintaining a safe environment within the theme park. Respondent has a specific protocol regarding theme park guests exhibiting "abnormal behavior." In the context of this case, taking photographs in the theme park is not an "abnormal behavior." In fact, guests are encouraged to photograph those accompanying them and various theme park characters, e.g., Mickey Mouse. However, excessive photographing of structures, "mapping or progression photography," is considered "abnormal behavior." "Mapping" consists of taking pictures in a progression, so as to familiarize someone who has never been to an area with the layout of that area and is considered very unusual behavior. Petitioner entered the Magic Kingdom, part of Respondent's theme park, on December 1, 2006. A security host observed Petitioner photographing the main entrance and security bag check. Petitioner was unaccompanied. The subject matter and manner of Petitioner's photography was considered to be "abnormal" by the security host. Once a security cast member identifies potentially abnormal behavior by a guest, the protocol requires the security host to contact a member of management (by radio) and continue to observe the guest. Petitioner moved further into the Magic Kingdom and took photographs of Main Street and City Hall. Because Petitioner was limiting his photography to structures, the security host's initial impression that Petitioner was doing something "abnormal" was reinforced and, in accordance with the established protocol, he again called management. As further dictated by Respondent's security protocol, the uniformed security host is then met by an "undercover" security host whose job-responsibility is "real-time threat analysis." The "threat-analysis" security host continued to observe Petitioner as he took what was interpreted by the security host to be "panoramic" photographs of Town Square and "mapping" photographs of the interior of the train station. He, too, assessed Petitioner's photographic activities as "abnormal." Because the "threat analysis" security host concurred with the initial determination of "abnormal," the security protocol dictates that a security manager make contact with the guest. This was done in a discreet and unobtrusive manner. The security manager identified himself as an employee of Respondent and asked Petitioner if "he could do anything to assist him." Petitioner did not respond, so the security manager repeated himself. Respondent responded that he "was not an Arab terrorist," or words to that effect. His response was louder than conversational, and he appeared to be agitated. Because Petitioner was uncooperative, the security manager called a uniformed law enforcement officer, an Orange County, Florida, deputy sheriff, as dictated by Respondent's security protocol. The deputy sheriff asked for, and received, Petitioner's driver license. After a license check revealed that Petitioner's address was valid, he was allowed to pursue his activities in the theme park. His interaction with the security manager and deputy sheriff lasted approximately 15 minutes. Petitioner then returned to his theme park photography without limitation and spent an additional two hours in the theme park, until his camera's battery pack ran down. He did not have any further interaction with Respondent's security personnel, nor was he kept under surveillance. Petitioner returned to Respondent's theme park on December 9, 27, 28, 29 and 30, 2006 (he had an annual pass), had access to all facilities without difficulty, and had no encounters with Respondent's security personnel. The incident that occurred on December 6, 2006, was a result of Petitioner's photography being identified as "abnormal." There is no evidence that it was precipitated by his national origin or that Respondent was not exercising reasonable diligence in an effort to protect theme park visitors and employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Jose M. Gandia, failed to present a prima facie case of discrimination based on national origin, and, therefore, this matter should be dismissed in its entirety and a determination be entered by the Florida Commission on Human Relations that Respondent, Walt Disney World, did not violate the provisions of Chapter 760, Florida Statutes, as alleged in the Petition for Relief. DONE AND ENTERED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 March, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jose M. Gandia 3054 Holland Drive Orlando, Florida 32825 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint.
Findings Of Fact At all pertinent times, Clifton Jerome Locke has held Florida Teacher's Certificate Number 361372 for the areas of psychology, administration and Junior ROTC, and has taught as a Junior Army ROTC instructor at Crestview High School. Major Jordan was the director of army instruction for the Okaloosa County School Board and Sgt. Locke's "superior officer" at all pertinent times. Ever since Sgt. Locke began as a Junior Army ROTC instructor at Crestview High School, in January or February of 1971, Major Clifton D. Jordan's job was "[t]o coordinate and to command, really, if you will, the Army ROTC operations within the county school system." (T. 39-40) TELEPHONE BILLS The Okaloosa County School Board relied on the ROTC program to secure reimbursement from the U. S. Army for long distance charges incurred by ROTC. When the School Board received telephone bills for the ROTC telephone at Crestview High School, the office of the assistant superintendent for finance paid them, and sent copies of the bills to Crestview High School's Junior ROTC program. As the monthly phone bills arrived, Sgt. Locke looked them over, then gave them to a cadet, who prepared DA Form 360 and DA Form 3953, for Major Jordan's signature. Major Jordan signed the Army form to which a copy of the monthly telephone bill was attached, DA Form 3953. This form and attachments were regularly sent to the signal officer at Fort Rucker, Alabama, until the practice ceased in the spring of 1978. Although unsure whether his office, the school principal or Major Jordan received the Army's reimbursement checks, Creel Richardson, Jr., assistant superintendent for finance for the Okaloosa County School Board, testified without contradiction that the U. S. Army had not reimbursed long distance charges incurred by the Junior ROTC program at Crestview High School over a 46-month period beginning in the spring of 1978. During this entire period, Major Jordan was "telephone control officer." Army regulations precluded Sgt. Locke's serving as telephone control officer. (T. 81) Some time in 1978 Sgt. Locke received a note from Mrs. Strauder of the signal office which read: Returning your bill to be corrected. Please mark calls on the phone bill that add up to fifty-three ninety- five ($53.95), all three copies, please. It was about this time that Sgt. Locke and Major Jordan discussed the use of the telephone for other than official long distance calls. Although Major Jordan did not recall this conversation, he did testify at hearing that he had made various personal long distance calls on the ROTC telephone and had sought Army reimbursement for them by failing to delete personal items from the phone bill copies forwarded to Fort Rucker. Without counting calls made in 1982, Major Jordan made more than two hundred personal, long distance calls on the ROTC telephone, between February 14, 1978, and May 26, 1983. See Respondent's Exhibit No. 5. Eventually, the Federal Bureau of Investigation looked into Major Jordan's personal use of the ROTC telephone for long distance calls, but criminal charges were not brought. Other school personnel also made unauthorized use of the ROTC telephone. Major Jordan, who had never delegated any responsibility or duty in connection with telephone bill reimbursement to Sgt. Locke in writing, told him not to be concerned about which of the phone calls were in fact official calls. Sgt. Locke continued for a few months to give phone bills to cadets for preparation of the reimbursement request forms and the forms continued to be prepared. But Major Jordan stopped signing them and Sgt. Locke eventually stopped giving the phone bills to the cadets who prepared the forms. Of the 46 monthly bills for which no reimbursement was sought, 29 had not been opened in March of 1982, at the time Sgt. Locke was transferred from the ROTC department and Major Jordan went through respondent's desk drawers. At some point, Sgt. Locke told Major Jordan he would rather not be involved in preparation of the forms. He told the student cadets responsible for preparing the forms to deal directly with Major Jordan. In or about October of 1982, the signal office inquired about phone call reimbursement and charges for long distance. Phone calls billed to the ROTC number at Crestview High School aggregated $2,974.42 over the 46-month period. How much of this sum reflected official calls was not clear from the record. Another year elapsed after Sgt. Locke's transfer from the ROTC department before Major Jordan signed and transmitted any phone bill reimbursement forms to the signal office, with the result that reimbursement for any official calls was lost to the Okaloosa County School Board for much of that period as well. CANDY SALES Toward the beginning of the 1981-1982 school year, Jerry Pilgrim, a candy salesman from Milton, Florida, spoke to Major Jordan and Sgt. Locke about the ROTC students' selling candy to raise money. In October, it was agreed that a sale would take place later in the fall. Mr. Pilgrim discussed the candy sales with Major Jordan, who told him to deal with Sgt. Locke. Orders for candy to be delivered in November and December were not filled on time, so Sgt. Locke cancelled them, fearful the upcoming Christmas vacation would complicate matters. When Mr. Pilgrim stopped by the school to apologize for his failure to deliver the candy on time, Major Jordan said ROTC might sell candy some other time. In all, Mr. Pilgrim spoke to Major Jordan six to ten times and never got any indication that Major Jordan opposed a candy sale. It was Major Jordan who chose the particular kind of candy (Reese's candy bars) the day Mr. Pilgrim handed out samples. Major Jordan never told respondent not to conduct a candy sale. Major Jordan and Sgt. Stakley's testimony otherwise has not been credited. In January, Sgt. Locke placed another order for candy by telephone and Mr. Pilgrim delivered the candy the third week of January, 1982. He unloaded the trunk of his car at the ROTC office at Crestview High School, and returned two days later with 20 more cases of candy. Two weeks later he again called at the school, but Sgt. Locke told him that the principal was upset and that ROTC would not be ordering more candy. For the 1981-1982 school year and for some time previously, there was a written policy at Crestview High School requiring approval in advance of fund raising projects, and requiring, with respect to sales conducted by students, that a form be filed reflecting beginning inventory, cost per item, closing inventory, profit, total cost and total items sold. Petitioner's Exhibit No. 1. Both Major Jordan and Sgt. Locke knew or should have known of this policy, even though there was no evidence that the ROTC program had followed it in the past. Approval was not obtained for the candy sale in advance, nor was the required form filed. On January 21, 1982, six students turned in a total of $89.50 to Sgt. Locke, money they had been paid for candy. On January 25, 1982, six students turned in more candy sale proceeds to the respondent, aggregating $86.00. On January 26, 1982, Sgt. Locke entered the hospital, having suffered a mild stroke. He had trouble seeing, was unable to change gears driving, and finally fainted, slumping over his typewriter at Crestview High School. In the hospital, he remembered the money in his desk and asked his daughter, Cynthia Faith, who was also a cadet in the ROTC program, to retrieve the cash from his desk drawer. Sgt. Locke could not see well enough to count the money, so his wife, his daughter and his parents, who were visiting at the hospital, counted it for him. His wife drew a check in the amount of $175.50 on a joint account she shared with respondent, and one of the respondent's daughters gave the check, Petitioner's Exhibit No. 6, along with the required "Report of Monies Collected" forms, Petitioner's Exhibit No. 5, to the school bookkeeper, Ms. Earlene Carter, on February 5, 1982. (T. 163) Proceeds from the candy sale totalled at least $1385.86 and there were no complaints about the handling of the rest of the money. Insofar as the evidence shows, all the money the students turned in was ultimately deposited with the school bookkeeper. School policy required that "teachers who receive money from students in a school related activity should . [t]urn the money into the bookkeeper the day it is collected or as soon thereafter as possible." Petitioner's Exhibit No. 2. Pictures were taken of the ROTC students by James L. Davis of Stone Studio in Pensacola. Most of the students showed up with their money at the time pictures were taken in January of 1982. Others, including respondent's two daughters, did not pay for their photographs the day they were taken, but Cynthia Faith Locke later gave Sgt. Stakley $20 for the pictures taken of her sister and herself, and the photographer was eventually paid in full. Major Jordan testified at hearing that he found a "collection voucher" in Sgt. Locke's desk drawer reflecting that four ROTC students had made payments of ten dollars each for photographs, but that no money was attached to the voucher or present elsewhere in the drawer. Two of the students Major Jordan said were listed on the "voucher" were Sgt. Locke's daughters. The evidence was insufficient to show that Sgt. Locke ever received any money from any student for photographs. The "voucher" Major Jordan claimed he found was not produced at hearing. Aside from Major Jordan's testimony, which has not been credited in this regard, no evidence suggested any impropriety in the handling of any moneys respondent may have received in connection with the sale of photographs to ROTC students. APPLICATION LATE Dean Oliver Casey, a student enrolled in the ROTC program at Crestview High School, filled out an application for an ROTC scholarship in December of 1980. Major Jordan and Dean Casey had discussed the scholarship application two or three times between September 1, 1980, and mid-November of that year, and Major Jordan had told him to mail the completed application to Fort Monroe, Virginia, but he missed the December 15, 1980, deadline. Later Dean Casey gave the completed application to Sgt. Locke who asked Major Jordan if he could "pull any strings" to get the application considered, even though the deadline for submission had passed. After Major Jordan "relieved" Sgt. Locke of his ROTC assignment, respondent went to work in Okaloosa County School Board's finance department at the Carver Hill complex. On the assumption that the allegations against him were true, his effectiveness as a ROTC instructor had been impaired, the consensus of the testimony was, but there was no evidence of the impact on his effectiveness on the assumption that the charges were false, even in part; and no evidence as to his effectiveness while employed in the finance department. The parties' proposed findings of fact have been considered in preparation of the foregoing. To the extent they have not been adopted, they have been rejected as unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint filed against respondent. DONE and ENTERED this 25th day of May, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1984. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Ronald G. Meyer, Esquire Pamela Cooper, Esquire Post Office Box 1547 Tallahassee, Florida 32302 Ralph D. Turlington Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Donald L. Griesheimer Executive Director Department of Education 125 Knott Building Tallahassee, Florida 32301
Findings Of Fact The Respondent holds teaching certificate number 069548, Rank 3, being certified in the area of art education. At times pertinent to the Administrative Complaint and the Notice of Charges herein, the Respondent was an instructional employee with the School Board of Dade County at Rainbow Park Elementary School or Norland Elementary School. The Petitioner, School Board of Dade County, is an agency of the government of Metropolitan Dade County, a political subdivision of the State of Florida, which is charged with employing and regulating the terms and conditions of employment and conduct and practices of instructional personnel employed in its public schools in Dade County. The Petitioner, Education Practices Commission, is an agency of the State of Florida charged with the enforcement of licensure standards for teachers and regulation of the professional conduct and practices of teachers under its licensure jurisdiction. During times pertinent to Counts I through IV of the Administrative Complaint, the Respondent was assigned to Rainbow Park Elementary School in Dade County as an art teacher. Patrick Outler was a 12-year-old student in the Respondent's art class at that school. On May 1, 1978, an altercation occurred between the Respondent and Patrick Outler in Respondent's classroom. The Respondent grabbed that student by the arm, stating that he was going to take the student to the office. When they were outside of the classroom in the open hallway, and while remonstrating with the student because of the student's conduct in class, the Respondent jerked or shook the student back and forth while holding on to his shoulders near his neck, also pushing him against the wall. The student was not noticeably injured in this episode. Sarah Bullard, a teacher's aide in an adjoining classroom, heard the disturbance, caught up with Patrick Outler, who was fleeing the Respondent's grasp and held him in her room pending the arrival of the principal. She heard the Respondent make a profane statement to the student during the course of this episode. On May 9, 1973, the Respondent was involved in a disciplinary-related incident with a student, Tashanika Melvin. Tashanika Melvin was 5 1/2 years of age and a student at Rainbow Park Elementary School. The Respondent was her art instructor. On that date, while the student was seated at her desk during one of her classes with the Respondent, he summoned her up to the center of the blackboard, apparently to impose discipline for some departure from standards of department (the nature of which does not appear of record). The student went to the front of the class, whereupon the Respondent struck her on the knee with a ruler. This caused the student to become upset and to cry as a result of this disciplinary measure, although she was not physically injured. Another such incident took place on September 28, 1979, involving a student by the name of Edgrena Roberts, a student in the Respondent's fourth grade art class at Rainbow Park Elementary School. The first incident occurred when the student was standing around a table with other students and a student threw a piece of clay at or in the direction of the Respondent. The Respondent, believing that Edgrena Roberts was the culprit in the clay-throwing incident, proceeded to where she was standing, accused her of throwing the clay, which she denied, at which point the Respondent pushed the side of her head with his hand such that her head hit the wall or window frame. The next incident involving this same student occurred when she was walking by the classroom with a friend and the friend threw a pencil into the Respondent's class. The Respondent rushed out into the corridor, seized Edgrena Roberts and shook her and then took her to the principal's office. There is no evidence that she was physically injured by this contact. On February 12, 1979, student Frank Freixas and a friend were standing outside the Respondent's classroom. That student and his unidentified friend were uttering the phrase "Heil Hitler" in a loud tone of voice. The Respondent, upon hearing these exclamations, ran out of his classroom and across the small courtyard to where the student was standing. The Respondent grabbed Freixas by his arm and began swinging him around before releasing his arm, causing the student to fall. In falling, the student struck a sprinkler head in the lawn of the courtyard, sustaining a minor scratch. A number of other persons on the staff, as well as students, observed this incident: Edna H. Armstrong, Willie Mae Williams, Justine Wilcox, Gloria Williams and Mary Sabb. The Respondent served in the United States Armed Forces during World War II and was wounded by hostile German fire in the European Theater in 1945. Dr. Michael Gilbert, who examined the Respondent after the hearing and testified by deposition, established that veterans, especially those who have been wounded, often react emotionally because of their war experiences. As a result of these altercations with students, Mrs. Andel Mickens, the principal at Rainbow Park, initiated an internal investigation concerning the Respondent's suitability to remain as a teacher at her school. She ultimately recommended his termination from employment. She acknowledges that the Respondent has a favorable record as a teacher and exhibits a great deal of talent in the area of art education and is an excellent teacher from a skills standpoint. Her basis for recommending his termination was because of the incidents described above and her view regarding their reflection on the Respondent's emotional suitability to occupy a classroom instruction position. As a result of this recommendation, Dr. Patrick Gray, Executive Director of Personnel Control of the Dade County School Board, conducted an investigation regarding these charges or incidents and as a result of that investigation, required a medical evaluation of the Respondent and issued a formal reprimand. The Respondent was admonished to avoid all future such occurrences and was transferred to another work location at Norland Elementary School. In the course of this investigation, the School Board had the Respondent evaluated by a psychiatrist before his reassignment. On February 12, 1981, while the Respondent was an art instructor at Norland Elementary School, an incident occurred involving student Jeffrey Green. Jeffrey Green was playing with a friend after school and threw a paper airplane into Mr. Parker's classroom. He came in the classroom to retrieve it and, Mr. Parker, apparently being angry at the student, seized his fingers and bent them back, such that the student's fingers hurt for several hours thereafter. The last incident charged, involving physical contact with students, occurred April 30, 1981, involving a student named James Moore. During this incident, James Moore was repeatedly interrupting the Respondent's class and causing disruption to the orderly conduct of the class. The Respondent called him to the front of the class evidently to remonstrate with him concerning his behavior. The student at that point continued to exhibit disruptive behavior and the Respondent pushed him out of the door of the classroom. James Moore fell to the ground or floor of the corridor outside of his own volition after only a gentle push designed to remove him from the chair. He did not fall as the result of any physical contact by the Respondent. The Respondent merely lightly pushed him out of the door to avoid further disruption of his class and told James Moore to remain outside until he could come and take him to the principal's office for disciplinary action. Ms. Andel Mickens was the Respondent's supervisor during his tenure at Rainbow Park Elementary School. During his tenure there, the Respondent was warned on a number of occasions regarding his improper corporal punishment procedures or improper physical contact with students. Mr. Leo Strausberg was the Respondent's supervisor and principal at Norland Elementary School. On three occasions during his tenure at Norland Elementary School, the Respondent was counseled and warned regarding the necessity of and consequences of engaging in improper physical contact with students while attempting to impose discipline upon them. Dr. Michael Gilbert, a psychiatrist, examined and evaluated the Respondent subsequent to the hearing with his deposition being stipulated into evidence. The doctor's testimony is the only testimony or evidence resulting from a psychiatric or psychological evaluation of the Respondent in evidence in this proceeding. It was thus established that the Respondent is a man of high moral and professional standards. The nature of his personality tends to be that of a perfectionist and "somewhat of a martinet" in terms of his experience and personal functioning. He tends to be a compulsive, conscientious person with a high level of aspiration and a strong compulsion to adhere to the high standards he sets for himself and others. As a result of his high standards of behavior, he tends to be less tolerant of aberrational behavior by his students and such behavior which does not comport with his own high standards presents a greater incidence of stress for the Respondent than it might in other persons or teachers who are more tolerant of substandard behavior in students. There is no evidence of an emotional or personality disorder. He is not an emotionally unstable person so as to be unfit to deal with children. The provision of a modicum of counseling or psychotherapy would enable him to gain insight into his needs, and to learn to be more tolerant of the behavior of adolescents. The Respondent is not an overly violent or routinely physically abusive individual, but rather his behavior arose from frustration in dealing with department by his students which did not measure up to his high standards. The Respondent has never been the subject of a disciplinary proceeding such as this in the past. His evaluations and ratings in the past have been uniformly of a high order and he has been described as an excellent art teacher in terms of knowledge of subject matter and his abilities as an artist. His only difficulties in exercising his responsibilities, which culminated in the instant prosecution, have been these described altercations with students.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, as well as the pleadings and arguments of counsel, it is RECOMMENDED: That the Respondent be dismissed from employment by the Dade County School Board and forfeit all back pay. It is, further RECOMMENDED: That the Respondent's teaching certificate be suspended for a period of one year and thereafter be reinstated, and that the Respondent, during that period of time, obtain an appropriate course of psychological counseling designed to enable him to cope with stressful situations and to control his frustration and aberrant conduct when dealing with problems involving student behavior. DONE and ENTERED this 8th day of March, 1984 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1984. COPIES FURNISHED: Craig R. Wilson, Esquire Suite 294, 315 Third Street West Palm Beach, Florida 33401 Jesse J. McCrary, Esquire 3050 Biscayne Boulevard, Suite 300 Miami, Florida 33137 Phyllis O. Douglas, Esquire 1410 North East 2nd Avenue Miami, Florida 33132 William DuFresne, Esquire Suite 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Donald L. Greisheimer, Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools School Administration Building 1410 North East Second Avenue Miami, Florida 33132 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA RALPH D. TURLINOTON, as Commissioner of Education, Petitioner, vs. DOAH CASE NOS. 81-2107 82-2741 ROSS PARKER, JR., Respondent. /
The Issue The issue in this case is whether the Petitioner, the School Board of Pinellas County, should dismiss or suspend the Respondent, Larry Lynn, on charges of gross insubordination and misconduct in office.
Findings Of Fact Larry Lynn (hereinafter 1,Lynn") holds a Teaching Certificate, 563002, issued by the State of Florida. The School Board of Pinellas County, Florida, has employed Lynn as a teacher, since the 1986/1987 school year, and although Lynn is currently suspended without pay, he is employed by a Professional Service Contract. For the first semester of the 1986/1987 school year, Lynn was assigned to Largo High School. For the second semester of 1986/87 school year, Lynn was transferred to St. Petersburg High School. While Lynn was at St. Petersburg High School, one of his female students requested a transfer from Lynn's class due to her perception that Lynn was injecting sexual innuendo into his classroom presentations. Although Lynn denied using such terms, he was counseled by administrators on two occasions to avoid using language that could be construed as containing sexual references. Lynn also received a rating of "I," for "Improvement Expected (growth necessary)" in the judgment category on his annual evaluation for that school year, with a notation that Lynn was "conscious of the need to eliminate off-hand remarks within the lesson." For the 1987/1988 school year and for all further times relevant to the issues presented in this cause, Lynn was assigned to Pinellas Park High School. On September 25, 1987, Richard Allen, an Assistant Principal at Pinellas Park High School, held an initial conference with Lynn to reference the incident at St. Petersburg High the year before and to remind Lynn of the need to avoid using language that was susceptible of being construed as having sexual content. During the 1988/1989 school year, Lynn was seen leaving campus with a female student named Sherry Biafore during lunch time without authorization. It is against school policy to accompany students off campus, or to allow students to leave campus, during school hours without authorization. It also was brought to the attention of the school administration that Lynn allowed Sherry Biafore to be present in his classroom when she was not assigned to that class. At a conference with Marilyn Heminger, the Principal of Pinellas Park High School, to discuss the information the administration had received concerning Biafore, Lynn told her that he had been "counseling" Biafore and that he only left campus with her one or two times. He also admitted to having written two hall passes for Biafore during the fifth period. In fact, Lynn and Biafore had left campus without permission on approximately ten occasions, not just the one or two occasions to which they had admitted. Also, Lynn allowed Biafore to be in his classroom when she was assigned to another class on numerous occasions and at different times during the day. When she was there, in the presence of the students assigned to his class, Lynn would allow her to sit on his lap, to hug and kiss him, and to call him "daddy." He would call her "sweetie cakes," or other terms of endearment, and would give her cigarettes. During the 1988/1989 and 1989/1990 school years, a student named Erica Howell, (DOB 5/25/72), was an office assistant and had to obtain attendance records from teachers who delayed turning them in. Lynn was frequently late in turning in his attendance records, and Howell often had to retrieve this, as well as other information, from Lynn. On one occasion during the fall of the 1989/1990 school year, when Howell had to get attendance records from Lynn, Lynn made comments that could reasonably be perceived as containing sexual innuendo and which were so perceived by Howell, such as "that's not all you can come and get." Also during the 1989/1990 school year, when Howell entered Lynn's classroom to get attendance records, Lynn placed his hands on Howell, in her buttocks area, put his arm around her waist, and around her arm, and touched her on the breast. These actions by Lynn, together with others the previous two years (see Findings 18 through 20, below), disturbed Howell so much that she asked not to be forced to get records from him anymore. When Heminger, the Pinellas Park Principal, heard about the incident, and heard that Erica Howell's parents had called the school to complain, she decided to refer the entire matter to Stephen Crosby, the Pinellas School System's Director of Personnel Services. Crosby began his investigation by interviewing Howell. Howell not only reported the incident during the fall of the 1989/1990 school year, but she also reported incidents which had happened during the 1987/1988 and 1988/1989 school years. 1/ During the 1987/1988 school year, Lynn gave Erica Howell and a foreign exchange student a ride to Howell's home, but instead of going directly home, Lynn took a circuitous route of great length, which concerned Erica Howell and caused the exchange student to cry. During the 1988/1989 school year, when Howell, acting as an office assistant, went to Lynn's classroom to ask for attendance reports, Lynn, in the presence of the students in the class, made remarks that could be reasonably construed as containing sexual innuendo, and which were so perceived by Erica Howell. For example, when Howell asked if she could have the attendance report Lynn would say: "That's not all you can have." On another occasion during the 1988/1989 school year, Lynn overheard Howell and a friend talking about "making connections" with boys during an upcoming weekend. Lynn commented: "I'll be your connection any time." Howell then gave Crosby the name of a friend named Laura Mackie, (DOB 4/6/72), also a former student of Lynn, and reported what Mackie had told her. Crosby next interviewed Mackie. 2/ During the 1987/1988 school year, Lynn put his arm around Mackie, including around her waist, and on one occasion patted her on the buttocks with his hand. Laura Mackie was disturbed by this patting of her buttock by Lynn, and told her friend, Melissa Logue, as well as her track coach. Crosby also received information that both Lynn and Biafore had been dishonest in their statements about what had occurred during the preceding year. Crosby's new information was that Lynn and Biafore had left campus without permission on approximately ten occasions, not just the one or two occasions to which they had admitted. Also, he received information that Lynn allowed Biafore to be in his classroom when she was assigned to another class on numerous occasions and at different times during the day. When she was there, in the presence of the students assigned to his class, Lynn would allow her to sit on his lap, to hug and kiss him, and to call him "daddy." He would call her "sweetie cakes," or other terms of endearment, and would give her cigarettes. (See Finding 12, above.) Crosby next confronted Lynn with the allegations of Howell (see Findings 14, 15, 19 and 20, above) and Mackie (see Finding 22, above) and with the allegation that he in fact had left campus with Biafore on numerous occasions. Lynn denied the allegations and said he could prove that he did not leave the campus with Biafore more than once or twice. Crosby next interviewed the female students who were in Lynn's classes during the fall of the 1989/1990 school year. 3/ During the 1989/1990 school year, a female student named Jennifer Stroyan, (DOB 7/8/75), was adjusting her hair with one hand, while holding books with her other hand, when Lynn put his arm around her, under the arm with which she had been adjusting her hair. Lynn's hand touched her breast, and Stroyan removed Lynn's hand from her breast by a downward motion of her arm. This action by Lynn caused Stroyan to be uncomfortable around Lynn and to lose respect for him as a teacher. During the 1989/1990 school year, a student named Shonyelle Sampson, (DOB 1/19/75), answered a question in class incorrectly, and Lynn told her to use her "fucking head." The effect on Sampson was that she stopped volunteering to answer questions in Lynn's classroom. During the 1989/1990 school year, Lynn was talking with a female student named Keli Jo Girard, (DOB 8/4/73). Noticing that she was wearing a boy's jacket, Lynn asked her if she had a boy friend. When she replied that she did, Lynn asked her if she was still a virgin. When she replied that she was, Lynn stated that it was good to "wait," and then said that he (Lynn) waited until he was 12 years old. During the 1989/1990 school year, Lynn rubbed the neck and shoulders of a female student named Tracy Peterson, (DOB 1/22/75), and, at one point, put his arm around her so far that his hand touched her breast. Lynn's conduct was so disturbing to Peterson that she told her mother, who advised her to avoid Lynn in the future. Lynn frequently used the initials "S.O.B." and "G.D.M.F." in class. He says that he used "S.O.B." as attention- getting way of referring to "state of being" and that "G.D.M.F." actually was part of "G.D.M.F.T.D.," which was supposed to stand for "golly dern, mighty fine, that's dandy." But several of his students were not aware that they were supposed to stand for anything other than the vulgar expressions commonly understood by those initials. Crosby next interviewed female students who had been in Lynn's classes at Pinellas Park High School during previous years. 4/ During either 1987/1988 school year or the 1988/1989 school year, Lynn frequently spoke to a female student named Leslie Kemp, (DOB 5/22/71), while she was in the company of her friend, Keyma Mitchell, and used sexually suggestive terms in the conversations, including asking Kemp to go to a motel with him, and once asking Kemp if she would like her body licked. On another occasion, Lynn patted Leslie Kemp on the buttocks, which action Leslie Kemp reported to Leroy Kelly, a Pinellas Park Police Officer assigned to Pinellas Park High School. On several occasions during the 1988/1989 school year, Lynn placed his arm around the waist of a female student named Helen Seefeld, (DOB 8/11/73). Lynn's actions made Seefeld feel uncomfortable. She did not perceive similar attentions being paid to male students. During the 1988/1989 school year, Lynn rubbed the neck and shoulders of a female student named Melissa Martinez, (DOB 3/16/73), while showing movies to his class or when she asked questions in class. This disturbed Martinez to the point where she stopped asking for assistance in class. Melissa Martinez also heard Lynn remark in class that the woman with whom he was living was satisfying all his needs, which comment was said in such a way as to be reasonably susceptible of being construed as containing sexual innuendo. During the 1988/1989 school year, Erica Thomas (DOB 2/13/73), heard Lynn use the word "fuck" out loud in class. Lynn also rubbed her back and shoulders, which disturbed Thomas to the extent that she asked Lynn to stop. Several times during the 1988/1989 school year, Lynn placed his arm around Keli Jo Girard closely enough that on at least two occasions his hand brushed her breast. On several occasions during the 1988/1989 school year, Lynn placed his arm around the waist of a student named Angela Garrett, (DOB 3/22/72). When he persisted in asking her to be his assistant, it made her nervous, and she tried to avoid Lynn. Also during the 1988/1989 school year, Lynn would walk about his classroom and stop to rub the neck and shoulders of a student named Amber Wilkinson, (DOB 2/10/71), who disliked it and would tell Lynn angrily under her breath to keep his hands off her. During the 1988/1989 school year, Lynn patted a student named Alison Davis, (DOB 7/12/72), on the buttocks on at least three occasions. It then occurred to Crosby that, although they had evidence of allegations of Lynn's improper use of sexual innuendo when he was at St. Petersburg High, they had no similar information during his tenure at Largo High School. Crosby located a Largo High yearbook and picked out a few female students from the grades Lynn taught who appeared to Crosby from their yearbook pictures to be attractive. 5/ While at Largo High School during the first semester of the 1986/1987 school year, Lynn touched his fingers to the chin of a female student named Lynn Smith, (DOB 9/26/71), and told her that she had a pretty face. On a separate occasion, the Respondent asked Smith to stay behind after class to pick up a paper. Lynn was sitting on the corner of his desk. As Smith came close to him, the Respondent quickly brought his legs together, stating that he almost got her that time. These two incidents made Smith very uncomfortable about Lynn as a teacher. Smith did not report either incident at the time because of her age and because she was nervous, but she is now glad the incidents are known. While at Largo High School, Lynn rubbed his hand on the cheek of another of his female students, Kim McGevna, (DOB 2/11/72), saying he did not believe that she was not wearing makeup. Kim McGevna told her mother, Jean McGevna, and her boy friend about Lynn touching her, and the comment that he made, and informed them that she did not like it. Jean McGevna told Lynn, over the telephone, that he had no business touching her daughter and that in the future he should keep his hands off her, and to speak to her only in the classroom and only about school work. Kim's boy friend expressed similar thoughts to Lynn when he and one or more of his friends approached Lynn after a basketball game in the school gymnasium. It is harmful to the learning process for a teacher to subject students to inappropriate touching or sexual comments. Such behavior by a teacher causes a student to lose respect for a teacher, thereby diminishing the teacher's effectiveness. Parents do not appreciate such behavior by a teacher towards their children, and therefore such behavior decreases parent support for the school. Honesty on the part of a teacher when discussing professional matters with administrators is important to the efficient operation of school. Dishonesty by a teacher is a breach of trust that diminishes the teacher's effectiveness. Neither Crosby nor any other school administrator confronted Lynn with the results of Crosby's further investigation (resulting in Findings 18 and 27 through 50), or the additional information regarding how often Biafore was in Lynn's classroom instead of where she was supposed to be (last two sentences of Finding 24) until the information was used as a basis for Lynn's suspension and the School Superintendent's recommendation that the School Board dismiss him. The Respondent has been a teacher for over fifteen years, the majority of the time teaching English. Except for the evaluation at St. Petersburg High that "improvement [in `judgment' was] expected," Lynn received all "excellent" and "good" evaluations during his teaching career. He never before has been terminated from a teaching job and never has been transferred in lieu of firing. Lynn is a friendly, outgoing, "arm-around" type of teacher, to both boys and girls, without the majority of them perceiving any sexual overtones by his general open nature. It is common for Lynn to place his hands on the neck, shoulder and waist of both boys and girls, and he does this openly, in front of others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the School Board of Pinellas County, enter a final order dismissing the Respondent, Larry Lynn, as a teacher at Pinellas Park High School. DONE and ENTERED this 10th day of April, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 10th day of April, 1990.
Findings Of Fact Countrywide Funding Corporation (Countrywide) is a mortgage company, with a home office in Pasadena, California, and branch offices throughout the country. It employs substantially more than fifteen persons, full-time. Wanda Faye Oliver (Faye Oliver) was hired by Countrywide as Branch Manager for its Winter Park, Florida branch on April 28, 1986. Her duties were to market loans for the company, supervise the underwriting and generally supervise the office. At the time of hire, she had a Florida mortgage broker's license and experience as an office manager and branch manager with another company, as well as experience processing loans. Ms. Oliver's starting salary was $32,000 a year. The office under Ms. Oliver performed well, and in April, 1987, she received a special base salary increase to $36,000 annually. The letter awarding the increase congratulates her for hard work and acknowledges her as the leader in the Florida operation. The salary increase was for her increase in production. (Petitioner's Exhibit #1). Several events occurred around April, 1987, to impact the Winter Garden office. Dave Erbst, the individual who hired Oliver and her immediate supervisor in California, was replaced by George Shipman. The local office began having trouble communicating with its home office. Telephone calls were returned a day or two later, and in one instance George Shipman approved a loan that had been denied by the Winter Garden female underwriter without discussing it or informing her in advance. Later, when a male underwriter was hired, George Shipman would talk with him, but not Ms. Oliver. Ms. Oliver complained about the communication problems and about not receiving timely logistical support, such as broker loan kits needed for the approval of additional brokers. In April, 1987, the company opened an office in Atlanta and form letters were sent to approved brokers, including those with whom the Winter Park Office had worked, inviting them to work with the Atlanta office. The new office began closing loans that the Winter Park office had "locked in". In May or June, 1987, Faye Oliver received a satisfactory (average) performance evaluation. She called Shipman and asked to discuss it, as she wanted to explain what she was doing, but he never contacted her about it. In the early summer of 1987, interest rates rose and the market in general decreased. Production at the Winter Park office decreased below its goal of at least $3 million. Production in other wholesale offices of Countrywide substantially decreased as well. In the middle of August, 1987, Rick Cossano was hired by Countrywide as Vice-President in charge of production. He worked out of the Pasadena office and reported to George Shipman. His responsibility was to work with the branch managers to increase production. On August 30, 1987, Countrywide ran a blind advertisement in the Orlando Sentinel newspaper seeking a Director of Broker Operations to "take over the reins of our local broker operations." (Petitioner's Exhibit #11). Faye Oliver read the ad, recognized her job and called Rick Cossano, to find out what was going on. She had never been disciplined by the company and had never been warned or reprimanded. Although there had been discussions about closings that needed to be done to meet goals, there were no complaints about production. Rick Cossano had not heard anything about the advertisement and told Oliver he did not know what was going on. Later, he found out why the company was running the advertisement and he called Faye Oliver to tell her she was being replaced. He also told her the company did not want her to leave because she was a valuable asset and was needed to help run the Winter Park Office. Joe Brick was hired as Branch Manager of the Winter Park Office on September 23, 1987, at a salary of $42,000. At the time, he did not have a Florida mortgage broker's license, but had completed the requirements. He had been self employed as a mortgage consultant and had experience as a mortgage broker manager in Wisconsin. Faye Oliver was demoted without a reduction in pay. Her new title was Branch Operations Manager. She was told by Rick Cossano that she was to train Joe Brick in Countrywide's procedures and to help him with technical matters. She was also supposed to supervise staff, she thought, because Rick Cossano had told her that nothing would change with the demotion. On September 25, 1987, Faye Oliver sent a memo to Rick Cossano requesting a job description. She had only verbally been told of her status and she wanted to know what the demotion meant, since she was still on the same salary and was supposedly given the same duties. She never received a response or any explanation. She had to move to a different office because the new manager needed the office with a telephone. Her new office was physically removed from the rest of the staff and away from the telephones. The staff, at that time, was comprised of three persons, in addition to Ms. Oliver and Joe Brick. Those staff were aware of an attitude change in Faye Oliver but they had no difficulty working with her and they did not feel she was insubordinate or that their work was affected. They were sympathetic to her and felt she was more competent than her replacement. On October 2, 1987, a Friday, Faye Oliver was packing her books, for the fourth time, to move to an office where a telephone had been installed. It was the end of the day and the staff were standing around chatting. After the others left, Joe Brick closed the door and informed her to just keep packing and keep going, that she was being terminated by Rick Cossano's instructions. She was shocked, because, again, she had not been warned and she had relied on Rick Cossano's statements that she was to stay. She asked for a letter explaining the reason. The letter which Joe Brick typed while she packed, states: October 2, 1987 Ms. Faye Oliver C/O Countrywide Funding 2250 Lee Roda [Sic] Winter Park, Florida Dear Faye: Please let this letter serve as notice of termination of your employment by Countrywide. The termination is effective as of the close of business today. The decision to terminate is based upon business conditions and is not to be looked upon as a lay-off. The company does not intend that this be viewed as anything other than a termination. We wish you well in your future persuits [sic] and thank you for your efforts on behalf of Countrywide. Sincerely, Joseph K. Brick JKB/st cc: Rick Cossano Joe Brick was demoted some time later for failure to get along with people in the branch office. He eventually left the company voluntarily. George Shipman was terminated in December 1987. Rick Cossano was the only witness presented at hearing on behalf of the company. He claims that he and George Shipman made the decision to terminate Faye Oliver based on the recommendation of Joe Brick. On October 5, 1987, he sent a handwritten memo to the company personnel office, stating: Date: 10/5/87 To: Hedi Fm: Rick Cossano V.P. Re: Faye Oliver Termination Hedi - This memo is to clarify the termination of Faye Oliver. Faye was previously the Orlando Branch Manger. Due to lack of production, Faye was demoted to operations manager on 9/23/87. Faye's replacement (Joe Brick) was installed on 9/23/87. The new manager observed Faye's attitude deteriorate to the point of affecting other branch employees. Several verbal warnings were issued to Faye by the new manager. Faye was terminated on 10/2/87 due to her negative attitude. R. Cossano D.V.P. Rick Cossano did not personally observe Oliver's performance or attitude after the demotion. He relied on reports from the new manager, Joe Brick. His personal experience with Faye Oliver was limited, as he had only recently been hired. He stated that she complained about not getting support from the company, but he admitted that he never attempted to determine whether her complaints were justified. Rick Cossano claims that the decision to demote Faye Oliver was based on failure to increase production, and that the decision would have been made as much as four weeks prior to the action. The position to which Faye Oliver was demoted had not existed before, nor was it filled upon her termination. In 1987, the company replaced three women branch managers with men and one male manager with a female; in 1988, two male managers were replaced with females. No evidence was presented regarding the basis for the replacements or who at the company was responsible, although Cossano stated that he had terminated people for low production. Evidence regarding the company's basis for the series of personnel actions related to Wanda Faye Oliver is conflicting and confused. On the personnel form reflecting the April 1987 pay raise, the notation "restructure of division" appears under the heading, "Explanation". (Respondent's Exhibit #1) Yet the letter describing the raise relates it to Oliver's performance. Rick Cossano's explanation included different rates of increase for different employees. In August, 1987, shortly after his arrival at the company, Rick Cossano knew nothing about the proposed demotion when called by Ms. Oliver, but at the hearing, he based the demotion decision on her production. No written evidence of the reason for demotion was produced -- no personnel action form, nor notice to Ms. Oliver. The company did not explain the distinction between a "lay-off" and "termination" as those terms are used in Joe Brick's letter to Faye Oliver. Clearly, that letter conflicts with Rick Cossano's account of why she was terminated, allegedly also based on Joe Brick's recommendation. After her termination, Faye Oliver sought employment and was employed as follows: December 1, 1987 - Mortgage America - $30,000 April 30, 1988 annually April 1988 - Unemployed February 1989 February 1989 - Cataret Mortgate, commissions Only April 15, 1989 - approximately $2,500 - $3,500 April 18, 1989 - Disney World approximately present $13,900 annually When she left Countrywide, she had been making $36,000 a year.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered, finding Respondent guilty of an unlawful employment practice in its termination of Petitioner on account of her sex, and awarding back pay and reasonable attorney's fees in accordance with Section 760.10(13), Florida Statutes. DONE and ENTERED this 1st day of September, 1989, at Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2015 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact 1.-4. Adopted in paragraph 2. 5. Adopted in paragraph 3. 6.-8. Adopted in paragraph 7. 9.-10. Adopted in paragraph 4. 11.-12. Adopted in paragraph 9. 13. Adopted in paragraph 8. 14.-17. Adopted in paragraph 9. Adopted in paragraph 10. Rejected as unnecessary. 20.-21. Adopted in paragraph 16. Adopted in paragraph 13. Adopted in paragraph 14. Rejected as unnecessary. Adopted in paragraph 17. Adopted in paragraph 14. Adopted in paragraph 13. 29.-30. Adopted in paragraph 10. 31.-32. Adopted in paragraph 14. 33. Adopted in paragraph 15. 34.-35. Adopted in paragraph 20. 36. Rejected as irrelevant. Respondent's Proposed Findings of Fact Adopted in paragraphs 2 and 14. Adopted in substance in paragraphs 5 and 6. Adopted in substance in paragraphs 4 and 6. Adopted in paragraph 9. Adopted in paragraphs 9 and 11. Rejected as unsupported by competent evidence. The claims by Rick Cossano are contradictory. The first sentence is adopted in paragraph 13. The remainder is rejected as immaterial. Rejected as immaterial. Adopted in part in paragraph 18; otherwise rejected as unsupported by evidence. Rejected as contrary to the weight of evidence. COPIES FURNISHED: N. James Turner, Esquire Suite 104 17 South Lake Avenue Orlando, FL 32801 Thomas R. Peppler, Esquire P.O. Box 2807 250 North Orange Avenue Orlando, FL 32802 M'Liss Jones Kane, Esquire P.O. Box 7137 Pasadena, CA 91109-7137 Donald A. Griffin Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1925 Dana Baird, General Counsel 325 John Knox Road Bldg. F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Florida Commission on Human Relations Bldg. F, Suite 240 Tallahassee, FL 32399-1925 =================================================================
The Issue Whether respondent's Florida Teacher's Certificate should be revoked or otherwise disciplined on charges of professional misconduct, including gross immorality, acts involving moral turpitude, conduct which seriously reduces his effectiveness as an employee of the school board, intentionally exposing a student to unnecessary embarrassment or disparagement, exploiting a professional relationship with a student for personal gain, and failing to conform to standards of ethical conduct, in violation of Section 231.28, Florida Statutes, and Rules 6B-1.06(3)(e) and (h), and 6B-1.01(3), Florida Administrative Code.
Findings Of Fact Respondent holds Florida Teacher's Certificate 342171, covering the area of physical education. At all times material to the administrative complaint, respondent was employed as a physical education teacher at Lake Worth High School in the Palm Beach County School District. From 1973, when he joined the Palm Beach County School District, to the date of his suspension for the acts complained of in the administrative complaint, he was consistently rated to be a good teacher. His teaching ability and performance were not in question. He also maintained a close relationship with his students, frequently assisting them beyond the requirements of his job. On the afternoon of May 23, 1983, at approximately 2:30 p.m., respondent entered the K-Mart department store in Lantana, Florida, accompanied by his niece, Cathy Brown. While shopping in the store, he selected a 68-quart cooler, bearing a price tag of $43.58, then proceeded to the hardware department, where he selected a Black and Decker electric drill, bearing a price tag of $22.99. He left the hardware department and proceeded to the garden/patio area or Garden Shop. Before reaching the double glass doors separating the main building from the Garden Shop, he stopped and placed the large box (containing the 68-quart cooler) and the small box (containing the electric drill) on the floor at the end of an aisle approximately 30 feet from the double glass doors. Be then walked directly to the double glass doors opening onto the Garden Shop, and glanced in the direction of the checkout counter located at the Garden Shop exit. He then walked back past the cooler and electric drill, and proceeded into the appliance department where he met Cathy Brown. Ms. Brown had previously selected a package of hair curlers, bearing a price tag of $1.38. He and Ms. Brown briefly examined several items on a display counter in the appliance department, then returned to the place where he had placed the cooler and electric drill. He picked up these two items and proceeded to the Garden Shop; Cathy Brown, who was carrying the hair curlers, accompanied him. Jeanette Grimes, a 17-year-old Lake Worth High School student, was--at that particular time--the cashier at the register located at the Garden Shop checkout counter. Ms. Grimes knew respondent. Be had been her physical education teacher for two years and basketball coach for one year. She considered him a friend. As respondent approached the checkout counter where Ms. Grimes was serving as cashier, he placed the box containing the cooler and the box containing the electric drill on the floor at the far end of the checkout counter, not on the counter itself. At that time there were customers at the checkout counter who were being waited on by Ms. Grimes. He and Cathy Brown walked away from the checkout counter and began looking at plants. After Ms. Grimes had finished checking out the customers at her counter, he and Ms. Brown again approached the checkout counter, where he engaged Ms. Grimes in conversation. At no time did he place any items on the counter for Ms. Grimes to examine and ring up. At that time she rang up a $1.00 item and a $5.00 item, totalled the transaction at $6.00, then rang up a $.30 tax, and totalled the transaction at $6.30. He handed Ms. Grimes $10.00 in payment for the merchandise. She mistakenly rang up $10.00 for an additional item of merchandise, voided the $10.00 item off her tape, and re-rang $10.00 as cash tendered. At that point the cash register opened and indicated that change in the amount of $3.70 was due. Ms. Grimes gave respondent $3.70 in change and a receipt for the transaction. During the course of ringing up the transaction, the items of merchandise remained on the floor at the end of the counter. Ms. Grimes did not pick up the items and examine them for a price tag while ringing up the amounts. Upon the completion of the transaction, Ms. Brown engaged Ms. Grimes in conversation. Ms. Brown handed to Ms. Grimes the box containing the electric drill and the package containing the curlers; Ms. Grimes placed the items into a bag which she gave to Ms. Brown. Respondent then picked up the box containing the 68-quart cooler and left the store, accompanied by Ms. Brown, who carried the bag containing the curlers and the electric drill. Both respondent and Ms. Brown were aware that they had not paid the full price for the merchandise, and that what they were doing was wrong. Mr. Frank Heim, K-Mart's Lobs Prevention Manager, (store detective) observed respondent's activities in the K-Mart continuously, from the time respondent selected the electric drill in the hardware department to his exit from the store. Mr. Heim observed the transaction at the checkout counter, then immediately proceeded to Ms. Grimes' register, examined the register tape, and proceeded to the parking lot to ask that respondent return to the store. Mr. Heim located respondent at his (respondent's) truck in the parking lot. Respondent had placed the cooler in the back of his truck and Cathy Brown was still holding the bag containing the curlers and the electric drill. Mr. Heim identified himself to respondent, advised him of a problem with the purchase which he had just made, and requested that he return to the store with the merchandise to clear the matter up. Respondent replied that he had paid for the merchandise and had a receipt, that it was not his fault if the cashier rang up the wrong prices. After some additional conversation, respondent removed the cooler from the back of his truck and accompanied Mr. Heim back to the store. Upon entering the store through the Garden Shop entrance, respondent placed the cooler on the floor just inside the entrance, then stopped and attempted to discuss the matter with Mr. Heim. Mr. Heim advised respondent that they could not discuss the matter at that location, that they would have to go to his office. As they approached Mr. Heim's office, respondent again stopped, placed the cooler and the bag containing the other two items on the floor, and stated to Mr. Heim that he was not going inside his office. Mr. Heim replied that they could not discuss the matter in the store, and that respondent would have to accompany him inside his office. Respondent replied that he did not have time to discuss the matter, that he was in a hurry and had to leave. Mr. Heim then advised respondent that he was not free to leave and that he was being detained for shoplifting. Respondent became agitated, stated "You've got your stuff back," and began walking away. Mr. Heim sought help from others, then blocked respondent's path at the glass doors between the main store and the Garden Shop. He told respondent not to make the situation worse by trying to leave the store, but respondent attempted to force his way by Mr. Heim. Mr. Heim grabbed him by the arm and a brief scuffle ensued. At that point, respondent ripped up his cash register receipt and discarded the remnants onto a display counter. Mr. Heim immediately retrieved the remnants and later Scotch- taped the pieces together. After respondent became calmer, he returned with Mr. Heim to his office. After entering the office, Mr. Heim advised respondent of his "Miranda" rights. Mr. Heim asked him for identification and asked him to empty his pockets in order to make sure he had no weapons. Respondent removed a total of approximately $22.00 from one of his socks while in the office. Respondent admits that at the time he entered the K-Mart store, he had only approximately $30.00 on his person. The total retail price of the three items, according to the price tags affixed to each, totalled $67.95. In response to Mr. Heim's questions, respondent continuously stated that it was not his fault that the cashier rang up the wrong prices and that he paid her the amount she rang up. Conflicting accounts of this incident were given by Mr. Heim and respondent. Taking into account Mr. Heim's detached and professional manner, and his lack of apparent bias or motive to falsify, it is concluded that his testimony is more credible than respondent's, and is persuasive. As a result of this incident, respondent was arrested and charged with the crime of retail theft. Based upon the circumstances described herein, Jeanette Grimes was fired by the K-Mart department store. She was also arrested and charged with the crime of retail theft. Jeanette Grimes' job at K-Mart was a requirement for one of her school classes, "Work Experience." As a result of her being fired, she failed the course. Respondent's effectiveness as a teacher was seriously reduced as a result of his conduct and the accompanying notoriety which it received in the community. The circumstances of his offense, his arrest, and his suspension from his teaching position, all received notoriety through publication of articles in three newspapers of general circulation in the Lake Worth community.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Education Practices Commission find respondent guilty of violating Section 231.28 and Rule 6B-1.06, as alleged, and revoke his Florida Teacher's Certificate. DONE and ENTERED this 4th day of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1984. COPIES FURNISHED: J. David Holder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 John Chamblee, Esquire 202 Cardy Street Tampa, Florida 33606 Donald L. Griesheimer, Executive Director Department of Education Education Practices Commission Knott Building Tallahassee, Florida 32301 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301
