Findings Of Fact At all times material hereto, the Respondent held Teaching Certificate Number 570975 issued by the State of Florida, Department of Education, covering the area of physical education. At all times material hereto, Respondent was employed by the Palm Beach County School Board and assigned to Santaluces Community High School. Incident to his teaching position at that school, Respondent also was one of the coaches for the male wrestling team and was a weight instructor. During the 1987-88 school year, Gina Marie Finnan attended the Respondent's third period personal fitness class at Santaluces Community High School. During the month of November, 1987, Finnan, then a sophomore born August 30, 1971, became a statistician for the school's wrestling team. As a statistician for the wrestling team, Finnan worked under Respondent and began to accept rides home from him following practice sessions and/or wrestling matches which were conducted either at the high school or at other sites within the community. The first physical encounter between Finnan and Respondent occurred at the conclusion of the Thanksgiving Sock Hop held at the school. Initially, Finnan had obtained possession of the Respondent's keys while they were in the school gym. The Respondent, in an attempt to obtain the return of his keys, made physical contact with her and ultimately ended up seated on the gym floor with his back resting against the bleachers and Finnan seated on his lap. With Finnan sitting on his lap, Respondent then placed his arms around her and kissed her. The only other person then present in the gym was Finnan's friend and classmate, Katherine Coffin. Coffin had been with Finnan for the sock hop and was prepared to proceed to lunch when she observed Respondent and Finnan "playing around" while fighting over Respondent's keys. During this time, several students attempted to enter the gym but were told to leave by Respondent. Respondent then went over and shut the doors to the gym, which caused the doors to automatically lock, thereby preventing anyone from entering the gym. Following this, Respondent and Finnan became silent, so Coffin walked around the bleachers and observed Respondent sitting on the floor with Finnan in front of him with her back to him. Respondent had his arms around Finnan. At that time, Coffin left the gym. Katherine Coffin did not feel that Respondent's conduct at the time was "right" for a teacher. The next time Respondent made physical contact with Finnan was near the end of November following a wrestling match on school grounds. At the time, all the equipment had been secured and the two of them were in the locker room Respondent kissed the student and touched her breasts and buttocks. This was followed by Respondent's offer to drive the student home. The student then called her mother to advise her that she need not come to school to pick her up in that Finnan had found another ride home. In route to the student's residence, Respondent parked his vehicle off the side of the road, and the two began kissing, with the Respondent "feeling" the student's breasts. This incident was followed by five or six other incidents when Finnan would accept rides home from the Respondent, and Respondent would kiss her and feel her breasts and buttocks. Shortly before the Christmas holidays, Finnan was approached by Respondent and advised that his wife would be away for the holidays and the student "should try to maybe stop by and see him and spend more time with him." Finnan solicited the help of another classmate, Robin Freedman, in hopes that she would help provide her with an alibi should the opportunity present itself for her to spend time with Respondent. This help consisted of Robin Freedman providing a "cover" for Finnan by telling Finnan's mother, should she call, that Finnan was there but unavailable to speak with the mother at the time. When Gina Finnan asked her to "cover" for her while she was visiting Respondent, Robin Freedman "didn't know what to say" in response to Gina's request so she went to her own mother for advice. During this time period, Gina Finnan received two letters from Respondent. Both of these letters were destroyed by Finnan, but, before their destruction, at least one of the two letters was shown to Katherine Coffin and to Robin Freedman. The one letter was described as a "fantasy letter" which talked about wanting to have sexual intercourse. Although the letters were not signed except for initials that did not correspond with those of the Respondent or Gina Finnan, Respondent, when questioned by Finnan, related to her that "it was in case anybody found them," and that Finnan was to throw them away.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the teaching certificate of Mark Miele be permanently revoked. DONE and ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 15th day of February, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-2841 Petitioner's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 16-18 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. The statements contained within the five unnumbered paragraphs of Respondent's proposed recommended order have been rejected as being contrary to the weight of the credible evidence in this cause. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Mark Miele 5350 Rosemarie Avenue North Boynton Beach, Florida 33437 Martin B Schaap, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399
Findings Of Fact Raymond J. Black is registered to fit and sell hearing aids in Florida and at all times here relevant he was so registered. He has been a registrant for several years, has been a dealer since 1976 and operates two offices, one in Tampa, Florida, and the second in Zephyrhills, Florida. Mr. Black spends most of his time in the Tampa office. Arvena Hines is the office manager in the Zephyrhills office and has managed that office for Respondent since about 1973. She has qualified for, taken and failed the examination for registration as a hearing aid specialist in Florida three times. Following her second failure her application for a third examination was initially disapproved, but after judicial proceedings were instituted she was authorized to retake the examination after again completing the trainee program. As office manager Ms. Hines was the supervisor of all other employees at the Zephyrhills office including hearing aid specialists and trainees. She received thirty-five percent of the profits on all hearing aids and hearing aid supplies sold in the Zephyrhills office. Other employees authorized to sell hearing aids received approximately fifteen to twenty-five percent commission on the sale of hearing aids depending on where the sale was made. In 1977 Arvena Hines pleaded nolo contendere in the County Court in and for Pasco County to the charge of fitting and selling a hearing aid without being licensed or registered to do so. Adjudication of guilt was withheld and she was placed on probation for six months. (Exhibit 16) In 1977 Respondent Black pleaded nolo contendere in the County Court in and for Pasco County to a charge of employing Arvena lines, an unregistered person, for the purpose of fitting and selling hearing aids. Adjudication of guilt was withheld and Respondent was placed on probation for six months. (Exhibit 14) In 1977 Respondent's registration was suspended for ninety days by Petitioner upon a stipulation of settlement in the revocation proceedings that had been referred to the Division of Administrative Hearings. In August 1979 Edward J. Greenough went into Respondent's Zephyrhills office accompanied by his wife for the purpose of having his hearing checked. He was waited on by Frances Wilkes who at the time was a trainee, Class III. Ms. Wilkes tested Greenough's hearing and then said Ms. Hines had to check the results because "she (Wilkes) didn't have her license. Although Ms. Wilkes testified that Ms. Hines conducted no tests or performed any services connected with selling or fitting a hearing aid on Greenough, the testimony of Mrs. Greenough that Ms. Hines repeated the testing procedure that had been done lay Ms. Wilkes, prepared the ear molds and subsequently fitted the hearing aid on Mr. Greenough, is the more credible. In October 1978 Margaret Lamb, an octogenarian, visited the Zephyrhills hearing aid office to see why her hearing aid was not "giving me success." Ms. Hines took an ear mold for her but a man conducted the audio test. Although Ms. Lamb exhibited some of the frailties of age her recollection of events was clear including the "terrific noise" that almost took her head off during the hearing test. That error left her somewhat confused and anxious to get out of the office. Robert Ayer visited the Zephyrhills hearing aid office of Respondent in December 1978 to have checked a hearing aid he had dropped. Ms. Hines waited on him, suggested he get a new "all in the ear" hearing aid, gave him a hearing test, and made an ear mold. When asked for a down payment on the hearing aid Ms. Hines said he needed, Ayer stated he had not expected to purchase a hearing aid that day and was unprepared to make a deposit. When Ayer returned to Zephyrhills after the new year he went to the hearing aid office, was told his hearing aid was in, and paid Ms. Hines $250. Exhibit 10 is the receipt for this payment. Jim Spear, a licensed hearing aid specialist who was working for Respondent at this time signed the audiogram (Exhibit 19) and testified that he conducted the hearing aid test done on Ayer December 11, 1978. Spear also denied ever seeing Hines sell or fit hearing aids or do any work in connection therewith. For several reasons Mr. Ayer's testimony is more credible than the conflicting testimony. Apart from the demeanor of the witnesses and personal reasons of the registrants for denying unlawful acts were committed by Ms. Hines in their presence and to their knowledge, Mr. Ayer is the precise and meticulous type of individual who keeps a diary of his daily activities, even in retirement. These diaries were in his possession at the hearing, and were shown to and perused by Respondent's attorney at the latter's request. No conflicts or omissions between the diary entries and Ayer's testimony were presented. Mrs. Maidee Carr's deposition was admitted as Exhibit 15. Mrs. Carr is a nonagenarian who was sold a hearing aid by Ms. Hines around December 1978 or January 1979. The audiogram was taken by a man (Jim Spear signed Exhibit 17, the audiogram taken on Mrs. Carr January 22, 1979), but Ms. Hines took the ear mold and Mrs. Carr gave Ms. Hines a check in full payment when the hearing aid was delivered to Mrs. Carr's home by Ms. Hines who then put the hearing aid in Mrs. Carr's ear. In January 1980 Douglas Yacinich, who had worked as a hearing aid salesman in Iowa for several years, visited Respondent with the view of employment when he moved to Florida. Respondent sponsored Yacinich's application for Trainee Temporary Certificate of Registration which was submitted January 28, 1980. Yacinich then returned to Iowa to settle his affairs. This application to enter the trainee program was approved in a letter dated March 26, 1980 (Exhibit 6). The application was approved effective March 24, 1980 (Exhibit 5), and Yacinich was issued a Certificate of Registration (Exhibit 23). At this time Yacinich was in Iowa and, according to his testimony, he moved to Florida around May 1980. Respondent submitted Exhibit 7 notifying Petitioner that Yacinich entered into the training program March 24, 1980, completed Stage I on April 24, 1980, and completed Stage II on June 24, 1980. Yacinich left Respondent's employ "around June or July" 1980 and has made no further effort to become registered as a hearing aid specialist. Yacinich set up an appointment with Mr. Chastain, a hearing aid user, and on May 9, 1980, did an audiogram on him (Exhibit 21). He also sold Chastain a used hearing aid the same day but it was not delivered until later. Mrs. Chastain gave Yacinich a check for part payment of the hearing aid on May 9, 1980, when the invoice for the hearing aid was prepared (Exhibit 12). This invoice does not contain the serial number of the hearing aid subsequently delivered to Chastain. When the final fitting of his hearing aid was made on June 2, 1980, Respondent accompanied Yacinich to Chastain's home and was present when the hearing aid was fitted by Yacinich. The testimony is conflicting whether Respondent was in the yard or in the room with Yacinich when the hearing aid was placed in Chastain's ear; However, it is clear that when Yacinich delivered the hearing aid to Chastain, Respondent was present. Respondent attributed the preferring of the charges against him, which are contained in the Administrative Complaint and Amended Administrative Complaint, to the animosity of Ralph Gray, the Administrator of the Hearing Aid Licensing Program in HRS, and to his belief that Gray has a vendetta against him. No evidence to support these beliefs was submitted other than Respondent's opinion. Respondent denied that he was aware that Ms. Hines ever took ear impressions in the Zephyrhills office on any of the complaining witnesses or that she ever performed any of those functions in dispensing hearing aids which require certification. Respondent acknowledged that Ms. Hines is manager of the Zephyrhills office and that she receives thirty-five percent of the funds coming into the office, and that salesmen are paid a commission of about twenty-five percent on the hearing aids they sell depending upon where the hearing aid is sold. Ms. Wilkes who does little work outside the office received a commission of around fifteen percent for those hearing aids she sold. Respondent testified that his belief that no audiograms were taken nor hearing aids sold by Ms. Hines was based upon the fact that the audiograms were signed by someone other than Ms. Hines and the word of these people that they conducted the tests. No evidence was presented to show the commissions paid to the various salesmen for the hearing aids dispensed to those witnesses who testified in these proceedings. Respondent allowed Yacinich to work unsupervised in the selling and dispensing of hearing aids before he had actually worked fur Respondent for thirty days. This determination is reached from the evidence that Yacinich was probably well qualified by his previous experience in Iowa, by Respondent's testimony that he considered Yacinich to have been in his employ since January 28, 1980, when Yacinich's application was submitted, and by Yacinich's testimony that he did not actually relocate to Florida until May or June.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact At all times material to this proceeding, Respondent was a music teacher at Lehigh. His primary areas of interest and teaching responsibility were vocals and keyboard, and he taught varying levels and types of chorus and piano/keyboard classes. Respondent also was very proactive in initiating and coordinating extra-curricular music programs and competitions for the benefit of his music students. Respondent received a bachelor's degree in music education, with a choral emphasis, from Florida A & M University (FAMU) in 2002. He completed a summer master's program at the University of Florida and received his master's degree in music education in 2010. Respondent is a certified educator in music, K through 12, meaning that he is qualified to teach music at all levels from kindergarten through 12th grade. Respondent has been employed by Petitioner since August 5, 2002, but has only been at Lehigh since the 2008-2009 school year. Respondent was the choral director at Dunbar High School for three years; music teacher at Orange River Elementary for one year; and music teacher at Orangewood Elementary for two years. Respondent testified that these frequent transfers were his idea, and there was no evidence to the contrary. Respondent testified that he left Dunbar High School because that school's music program downsized, and the school wanted to hire a music teacher whose emphasis was on band, instead of chorus, so he requested a transfer elsewhere and Orange River Elementary was what was available. Respondent testified that things did not work out there between the administration and him, so he transferred to Orangewood Elementary. However, Respondent did not feel challenged teaching music to elementary school students, and so he requested a transfer to Lehigh when the music teaching position opened up. Respondent testified that he believes his talents are best used in a high school setting, where he can work with talented singers and pianists to prepare them for college and professional careers. By all accounts, Respondent is a very talented musician. His performance evaluations show that he was generally considered a satisfactory teacher throughout his years in Petitioner's employ; some areas needing improvement tended to balance out with other areas in which his performance was above average. Petitioner's performance as a teacher is not in question in this proceeding. Instead, what is in question in this proceeding is Respondent's conduct with several female students. This matter first came to Petitioner's attention when Douglas McKeever, assistant principal at Lehigh, contacted Petitioner's Department of Professional Standards and Equity (DPS), which is responsible for investigating allegations of misconduct by school district employees and making recommendations to the superintendent as to discipline. Mr. McKeever informed the DPS that he had received information regarding possible inappropriate physical contact by Respondent with several female students. At DPS' direction, on November 3, 2011, Mr. McKeever conducted interviews of two students, P.P. and B.G., who alleged they were subjected to Respondent's inappropriate physical contacts, and one student, M.M., who was a witness to one student's encounter with Respondent. Mr. McKeever had these three students summarize what they told him in written statements. He provided this information to DPS. The students' statements were reviewed by DPS, and based on the seriousness of the allegations, Respondent was suspended with pay and benefits on November 7, 2011. Thereafter, the allegations were investigated by DPS' chief investigator, Craig Baker. Mr. Baker took the written statement of an additional student, C.R., who had been identified as someone who had allegedly been subjected to Respondent's inappropriate contacts, but who had not been present when Mr. McKeever conducted the initial student interviews. As part of his investigation, Mr. Baker made inquiries to identify any other alleged victims or witnesses. After the investigation was completed, a pre- determination conference was held on December 7, 2011, at which Respondent was given an opportunity to present his side of the matters described in the student statements, which were provided to him. Respondent was represented by counsel at that conference. The results of the investigation and pre-determination conference were then reviewed and discussed by the school district's chief human resources officer, the head of the DPS, other human resources staff, and counsel for the school district, to formulate a recommendation. The recommendation was to terminate Respondent. Respondent was informed of the recommendation and was advised that he was suspended without pay or benefits, effective December 19, 2011, pending a final determination as to whether Respondent would be terminated. The Petition for Termination of Employment sets forth the alleged conduct by Respondent on which Petitioner relies to establish the charges of misconduct in office and policy violations. The alleged misconduct involves three different students; the findings with respect to the allegations for each student are addressed in turn below. P.P. P.P. is a 15-year-old female. In the 2011-2012 school year, P.P. was in the tenth grade at Lehigh. Respondent testified that P.P. was "one of the best singers." As a ninth- grade freshman during the 2010-2011 school year, P.P. took Respondent's beginning chorus class. There were approximately 20, mostly-freshmen, students in this class, about three-quarters of whom were female. During that first year in Respondent's chorus class, P.P. sometimes would feel like she was being watched and would notice Respondent staring at her. She also observed him "checking out" other girls. The manner in which P.P. saw Respondent looking at other girls gave her discomfort, because she thought Respondent should not be conducting himself that way. As the 2010-2011 year progressed, when P.P. would get that feeling that she was being stared at, she would look up and catch Respondent looking down the v-neck of her shirt; P.P. always wore v-neck style shirts and blouses. When P.P. looked up at Respondent, he would look away. This bothered her. Respondent denied ever trying to look down P.P.'s shirt or blouse; however, he specifically recalled that she would wear v-neck type shirts and blouses. P.P. is a friendly, outgoing young lady, and as she acknowledged, it is not unheard of for her to hug a teacher. Respondent testified that while he may have hugged P.P. during her first year, there were not hugs every day, like the frequency of hugs between them in P.P.'s sophomore year. Consistent with that testimony, P.P. testified that when she began her sophomore year at Lehigh, she noticed a difference with Respondent. As she described it, she would get hugs from Respondent, but those hugs were not like other hugs. When Respondent hugged her when they were both standing, he would grab at a lower altitude than normal, considering he is taller than her, with his hands dropping down from her lower waist to the edge of her pants. These low-altitude hugs made P.P. feel uncomfortable. The hugging between P.P. and Respondent took place in his office, in the big classroom at the piano or the projector, or at the classroom doorway. There were other students around most of these times, but not for those hugs taking place in Respondent's office. P.P. described the hugs Respondent would give her in his office when he was seated and she was standing. According to P.P., Respondent would put his arm around her at a relaxed stance, "over my butt," instead of reaching his arm upward to account for their differing heights with him seated and her standing next to him. Then, when he would release back out of the hug, she would feel his hands brushing over her buttocks. Though the impropriety of these "hugs" is obvious from P.P.'s description of them, P.P. said that she was not sure if Respondent was "intentionally improperly touching" her. Respondent freely admitted hugging P.P. and others. As Respondent put it, he is "a hugger." Though there was some disagreement as to whether Respondent always initiated the hugs with P.P. (as P.P. testified) or whether Respondent only sometimes initiated the hugs with P.P. (as Respondent admitted), it was clear that there was frequent hugging going on between P.P. and Respondent during the few months of P.P.'s sophomore year prior to Respondent's suspension in November. Additionally, though there was some disagreement as to where Respondent placed his arms and hands during all of these hugs, Respondent acknowledged that he could have made "coincidental contact" with lower waists, buttocks, or other parts while releasing from hugs. P.P. described an incident that took place in October 2011, at school, in the evening after she attended a performance of The Fantasticks. Respondent was also at school after hours, as were many others, because Respondent was coordinating an all-county music competition that took place on the same evening as The Fantasticks. According to P.P., she had seen Respondent earlier that evening when she and others were milling about at intermission. There were concession stands set up by parents and other volunteers, but P.P. did not have any money. Respondent was walking by with some chips in his hands and asked P.P. if she was hungry. She said no, she was going home for dinner later. After the show, she left the "Black Box Theater," where The Fantasticks show was performed, and parted ways with her friend so she could go down the outside corridor to the parking lot where her grandmother was picking her up. P.P. ran into Respondent, and he again asked her if she was hungry and if she needed a ride home. She said that she had a ride and was going home to dinner. At that point, he hugged her in a way that she felt was even more out of the ordinary than his other hugs. He had his arms around her waist and then he moved his hands to her belt area and gripped her tightly. This hug lasted for five-to- ten seconds, until someone came out of another door and then he released her. Respondent admitted the core facts of this encounter, but disputed some of the details. According to Respondent, he was under the misimpression that P.P. had been helping him with the all-county music competition, which is why, he said, that he went up to her to hug her when he saw her leaving. Thus, he admitted to having initiated this hug, but claims it was a simple "thank-you" hug. Respondent denied any belt-gripping or tight grabbing. He thought that the hug lasted for more like two-to- three seconds, not five-to-ten seconds. Whether the hug lasted two, three, four, or five seconds, that is a long hug that could fairly be described as more of an embrace than the sort of split-second pat-hug that might be viewed as a handshake equivalent and that one could arguably accept as not beyond the bounds for a teacher. Between the time of his pre-determination conference and the final hearing, Respondent added a few details that would have been material, but inexplicably were missing from his early version of events. One new detail added by Respondent at the final hearing, which he did not offer at the pre-determination conference was that there were a lot of other people around when he hugged P.P. on the evening of The Fantasticks. He admitted that this fact was important and had no explanation for why he would not have offered this information at the pre-determination conference. Moreover, despite offering the testimony of several supportive witnesses, including two who confirmed they were concession volunteers that evening, there was no witness to testify that he or she was one of the "many people" around to see Respondent hugging P.P. The other embellishment of this incident at the final hearing was Respondent's new claim that his hug with P.P. on the night of The Fantasticks was the last time they hugged, because he "told her that it wouldn't look appropriate."2/ Respondent testified that "it concerned me that P.P. would think it was more than--more to our interaction than was there." Respondent's only explanation for failing to mention this detail at his pre-determination conference was: "I thought about it, but I didn't think, you know, I needed to go into more detail. I would go into more detail here, if we had come to it." Respondent's testimony, offering new details about this incident that he did not provide in December 2011, was not credible. It is not credible that Respondent would have held back material details at the pre-determination conference, which was his opportunity to tell his side of the story before the decision was made whether to initiate disciplinary action. Respondent's failure to provide what would have been material details at a point when those details may have affected the decision regarding disciplinary action, suggests that those new details are not true and were made up to bolster Respondent's story. Respondent urges that P.P.'s allegations should not be believed, because she never told Respondent that she was uncomfortable with their hugs. Respondent suggests that if P.P. were truly uncomfortable after her freshman year, she never would have enrolled for advanced chorus for the 2011-2012 school year because his class is an elective.3/ P.P. never told Respondent that she did not want him to hug her and never expressed her discomfort to him. P.P. explained that she felt like she was supposed to trust her teacher, and she would feel uncomfortable saying something to him because she would feel even more uncomfortable every time she saw him after that. Acknowledging, as Respondent does, that P.P. was one of the best singers at Lehigh, it is understandable that after her freshman year, P.P. would have enrolled in Respondent's advanced chorus class, despite her discomfort. While chorus may have been technically an elective, there were no other options besides taking Respondent's classes for talented singers wanting to pursue their area of interest and talent. M.M., a 15-year-old female sophomore who was a friend of P.P.'s, was an eyewitness to one of Respondent's improper hugs with P.P. M.M. is a quiet, soft-spoken student who took Respondent's chorus classes as a freshman and as a sophomore. M.M. testified that she saw Respondent hug P.P. with his hand on her buttocks. She did not think much about that until, in conversation with P.P. and B.G, P.P. was describing an incident outside the classroom when Respondent had pulled her close and grabbed her buttocks, when B.G. piped up that that had happened to her, too. That is when M.M. told P.P. and B.G. that she had seen Respondent hugging P.P. and grabbing her buttocks. M.M. also said that C.R., a senior, told M.M. that she also had something happen with Respondent. After this discussion, M.M. went home and told her stepmother what P.P. and B.G. had said about Respondent, what M.M. had observed, and what C.R. had told her about Respondent. M.M.'s stepmother contacted Lehigh to report the matter. Immediately thereafter, on November 3, 2011, M.M., P.P., B.G., and C.R. were called down to the assistant principal's office. The assistant principal, Mr. McKeever, separately interviewed M.M., P.P., and B.G.; C.R. was not in the class when she was called. Mr. McKeever had the three girls write down what they told him in the interviews. The students were separated throughout this interview-statement process. M.M.'s written statement is consistent with her testimony, that she witnessed Respondent hugging P.P. in Respondent's office about two weeks earlier (i.e., approximately October 20, 2011), and that she saw "Mr. Sparrow growp [sic] P[.]'s butt while hugging her."4/ M.M. testified that Respondent never hugged her or made any other overtures toward her. M.M. said that she and Respondent were not close at all. In his pre-determination conference, Respondent characterized M.M. as "noble." By this, he meant that M.M. may have offered to support the allegations of P.P. and B.G. to help them out and be their friend after seeing the other students treating P.P. and B.G. badly after their allegations against Respondent came to light. However, M.M.'s statement came before any allegations against Respondent came to light; indeed, M.M. was the catalyst for the information coming to light by telling her stepmother, who reported the matter to the school. Trying another tack to cast doubt on M.M.'s testimony, Respondent suggested that perhaps M.M. was just looking to share in the spotlight by testifying against him. He added that M.M. had academic troubles in his keyboard class and was not a very good student. However, M.M. transferred to a different school shortly after Respondent was suspended and was not at Lehigh any longer when she testified in this case. Respondent's attempts to discredit M.M. were ineffective. B.G. B.G. is a 15-year-old female, who was P.P.'s best friend and a fellow sophomore at Lehigh in the 2011-2012 school year. From the first time B.G. met Respondent in her freshman year taking his beginning chorus class, B.G. observed that Respondent looked at girls in ways she thought were inappropriate for a teacher, such as "checking them out" when they turned away or staring at girls' chests when standing together talking. B.G. did not discuss her observations with P.P. that year. However, she did tell her mother. Besides B.G.'s observations of Respondent looking at female students inappropriately, there was nothing else about Respondent's conduct that caused B.G. concern that first year. B.G. described an incident with Respondent occurring on October 31, 2011, that made her extremely uncomfortable. Since this incident was so recent at the time B.G. and the others were interviewed and wrote statements on November 3, 2011, B.G. was able to provide a very detailed description and repeated the same details in her testimony in this case. Respondent acknowledged the incident and admitted many of the details. B.G. had to see Respondent after class to obtain a signed pass authorizing her absence from class a day or two earlier. The bell had rung, and B.G. was waiting at his office while he finished up with other students. After everyone else had left the classroom, Respondent went into his office and sat at his desk. B.G. stood in the doorway while he signed the pass. Respondent then told B.G. to "come here," directing her to stand next to him while he remained seated. B.G. had a large book bag hanging from her right shoulder, and she stood next to Respondent's left side. Respondent then reached his arm under her book bag and touched her buttocks on the way to stretching his arm under her book bag to encircle her around her lower waist area. That made her very uncomfortable. She thought maybe Respondent touched her buttocks by accident; however, that was somewhat difficult to accept because as she made clear, "it was not a brush past. It was like reaching around and like touching as you're going." Respondent, with his arm around B.G., started talking to her about a piano performance she had that morning at which she had gotten nervous. With Respondent's arm around B.G., he told her that she needed to get over that if she wanted to be a performer some day. Then Respondent retracted his arm, pulling it back under her book bag. This time, he "kind of grabbed as he went"--"it was pretty much a firm grasp all the way back around." This made her extremely uncomfortable and she did not know what to do, so she gave a nervous laugh. As she noted at that point, if it had been an accident, she would have expected him to quickly apologize and back away, but that did not happen. As she stated, "But if you think about it, most people, most teachers wouldn't hug a student anyways." Nonetheless, like P.P., B.G. testified that she honestly could not say that Respondent's intention was to do something inappropriate. B.G. left to go to her next class, but was preoccupied thinking about what had happened, worrying about what she was supposed to do, and talking to a boy sitting next to her about what had happened and what he thought she should do. She was concerned about whether she should report the incident to an administrator, because, as she put it, she did not want to ruin Respondent's life. B.G. told her mother about this incident that night or the next night. They discussed whether B.G. should report the incident and that it was a big deal that could ruin his life. B.G. also told M.M. about the incident and M.M. told her stepmother, who reported the matter to assistant principal McKeever, triggering the investigation that led to this proceeding. Respondent acknowledged the October 31, 2011, encounter in his office, alone, with B.G. He admitted that he was the one who asked her to come stand next to him while he was seated and that he put his arm around her despite the fact that his arm would have been aligned with her hips and rear end. His rationale was that he thought she needed comforting while he talked with her about getting nervous at her piano performance. However, it was not as if she came to see him about the performance or said anything to indicate she was upset about it when she came to his office--she just needed him to sign her absentee pass. Respondent initiated the proximity, then brought up the subject of the piano performance after he had already engaged B.G. in the "comfort" grip that did anything but comfort her. At Respondent's pre-determination conference, he admitted that B.G.'s statement describing the setting was accurate, including the fact that he was seated at his desk and beckoned her to come stand next to him, the fact that she had a book bag on her shoulder, and the fact that he reached under her book bag to put his arm around her waist. While Respondent did not admit to having purposely grabbed or touched her buttocks, he admitted that he had to get his hand back, and in pulling his hand down from B.G.'s waist and out from under her book bag, he could have brushed or touched her buttocks. Indeed, it may have been physically impossible for Respondent to retrieve his arm from across B.G.'s body and under a large book bag without his hand sliding across her buttocks. At the final hearing, four months after the pre- determination conference, Respondent modified his story regarding the October 31, 2011, incident with B.G. Respondent testified at hearing that he did not put his arm around B.G.'s waist; instead, he said that his hand was perhaps at the small of her back. Of course, from B.G.'s description, with which Respondent agreed at the pre-determination conference, the small of B.G.'s back was probably covered by her book bag. Therefore, Respondent also changed the part of his story where he had agreed with B.G.'s description that Respondent snaked his arm under her book bag. At the final hearing, he claimed that he did not reach under the book bag, because he remembered that her book bag was on her left side. Respondent reiterated that "[i]f there was any incidental contact [with her buttocks], that's what it was, in passing." Respondent's changed story was not credible. As described three days after the incident by B.G., confirmed in her testimony and confirmed in all salient respects by Respondent's admissions in the pre-determination conference, Respondent's physical contact with B.G. on October 31, 2011, was intentional and clearly inappropriate. Respondent's attempt to change the story supports the finding that he acted intentionally. Respondent attempted to eliminate the facts showing that he put himself in a position that virtually assured that his hand would have to slide across B.G.'s buttocks at least twice, once on the way out to the left side of her waist and once on the way back. Respondent's improper touching was distressing to B.G. and understandably so. B.G. described one other time earlier in the 2011-2012 school year when Respondent touched her in a way that made her uncomfortable. This incident occurred while B.G. was sitting at a piano practicing, alone, in one of the small piano practice rooms. Respondent came in and reached over her shoulders to put his hands on the keys, which he had done several times before, to demonstrate how to correctly play the piece she was practicing. In this position, his upper arms were touching her shoulders. After about ten seconds of demonstrating on the piano keys, he brought both arms back, and while doing so, his left hand touched the area of her chest right above her left breast and then continued up onto her shoulder. B.G. said that Respondent did not actually touch her breast, but it was close enough to make her feel uncomfortable, especially in such a small room with him standing right behind her and no one else there. The door to the piano practice room was open, and Respondent's hand encounter with the area above B.G.'s left breast was witnessed by C.R., who had walked by and looked in the room because she was looking for Respondent. B.G. told her mother about this incident in the piano practice room, but did not tell anyone else. B.G. did not mention this incident in her written statement, because her focus was on what she considered the more significant incident, when Respondent did not just come close to touching a private body part; he actually grabbed her buttocks, not once, but twice. When asked if she had witnessed any conduct of Respondent's with another student that she considered inappropriate, B.G. referred to the way he would always hug P.P. B.G. testified that she never saw Respondent hug other students. B.G. did not ever witness any inappropriate interaction between C.R. and Respondent, but C.R. told her about things. Lehigh has been an uncomfortable place for B.G. since Respondent was suspended in November 2011. A group of students have banded together to support Respondent, even going so far as to discuss making up "Free Sparrow" tee-shirts to wear in protest of his suspension, but they abandoned that idea when Respondent told them that they could get in trouble if they did that. There has been a lot of animosity directed to the three girls--P.P., B.G., and C.R.--who gave the interviews and statements reporting incidents of Respondent's inappropriate conduct with each of them. B.G. testified that she and the others have been accused of lying, and she cannot understand why. Even though apparently everyone knows the details of what Respondent was accused of, B.G. has not discussed the details with others, and if asked by others about the details, she has denied them because she was told she should not discuss the subject with anyone. C.R. C.R. was a 17-year-old female senior at Lehigh for the 2011-2012 school year; by now, she has graduated. She was a vocal major and took many classes over the years in chorus and piano, which were her musical areas of interest. C.R. did not attend Lehigh as a freshman, but has been there for three years and took Respondent's chorus and keyboard classes in each of her three years. C.R. did not know P.P., B.G., or M.M. before her senior year, when they were in Respondent's advanced chorus class together. The three sophomore girls described C.R. as more of an acquaintance than a friend. C.R. got along fine with Respondent and had no problems with him or his conduct in either her sophomore or junior years. By the end of those two years, C.R. had grown comfortable with Respondent, as he had been her music teacher for a while. In C.R.'s senior year, she had four classes with Respondent: two different keyboard classes, AP music theory, and advanced chorus. According to Respondent, because C.R. had two keyboard classes, he often used her as his aide during the second keyboard class, because she had already learned what she needed to in the first class. Respondent would have C.R. do copying, run to the library, and clean his office. Unlike in her first two years at Lehigh, in the first few months of her senior year, C.R. experienced numerous problems with Respondent, including improper physical contacts and inappropriate comments by Respondent. C.R. described multiple encounters with Respondent while she was playing the piano or keyboard, either in the private piano room or another practice room. At first, C.R. would be seated in a chair at the piano or keyboard playing, and Respondent, while standing, would reach one hand to the keys to show her the proper position and would rest his other hand on her chest area, below her shoulder and above her breast. When this first began in the early part of C.R.'s senior year, Respondent's "resting" hand would be towards the upper part of her chest, closer to the shoulder, but with each successive time, his hand went further and further down until it was resting on her breast. C.R. estimated that she was touched inappropriately this way by Respondent more than ten times in the first few months of the 2011-2012 school year until Respondent was suspended in November. C.R. testified that about halfway through the progression of these keyboard incidents, she was walking by the door to the piano practice room and saw through the door that Respondent was engaged in a similar hand-to-chest area encounter with B.G. Afterwards, C.R. approached B.G. and told her that Respondent does the same thing to her. C.R. said she wanted B.G. to know that she needed to tell someone because she was only a sophomore. When asked why C.R. did not tell Respondent to stop, she said, "I wouldn't know how to approach someone like that. I wouldn't, I wouldn't be able to tell you please don't touch my breast. It would make me very uncomfortable. I would rather just suck it up and deal with it." Respondent's description of his keyboard encounters was somewhat different than C.R.'s and B.G.'s descriptions, but he admitted key parts of those descriptions. Respondent explained that he frequently assisted his keyboard students while they are seated in a single chair at a piano or keyboard. Respondent chooses to remain standing, instead of pulling up another chair. Respondent emphatically denied standing behind his students; he claims to have always stood next to the playing student. However, Respondent admits that he would reach over the student (from the side) and lean over to the keyboard to demonstrate with one hand how to position the fingers on the keys. Respondent also admits that providing assistance this way puts him in a precarious position, so that he has to use his other hand to brace himself on the student's shoulder. Respondent said that he puts his hand "on their shoulder that's nearest me or on the shoulder that's on the opposite side of me," which means that Respondent would put an arm around the playing student, a strange way of bracing himself with his hand on their far shoulder. Thus, Respondent admits regularly touching C.R. and B.G., and presumably all of his other keyboard students, with his hand braced on their shoulders for the duration of the piece the student is playing. The only part Respondent disputes is the hand slippage from its shoulder perch down to the chest area in B.G.'s case, and still further down to the breast in C.R.'s case. However, C.R.'s and B.G.'s testimony was otherwise undisputed, and each of their stories was corroborative of the other's. Respondent's denial was not credible. In addition to the keyboard encounters, on multiple occasions in the few months before Respondent was suspended, C.R. would go to see Respondent in his office and he would ask her to come stand by him when he was sitting at his desk. When C.R. complied, Respondent would wrap his arm around her waist and rub or stroke her buttocks and thigh, while showing her something on the computer or telling her something he wanted her to do. C.R. estimated that these office encounters occurred ten or 15 times, until C.R. started trying to avoid going to his office or ignore his requests to come stand next to him. C.R. also began leaving Respondent's classroom between classes, instead of just staying in the room where she also had her next class with Respondent. To avoid encounters with Respondent between classes, C.R. would wait in the bathroom until students for the next class would arrive, and then she would join them for her next class. When asked whether she knew if Respondent intentionally touched her inappropriately, C.R. responded: "I think if a man touches you on your breast and on your hips and boob and your butt that he is being inappropriate." Once again, Respondent admitted frequent encounters with C.R. in his office, because, after all, he put her to work cleaning it and running errands for him. In addition, Respondent admitted that he would make physical contact with C.R., putting his arm around her while she stood next to him when he was seated at his computer. Once again, Respondent's description of these encounters stopped a bit short of C.R.'s version. According to Respondent, he would reach his arm (awkwardly) around and upward so that he could pat C.R. on her back for emphasis as he showed her something on the computer or showed her paperwork that he wanted her to copy. Once again, Respondent testified that although it was possible that his hand had an accidental encounter with C.R.'s buttocks, any such accident was just that-- accidental. C.R. also described Respondent's inappropriate conduct one day in her AP music theory class, in the presence of four or five other students. On that day, any time C.R. had a question or needed help, Respondent made her hug him before she could ask her question. Respondent also kissed her forehead when she answered a question correctly. She found this behavior objectionable. Respondent did not address this aspect of C.R.'s testimony, which stands unrebutted. C.R. also recounted her discomfort with Respondent's running brassiere commentaries. This string of incidents started during homecoming week, when there was a celebrity dress-up day on which C.R. went to class wearing an outfit that featured a neon-colored bra. Respondent made a joking comment, saying something like, "C., why is your bra so bright?" C.R. did not take this comment in the wrong way, because Respondent said it jokingly. What bothered C.R., however, was the progression of Respondent's brassiere comments and touchings that followed after that day. For example, when C.R. wore a low-cut or v-neck shirt, Respondent stood above her and looked down her shirt, and made comments such as, "I'm glad you're not wearing your neon bra today"; or "this bra is much nicer." Once when C.R.'s bra strap was showing, Respondent pushed the bra strap over and repeated one of the comments about the color of her bra. Respondent gave a slightly different story. He testified that after the neon bra joke, on another day when C.R.'s shirt had slipped and exposed her bra strap, he moved her shirt to cover up the bra strap, while commenting that he was glad she was not wearing the neon bra today. Respondent's version is almost as bad as C.R.'s description. Respondent has no business rearranging clothing of his female students in such a personal manner, nor commenting on their intimate apparel. Respondent often gave nicknames to his students, naming them some kind of "smurf" that suited them, such as "good singer smurf." C.R. described an encounter with Respondent that bothered her, when he pushed up the bottom part of her shirt in the back and said, "We should call you "love handle smurf." Finally, C.R. described what she thought was the final incident with Respondent before his suspension. This incident occurred in the piano room. C.R. had gone in the room between classes when no one else was there. She was tired from soccer practice, so she moved several chairs together so they were touching. She laid down across the seats, which formed a kind of bench. Her shirt had ridden up so some of her waist was exposed, though she had a jacket on over it. Respondent came into the room, pushed up her jacket, and started rubbing her waist and sides. C.R. was uncomfortable so she jumped up, said she had to go do something, and walked out. Respondent admitted that he found C.R. lying down as she had described. Respondent testified that he used his hands to rhythmically beat on her back as he told her to get up, that it was time to get to work. Respondent denied pushing up C.R.'s jacket and he denied that his hands made contact with her skin. Respondent offered a new fact at the final hearing regarding this incident that he did not mention at the pre- determination conference. According to Respondent, after he had been beating on C.R.'s back, she commented, "oh, this feels better than my boyfriend. And at that point I stopped, because that was an inappropriate statement, and that was not the nature of any of that. I left, and that was it." He later elaborated on why he stopped: "Because that was very inappropriate, and that was not--that was not my intention to make it--for her to compare me to her boyfriend or anything like that was way above-- I mean way crossed the line." Respondent also offered his opinion that the reason why C.R. had said all these things about him was because he thinks she had a crush on him and was jealous, or felt threatened, when she saw Respondent touching B.G.'s chest while she was playing piano. This too was a new twist to Respondent's final hearing testimony that Respondent did not see fit to share at his pre- determination conference. No other testimony was offered to support Respondent's new theory; none of the witnesses testifying on Respondent's behalf were even asked if they knew about C.R.'s supposed crush on Respondent. Respondent's unsupported speculation lacks credibility, in part because C.R. was not the one to report Respondent to the school administrators; in fact, she was the last of his victims to give a statement. General Defenses An overall theme of Respondent's attempt to refute the allegations against him was that the three young ladies misunderstood his intentions, which were not sexual in nature. Respondent attempted to prove that B.G., P.P., and C.R. were impressionable and that each of them was influenced to embellish what happened because of the stories that each of them told about Respondent. This effort was ineffective. Respondent, having admitted the core facts of each of the young ladies' allegations, was not credible in his denials of some of the details, as found above. Respondent's admission of serial "accidents" suggests that the incidents were no accident at all. Respondent also attempted to cast doubt on the allegations of the three young ladies by emphasizing the visibility of his office from the classroom and the partial visibility of the classroom and the piano and keyboard practice rooms from the hall, through window panels on the tops of the doorways. Respondent also attempted to suggest that there were always students in these areas. While the testimony established that most of Respondent's inner office would be visible to persons in the classroom, the testimony also established that there were times when Respondent would be in his office with a student and no one else around. The same is true with respect to the piano and keyboard rooms--the testimony established that these rooms may have been at least somewhat visible, but others were not always around. All of the student witnesses, including the four witnesses who attempted to support Respondent with their testimony, confirmed this fact; each of them had, on occasion, been alone with Respondent. The witnesses testifying in support of Respondent think highly of him as a teacher and do not believe the allegations against him. However, their testimony lacked substance to refute the allegations in any respect. For example, all of Respondent's student witnesses admitted that they were not always with B.G., P.P., M.M., and C.R. when those four girls were in Respondent's presence. All but one of Respondent's student witnesses said that they would be surprised to hear Respondent describe himself as a hugger. One student witness never saw Respondent hug any student; another student witness said that Respondent hugged everyone. The shame of it is that Respondent has been a very good and talented teacher. Indeed, after he was suspended, each of the young ladies who made statements against Respondent stated publicly that they wished he was still teaching because he was such a good teacher (and also because they did not think much of his replacement). But each of these young ladies made clear that they were speaking only of teaching ability, and if he had actually come back to teach them, they would have felt very uncomfortable because of his misconduct and because they spoke up against him. Prior Notice Respondent makes much of the fact that the three students whose allegations are the predicate for the charge of misconduct never complained to him about his conduct, so that he could change his conduct to address their concerns. Under the circumstances found above, notice should not have been required for Respondent to realize that serial "accidents" in which his hands found themselves on the buttocks of female students and other "accidents" in which his bracing hand slipped from shoulder perches downward in the direction of the breasts of female students, was improper conduct on his part. Moreover, Respondent admitted that he was indeed on notice about Lehigh's concern with him breaching body boundaries with female students. Respondent testified that he met with Lehigh Assistant Principal Niki Carthan sometime during the 2010-2011 school year, about a student complaint. Ms. Carthan informed Respondent that a student had complained to another teacher that Respondent made her feel uncomfortable. That teacher reported the complaint to Ms. Carthan, who spoke with Respondent about it. The student who had complained was a senior who was going to apply to FAMU, where Respondent attended. Respondent invited the student to his office to pull up her application essays on his computer. According to Respondent, the student was sitting down at his computer, and he reached around her for the mouse which was on the other side of her. He claims he did not touch her, but he acknowledged that by the nature of him reaching around her to click on the mouse that was on her other side and "being in close proximity to her looking at the computer screen, it might have made her uneasy " Respondent testified that Ms. Carthan warned him to be more careful and that he needed to be "very cognizant of your spacing" when it came to students. Rather than heeding Ms. Carthan's warning, Respondent was plainly less careful, not more careful. He did not learn his lesson from his close encounter that violated body space boundaries and made the FAMU-bound student uneasy enough to complain during the 2010-2011 school year. Instead, that too-close encounter in 2010-2011 progressed to numerous incidents of improper physical contacts by Respondent, with actual touching of private body parts, making three different young ladies very uncomfortable, fearful, and anxious about encounters with the one teacher who could teach them the music they loved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Lee County School Board, enter a final order terminating Respondent, Willie Sparrow's, employment. DONE AND ENTERED this 18th day of July, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 18th day of July, 2012.
The Issue The issue is whether Respondent's professional services contract with the Hernando County School Board should be terminated.
Findings Of Fact The School Board is the agency responsible for the administration of the school system in Hernando County. The School Board has employed Mr. Ellison almost continuously since 1979. In addition to teaching, he has coached students in various sports. Until September 16, 2005, he taught pursuant to a professional services contract at Central High School. On September 15, 2005, Mr. Ellison's 1996 Dodge truck was located at the school's auto shop. Mr. Ellison had driven it there. Students studying automobile repair were to attempt to repair his truck's air conditioner, which was not functioning. Mr. Ellison had provided the truck to the auto shop personally after having made arrangements with the automobile repair teachers the previous day. He was aware that the repair job was to be accomplished by students. Peter Koukos, the vocational instructor, informed Mr. Ellison, that in order to repair the air conditioner the glove box would have to be removed. Mr. Ellison assented to this procedure. While attempting to remove the glove box, students discovered a loaded Power Plus .38 special revolver in it. The students who found it duly reported its presence to Mr. Koukos, who took custody of it. It was eventually delivered to the school resource officer, Deputy Sheriff Debra Ann Miles, who placed it into evidence in accordance with Hernando County Sheriff's Office procedures. It is found as a fact that the revolver was owned by Mr. Ellison and it was he who had placed the weapon in the glove box of the truck and it was he who had driven it onto the Central High School grounds on September 15, 2005. Mr. Ellison had experienced a previous incident with this weapon on January 21, 2002. This incident was precipitated when a citizen reported to the Hernando County Sheriff's Office that a man was standing by a parked pick-up truck in the Fort Dade Cemetery with a handgun in the left front pocket of his jacket. A deputy was dispatched to the cemetery. The deputy stopped a truck as it exited the cemetery. The truck the deputy stopped was being driven by Mr. Ellison and it was the same 1996 Dodge that was involved in the September 15, 2005, incident. On the prior occasion Mr. Ellison related to the deputy that he was having domestic difficulties and the deputy, with Mr. Ellison's permission, seized the weapon which was in his possession. The weapon seized by the deputy was the very same .38 special revolver found at Central High School on September 15, 2005. The weapon was released to Mr. Ellison on February 12, 2002, because his actions with it on January 21, 2002, were completely lawful. He thereafter placed the weapon in the glove box of the 1996 Dodge. He forgot that it was there and if he had thought about it, he would not have left it in the glove box of the truck when he delivered it to the students in the auto repair shop on September 15, 2005. There was no intent to bring the weapon on campus. Mr. Ellison is aware of the harm that can ensue from carelessly leaving weapons in an environment where curious students might retrieve it and harm themselves or others. He has never denied that the gun was his or that anyone other than himself was responsible for the weapon being brought to the campus. Mr. Ellison knew that School Board Policy 3.40(6) provides that no one except law enforcement and security officers may possess any weapon on school property. This was explained to all of the teachers in a pre-school orientation session conducted August 1-5, 2005, which Mr. Ellison attended. Procedures to be followed in the event a gun or other dangerous weapon was found on campus were reviewed during this orientation session. These procedures are contained in the Central High School Blue Book, 2005-06 and Mr. Ellison knew this at the time he drove his truck onto school property. Mr. Ellison was and is familiar with the Code of Ethics and Principles of Professional Conduct that addresses the behavior of teachers. He is aware that he has a duty to make a reasonable effort to protect students from conditions that may be harmful. Ed Poore, now retired, was an employee of the School Board for 31 years. He served in the district office as administrator of personnel and human resources, and specifically, was involved with the administration of discipline and the enforcement of School Board policy. Mr. Poore stated that intent was not a factor in determining whether a violation of School Board Policy 3.40(6) had occurred. He further noted that the Policy does not provide for a sanction for its violation. He testified that in determining a sanction for a violation of this section, he had observed in the past that the School Board had considered the sanction imposed on others in similar situations, the individual person's time and service as a teacher, and any other pertinent mitigating circumstances. Mr. Ellison's character was described by several witnesses as follows: Brent Kalstead, the Athletic Director at Hernando High School, who has been a teacher for 18 years, stated that he had coached with Mr. Ellison and that he had entrusted his son to him so that he could teach him baseball. He said that Mr. Ellison was dedicated to the youth of Hernando County. Marietta Gulino, is Mr. Ellison's girlfriend and a school bus driver. She stated that Mr. Ellison often takes care of children after working hours. Richard Tombrink has been a circuit judge in Hernando County for 17 years. He has known Mr. Ellison for 15 years as a baseball coach and at social events. He said that Mr. Ellison is committed to educating children and has great character. Lynn Tombrink is the wife of Judge Tombrink and is a teacher at Parrott Middle School and has known Mr. Ellison for 20 years. Ten years ago she taught in the room next to him. She would want him to teach her children. Regina Salazo is a housewife. She stated that Mr. Ellison was her son's pitching coach and that he loves children and they love him. Timothy Collins, a disabled man, said that his grandson and Mr. Ellison's grandson play baseball together and that he knows Mr. Ellison to be professional, a no nonsense type of person, and a gentleman. It is his opinion that the School Board needs people like him. Gary Buel stated that Mr. Ellison was his assistant baseball coach and that Mr. Ellison was dedicated and motivated. He described him as selfless. The parties stipulated that if called, the following witnesses would testify that they know Mr. Ellison to be a good, decent, honorable man; that they know him to be a good educator and coach; that they are aware of the circumstances surrounding the gun being in his truck on School Board property; that they do not believe that termination is the appropriate action in this case; and that he would remain an effective teacher: Carole Noble of Ridge Manor; Rob and Vickie Fleisher of Floral City; Vinnie Vitalone of Brooksville; Tim Whatley of Brooksville; Rick Homer of Brooksville; Rob and Candy Taylor of Spring Hill; Robbie Fleisher; Mark Frazier of Brooksville; Miya Barber of Brooksville; Nate Dahmer of Brooksville; Hank Deslaurier of Spring Hill; John and Mary Jo McFarlane of Brooksville; Pete Crawford of Brooksville; Patrick Ryan of Tampa; Ed Bunnell of Spring Hill; and Alan and Cecilia Solomon of Brooksville. It is found as a fact, based on the record of hearing, that Mr. Ellison is an excellent teacher who works well with children and whose character is above reproach. He is not the type of person who would consciously bring a weapon onto school grounds or commit any other purposeful act which might endanger students. Mr. Ellison has not been the subject of prior disciplinary actions.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Final Order imposing a 30-calendar-day suspension without pay be imposed as a penalty in this cause, and that Respondent, Michael Ellison, be reinstated to a teaching status and be awarded back pay and benefits to which he would have otherwise been entitled since November 15, 2005, less the 30-calendar-day suspension without pay. DONE AND ENTERED this 23rd day of February, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 23rd day of February, 2006. COPIES FURNISHED: J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Wendy Tellone, Ed.D. Superintendent of Schools Hernando County School Board 919 North Broad Street Brooksville, Florida 34601-2397
The Issue Whether Petitioner was entitled to involuntarily terminate Respondent.
Findings Of Fact Since 1986, Respondent has been employed by the Palm Beach County School Board (School Board) as an elementary school teacher. At all times material to this case, Horn was certified to teach grades 1-6. By Petition for Involuntary Resignation dated March 7, 2003, Petitioner sought the involuntary resignation of Respondent to be effective March 13, 2003. Beginning in February 1994, and continuing through November 2001, Horn was under the care, off and on, of psychiatrist Dr. Janet Scholle (Scholle). Horn was referred to Scholle by a therapist who had, for years, treated Horn for depression. Within a year of commencing to treat Horn, Scholle diagnosed her with bipolar disorder. Bipolar disorder is not inherently disabling. It can, however, cause substantial "mood swings" of the type which Horn frequently demonstrated in the workplace at times material to this case. Individuals who are able to "manage their moods" can function in any job for which they are otherwise qualified. Under Scholle's care, Horn was treated with a variety of psychotropic drugs in an effort to stabalize her moods and control her behavior. Scholle's treatment of Horn was unsuccessful, at least with reference to Horn's ability to function as a teacher. On March 1, 1999, Horn requested "accommodations" from Dr. Richard Hughes, her principal at Highlands Elementary School (Highlands), where she was then employed. She was referred to a personnel officer who provided her with Petitioner's "School Policy 3.06" Concerning Persons with a Disability and Procedures for Accommodation (Policy 3.06). The policy tracks the language of the ADA, and requires that the School District provide "reasonable accommodation to a qualified individual when necessary to enable the individual to perform the essential functions of the position unless such would pose an undue hardship on the operation of the District's business." Thereafter, Petitioner's Equal Employment Opportunity (EEO) coordinators became involved in Horn's case. Deneen Wellings held the EEO position when Horn's case first came to her office's attention. Wellings was succeeded in that position in July 2001 by Learna Ramsey. Wellings and Ramsey attempted to deal with Horn on the basis that Horn's inability to function at work might be ameliorated with "accommodations" within the meaning of Policy 3.06. In March, 1999, Scholle recommended that Horn take a leave of absence from Highlands. Horn requested and received a leave through June 1999. Later, Horn requested that the leave be extended through the conclusion of the following (2000-2001) school year. Petitioner granted leave beginning at the start of the 2000-2001 school year, but advised that leave would not be extended beyond December 2000. In so doing, Petitioner relied upon Horn's union contract which provided that if a teacher is on a leave of absence for a full school year, she must work for a full school year before being again eligible for a leave of absence. Petitioner has not challenged the legality of this contractual provision under the circumstances of this case, neither did she claim that the contract was enforced in a discriminatory manner when compared with other similarly situated teachers. Thus, in January 2001, Horn was faced with a choice of making herself available for work or leaving Respondent's employ. She chose to return to work. Petitioner was contractually bound to hold Horn's last position at Highlands open and available for her to return. Petitioner fulfilled this obligation. Horn, however, was unwilling to return to Highlands. The evidence established that there were no other teaching positions available. Petitioner elected to offer Horn a job in its personnel office "pending the location of an appropriate assignment for her." Horn did not behave appropriately in the personnel office. On January 22, 2001, Petitioner assigned Horn home with full pay and benefits pending a so-called "fitness for duty evaluation." By letter dated Febraruary 28, 2001, Jane Bonk, a mental health professional employed by Petitioner, summarized to Wellings a conversation Bonk had with Scholle in which Scholle made recommendations for accommodations. Horn exercised very little restraint in talking about her diagnosis with co-workers, yet she insisted upon extraordinary measures to protect her privacy with respect to communicating to Petitioner information needed by his professional staff and which Petitioner was entitled to have from an employee seeking accommodations pursuant to Policy 3.06. Hence, this roundabout method of communication was employed following negotiations between Petitioner and Respondent. Bonk's letter stated in pertinent part: “Dr. Scholle stated that Ms. Horn’s attention deficit disorder can cause her to be disorganized. She said that Ms. Horn would be more effective if she had familiar patterns and concrete plans to follow. Structure helps her be less anxious. Quick rapid changes are not helpful and lack of familiarity will create anxiety. She also said she will feel better if she feels listened to. This will help her to not react to the encounter, which will make her look less pathological.” “Dr. Scholle recommended that Ms. Horn return to teaching on a part time basis since she has been out of work for some time. She feels Ms. Horn would make the transition easier with less stress this way. This would provide Dr. Scholle with an opportunity to assess how she is dealing with the change and make adjustments with her medication if needed.” “Dr. Scholle also stated Ms. Horn might fall apart if she had someone sit in her classroom to do an evaluation. She was not sure she would get a fair evaluation and recommended that an aid (sic) keep an eye on her.” Bonk's letter accurately summarized some of Scholle's recommendations with one exception. Scholle did not use the term "fall apart." Scholle made additional recommendations which were not reflected in Bonk's letter. Scholle felt it necessary for school officials to provide Scholle with daily feedback regarding Horn's on the job behavior so that Scholle could advise Horn's colleagues how to accommodate Horn and advise Horn on how to manage situations. Scholle charges $600 an hour for her services. Other recommendations include providing Horn "an environment which [Horn] felt was somewhat supportive . . . so that she didn't feel like she was going back to be scrutinized or criticized . . ."; ". . . to try and keep her in one classroom teaching maybe one subject or one class so that there wouldn't be so much need for organization . . ."; "to do part- time just because you can gradually increase the amount of stress that they're exposed to. " Scholle further recommended that Horn not be subjected to the same type of disciplinary and evaluation processes which apply to all teachers under Florida law. According to Scholle, even if all of the foregoing recommendations were implemented, Horn could return successfully to full-time teaching only if "everything in her life [had] gone well and there's no other external factors or health issues. " Horn remained home on paid leave through April 2001, when she was assigned to Starlight Cove Elementary (Starlight Cove). Prior to her start day at Starlight Cove, Wellings and Horn met with the school's principal. There was undisputed testimony that on this occasion, Horn used profanity and spoke to the principal in a condescending manner. She also met with teachers at Starlight, at which time she behaved appropriately. Horn was to begin work on April 30 but did not report to Starlight Cove until May 2. By May 4, Horn was the subject of so many complaints that the principal felt the need to remove her. Petitioner placed Horn on unpaid leave through the end of the school year. A meeting was held on July 24, 2001, between Petitioner's representatives and Horn and her counsel. It was agreed that Horn would cooperate with a fitness for duty evaluation to be conducted by psychiatrist Mark Agresti (Agresti). The meeting was held July 24, 2001. Agresti conducted a fitness evaluation in early August 2001. The details of Agresti's evaluation are not in the record, but on August 6, 2001, Agresti rendered an opinion that Horn was fit for duty without any restrictions. Petitioner directed Horn to report to Coral Reef Elementary (Coral Reef) on August 15, 2001. From the start, Horn's behavior at Coral Reef was egregiously inappropriate for an elementary school teacher, or a school staff member of any kind. More specifically, Horn was raising her voice to children and colleagues; discussing highly personal matters with staff; criticizing colleagues; and not following her assigned schedule. The evidence established that the principal would have been justified in removing Horn immediately. Instead, the principal called Horn into numerous conferences to document her infractions, long after it was clear that Horn had no ability to comprehend her situation and to conform her behavior to the requirements of her job. On August 28, 2001, the principal issued a memo to Horn and the teachers working with her requiring that Horn take on the task of instructing students in math and science. Based upon the numerous instances of bizarre behavior exhibited by Horn, it was unreasonable to think she could have performed teaching duties. On August 30, 2001, Horn was again assigned to her residence with pay. The assignment was made in the form of a hand-delivered letter from Petitioner's Chief Personnel Officer. It stated that the ". . . assignment [to her residence with pay] is pending the outcome of an investigation. . . . [F]or the duration of this investigation, you are not to speak to and/or attempt to contact any witnesses or other parties involved in this investigation, to discuss any matters material or in any way related to the allegations/investigation. Any attempt to do so will result in disciplinary action being taken against you." The record does not reflect what was being investigated or why Horn was placed under a broad and non- specific gag order, the violation of which would result in disciplinary action. The tone and content of the letter assigning Horn home render implausible Petitioner's contention that this leave was, as Petitioner contends, an accommodation. For at least this moment in the increasingly tense relationship between Petitioner and Respondent, Petitioner appeared to be considering options other than accommodation. A second fitness for duty evaluation was conducted by psychiatrist Harley Stock (Stock). Stock rendered a detailed and persuasive report dated February 22, 2002, in which he opines that Horn was permanently unfit for duty. Stock's report is hearsay, but substantial portions of the report corroborate other persuasive evidence, including commendably candid testimony provided by Horn regarding her instability, as well as her propensity to engage in inappropriate workplace behavior, and to make ill-advised statements. For example, Horn invited scrutiny and workplace gossip regarding her bipolar diagnosis by disclosing it to colleagues who had no reason to be told and no desire to hear details of her personal life and medical issues. In this and numerous other ways, Horn failed to respect boundaries in the workplace. In so doing, she may have subjected herself to closer scrutiny than was applied to colleagues who did not constantly call attention to their personal problems, but there was no evidence that Horn was treated differently than supervisors would treat any employee who conducted herself at work as Horn did. Scholle attempted to rebut portions of Stock's evaluation in a written response dated July 16, 2002. In the response, and in her testimony at final hearing, Scholle did not challenge any significant factual finding made by Stock. Neither did Scholle nor Horn challenge any significant factual representation made by Horn to Stock in the course of his interviews of Horn. Scholle did not even unambiguously disagree with Strock's ultimate finding that Horn was unfit for duty at times material to this case. Instead, she opined in substance that Horn could perform her job if everything else in her life went well and if Petitioner relieved her of workplace stress. Horn opined that she was a "very, very vital and very successful" teacher until her bipolar diagnosis caused her to be ". . . treated very differently and much more harshly; nothing was ever the same for her. She was placed under more stringent rules and regulations. " To the contrary, clear and convincing evidence, much of it provided by Horn herself, established that at all times material to this case, Horn's behavior created untenable situations and worked a severe hardship upon students and colleagues forced to deal with her. Horn contends that she was not "accommodated" because Petitioner inappropriately "micromanaged" her and indeed, the evidence established that with respect to at least one of Horn's supervisors, no transgression by Horn was too petty to document. It does not follow, however, that Scholle's recommendations could be implemented so as to "accommodate" Horn without undue hardship to the school district. Instead, the record as a whole establishes that no work situation could be structured by Petitioner which would allow Horn to function in a job that would be recognizable as a teacher of elementary school students. Horn testified that in her present employment at Aldelphia Cable (Aldelphia), she is successful and is being promoted. She contends this is so because she ". . . is given constructive criticism at Adelphia when they have any type of concerns and is given a lot of support, and she's succeeding and flourishing in that job." No evidence was offered to corroborate Horn's perception of her job performance at Adelphia. But, assuming she is precisely accurate in her perception, Horn makes no factual argument and offers no legal theory regarding the relevance of her success at Aldelphia to the question of whether Petitioner could provide accommodations recommended by Scholle without undue hardship. There was no evidence that Horn's supervisors at Adelphia are even aware of her bipolar disorder, or of Scholle's recommendations, nor is there evidence that they followed those recommendations. Even if there were such evidence, it would not shed light on whether Petitioner acted unlawfully in terminating Horn. There is no evidence concerning what Horn does at Adelphia, but Adelphia is in the business of providing cable TV, not elementary education. There was no evidence that the workplaces, job descriptions and expectations, and evaluation processes employed at Adelphia and at the school district are in any way similar. An elementary school teacher's job cannot be crafted so as to eliminate stress. Neither can a teacher be exempt from the rules of conduct and the evaluation process which applies by law to all teachers. At the most basic level, Horn cannot be "accommodated without undue hardship" because Horn and her psychiatrist insist that Horn requires part-time work to "ease her transition" back to teaching. But Petitioner does not offer part time elementary school teaching positions, with or without the numerous unrealistic accommodations envisioned by Scholle. Petitioner established by clear and convincing evidence its part time teaching positions are limited at the elementary level to the areas of speech and language pathology, art, music and physical education where positions are shared between schools. There was no evidence that Petitioner offers part-time employment for elementary school academic teachers. The very nature of the position requires that the teacher provide a consistent presence to her class throughout the school year, and that she be able to manage the myriad stresses inherent in dealing with elementary school aged children. Scholle's description of Horn's attention deficit disorder, standing alone, is sufficient to support a finding that nothing within the Petitioner's power to provide would enable Horn to perform the duties of an elementary school teacher. Under the facts and circumstances of this case, Petitioner's determination that Horn could not be accommodated without undue hardship was reasonable, and her involuntary termination was lawful.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment. DONE AND ENTERED this 5th day of November, 2003, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 5th day of November, 2003. COPIES FURNISHED: Jean Marie Nelson, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Matthew Haynes, Esquire Chamblee, Johnson & Haynes, P.A. The Barrister's Building, Suite 500 1615 Forum Place West Palm Beach, Florida 33401 Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 315 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent discriminated against Petitioners on the basis of their race in violation of Chapter 760, Florida Statutes (2006).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made: Respondent, "Travelodge," is a Florida corporation: Canterbury Oak, Inc., d/b/a Travelodge. It is a public lodging establishment. Petitioners, Louis and Constance Taylor, are an African-American husband and wife and are members of a protected class. In the early afternoon, Sunday, July 16, 2007, Petitioners and their children arrived in Clearwater Beach and attempted to register and obtain a room at the Travelodge for two nights. They did not have reservations. On that particular weekend, there was a youth soccer tournament in Clearwater Beach, and the Travelodge had all rooms occupied on Saturday, July 15, 2007, with 44 of the 54 rooms being vacated the morning of July 16, 2007. Typical check-out time is 11:00 a.m.; extra housekeeping staff had been hired to prepare the rooms for Sunday occupancy. The fact that Sunday morning "check-outs" were largely youth soccer participants made the room clean-up and preparation particularly time consuming. Guests, without reservations, arriving in the early afternoon were told that no rooms would be available until after 3:00 p.m. Petitioner Louis Taylor, who actually entered the Travelodge lobby and requested accommodations (Petitioner Constance Taylor remained in the car with their children), testified that the desk clerk (Craig Harmul) was on the telephone when Petitioner asked if a room was available for two nights. Petitioner testified that the desk clerk said "no." Petitioner Louis Taylor decided not to "push the issue" and returned to the car. Petitioners then checked into another local motel. Petitioners had stayed at the Travelodge on several previous occasions; it was their favorite motel in Clearwater Beach, and they and their children were disappointed. Petitioner Constance Taylor then called the "1-800 national reservations service" for Travelodge and was advised that rooms were available. Later that day she called Kathy Mittler, Respondent's general manager, and suggested that they had been denied accommodations because of their race. Ms. Mittler explained that everyone was told that they would have to wait until 3:00 p.m., and advised that rooms were available and that Petitioners could come and get a room.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing both Petitions for Relief. DONE AND ENTERED this 15th day of November, 2007, 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 15th day of November, 2007. 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 Martin R. Cole Travelodge 401 Gulfview Boulevard Clearwater Beach, Florida 33767 Louis Taylor 5368 Aeolus Way Orlando, Florida 32808 Constance Taylor 5368 Aeolus Way Orlando, Florida 32808
The Issue Whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2003), and Florida Administrative Code Rules 6B-1.006(3)(a), 6B- 1.006(3)(e), and 6B-1.006(5)(d), and, if so, what discipline should be imposed.
Findings Of Fact Respondent holds Florida Educator's Certificate Number 806514. In February 2000, Respondent began teaching at Three Oaks Middle School (Three Oaks) in the Lee County School District. Respondent's contract was renewed for the 2000-2001 and 2001-2002 school years. He taught business education courses and was the advisor for the Future Business Leaders of America (FBLA) club during the 2001-2002 school year. Bob Sneddon had been the advisor for the FBLA club prior to Respondent's becoming employed at Three Oaks. Mr. Sneddon took another position within the school district, but continued with the responsibilities for the FBLA activities during the 2000-2001 school year. Mr. Sneddon could no longer continue working on FBLA activities during the 2001-2002 school year. Respondent assumed the responsibilities of the advisor for the FBLA activities at the beginning of the 2001-2002 school year. His responsibilities included conducting club meetings each Monday night, having fund raisers, taking FBLA students to conferences, and preparing the FBLA students for various competitions. In March 2002, during the school's spring break, Respondent and seven FBLA students went to Orlando for an annual conference and competition. James Rubright, a teacher at Three Oaks, and T.H., a parent, were chaperones for the competition. T.H.'s daughter, S.H., was one of the students attending the competition. Mr. Rubright had assisted with FBLA activities with Mr. Sneddon and had gone to the 2000-2001 competition with Mr. Sneddon and the FBLA students. Mr. Rubright was not an advisor or co-advisor for FBLA activities during the 2001-2002 school year. The evidence established that Linda M. Caprarotta, the principal at Three Oaks, had instructed Mr. Rubright to assist Respondent in getting the students registered for the competition because of time constraints. In that effort, Mr. Rubright had signed as a co-advisor for FBLA activities one time solely for the purpose of getting the students registered for the competition with the state FBLA organization. Mr. Rubright was also asked to attend the FBLA competition as a chaperone, but not as a co-advisor. At the beginning of the trip, Respondent, the students, and the chaperones received $84 per diem for the trip to cover the cost of meals. It was understood by the parents and students that the students would possibly go to Disney World while they were at the conference. After arriving in Orlando for the competition, T.H. became ill and had to be hospitalized. She contacted another parent, J.L., and asked her to come to Orlando to chaperone the female students. K.L., the daughter of J.L., was attending the competition. J.L. went to Orlando to chaperone the female students. When she arrived at the hotel, she, Respondent, and several students went to the hospital to see T.H. They were riding in T.H.'s van, and, on the way to the hospital, Respondent made inappropriate comments to J.L. within the hearing of the students in the van. Such comments included, "How do you keep your marriage spicy?" He also asked her if she had ever been tempted to cheat on her husband during their marriage. J.L. was embarrassed by the questions and tried to redirect the conversation. While J.L. and Respondent were visiting T.H. in the hospital, T.H. told J.L. to take her money to use at Disney World. J.L., not knowing that T.H. was talking about the per diem money that the school had provided and thinking that T.H. was talking about her personal funds, told T.H. that she had her own money and would not need T.H.'s money. When J.L. and Respondent returned to the van, Respondent asked J.L. if he could use T.H.'s money to pay for a ticket for his brother to go to Disney World with the students. J.L. later told Respondent that he could not use the money for his brother. Respondent's brother, Giovanni Troche, lived in the Orlando area and met Respondent and some of the students for breakfast while they were at the conference. Respondent wanted his brother to go to Disney World with them as a chaperone. He told the students that his brother could not go because of lack of funds. One of the students, A.H., decided to take up a collection from the other students to raise money for Giovanni Troche to go to Disney World. K.L. was reluctant to contribute money to the fund raiser. In response, Respondent told the students that if they had a brother or sister there who did not have enough money that he would lend them money. That remark made K.L. feel like she was being selfish if she did not contribute. Feeling obligated to contribute, K.L. donated five dollars for Respondent's brother. Respondent took the student's money to use for his brother. It is inappropriate for a teacher to accept money from students. Giovanni Troche did go with the students to Disney World. The group arrived at Disney World in the late afternoon. Some time during the evening and after a lot of walking, Giovanni Troche, who is a rather large person, developed a rash between his legs. He felt that he could not continue to walk because of the pain caused by the rash. Respondent secured a wheelchair for his brother and pushed him around the theme park. As a result of Respondent's brother being in a wheelchair, some of the students were able to move up to the front of the line for one of the rides. The evidence does not establish that Respondent secured the wheelchair for the purpose of getting ahead of others in the lines for the rides. Most of the students who attended the conference were high school students. On the last night of the conference, the FBLA organization sponsored a dance. Respondent attended the dance as a chaperone. While at the dance, Respondent observed female students kissing one another, female students raising their shirts and "flashing," and couples "dirty dancing." After the dance and on the way back to their hotel rooms, J.L. overheard Respondent make the comment that he had been helping the disc jockey, and there had been a lot of action going on, including raunchy dancing and girls flashing him. J.L. was upset that such comments would be made in the presence of students. The day after the dance, the group left Orlando to return home. The chaperones had taken their personal cars, and the Three Oaks students and Respondent had ridden a charter bus with high school students. The group stopped for lunch. While waiting outside for the bus driver to finish his lunch, K.L. and S.H. overheard Respondent talking to a group of high school males near the school bus. They heard Respondent brag to the high school students that he had helped the disc jockey and that they should have been there because he saw girls kissing other girls, girls were all over him, and girls were flashing him. S.H. went to her mother and told her what Respondent had said. T.H. told S.H. and K.L. to remain with her. K.L. was embarrassed and disgusted by Respondent's comments, and S.H. was shocked by his remarks. After the FBLA group returned home, Ms. Caprarotta received several complaints from parents concerning Respondent's actions on the field trip. An investigation was made, and, as a result, Respondent's teaching contract was not renewed for the 2002-2003 school year. L.A. came to teach at Three Oaks in February 2001. Respondent began to make flirtatious and overly complementary remarks to L.A. Respondent would come uninvited to her classroom and talk about his marital problems and tell her that he wished his wife were more like her and that her boyfriend was lucky to have someone like her. His conversations annoyed her and made her feel uncomfortable. She confided her feelings to a teacher on her team. The team teacher told the assistant principal, who approached L.A. about the situation. L.A. told the assistant principal that she would take care of the situation. Respondent's unwanted attentions continued into the fall of 2001. He e-mailed L.A. on a particular day and told her that she was good looking and that she should wear skirts. She e-mailed Respondent that she did not think that his e-mail was appropriate and that she did not want him sending her anymore e- mails. The situation finally came to a head one day when L.A. and Respondent were in the copy room. L.A. told Respondent that he made her uncomfortable with his compliments and that she was involved with someone. She also told him that his conduct was not appropriate and that she wanted him to keep his distance. L.A. was made uncomfortable by Respondent's actions toward her. Additionally, Respondent was teaching her son in a business class, and she did not feel that it was appropriate for her son's teacher to engage in such conversations with her. After their confrontation in the copy room, Respondent and L.A. avoided each other. After about a month of avoidance, L.A. asked Respondent if the situation could be "water under the bridge" and could they just be friends and co-workers. They shook hands, and Respondent did not make any further inappropriate comments to her. In January 2002, J.C. began working as a teacher at Three Oaks. By February 2002, Respondent began having conversations with her. At first, the discussions consisted of talk about school and the students and would take place while she was taking her students to be picked up by their parents. The conversations eventually included discussions about Respondent's unhappy marriage and J.C.'s separation from a previous spouse. Respondent, however, began to shift the conversations to a sexual nature. One day outside his classroom, Respondent asked J.C., "What's your favorite position?" Prior to this question, J.C. had not discussed her sex life with Respondent. His comment made her feel uncomfortable, and she told him, "I'm not going there." The next morning after his sexual comment, J.C. saw Respondent and went her way without talking to him. Just prior to lunch that day, Respondent sent an e-mail to her which stated, "Did I say something wrong?" She ran into Respondent after the morning e-mail, and he inquired whether she had gotten his e-mail. She replied that she had, and a discussion ensued. Later that afternoon, J.C. received another e-mail from Respondent which stated: I liked the conversation this morning. It was nice talking to you again. The advice you gave me was very interesting. I've been thinking about it. It's just too bad that you had somebody with the same problems in their relationship as me and you don't Qualify. I wish you did. A couple of weeks later, Respondent sent another e-mail which stated, "I'm still waiting for that e-mail. So just let me know when if ever. Take care." On another occasion, Respondent came to J.C.'s classroom, interrupted her work, and asked her, "Have you ever done it with a Hispanic guy?" Respondent called J.C. one day on his way home using his cell telephone while J.C. was still at school. J.C. told him that she was the wrong person to talk to because she was very happy in her current relationship. After the telephone call, J.C. tried to ignore Respondent, but Respondent would make comments in passing such as "Did you think about it?" or "Have you changed your mind?" or "Are you still happy?" J.C. stopped taking her students to be picked up by their parents in order to avoid meeting Respondent. J.C. tried to make it clear to Respondent that she was not interested in him, but the more she tried to brush him off, the harder he pursued her. She confided to Mr. Rubright that Respondent had been acting inappropriately toward her. Mr. Rubright told her that she needed to advise the administration at Three Oaks about the incidents. The day after her conversation with Mr. Rubright, J.C. did discuss her concerns about Respondent with Clayton Simmons, assistant principal at Three Oaks. Respondent's actions on the FBLA trip and with his female colleagues reduced his effectiveness as a teacher at Three Oaks. Some parents, including T.H. and J.L. were unhappy with his conduct; teachers at Three Oaks, including Mr. Rubright, L.A., and J.C., did not want to work with Respondent again; and some administrators at Three Oaks, including Ms. Caprarotta, Mr. Carson, and Mr. Simmons, did not want to work with Respondent again. J.L., who was a teacher at Three Oaks, did not want to work with Respondent at any school in the school district. After Respondent's employment at Three Oaks ended, he began working at Richmond Milburn Academy in Lee County. He has received satisfactory performance evaluations, and no complaints have been made against him concerning inappropriate comments. Respondent no longer discusses his personal problems with female colleagues.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violating Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2003), and Florida Administrative Code Rules 6B-1.006(3)(a), 6B- 1.006(3)(e), and 6B-1.006(5)(d); suspending his Florida Educator's Certificate for one year; upon employment in any public or private position requiring an educator's certificate, placing him on probation for three years on such terms as the Education Practices Commission deems advisable; and requiring Respondent to take a three-hour college level course in women's issues. DONE AND ENTERED this 5th day of August, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 2004. COPIES FURNISHED: Nina Ashenafi, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Kelly B. Holbrook, Esquire Maria Ramos, Esquire Broad and Cassel 100 North Tampa Street, Suite 3500 Post Office Box 3310 Tampa, Florida 33602-3310 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Based upon the prehearing statement, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent is the holder of a teacher's certificate, number 617425, for the area of social studies. Such certificate is valid through June 30, 1996. During the 1990-91 school year, Respondent was employed by the Orange County School District as a teacher at Union Park Middle School (Union Park). All allegations material to the case against Respondent occurred during his employment at Union Park and involved female students who were either enrolled in his class or members of the social studies club Respondent sponsored. During 1990-91 school year, Respondent placed telephone calls to female students. The purpose of such calls was to convey school-related or social studies club information to the student; however, Respondent frequently allowed the subject matter of the telephone conversations to extend to private, non- school topics. These private topics included discussions regarding who liked who for boyfriends and girlfriends as well as the personal appearance and conduct of various students. Additionally, the length of time involved in such conversations varied from a matter of minutes to almost an hour in length. Also during the school year, Respondent participated in the completion of a "slam book." A "slam book" is an unauthorized school activity in which students are not to participate. In general, a "slam book" is a book wherein students make comments about others. In many instances such comments may be unflattering or uncomplimentary. If discovered, teachers generally confiscate such books and admonish students regarding them. In Respondent's case, when he was asked to sign a "slam book" belonging to Karen McCue, Respondent completed many of the headings with personal comments about others known to the students completing the book. The completion of the book by a student, much less a teacher, was against school policy. On one occasion, Respondent wrote on a student's hand by drawing an eyeball, a heart, followed by the letter U. The student interpreted, and Respondent intended, the message to mean "I love you." As a result, the student became self-conscious and went to the restroom to wash the message off. While Respondent did not intend the message to embarrass the student, such action, nevertheless, made her uncomfortable. On several occasions, Respondent made female students uncomfortable by touching them. None of the touches were intended or interpreted by the students as sexual in nature. None of the touches involved inappropriate parts of the body. All such touches occurred in full view of the class or others. None of the touches made the students uncomfortable at the time they were made; only later, in retrospect, did the students feel uncomfortable. Such touches included playing with a female student's hair, holding a female student's hand, or a side-to-side hug. After Respondent confiscated a Gloria Estefan concert program book from one of the female student leaders, the allegations of impropriety at issue in these proceedings were raised. Prior to that incident, Respondent had enjoyed considerable popularity with the students in his classes and the social studies club. Rumors of improper touchings, not substantiated or alleged in this case, were rampant. Understandably, parent concern and administrator involvement as a result of the complaints followed. On March 28, 1991, the Orange County School District issued a letter of reprimand to the Respondent based upon the alleged inappropriate verbal and written comments to students. Additionally, at the conclusion of the school year, Respondent's teaching contract was not renewed for the 1991-92 school year. Because he engaged in behaviors that interfered with the student/teacher relationship, Respondent's effectiveness as a teacher was substantially reduced. Respondent failed to maintain a proper, professional distance between himself, as the teacher, and the female students. By engaging in personal telephone conversations and the "slam book," Respondent failed to establish his role as the disciplinarian and authority figure inherent in being their teacher. Respondent enjoyed a good teaching reputation among his fellow teachers and received favorable recommendations and evaluations from his principal. Respondent did not commit any act reflecting gross immorality or an act involving moral turpitude. Respondent did not commit any act that resulted in a failure to make reasonable effort to protect students from conditions harmful to learning or to health or safety. Respondent did not intentionally expose students to unnecessary embarrassment or disparagement. Respondent did not intentionally exploit his professional relationship with students for personal gain or advantage.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Education Practices Commission enter a final order reprimanding the Respondent for the conduct set forth above. DONE and ENTERED this 20th day of October, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1992. APPENDIX TO CASE NO. 92-0175 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 5 are accepted. With regard to paragraph 6, the last sentence is accepted; otherwise rejected as argumentative or contrary to the weight of credible evidence. Paragraph 7 is accepted. Paragraph 8 is rejected as contrary to the weight of credible evidence or argument. The first sentence of paragraph 9 is accepted; the remainder is rejected as recitation of testimony or unnecessary. It is accepted that a slam book is an inappropriate activity for students as well as teachers. Paragraph 10 is accepted. Paragraph 11 is rejected as recitation of testimony, irrelevant or unnecessary to the resolution of the issues of this case. Paragraph 12 is rejected as recitation of testimony and/or argument. Paragraph 13 is rejected as repetitive, irrelevant, or contrary to the weight of credible evidence (except as addressed in the foregoing findings of fact). Paragraph 14 is rejected as repetitive and irrelevant. It is accepted that Respondent's informal conversations with students did not maintain an appropriate level of professional distance; otherwise rejected as indicated. Paragraph 15 is rejected as contrary to the weight of evidence or irrelevant to the extent not addressed in the findings of fact. Paragraph 16 is rejected as repetitive and irrelevant. Paragraph 17 is rejected as recitation of testimony, irrelevant, or unnecessary. To the extent not addressed in the findings of fact, paragraphs 18 through 32 are rejected as unnecessary, irrelevant, contrary to the weight of the evidence, or recitation of testimony. For the most part, the allegations suggested by the findings proposed constitute much ado about little. Respondent clearly did not maintain an appropriate distance from students; however, his conduct did not rise to a level to reflect a lack of moral character or be grossly immoral. In essence, Respondent's error was to try to be the student's friend more than their teacher. As a result, his role as their teacher was compromised. Paragraph 33 is accepted with the deletion of the word "embarrassment." Respondent experienced a breakdown in the student/teacher relationship, he did not intend to embarrass the students. The first sentence of paragraph 34 is accepted; otherwise rejected as contrary to the weight of the evidence. The first sentence of paragraph 35 is accepted; the remainder rejected as contrary to the weight of the evidence. Paragraph 36 is rejected as irrelevant. With regard to paragraph 37 it is accepted that Respondent's behaviors seriously undermined his effectiveness at Union Park; otherwise rejected as contrary to the weight of the evidence. Further, it has not been shown that such behaviors were widely known in the community or that his effectiveness in another location would be compromised. Clearly, the incidents of this case were fairly minor, isolated, and impacted but one school. Since the Respondent has been appropriately disciplined, such prior conduct should not prohibit the Respondent from teaching in another location where his effectiveness has not been questioned. It might be concluded that Respondent has learned from the errors of his past. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: To the extent not accepted and addressed by the findings of fact above, Respondent's proposed findings of fact are rejected as irrelevant, repetitive, contrary to the weight of the evidence, argumentative, or unnecessary. Respondent was well-liked and considered a "good teacher" by many of his students. In that his principal did not know of Respondent's informal relationships with students, he considered Respondent a "good teacher." Respondent's ability to maintain an appropriate professional distance from his students is the only violation established by this record. COPIES FURNISHED: John F. Gilroy, Esquire Attorney Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Joseph Egan, Jr. P.O. Box 2231 Orlando, Florida 32802 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400
Findings Of Fact Acco Mechanical Contractors, Inc. was a subcontractor on three jobs at Broward Community College, hereinafter referred to as the Bailey Concert Hall, the Library, and the Criminal Justice Building. All three jobs were public works jobs and involved contracts in excess of $5,000 in which a public authority, the Broward Community College, was a party. All three jobs involved the employment of free laborers, mechanics, or apprentices in construction of the public building. Acco employed Ernest M. Sutton as a sheet metal worker. The prevailing wage pursuant to the Division of Labor's schedule of prevailing wage rates for specified public construction was $10.55 for sheet metal workers on all three jobs. Ernest M. Sutton duly and timely filed a sworn affidavit signed by him, setting forth that Acco was not paying the prevailing wage. Sutton worked a total of 24 hours at $8.50 per hour on the Bailey Concert Hall job. Sutton worked a total of 488 hours at $8.50 per hour on the Library job. The parties settled the claim on the Criminal Justice Building job and voluntarily dismissed the claim, and no evidence was presented on this claim. See T-165. Sutton was paid $2.00 per hour less than the prevailing wage for the hours he worked on these two jobs. Sutton was underpaid a total of $1,024 on the total of 512 hours he worked on these two jobs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Ernest M. Sutton be paid $1,024 on his claims for the Bailey Concert Hall and the Library, the claim on the Criminal Justice Building having been dismissed. DONE and ORDERED this 24th day of August, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jeff M. Brown, Esquire Post Office Box 1138 Boca Raton, Florida 33432 L. Byrd Booth, Jr., Esquire 2900 East Oakland Park Boulevard Post Office Drawer 11088 Fort Lauderdale, Florida 33339 Mr. Luther J. Moore Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301
