Findings Of Fact The Respondent, Thomas B. Ferris, holds Florida teaching certificate number 286085 issued by the Florida Department of Education covering the area of physical education and junior college. The Respondent has held a valid teaching certificate since 1971. The Respondent began teaching in 1971 in the field of physical education at Hollywood Park Elementary School in Hollywood, Florida. He later taught at Sterling Elementary School in Fort Lauderdale, Florida, for one year, and for five years at Stephen Foster Elementary School in Fort Lauderdale. The Respondent's latest employment was as a physical education teacher at Spring Hill Elementary School in Hernando County for over 3 academic years. The Respondent's teaching performance and ability have never been less than satisfactory, and he received satisfactory teaching evaluations during his last employment at Spring Hill Elementary School. The principal of Spring Hill Elementary School had the opportunity to observe the Respondent for approximately one and one-half years, and during this time completed two performance evaluations of the Respondent. He is an enthusiastic teacher who works effectively with children. The Respondent also served as teacher-in- charge in the absence of the principal. The Respondent and the subject minor male student first met during the 1979-1980 school year while the Respondent was teaching physical education at West Hernando Elementary School, now named Spring Hill Elementary School. This minor was a student in the Respondent's physical education class, and also became a physical education helper in this fifth grade class. The Respondent and the minor became good friends. During the ensuing four years they participated in various recreational activities together. The minor and the Respondent frequently went jogging, bike riding, motorcycling, canoeing, lifted weights, and played basketball. In the summer of 1983, they engaged in a lawn mowing business and purchased a motorcycle together. The minor babysat for the Respondent and his wife frequently during his seventh, eighth, and ninth grade years, and in 1983 he babysat for them approximately three or four times a month until August. Between 1982 and 1983, the minor's relationship with the Respondent and his family intensified. The minor began to call the Respondent's home, and visit with the Respondent and his family so frequently that the Respondent started to avoid these telephone calls. The minor was visiting at the Respondent's home, or they would see each other, nearly every day. During the summer of 1983 the Respondent and the minor terminated their lawn mowing business. At about the same time the Respondent and his wife began to indicate to the minor that he was spending too much time with the Respondent and his family, and they suggested that he spend more time with his own mother and father. The minor's involvement with the Respondent's household began to decrease at this point, which was around the end of August, 1983. On the evening in late August, before school started in 1983, which is the occasion of the first allegation of sexual misconduct against the Respondent, the minor was babysitting for the Respondent and his wife at their home. They returned at approximately 11:30 P.M., and found the minor asleep on the couch in the living room. This was not unusual, as the Respondent and his wife would often find the minor asleep on the couch while babysitting, if they returned home at a late hour. After a brief conversation, the minor retired upstairs to the bedroom of Douglas, the son of the Respondent. After using the bathroom, the Respondent retired to the parents' bedroom on the first floor; his wife followed shortly thereafter. The Respondent did not leave his bedroom during the night. Neither did he proceed upstairs during the night, awaken the minor, and bring him downstairs. Several undisputed facts lead to this finding. The Respondent's wife is a very light sleeper. When the Respondent arises during the night, she is aware of it. She is often awakened by sounds in the house, especially from her children upstairs. The Respondent is a heavy sleeper who normally does not arise during the night. Moreover, the Respondent's bedroom is adjacent to the living room, where the alleged misconduct occurred. While in this bedroom, noise and voices from the adjacent living room are easily heard. The room of the Respondent's son, Douglas, is directly over the Respondent's bedroom. While in the Respondent's bedroom, noise and sound from the son's bedroom, including footsteps, can be heard. From the Respondent's bedroom, the sound of anyone using the adjacent staircase can be heard. Yet the Respondent's wife heard no sound or voices during the night, either from her son's bedroom upstairs, or from the staircase. Neither did she hear voices or sound from the adjacent living room during the night. On a Thursday night, October 6, 1983, the minor and the Respondent attended a concert in Lakeland, Florida. The minor had the permission of his parents to attend this concert. On the way home after the concert, they stopped at Bennigan's on Dale Mabry in Tampa, and ate dinner. They had agreed previously that the minor would pay for the concert tickets and the Respondent would pay for the dinner. Bennigan's was the only stop made by the Respondent and the minor while enroute from the concert to the Respondent's home. The Respondent and the minor arrived at the Respondent's house after the concert at approximately 12:30 A.M. Earlier on this evening, the Respondent's wife attended a painting class in Inverness, which had been meeting once a week on Thursday nights. She was in the kitchen at home working on a class craft project which she had not finished, when the Respondent and the minor arrived. The three of them engaged in a general conversation for approximately a half hour while sitting at the kitchen table. The minor then retired to the upstairs bedroom of Douglas, while the Respondent and his wife remained downstairs. The Respondent spent no time alone in the living room with the minor. The Respondent then retired to his bedroom, and his wife followed shortly thereafter. The Respondent did not arise during the night and leave the bedroom. His wife heard no voices or noise during this night either from the stairs above the bedroom, or from the adjacent living room. The Respondent bad no sexual contact with the minor during either August or October, 1983, or at any other time. These are the relevant facts pertaining to the charges of sexual misconduct which are found from the evidence presented. The minor student testified that one evening near the end of August, but before school started in August of 1983, he babysat for the Respondent. The Respondent's two children went to bed around 9:00 P.M., and because the Respondent and his wife were out late, the minor went to bed in the upstairs bedroom of the Respondent's son. Sometime after the Respondent and his wife returned home, the Respondent awakened the minor and brought him downstairs. The Respondent's two children were upstairs asleep, and his wife had retired for the evening. Once downstairs, the Respondent began massaging the minor's back, then his stomach, and then masturbated him. The minor testified that while doing so, the Respondent told him that he loved him more than just as a friend. The minor testified further, that on October 6, 1983, he and the Respondent attended a concert in the Lakeland Civic Center. He and the Respondent drove to Lakeland alone in the Respondent's automobile. The concert began around 7:00 or 8:00 P.M. and ended approximately 10:00 or 10:30 P.M. After the concert, they drove to a Bennigan's Restaurant in Tampa. Because he is a minor and it was after 9:00 P.M., he was refused admission. The Respondent and the minor left Bennigan's and drove back to Brooksville. On the way, the Respondent stopped at a convenience store and purchased two beers, one for the minor and one for himself. This convenience store is located approximately 20 to 30 miles outside Brooksville, but was not further identified clearly. Because of the lateness of the hour, it had been pre-arranged that the minor would spend the night at the Respondent's house. During this night, in the Respondent's living room, he again began massaging the minor, and masturbated him, and this time also performed oral sex upon the minor. In order to make the findings of fact set forth in paragraphs 1 - 13 above, it is not essential that this testimony of the minor be rejected as false. There simply is not sufficient evidence in this record to corroborate the minor's testimony. There is no evidence of any previous sexual misconduct on the part of the Respondent in the twelve years he has been teaching physical education. There is no evidence of any sexual misconduct with the subject minor throughout their years of close relationship, except the two incidents described, even though better opportunities for such misconduct existed frequently. Even on the night of the concert in Lakeland, there were opportunities to abuse the minor in a parking lot or along the road during the trip, instead of in the Respondent's house only a wall away from the eyes and ears of his lightly sleeping wife. The guidance counselor at Spring Hill Elementary School who receives complaints of sexual molestation received none concerning the Respondent. Neither the principal of Spring Hill Elementary School nor the assistant superintendent of the Hernando County School Board received any such complaints concerning the Respondent. The evidence discloses that the Respondent has a reputation for being a law abiding citizen in both his local community and his teaching community. In summary, the evidence, apart from the allegations in this case, is that the Respondent has never made any sexual contact with any minor. Based upon the allegations of sexual misconduct made against him, the Respondent was arrested on December 22, 1983, and charged by information with the offense of sexual battery. On the advice of his attorney, the Respondent entered a plea of no contest, and on April 18, 1983, the Circuit Court entered its order withholding adjudication, placing the Respondent on probation for three years, and assessing court costs of $515.00 against him. Following the Respondent's arrest, various newspaper articles were published reporting the allegations, his prosecution, and his suspension from the teaching position he held. As a result, the local teaching community as well as the student body became aware of the Respondent's situation. Nevertheless, the principal of Spring Hill Elementary School and the assistant superintendent of the Hernando County School Board testified that if the charges against the Respondent were proven to be true, then his effectiveness as a teacher would be seriously impaired, and the principal would not want the Respondent to return to school as a teacher if the allegations were proven to be true. Based upon the failure of the weight of the evidence to support a factual finding that these allegations are true, this testimony is not relevant. Moreover, there is no evidence in this record to support a finding that the Respondent would not be effective as a physical education teacher under the factual situation that is found above, based on the weight of the credible evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed by the Education Practices Committee against the Respondent, Thomas B. Ferris, be dismissed. And it is further RECOMMENDED that the charges against the Respondent, Thomas B. Ferris, brought by the Hernando County School Board, be dismissed. And it is further RECOMMENDED that the Respondent, Thomas B. Ferris, be reinstated by the Hernando County School Board with full back pay from the date of his suspension. THIS RECOMMENDED ORDER entered this 30th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1985. COPIES FURNISHED: J. David Bolder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 33512 Perry Gall Gruman, Esquire 202 Cardy Street Tampa, Florida 33606
The Issue Whether or not Respondent should be assigned to J.R.E. Lee Opportunity School. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Anya Cooper and Aaron Brumm and had admitted Exhibits P-1 (two pages of subpoena), P-2 (case management form 676566), P-3 (composite of Student Observation 1/12/87), P-4 (Composite Student Case Management Referral Forms), P-5 (Second Report for School Year 1986-1987), P-6 (Composite of Student Academic and Behavioral Reports), and P-7 (Individualized Education Program, IEP). Respondent presented the oral testimony of Fred Sage and had admitted R-1 (Computer printout), R-2 (Computer printout), R-3 (Child Study Team Conference Notes), and R-4 (composite of report card with progress notes of Grace Baptist Academy). Joint Exhibit A (Multi- Disciplinary Team Report) was also admitted. Due to the failure of Bonnie Edison to respond to a validly served subpoena, the parties stipulated to the taking and filing of her deposition by Petitioner subsequent to July 21, 1987. Respondent's father's August 22, 1987, letter has been treated as a Motion to Strike or Amend the Edison deposition, and the Edison deposition with attached exhibits has been admitted as amended by the Order of September 10, 1987. Petitioner filed a "Memorandum of Law on Jurisdiction, Substantial Interest, and Case or Controversy," and Respondent filed a letter styled, "Request for Ruling." These documents are addressed the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Respondent's parents were notified by a letter dated January 30, 1987, that Respondent had been administratively assigned to the Dade County School Board's alternative education program at J.R.E. Lee Opportunity School. Being previously aware that the recommendation for administrative assignment had been made, Respondent's parents had formally withdrawn Respondent from the public school effective January 29, 1987, and timely petitioned for formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. Respondent's parents are currently complying with State law by continuing their son in a private educational facility, however Respondent's substantial interest entitling him to a formal hearing continues to exist in that the parents desire their son to be enrolled in the regular program of the Dade County public school system and in that they propose to re-enroll him in that system if they prevail in these proceedings. At all times prior to his withdrawal from public school, Respondent was enrolled at Cutler Ridge Junior High School, located in Dade County, Florida. He attended summer school in the summer of 1986, and was 13 years old and in the seventh grade for the regular 1986-1987 school year. During the regular 1986-1987 school year, Anya Cooper was Respondent's mathematics teacher. In her class, Respondent performed his basic skill work below grade level. She described his conduct in her class as very "fidgety, constantly moving around, bothering other students, and talking and kicking purses." However, she also described the foregoing behavior as all done "in fun" and described Respondent's usual responses to admonishment as being, "Okay, Okay." Apparently she interpreted these responses to her correction as being in the nature of back-talk but admitted that following a smart retort, Respondent usually would not say more beyond "Okay" and often complied with her requests. Beginning September 22, 1986, Ms. Cooper kept a daily record of negative behaviors of Respondent. That day, Respondent was extremely talkative and refused to participate in boardwork. He also lied, saying a paper without a name on it which had received a grade of "B" was his own paper when, in fact, it had been submitted by someone else. When confronted with his lie, Respondent admitted the lie immediately. On September 24, he was too talkative and changed his seat. On September 26, he talked during a test and refused twice to take the test before actually taking it. On September 30, he chewed gum and was required to remove it. On an occasion in early October, he talked back to Ms. Cooper and was instructed not to talk in class anymore. On October 22, he threw a piece of staple which hit another student. Ms. Cooper counselled with Respondent about the danger of throwing staples, but Respondent interrupted her and refused to work. On October 23, Respondent kicked a female student, and on October 28, he put his foot on her arm. Ms. Cooper put him out of her class. There is no evidence that any student was ever injured. On October 27, Respondent refused to work and talked during the entire class period. Later that month, he threw a pen into the trash can, creating a loud noise and distraction. Nonetheless, despite the number of these incidents, Ms. Cooper only referred Respondent for discipline by the school administration one time. During summer school the previous summer, the Respondent had been referred by the coach to Assistant Principal Brumm for running around the cafeteria. Respondent was reprimanded and warned without being assigned to indoor or outdoor suspension. On July 22, 1986, also during summer school, Respondent had been referred to the office for disruptive and non-attentive behavior in one class. Assistant Principal Brumm sent Respondent home for one-half day as a disciplinary measure. By October 6, 1986, Respondent was in the Student-At-Risk-Program (SARP). This program assembles a special group of teachers within the school who are able to deal particularly effectively with disciplinary problems. The student members of the program are assigned their own counsellor and attend classes of much smaller size than do those students in the academic mainstream. The target goal of SARP is to identify students at risk for dropping out of school and modify their behavior so as to retain them in the school system. The testimony of Bonnie Edison, Respondent's seventh grade SARP life science teacher for the regular 1986-1987 school year, was submitted by after- filed deposition. Ms. Edison did not routinely refer Respondent to the administration for his discipline problems, nor did she involve the SARP counsellor. She addressed Respondent's disruptive behavior solely with SARP behavior modification techniques. In Ms. Edison's class, Respondent was "off task" and disruptive seventy to eighty percent of the time unless Ms. Edison addressed him on a one-to-one basis, or unless she included him in a group of no more than three students. Despite measurably high ability, Respondent's work effort was below standard ninety percent of the time. He consistently failed to bring proper materials to class but admitted he should do so. Ms. Edison counselled with Respondent a few minutes daily and occasionally for longer periods, sometimes with temporary success, but never with lasting success. Her greatest concern was that Respondent's need for one-on-one attention deprived her of teaching time and limited her time for other students. She also was concerned because, in their conversations, Respondent could name no rewards or goals she could integrate into her program at school. Nonetheless, noting that Respondent related better to plants than to people, and recognizing his very superior ability with horticulture, Ms. Edison involved him in independent study with plants as a reward. She also devised a reward system based upon Respondent's interest in wrestling as a contact sport, and upon his affection and respect for the wrestling coach who had previously referred Respondent for discipline. This coach helped Respondent study for his second grading period exam in Ms. Edison's class, and Respondent earned an "A" on this final exam. Between September 1986 and the end of January 1987, Respondent had a total of seven referrals to the school administration, although some referrals covered several incidents. The constant theme of the referrals of Respondent to the administration was that Respondent had the ability to learn, but insufficient self-discipline to allow him to learn. Respondent had been assigned to six days of CSI (indoor suspension) and one day of outdoor suspension. In the first grading period of the regular 1986-1987 school year, Respondent earned two F's, one D, two C's and one B. By January 29, 1987, in the second grading period, Respondent had earned two F's, two D's and two C's. In the second grading period, he had only been absent 2 or 3 times in each class except for math, in which he had 8 absences. There is no evidence that any teacher or administrator viewed these absences as excessive. On January 20, 1987, a teacher referred Respondent for disrupting other students in CSI by making squeaking sounds. Thereafter, a Child Study Team was convened. Each of Respondent' a teachers participated in a conference with Respondent's mother on January 28, 1987. The consensus of the team and teachers was that Respondent needed extremely close supervision. Each teacher consulted with Respondent's mother on this occasion. Although there is evidence of some parental contact due to previous disciplinary problems, it appears that January 28, 1987, when the alternative education program was being actively explored, was the first time the parents were made aware of the serious penalties attendant upon Respondent's grades, behavior, and absences. The probable explanation for the lack of prior communication is that Respondent never gave contact slips/reports to his parents, but it is also clear that there was little or no administrative follow-up on the written material sent home and that the parents also resented and reacted hostilely to two oral contacts by the administration. Mr. Brumm opined that all disciplinary and counselling techniques at his disposal had been tried but had proven ineffectual. It was Respondent's parents' position that the school had failed to adequately communicate with them concerning their son's disinterested and disruptive behavior; had failed to involve them early enough in disciplinary and academic correction of their son; and had failed to use corporal punishment to discipline Respondent. To buttress their assertion that the school had failed to adequately communicate with them, the parents asserted that since certain disciplinary reports/referrals had not been committed to writing or consigned to the computer prior to the administrative school assignment (January 30, 1987) or prior to the formal withdrawal of their son from the Dade County School System (January 29, 1987), there was little or no credibility in any of the disciplinary reports/referrals admitted in evidence and particularly no credibility in those reports/referrals dated February 6, 1987, and later. The failure of teachers and administrators to timely commit to writing the reports does not diminish the credibility of the oral testimony on the same facts by the teachers and Mr. Brumm. It does, however, render less credible the administration's assertion that adequate communication was made with the parents simultaneously with the alleged disciplinary actions. The parents' assertion that the school failed to use corporal punishment as an accepted disciplinary technique is ill-founded. The administration's failure to employ corporal punishment was consistent with established policy, and not demonstrated to be unreasonable. Respondent's exhibits of report cards and progress reports from the private school which he entered subsequent to withdrawal from the Dade County Public School System are irrelevant to the statutory issues discussed in the conclusions of law. They are also virtually unintelligible without any "key" by which they may be interpreted.
The Issue Whether cause exists for the Petitioner's proposed termination of the Respondent's employment as a bus driver for alleged inappropriate conduct with a student.
Findings Of Fact At all times material to this case, Respondent Howard Jessie (Respondent) was employed as a bus driver by the Pinellas County School Board. On an unidentified day during the first semester of the 1993-1994 school year, the Respondent was observed fraternizing on campus with several Pinellas Park High School students. The Respondent was tossing a football with students in an area which was "off-limits" to students. A female student identified herein as T.C. was present. A school resource officer approached the Respondent, and informed him that the area was off-limits to the students and that it was not appropriate for him to socialize with students at that time. The Respondent informed the officer that he was a bus driver and his association with students was not inappropriate. On a later unidentified day during the first semester of the 1993-1994 school year, the school's assistant principal observed the Respondent walking with T.C. in the "mall" area of the high school campus. The assistant principal instructed the Respondent to cease fraternizing with students. On a third day during the first semester of the 1993-1994 school year, the assistant principal observed the Respondent standing near the school bus area and speaking with several students including T.C. The assistant principal contacted a supervisor at the school board's transportation department and informed him of the Respondent's behavior. Upon receiving the phone call from the assistant principal, the supervisor summoned the Respondent to his office and directed the Respondent to cease his association with the students. The Respondent agreed to refrain from having further contact with the students. On or about January 10, 1994, the school resource officer observed the Respondent and T.C. standing on campus next to a parked school bus, and watched as the Respondent kissed T.C. on her cheek. The student did not appear to resist the kiss. The officer reported his observations to the assistant principal who contacted another transportation supervisor and requested that the Respondent be removed from his employment as a bus driver at Pinellas Park High School. The Respondent was called to a meeting with the administrator of the School Board's Office of Professional Standards. During the discussion of the matter, the Respondent admitted that he had hugged and kissed T.C. on campus. During the discussion, the Respondent also admitted that he and the student had engaged in oral sex in January, 1994. By letter of March 3, 1994, the Respondent was notified that he was suspended with pay and that the superintendent would recommend dismissal to the school board at the meeting of March 23, 1994. A number of stories related to this matter have appeared in the local press, including the March 18, 1994 issues of the St. Petersburg Times and the Tampa Tribune. Engaging in sexual activity with a student is conduct serious enough to impair the Respondent's effectiveness in the school district and to bring the service of the School Board of Pinellas County into disrepute.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a Final Order terminating the employment of Howard Jessie. DONE and RECOMMENDED this 21st day of November, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 21st day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1876 The Respondent did not file a proposed recommended order. The following constitute rulings on proposed findings of facts submitted by the Petitioner. The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County P. O. Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board P.O. Box 2942 Largo, Florida 34649 Mr. Howard Jessie 15695 Waverly Street, Apartment 2 Clearwater, Florida 34620
The Issue Whether Respondent committed an unlawful employment practice by failing to hire Petitioner on the basis of his gender, male.
Findings Of Fact Respondent is the Putnam-Clay-Flagler Economic Opportunity Council, Inc. (Council), a Florida non-profit corporation established pursuant to the federal Equal Economic Opportunity Act. The Council received grants from the United States Department of Health and Human Services, Administration for Children and Families (ACF) to sponsor the Head Start Child Development Program (Head Start) in the tri-county area of Clay, Flagler, and Putnam counties from 1965 until October 1996. After October 1, 1996, the Council acted as an interim overseer. Head Start is a comprehensive child development program which provides education, health and social services to pre- school (three- to five-year old) children and their families. Pursuant to the terms of their grants, the Council and Head Start were subject to guidelines formulated by ACF. On May 17, 1996, ACF issued a "Teacher Qualifications Mandate Memorandum to all Head Start Grantees and Delegate Agencies." As a Head Start grantee, the Council received a copy of this memorandum and was required to comply with its mandate, which outlined the qualifications that Head Start classroom teachers of children three-five years of age must possess by September 30, 1996. After September 30, 1996, Head Start classroom teachers would be required to possess the following qualifications: a Child Development Associate (CDA) credential that is appropriate to the age of the children being served in center-based programs [an optional bi- lingual specialization is available to candidates]; a State-awarded certificate for preschool teachers that meets or exceeds the requirements for a Child Development Associate credential (CDA); an associate, baccalaureate, or advanced degree in early childhood education; or A degree in a field related to early childhood education with experience teaching preschool children and a State- awarded certificate to teach in a preschool program. (Emphasis supplied) The May 17, 1996, Memorandum further emphasized that a "Child Development Associate" (CDA) credential is awarded to preschool caregivers who work with children ages three-five in a center-based setting. An optional bilingual specialization is available to candidates. All teachers hired by the tri-county Council for its Head Start program before October 1, 1996, who did not already meet the minimum qualification requirements were "grandfathered- in," and Head Start provided the necessary on-the-job, center- based training for those "grandfathered" teachers to receive their CDA by the date the federal requirements were to go into effect. Head Start never provided CDA training to new applicants for employment. After reviewing the May 17, 1996, Memorandum, the Council/Head Start sought to hire only persons who already met the new federal mandate. Petitioner argued that he had "heard" that this was not so. However, he presented no direct evidence, oral or documentary, to that effect. Effective July 1, 1996, the Council also revised its "Teacher I" job description to conform to the new ACF requirements. Specifically, the new Council/Head Start job description required that in order to be hired, any job applicant for a Teacher I position after July 1, 1996, had to possess, at a minimum, a CDA (or a bilingual specialization); a State-awarded certificate for preschool teachers that met or exceeded the requirements for a CDA; an associate, baccalaureate, or advanced degree in early childhood education; or a degree in a field related to early childhood education with experience teaching preschool children and a State-awarded certificate to teach in a preschool program. In September or October 1996, Petitioner began seeking employment as a teacher with Head Start. He had several telephone contacts with Susan Klaver, Head Start Education Coordinator. Petitioner believes that he told Ms. Klaver all of his qualifications in these telephone conversations and further told her that he was actively pursuing a CDA certificate by current enrollment at Florida Community College of Jacksonville. The Council has had a policy against discrimination in effect since November 1, 1995. Ms. Klaver established an opportunity for Petitioner to apply and interview for a Teacher I position. Ms. Klaver was aware of Petitioner's male gender upon setting up the interview. On or about October 15, 1996, Petitioner formally applied for a Teacher I position, which previously had been known as a "Teacher's Assistant" position, with Head Start. The Teacher I job description which had gone into effect July 1, 1996, was available to applicants applying for Teacher I positions in October 1996. At the time Petitioner applied for a Teacher I position, there were two available Teacher I positions. One available Teacher I position was located at the Ponoma Park Head Start Center. The program at that center was not in compliance with the bilingual teacher requirements of the ACF rules and regulations, and Head Start was seeking a bilingual (English/Spanish-speaking) person to work as a Teacher I at Ponoma Park. The other available Teacher I position was located at the Orange Park Head Start Center. During the hiring process, Kathleen Pater, Head Start Director, and Susan Klaver reviewed applications and interviewed applicants. At the time Petitioner applied for a Teacher I position with the Council/Head Start in October 1996, he submitted an application for employment; a certificate of attendance at a ten- hour course in Professionalism from Florida Community College of Jacksonville, dated April 23, 1996; a twenty-hour HRS certificate from St. Augustine Technical Center, dated May 8, 1995; a ten-hour HRS certificate from Bradford Vocational Center, dated July 11, 1995; a First Aid certificate; a CPR certificate; a two- page "thesis" on child development which he had written; and his college transcripts. All of these items, except Petitioner's application and college transcripts were admitted in evidence at hearing. In October 1996, Petitioner was pursuing CDA certification by taking classes at Florida Community College of Jacksonville. However, Petitioner admitted at hearing that he was not yet certified as a CDA when he sought employment with Head Start in October 1996. At formal hearing, witnesses discussed several certificates of completion for ten-hour educational units/courses toward a CDA, which units/courses Petitioner completed in May, June, or July of 1997. Petitioner testified that he completed his CDA training in July of 1998 (TR- 100), but he was unable to submit a copy of a CDA certificate at the hearing. Clearly, at the time Petitioner applied for a Teacher I position with Head Start in October 1996, he did not possess a CDA credential. At the time Petitioner applied for a Teacher I position with Head Start in October 1996, he also did not have a bilingual specialization. When Petitioner applied for a Teacher I position with Head Start in October 1996, he did not have a State-awarded certificate for preschool teachers that met or exceeded the requirements for a CDA. When Petitioner applied for a Teacher I position with Head Start in October 1996, he did not possess an associate, baccalaureate, or advanced degree in early childhood education. When Petitioner applied for a Teacher I position with Head Start in October 1996, he did not possess a college degree in a field related to early childhood education with experience teaching preschool children and a State-awarded certificate to teach in a preschool program. Petitioner testified at one point that in October 1996 he had a degree which met or exceeded the CDA credential, but the documentation admitted in evidence at hearing did not bear out this assertion. Petitioner offered no college degree and no college transcript. Accordingly, it is found that when Petitioner applied for a Teacher I position with Head Start on October 15, 1996, he did not possess any of the minimum teacher qualifications mandated by the ACF in its Teacher Qualifications Mandate Memorandum dated May 17, 1996, or any of the minimum teacher qualifications outlined in the Council's new Teacher I job description. On October 29, 1996, ACF issued a "Teacher Qualifications Mandate: Waiver Process Memorandum to all Head Start Grantees and Delegate Agencies," which provided that, in order to receive waivers, grantees (in this case the Council/Head Start) "should make every effort to hire teachers who meet the qualifications" specified in the May 17, 1996, Memorandum. (See Finding of Fact 6) The October 29, 1996, Memorandum went on to specify that, if grantees' efforts to hire teachers who already met the qualification requirements were not successful, and if the most viable applicant did not meet any of the teacher qualification requirements, a 180-day waiver could be applied for by the grantee and granted by ACF with respect to an applicant who: is first employed after September 30, 1996, by Head Start agency as a teacher for a Head Start classroom; is enrolled in a program that grants any credential, certificate or degree specified above in paragraph (A), (B), (C), (D); and Will receive such credential under the terms of such program no later than 180 days after beginning employment as a teacher with such agency. (Emphasis supplied) The October 29, 1996, Memorandum further stated that persons already employed by Head Start prior to October 1, 1996, were not eligible for waivers and that a waiver could only be granted once per applicant (new hire). That meant that if a waiver were granted and the new employee did not receive one of the specified degrees or credentials within 180-days, that employee would have to be terminated and the hiring process would begin again. At the time Petitioner applied for a Teacher I position with the Council/Head Start program on October 15, 1996, he was not already hired, obviously. Without the college transcripts (See Finding of Fact 21), the evidence is not persuasive that Petitioner made his then-current efforts toward attaining CDA certification or any college degrees known to either Ms. Pater or Ms. Klaver in October 1996, but even if he had clearly made such a representation to them, it is not significant. First, it is not significant because, contrary to Petitioner's contentions, the Council/Head Start was not required to waive any of the May 17, 1996, requirements. Second, it is not significant because, upon all the credible, competent evidence of record, it is not possible to infer that Petitioner's enrollment at Florida Community College of Jacksonville in October 1996 would have certainly resulted in a CDA or a specified degree within 180-days (6 months), i.e. by March 1997. Apparently, Petitioner assumed that because of his phone conversations with Ms. Klaver (see Findings of Fact 11-12) and because he had submitted one certificate showing that he had completed ten hours of Professionalism training, one course toward a CDA (see Finding of Fact 21), the interviewers would be informed that he was currently enrolled in a program that would certainly grant him a CDA certificate within 180-days after initial employment. In fact, Petitioner did not earn his CDA until nearly two years later. Although Petitioner testified that he could have earned a CDA within 180-days and that the Council's failure to hire and train him in a center-based environment resulted in his being delayed in receiving his CDA until July 1998, his assumption is purely speculative. Even if Petitioner had been likely to earn a CDA or other specified college degree or certificate within 180-days of October 15, 1996, Head Start was not obligated to request a waiver of ACF requirements for Petitioner if it could hire a person already qualified. The Council/Head Start ultimately was able to hire two applicants who already met the qualifications specified in the May 17, 1996, Teacher Qualifications Memorandum. Ms. Klaver reviewed Petitioner's job application for the Teacher I position. Both Mesdames Pater and Klaver interviewed Petitioner. After reviewing the applications and interviewing the applicants, Mesdames Pater and Klaver only made hiring recommendations to the Council. They neither jointly nor severally had ultimate hiring authority. All new hires had to be approved by the Council. The Council is comprised of approximately six members from each center. The members of the Council are elected by the parents of the respective centers. Although Ms. Klaver deposed that she did not recommend Petitioner at least in part because he was not hired, possibly misreading (A) of the October 29, 1996, Memorandum (see Finding of Fact 31), she also clearly stated that she reviewed Petitioner's documentation and found he did not qualify under the May 17, 1996, Memorandum. In a letter dated November 20, 1996, Ms. Klaver notified the male Petitioner as well as two female applicants of the decision not to hire them (Exhibit R-15 and exhibits thereto). Her letter stated that "[o]n Monday, November 18, 1996, the Head Start Policy Council voted to approve hiring two new teachers," not that two new teachers were, in fact, hired on that date. Unfortunately, additional language in this letter told the three applicants that they were not hired "at this time," leading Petitioner to the erroneous conclusion that the two positions had been filled as of November 18, 1996. The letter further misled Petitioner concerning his chances of employment by stating that the applications would be kept on file for at least 30 days and considered for future openings. Interviewers Pater and Klaver did not recommend that the Council hire Petitioner for one of the vacant Teacher I positions with Head Start because he did not satisfy the minimum qualifications mandated by ACF, and the Council did not hire him for the same reason. Ultimately, the Council hired Tammy Hudson (female) for the Orange Park Center and Mary Martin (female) for the Ponoma Park Center. Ms. Hudson's application, in evidence, was dated October 23, 1996, approximately the same time as Petitioner's application. Ms. Martin's application, in evidence, was dated March 3, 1997, but stated that she also had previously applied to Head Start in October 1996, as had Petitioner. Precisely when each woman was hired is not clear, but both were on the Head Start payroll by May 1997. Tammy Hudson possessed the mandatory teacher qualification requirements for the Teacher I position. The Council approved hiring her because she possessed the minimum teacher qualification requirement of a CDA awarded November 1, 1995, and had significant work experience in dealing with preschoolers. Tammy Hudson was more qualified for the Teacher I position than was Petitioner in October 1996. The Council approved hiring Mary Martin because she possessed the minimum teacher qualification requirements (a bilingual specialization) and a four-year college degree in "early childhood"; because she met the mandated qualifications of the Ponoma Park Center, which was not in compliance and which was required to hire a bilingual teacher; and because she had significant work experience in dealing with pre-schoolers. Mary Martin was more qualified, and more specifically qualified, for the Teacher I position with the Council/Head Start than Petitioner, at least as early as her March 3, 1997, application. On December 3, 1996, Petitioner wrote a letter to Mevlyn Ryles, Executive Director of the Council, concerning the decision not to hire him for a teaching position. On December 11, 1996, Ms. Ryles wrote to Petitioner, acknowledging receipt of his letter dated December 3, 1996, and informing him that she would transmit the information to the Council. She then forwarded his letter to the Council. On March 7, 1997, David Sauce, Council Vice-Chairman, wrote to Petitioner in response to Petitioner's letter of December 3, 1996, stating that the Council had reviewed all of the information on file concerning his application, and explaining that the Council still supported the recommendation not to hire him because he "lack[ed] the necessary requirements and related job experience needed for the position." While it is possible that the Council did not have Petitioner's application in March 1997, which was more than 30 days after he had applied, this is insignificant because Petitioner still did not qualify for hire under the May 17, 1996, Memorandum until July 1998 when he received his CDA, if at all (See Finding of Fact 22). Petitioner views his male gender as an employment "plus" because of a perceived need of male role models in early childhood education. Likewise, he considered it discriminatory that he was not hired when females were hired. The evidence, however, supports a finding that the Council/Head Start did not consider Petitioner's gender as either a "plus" or a "minus" in its decision not to hire him. After rejecting unqualified male and female applicants, the Council continued to try to get the most qualified persons who would meet the new federal requirements until it was actually able to hire such persons. All Council/Head Start personnel were, if anything, preoccupied with federal compliance, especially with regard to getting a Spanish-speaking teacher.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's October 27, 1997, complaint against Respondent for gender discrimination in violation of the Florida Civil Rights Act arising from his October 15, 1996, job application. DONE AND ENTERED this 17th day of March, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 17th day of March, 1999. COPIES FURNISHED: Kimberly Cannon, Esquire Corbin & Duvall Post Office Box 41566 Jacksonville, Florida 32203 Billy Boston Apartment B 2739 College Street Jacksonville, Florida 32205 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Did Respondent, Volusia County Schools (School Board), decline to renew the contract of Petitioner, Glen Collins (Mr. Collins), because of his age? Did the School Board unlawfully retaliate against Mr. Collins for protected activity?
Findings Of Fact The School Board is an employer as defined by section 760.02(7), Florida Statutes (2010),1/ the Florida Civil Rights Act. The School Board had policies and procedures in place during Collins' employment that prohibited the discrimination or harassment of any employee "on the basis of [that employee's] race, color, religion, national origin, sex, disability, marital status, political beliefs, sexual orientation, or age." The School Board provided these policies and procedures to all employees in the new employee briefing. The School Board also provided employees periodic training on the policies. Additionally, the policies and procedures were available to employees on the School Board's website and in employee handbooks. The School Board also operated a human resources department to help enforce the policies and answer employee questions or concerns about the policies. The School Board's anti-discrimination policy encouraged any employee who believed he or she had been subject to harassment on the basis of age to notify the equity officer, through use of a report form or orally, within 60 days of the alleged harassment. The School Board policies commit to promptly investigate any complaint(s) of harassment, whether formal or informal, verbal or written, and take appropriate action to prevent further harassment, including disciplining the employee violating its policy. The School Board also prohibited retaliation against any employee for reporting allegations of harassment or participating in an investigation, proceeding or hearing related to the alleged harassment. The School Board would take the appropriate disciplinary or other action against any employee found to be in violation of the policy. Mr. Collins worked for the School Board from August 28, 2006, until June 30, 2010. He began employment in the maintenance unit for the school system. The maintenance unit employees were responsible for repair and other maintenance of the School Board facilities throughout Volusia County. Russell Tysinger (Mr. Tysinger) hired Mr. Collins. In 2006, the School Board operated separate construction and maintenance departments. The maintenance department consisted of employees at two district offices, one in Daytona Beach and one in Deltona. Mr. Collins began work at the Daytona office. Mr. Collins was a skilled, diligent, and committed employee. Over the years he worked in several positions including Electrical Maintenance Supervisor for the East Side (of the County), Facility Mechanical Technician (FMT) Supervisor, and Trade Supervisor (Electric). In addition to performing all the duties of his various positions during his years of employment, Mr. Collins volunteered for additional duties and actively sought to identify and solve problems at the schools for which he was responsible. For instance, when a plumbing supervisor retired, Mr. Collins volunteered to assume the duties of that position. This permitted the School Board to save money by eliminating the position. The School Board recognized Mr. Collins' skills and dedication. It gave him additional duties and pay increases. The School Board does not claim that Mr. Collins' termination was for discipline or unsatisfactory work. In 2008, and in every year since, the School Board's revenue has declined. This has caused a decrease each year in the budget of the maintenance and construction department and other departments. When the School Board hired Mr. Collins, he knew that it faced financial difficulties and was likely to downsize. Mr. Tysinger, the maintenance unit's head, had to reduce costs, increase efficiency, and economize in both the materials and labor components of his budget. In 2008, he eliminated several vacant positions and did not fill positions created by retirements. In 2009, when the head of the construction unit resigned, the School Board consolidated the maintenance and construction units to save money. Mr. Tysinger became the head of the consolidated unit. The School Board eliminated the position filled by the former head of construction. In 2009, Mr. Tysinger faced a greater need to reduce costs, including labor costs. This year there were not enough retirements and vacancies to achieve the needed personnel cost savings simply by eliminating vacant positions. Mr. Tysinger laid off 12 employees from the newly consolidated unit, including five in supervisory positions. He reduced capital and material expenditures also. And he reinvigorated an energy conservation program to reduce utility costs. During the 2009-2010 time period, Mr. Tysinger also changed the maintenance shop locations from two (one on the east side of the county and one on the west side) to five distributed around the county. He did this to reduce the costs of the various tradesmen driving to the schools where they performed their tasks and to improve efficiency by having less driving time and more working time. These changes saved the financial equivalent of 33-full time equivalent positions and doubled the department's productivity. In July of 2009, Mr. Collins became an FMT supervisor, responsible for overseeing and assisting 11 FMTs. These duties were in addition to his duties as an electrical maintenance supervisor. On December 3, 2009, Mr. Collins executed an annual contract with the School Board for the 2009-2010 school year. The contract specifically provided that "[a]n Employee may be dismissed where the School Board through financial necessity for good cause shown deems it necessary to decrease the number of employees of the particular kind of service in which the affected Employee was engaged." The contract expired on June 30, 2010. In 2010, the School Board required Mr. Tysinger to cut approximately 1.8 million dollars from his personnel budget and four to five percent from his materials and supplies budgets. These further budget reductions required Mr. Tysinger to lay off 38 employees in the construction and maintenance division and take other cost-cutting measures. Mr. Tysinger conducted a rational analysis of employees and their skill sets to determine which employees he would have to let go in 2010. First, Mr. Tysinger identified all of the skill sets that he needed to have in the maintenance and construction unit. This included plumbing, electrical, and heating and cooling. He also determined how many employees with each skill set he needed. Then he identified the employees with the needed skills. After that, Mr. Tysinger reviewed the seniority of each employee in each group determined by the skill set groupings. He then determined who would be laid off by seniority, while ensuring that he maintained the skill sets needed and the number of employees he required with those skills. Using seniority as a factor helped ensure that the School Board retained the employees with the most experience with the School Board facilities and systems. Mr. Collins was one of the individuals let go. Mr. Tysinger advised Mr. Collins on May 27, 2010, that the School Board would not renew his contract in June when it expired. Mr. Collins was 52-years-old. The School Board's Maintenance and Construction unit retained employees older than Mr. Collins. For example, the School Board retained Mr. Ken Blom and Mr. Rick Jones, both of whom were older than Mr. Collins. During the period between May 27, 2010, and the end of the contract period, Mr. Collins' supervisor asked him to train Antonio Gutierrez in the job duties that Mr. Collins performed and inform Mr. Guiterrez about projects and activities underway. Mr. Gutierrez is younger than Mr. Collins. His age does not appear in the record. Mr. Tysinger retained Mr. Gutierrez because of his expertise with air conditioning units, because air conditioning was one of the largest problem areas, and because of his seniority. During the time period when he reduced the number of staff, Mr. Tysinger also reassigned employees to different locations and units to provide the needed distribution of skill sets at each location and in each unit. This process took several months. In this process, as an interim measure, Mr. Tysinger assigned Mr. Gutierrez to perform many of Mr. Collins' functions. Mr. Gutierrez did not replace Mr. Collins or permanently assume his duties. Mr. Tysinger reassigned the majority of Mr. Collins' duties to Mr. Blom. This included his electrical duties and supervision of some of Mr. Collins' former FMTs. He assigned Mr. Collins' plumbing responsibilities and some of his FMTs to Mr. Ford. And he assigned some of Mr. Collins' electrical responsibilities to Mr. McKinnon. The ages of Mr. Ford and Mr. McKinnon do not appear in the record. Mr. Collins' claim of age discrimination rests solely on his belief that Mr. Gutierrez assumed his job responsibilities. During his employment with the School Board, Mr. Collins identified maintenance problems at different schools, including Pine Ridge High School, over the years and reported them. Mr. Collins also discovered sealant was being improperly applied and raised concerns about this. Mr. Collins thinks that his identification of the problems embarrassed the supervisors responsible for the schools and that his termination was retaliation for identifying the problems. There is no persuasive evidence to support Mr. Collins' belief. There is no evidence that Mr. Collins opposed any practice that is unlawful under the Florida Civil Rights Act of 1992 (chapter 760, Florida Statutes), or that he made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Civil Rights Act. Budget reductions required the School Board to reduce the number of employees in the construction and maintenance unit where Mr. Collins worked. Mr. Tysinger and the School Board did not consider Mr. Collins' age in deciding to end his employment. They also did not act because of any dissatisfaction with his good work identifying problems with the maintenance of the schools.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny Mr. Collins' Petition for Relief. DONE AND ENTERED this 11th day of April, 2012, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 11th day of April, 2012.
The Issue Whether Respondent's state teaching certificate should be suspended or revoked pursuant to Chapter 231, , Florida Statutes, asset forth in Petition, dated May 21, 1979. This is an administrative proceeding whereby the Petitioner seeks to take adverse action concerning the teaching certificate of the Respondent based on two counts of misconduct arising from the teacher/pupil relationship. The first count alleges that the Respondent had sexual intercourse with a seventh grade student on one or more occasions during the 1972 school year. The other alleges that during the 1978 school year, the Respondent kissed a female student on the lips on one or more occasion. The Petitioner herein was filed pursuant to directions of the State Commissioner of Education who, on May 18, 1979, found probable cause to justify disciplinary action under the provisions of Section 231.28, Florida Statutes. Respondent requested an administrative hearing by his answer to the Petition, dated June 20, 1979.
Findings Of Fact Respondent holds Florida Teaching Certificate No. 157255, Graduate, Rank II, valid through June 30, 1989, covering the areas of English elementary education, and junior college. He received a Maser's Degree in education from South Carolina State College in 1969, and obtained Florida teaching certification in August, 1969. At the time of the incidents alleged in the Petitioner, Respondent was employed as a teacher in the public schools of Orange County. (Testimony of Respondent, case pleadings) During the 1971-72 school year, Respondent was a sixth grade teacher at the Grand Avenue Elementary School, Orlando, Florida. At some undisclosed time subsequent to the end of the school year, an Information was filed against Respondent by the State Attorney, Ninth Judicial Circuit of Florida, as a result of allegations that he had engaged in sexual intercourse with one of his twelve- year-old female students in 1972. The case was thereafter nolle prossed by the State Attorney for insufficient evidence. (Testimony of Nagel, Bailey) The alleged victim, Harriett Moten, testified at the hearing that on a number of occasions during the period January or February through May, 1972, while a twelve-year-old student in Respondent's sixth grade class, Respondent had sexual intercourse with her in a storage area behind the stage of the school auditorium. She testified that such incidents occurred approximately twice a week at about 11:00 A.M. during a class period. At those times, Respondent allegedly sent her out of class on an errand, such as obtaining film, and then joined her in the backstage area. She stated that these encounters would consume approximately 20 or 25 minutes by the time she returned to class, and the Respondent came back to class a short time later. Although music classes were conducted in the auditorium practically every day of the school week during the times in question, Moten testified that she never saw the auditorium in use or heard music while she was behind the stage. She stated that she submitted to Respondent's advances because she was afraid of him. She further testified that on one occasion Respondent had brought another female student to the rear of the stage who observed his activities with her. The deposition testimony of another former student, Thomas Grier, was admitted in evidence wherein he testified that he had once observed Respondent lying on top of the student who supposedly had once witnessed Respondent and Moten behind the stage. This incident also allegedly took place behind the auditorium after a music class. He further testified that he had observed Respondent enter the classroom on a number of occasions with one or the other of the tow female students. The witness was deposed at Zephyrhills Corrections Institute, Zephyrhills, Florida, where he was incarcerated for possession of a firearm. It was his third conviction of a felony. Harriet Moten testified that she gave birth to a child in January 1973. Although her blood type and that of Respondent is 0, she was informed by an Assistant State Attorney that her child's blood type was A. She had been a failing student during her sixth grade year and had been paddled a number of times by Respondent for disciplinary reasons. She informed her mother of Respondent's actions in the summer of 1972 when she experienced irregular menstrual periods and was found to be pregnant after her mother took her to a physician. She had not informed her mother earlier concerning the matter because they did not get along with each other. She claimed that she had not had sexual relations with anyone other than Respondent. Respondent denied the allegations at the hearing and said that, although the student had been one of his "problem children" whom he had to discipline on occasion, she had appeared to like him and was the only student who had brought him a Christmas present in 1971. From the foregoing, it is considered that the improbable and uncorroborated testimony of Harriet Moten, when viewed against Respondent's unequivocal denial of the allegations, is insufficient upon which to predicate a finding that Respondent had sexual intercourse with the student, as alleged in the complaint. The deposition testimony of Grier which, in part, supports the allegations, is not deemed credible. (Testimony of Moten, Grier (deposition, Petitioner's Exhibit 3), Respondent, Petitioner's Exhibit 5, Respondent's Exhibits 1, 2, 5). During the 1978-79 school year, Respondent taught sixth grade at the Cypress Park Elementary School, Orlando, Florida. On November 20, 1978, one of his students, Patricia Foster, accompanied by another member of her class, Lola Ortega, reported to the school principal that in the preceding October, Respondent had kissed her in the classroom during a-recess period when no one else was present. Lola told the principal that she had opened the classroom door at the time and observed the incident. The principal reported the matter to a school board Area Administrator who interviewed the two girls on the following day. Patricia told this official that Respondent had kissed her twice on the lips during the recess period and that, after the first kiss, he had said he "didn't mean it." Patricia said that on the second occasion, she looked up and saw Lola open the door and then close it. She further stated that she had not told her parents of the incident because her stepfather would have become angry, and that she had not told the principal earlier because she didn't want to get Respondent in trouble. Lola told the Area Administrator that she had opened the door to the classroom and observed Respondent stoop over and kiss Patty on the lips, at which time she closed the door and returned to the playground. At the hearing, Patricia testified that Lola had opened the door when Respondent kissed her the first time. Lola testified that at the time she opened the classroom door, Respondent had his back toward her and that she only saw him bend over the desk. She conceded that she had not seen Respondent actually kiss Patricia and denied that she had told anyone that she had. However, upon further inquiry, she admitted telling the principal that she had seen Respondent kiss the student and could not explain why she had done so. Patricia later told one of her classmates at a "slumber party" about the incident. That girl, Michelle Cridelle, testified that she thought Patricia had told her Respondent had kissed her twice on different days. Respondent had disciplinary problems with Lola during the previous school year and at the beginning of the 1978-79 school year. Also, on a prior occasion, she and another female student had fabricated a letter purportedly written by a male student to them containing coarse language which she admitted was designed to get the boy in trouble when it was delivered to her father. In another instance, Patricia and Lola had been untruthful in telling Patricia's mother where they had been on one occasion. Lola had been a frequent disciplinary problem for the school principal who considered her to be a leader and catalyst in creating problems at school. Respondent testified that, on the day of the alleged kissing incident, another student was in the classroom with Patricia during the recess period, and that he had simply gone to her desk and colored some leaves on a box. He denied kissing her on this or any other occasion. The school principal is of the opinion that Respondent is a very truthful individual. It is considered that the improbable, contradictory, and uncorroborated testimony of Patricia concerning the alleged kissing incident, coupled with Respondent's denial of the same, is insufficient upon which to base a finding that Respondent committed the acts alleged in the Petition. (Testimony of Foster, Richardson, Ortega, Cridelle, Cossairt, Taylor, Brady, Respondent, Petitioner's Exhibit 1). Respondent was relieved of his duties as a classroom teacher by the Superintendent of Orange County Public Schools on November 28, 1978, and reassigned to an Assistant Superintendent's office to perform administrative duties pending investigation of the 1978 allegations by Petitioner. He had been supervised by the principal of the Cypress Park Elementary School for a period of six years. The principal testified that the other teachers respected him, but that he should not be working with children due to his abrasive personality with students. During the three year period 1976-78, Respondent's performance evaluations were uniformly "Satisfactory," except in those areas reflecting his relations with students and parents, and in his support of "state laws and county policies." It was noted in the 1977 and 1978 evaluations that improvement was needed in those areas. Narrative comments of the evaluations further indicated his lack of rapport with students and parents, lack of support of corporal punishment practices, and his ridicule of students. One fellow teacher at Cypress Park Elementary School submitted a letter to Petitioner in January, 1978, stating that Respondent had always conducted himself properly with students and parents on the occasions when she had observed him at the school and during school functions. (Testimony of Cossairt, Petitioner's Exhibit 2, Respondent's Exhibit 3, supplemented by Respondent's Exhibit 4).
Recommendation That the charges against Respondent Isadore Smith be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of February, 1980. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive Suite 224 Tallahassee, Florida 32301 Edward R. Kirkland, Esquire 126 East Jefferson Street Orlando, Florida 32801 Professional Practices Council 319 West Madison Street - Room 1 Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent was employed by the Petitioner as a special education teacher at Parkview Elementary School, pursuant to a continuing contract with the School Board of Dade County, Florida. On June 6, 1986, Respondent was arrested for possession of cocaine. On approximately September 20, 1986, the principal at Parkview Elementary School was contacted by a probation officer regarding Respondent. The principal immediately advised Petitioner's Area Office and Petitioner's Office of Professional Standards of the phone call. He summoned Respondent to his office and advised her of the telephone contact. Respondent admitted that she had been arrested for possession of a controlled substance. Respondent continued to teach at Parkview Elementary School through the end of that school year and, possibly, during the subsequent summer session. According to the principal, Respondent continued to do a "fine job" as a teacher. By letter dated August 28, 1987, Petitioner advised Respondent that the superintendent of schools would be recommending to the School Board of Dade County, Florida, at its September 9, 1987, meeting that the School Board suspend Respondent and initiate dismissal proceedings effective at the close of business September 9, 1987, for immorality and misconduct in office. At the same time, Respondent was assigned to work in the Area Office and was removed from her teaching responsibilities at Parkview Elementary School. As a result of Petitioner assigning Respondent to the Area Office, several teachers at Parkview and the President of the PTA at Parkview inquired of the principal as to why Respondent was not at the school. They were told that there was a problem with the Area Office which would hopefully be resolved. On September 9, 1987, the School Board of Dade County, Florida, suspended Respondent from her employment and approved the recommendation for dismissal. As a result of the Board's action, information regarding Respondent's arrest, suspension, and termination appeared in the newspaper. Before the newspaper story of September 13, 1987, regarding the Board's action on September 9, 1987, there was no public knowledge and no public notoriety regarding Respondent's arrest. Even the arresting officer, who was unable to identify Respondent as the person he arrested, believed the person he arrested to be unemployed. Although the Office of Professional Standards will consider many factors in deciding whether to recommend to the School Board the suspension and/or dismissal of a teacher who has been arrested, the recommendation to suspend and dismiss Respondent was based solely on her arrest. The Notice of Specific Charges filed in this cause contains allegations that Respondent was previously placed on probation for the felony offense of a worthless check, that Respondent failed to complete the conditions of probation relative to the worthless check charge, that Respondent was arrested and charged with possession of a controlled substance, and that Respondent failed to complete the conditions of probation relative to that charge. No evidence was offered, however, in support of the allegations regarding any arrest on a worthless check charge, regarding Respondent being placed on probation, regarding any terms of such probation, regarding her failure to fulfill those conditions, or of the disposition of the charge of possession of controlled substance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered reinstating the Respondent and awarding her back pay for the period of her suspension less any monies earned by the Respondent during that time. DONE and RECOMMENDED this 15th day of April, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4120 Petitioner's proposed finding of fact numbered has been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 1, 10, and 12 have been rejected as not being supported by the evidence in this cause. Petitioner's proposed findings of fact numbered 2, 3, 5-8, and 11 have been rejected as being unnecessary for determining the issues in this cause. Petitioner's proposed findings of fact numbered 4 has been rejected as being contrary to the evidence in this cause. Respondent's proposed findings of fact numbered 3-5 and 7 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1 and 2 have been rejected as not constituting findings of fact but rather as constituting conclusions of law. Respondent's proposed findings of fact numbered 6 has been rejected as being subordinate to the issues in this cause. COPIES FURNISHED: Joseph A. Fernandez, Superintendent School Board of Dade County Board Administration Building 1450 Northeast 2nd Avenue Miami, Florida 33132 Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 William Du Fresne, Esquire 2929 Southwest 3rd Avenue Miami, Florida 33129 Madelyn P. Schere, Esquire Board Administration Building 1450 Northeast 2nd Avenue Miami, Florida 33132
Findings Of Fact At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher on an annual contract basis. Respondent first began working for Petitioner in February 1987, as an elementary teacher at Westview Elementary School. She taught at Westview Elementary School from February 1987 to the end of the 1986-87 school year and at Miami Park Elementary School during the 1987-88 school year. Both Westview Elementary School and Miami Park Elementary School are public school in the Dade County School District. For the 1988-89 school year, Respondent was assigned to teach a first grade class at Westview Elementary School. At the time of the final hearing, Respondent was 29 years of age. Respondent had received training as to Petitioner's disciplinary policies. She was aware of Petitioner's general disciplinary policies and the specific disciplinary procedures in place for Westview Elementary. During the 1988-89 school year there was in place at Westview Elementary an assertive discipline policy which was designed to discipline students without the use of physical punishment and which prohibited the use of physical force by teachers in the discipline of students. Teachers were instructed to remove disruptive students from the classroom by referring them to the administration office. If a student would not willingly go to the administration office, the teachers were to summon an administrator to the classroom to take charge of the disruptive student. In Respondent's classroom at Westview Elementary there was a coat closet that had hooks and shelves for storage. This closet was left without light when the two doors to this closet were closed. S.W., D.C., and D.W. were, during the 1988-89 school year, first grade students in Respondent's class at Westview Elementary. From the beginning of the 1988-89 school year, Respondent disciplined S.W., D.C., and D.W., individually, by placing each of them at various times in the coat closet and by then closing the two doors to the closet. On each occasion, the respective student was left in darkness. Respondent administered this punishment to S.W., a student Respondent characterized as having emotional problems, on seven separate occasions. Respondent administered this punishment to D.C. on at least one occasion and to D.W. on more than one occasion. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. During the 1988-89 school year, D.N. and S.M. were first grade students at Westview Elementary School who were assigned to Ms. Ortega's class. On February 14, 1989, Respondent observed D.N. and S.M. fighting while returning to their class from lunch. Ms. Holt, a substitute teacher temporarily assigned to that class while Ms. Ortega was on maternity leave, was the teacher in charge of D.N. and S.M. Respondent did not think that Ms. Holt could manage D.N. and S.M. Instead of referring the two students to the administration office, Respondent, with the permission of Ms. Holt, took D.N. and S.M. to Respondent's classroom to discipline the two students. Respondent had not been asked to assist Ms. Holt in this fashion. Respondent placed D.N. and S.M. in separate corners of the room and instructed them to be quiet. While Respondent attempted to teach her class, D.N. and S.M. continued to misbehave. D.N. began playing with a fire extinguisher and S.M. began writing and drawing on a chalkboard. To discipline D.N., Respondent tied his hands behind his back with a red hair ribbon. While he was still tied, Respondent placed the end of a broom handle under D.N.'s chin, where it remained propped until it fell to the floor. Respondent then placed the fire-extinguisher into D.N.'s tied hands to show him that the heavy fire extinguisher could harm him if it fell on him. These actions took place in Respondent's classroom in the presence of Respondent's class. Respondent frightened D.N. and almost caused him to cry in front of his fellow students. Respondent exposed D.N. to embarrassment and subjected him to ridicule from his fellow students. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. To discipline S.M., Respondent placed him in the coat closet. Respondent closed one of the doors and threatened to close the other door if S.M. did not remain still and quiet. After S.M. did not obey her instructions, Respondent closed the other door of the closet which left the closet without light. While S.M. was in the coat closet, Respondent remained stationed by the second door and continued instructing her class. After a brief period of time, Respondent let S.M. out of the dark closet. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. D.N. and S.M. remained in Respondent's class until a student sent by Ms. Holt summoned them to the library to participate with the rest of their class in vision and hearing testing. D.N. had to walk from Respondent's class to the library with his hands tied behind his back. This exposed D.N. to further embarrassment and ridicule. Ms. Holt untied D.N.'s hands in the library in the presence of other students. The ribbon which Respondent had used to bind D.N.'s hands behind his back left red marks on D.N.'s wrists. Ms. Holt immediately reported the incident to the principal. During the course of its investigation into the incidents involving D.N. and S.M., Petitioner learned of the prior incidents during which S.W., D.C., and D.W. were punished by being placed in the closet. Following the investigation of the Respondent's disciplinary methods, Petitioner suspended her without pay on May 17, 1989, and instituted proceedings to terminate her annual contract. Respondent timely demanded a formal hearing of the matter and this proceeding followed. The progressive discipline approach used by Petitioner in some cases involving teachers who violate disciplinary procedures usually requires that a reprimand be imposed for the first offense. Subsequent violations by the teacher would result in the imposition of progressively severe sanctions, culminating in dismissal. The progressive discipline approach is not used in a case involving a serious breach of policy such as where an established pattern of violations is established. Respondent's repeated practice of placing students in a darkened closet, which began at the beginning of the school year and continued into February when the incident involving D.N. and S.M. occurred, established a patterned breach of disciplinary procedure. Respondent's effectiveness as a teacher in the school became impaired because of her repeated breaches of discipline policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Katherine R. Santos guilty of misconduct, which affirms her suspension without pay, and which terminates her annual contract. DONE AND ENTERED this 15th day of December, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer 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 December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3064 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 1 and 2 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 5 and 6 of the Recommended Order. The students, who are identified by initials, are described as being first grade students rather than as being a specific age. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in part by paragraphs 5 and 9 of the Recommended Order. The proposed findings of fact relating to Respondent's having struck a student with a ruler and having twisted the ears and arms of other students are rejected as being contrary to the weight of the evidence. The proposed findings of fact in paragraph 6 are rejected as being contrary to the weight of the evidence. The proposed findings of fact in paragraph 7 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in material part by paragraphs 8, 9, and 10 of the Recommended Order. The proposed findings of fact in paragraph 9 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 15 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraphs 16 and 17 are rejected as being the recitation of testimony and as being subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by paragraphs 6 and 7 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraphs 7 and 9 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraphs 7 and 8 of the Recommended Order. The proposed finding that the ribbon was tied loosely is rejected because of the marks left on the student's wrists. The proposed findings of fact in paragraph 6 are rejected as being the recitation of testimony and as being subordinate to the findings made. The proposed findings of fact in paragraph 7 are rejected as being conclusions and as not being findings of fact. The proposed findings of fact in paragraph 8 are rejected. A finding that none of the students were struck or hit is rejected as being unnecessary to the conclusions reached. A finding that none of the students were abused is rejected as being a conclusion that is unnecessary to the results reached and as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 9 are rejected as being unsubstantiated by the evidence. The greater weight of the evidence is that Respondent had been advised as to Petitioner's disciplinary policies and that she knew or should have known that the forms of punishment she was using violated those policies. The proposed finding of fact in paragraph 10 that the discipline inflicted on these students does not amount to corporal punishment is rejected as being a conclusion that is unnecessary to the results reached and as being unsubstantiated by the evidence. The remaining proposed findings of fact in paragraph 10 are adopted in material part. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board of Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 William DuFresne, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, Florida 33132
The Issue The issue in this case is whether Respondent is guilty of misconduct in office.
Findings Of Fact Respondent has been employed as a physical education teacher at Avon Park Middle School in Highlands County since 1978. He holds a teaching certificate and at all material times was on continuing contract with Petitioner. Normally, middle school consists of sixth through eighth grades. However, during a portion of the relevant time period, Avon Park Middle School included fifth through eighth grades. Student 2 is C. B., who is now 17 years old and in 10th grade. C. B. entered fifth grade at Avon Park Middle School in the fall of 1988. At this time, C. B. first encountered Respondent and soon developed a crush on him. Late the following school year, C. B. wrote two notes to classmates that indicate the strength and persistence of her infatuation with Respondent. The first note is dated April 9, 1990. The note states that she has been "day dreaming" about "me and C. J. [Coach Jarvis]." The second note, which is dated May 29, 1990, mentions a dream that C. describes as "so real." C. B. wrote that she was going to recount the dream to Respondent and the female physical education coach, Ms. Dixon, although there is no evidence that she ever did. In the note, C. B. wishes that Respondent would get a divorce and marry and "have sex with me." C. B. also stated in the note that she wishes that Respondent "would give me a kiss before school is out." C. B. signed the note as "[C. B.] or [C.] Jarvis." At the end of sixth grade, C. B. signed the yearbooks of at least two classmates, "C. Jarvis." The signatures reflected her desire to marry Respondent. The crush continued while C. B. was in seventh grade. In an undated note probably written in sixth or seventh grade, C.B. writes: . . . Have you ever seen Coach J['s] house[?] If you hadn't seen it, the house must not be very far. You know for me to get Coach J. I'm going to have to go to his house and punch his wife [out?] & then she'll die & I'll have Cochy pooh to my self. . . . During seventh grade, C. B. developed crushes on two other adults. The first was Deputy Keith Starling, who is a 25 year old coworker and friend of C.B.'s father. Although Deputy Starling never did anything to encourage C. B., she wrote, "I [love] Keith Starling" in a classmate's yearbook at the end of seventh grade. A more serious incident took place the summer following seventh grade. B. babysat five days a week from about 8:30 am to 2:30 pm for the children of Mike and Bonnie Brown. Mr. Brown, who is in his 30s or 40s, began to find letters from C. B. in his underwear drawer. Although he had never spoken to her except to say hello, the letters addressed highly personal matters, such as that he had a nice body, his wife did not dress him well, and C.B. would like to dress him like he should be dressed. The letters started the first week after C. B. began babysitting for the Browns. Mr. Brown showed the first or second one to his wife, but they dismissed the letters as unimportant. They did not discuss them with C. B. or her father. After two months, the Browns quit asking C. B. to babysit after she pulled the hair of one of their young children. C. B. was assigned to Respondent's physical education class in eighth grade, which was the 1991-92 school year. This was the first time that Respondent was C. B.'s teacher. Respondent had been indirectly aware that C. B. had developed a crush on him in fifth grade, but he paid it no attention. Respondent and Ms. Dixon had had direct contact with C. B. in sixth grade when C. B. paid them regular visits while they had hall duty. C. B. told them that she was having serious problems with her stepmother, who she felt favored C. B.'s younger stepsister. C. B.'s biological mother had died when C.B. was only one year old. C. B.'s older sister had become pregnant outside of marriage and at a young age. Respondent had some special insights into teenage pregnancies as a family member had gone through the same problem. There is no evidence that Respondent had any significant contact with C.B. during the following school year, which was when C. B. developed crushes on Deputy Starling and Mr. Brown. Early in the 1991-92 school year, as C. B. was now in eighth grade and taking Respondent for physical education, she began to be more obvious in making Respondent the object of her attentions. She became more vocal. She approached Respondent in the hall and said that she really liked the way he looked. She went out of her way during physical education class to say hello to Respondent. By Thanksgiving, C. B.'s infatuation had worsened. She told Respondent that she had a goal for her birthday--a kiss from Respondent. Respondent tried to laugh off the inappropriate comments. Like Mr. and Mrs. Brown, Respondent did not take the infatuation seriously, so, like them, he did not discuss it with anyone. Sometime before Christmas break, Respondent received a note from C. B. that said she really liked him and her goal was a kiss. Respondent threw the note away. About a week or so later, Respondent received another note saying that she cared about him. Again, Respondent discarded the note and assumed that he would have no trouble if he stayed away from her. Just prior to Christmas break, C. B. began stopping in to see Respondent. He began to become aggravated and started to evade her. However, he figured that the crush would cease during Christmas break. At Christmas, Respondent received a Christmas card from C. B. The card featured three bunnies--one marked "[C. B.]," one marked Respondent, and one marked "[R.]," who is Respondent'sson. The situation took a turn for the worse when school resumed in January. After a few days of relative inattention from C. B., Respondent received two notes within four days of each other. The first note is dated January 6, 1992. C. B. gave the note to Respondent on that day or perhaps the following day. The note reads: Hey or hi, oh let's get to the point. Over the Christmas break I thought about you a lot. Even had dreams. I have thought about everything that could go wrong, but I want to go all the way with you. You may think this is just a crush but it's more than a crush. I really LOVE you. And I don't use that phrase unless I mean it. I know I could get preg. or something but that is why they invented condoms. Just tell me when and where and I'll be there in my birthday suit. Well, that's enough for now & bells gonna ring so Chow Baby for now! LOVE YA ALWAYS, [C.] [B.] Jarvis I wish! On the same day, C. B. wrote a note to a classmate. The note states in part: Today I'm going to tell Coach "J" that I want to go all the way, Now I'll probley won't but I just want to see want he saids. It's going to be embarracing!!!!!! Now should I say it. Well write Back! On January 10, C. B. wrote Respondent another note, which she delivered the same or following day. The note states: O.K. Look, I'm sorry your name got mention this morning. I just wish I could crawl underneith a whole. Season told her mom about me having a crush on you. So my mom questioned me this morning about it, and I told her that I still kinda. If she asks me again tonight I'm going to tell her no! I'm also going to [tell] everyone at school the same thing. But, I still love you, and I wouldn't want to do anything that would hurt you. . . . It's just everything is coming all at once and I'm beginning to feel I can't handle it. It's just everything is happenin so fast and at once. At this point right no I wish I was dead! I mean all of my emotion is going crazy right now. But, today at A/ [?] your class better watch out! Well enough of boring you with my problems better go!!!! *Love ya Always & Never won't stop! [C.] [B.] Jarvis Oh, you want to hear a joke-- In 1998, your moma tried to skate, She hit the pole, her titties roled, in 1998. *NOTE: The word "Love" has been substituted in this ACCESS document for the heart symbol which is typed on original document on file in the Clerk's Office. There is a third note dated January 13, 1992. It is of the same nature as the two preceding notes. However, C. B. never delivered the note to Respondent. After getting the second note, Respondent discussed them with Ms. Dixon and asked her advice. From her conversations with C.B., Ms. Dixon was aware that C. B. was upset that her father did not trust her after her sister had gotten pregnant. Ms. Dixon and Respondent agreed that he needed to take the notes to the guidance counsellor. Respondent immediately took the notes to the guidance counsellor at Avon Park Middle School, Patricia Jackson. Ms. Jackson read the notes and arranged for a meeting among her, Respondent, and C. B.'s father. At the meeting, C. B.'s father was cooperative, explaining that C. B. had started to develop an interest in boys. Respondent said that he had asked C. B. to stop this behavior, and he needed the father's help in this regard. The father expressed his appreciation that the matter was brought to his attention, but asked why he had not been told about it sooner. Respondent explained that he had not previously taken the infatuation seriously. The meeting closed with an assurance from the father that he would take C. B. to a friend at church for counselling. He left with the two notes. At this time, Respondent and Ms. Dixon transferred C.B. to Ms. Dixon's physical education class. C. B. was quite upset at this action, and she became more upset when she learned that Respondent had told her father about the notes. Her father had disciplined her by restricting her social activities. About one to two weeks later, someone brought C. B. to Ms. Jackson because C. B. had been crying in the hall. C. B. explained that she was upset because her father had placed restrictions on her and she was embarrassed by the notes. After about 15-20 minutes, C. B. quit crying, seemed comfortable, and returned to class. At no time did she mention any other reason for her agitation. Respondent avoided C. B. for the remainder of the 1991- 92 school year. All contact between them stopped at that time until the last day of the school year. Shortly after the students were released at midday, Respondent was checking the gym for equipment, forgotten books, and lost clothing. He heard someone call, "Coach, Coachie pooh." It was C. B., who was at the other end of the gym. Respondent asked C. B. what she was doing there. Instead of answering, she climbed the stairs and entered the Future Farmers of America (FFA) room that is over the gym. Respondent followed her into the room. C. B. was misty eyed and said that she wanted to say goodbye and did not want to leave middle school. Respondent said that she needed to leave. He heard someone in the storage room adjoining the FFA room. C.B. said that a girlfriend and her boyfriend were in the storage room. At this moment, the public address system summoned Respondent to the office. A football equipment salesperson had come to the school to speak with Respondent, who was also a football coach, about repairing old helmets and ordering new ones to replace those that could not be repaired. Respondent and the salesperson visited the equipment room and inventoried the football helmets. They examined about 50 helmets in 25-30 minutes. After determining that an unexpectedly high number of helmets needed to be replaced, Respondent and the salesperson visited an assistant principal and told him of the need to purchase $1000 worth of new helmets. The assistant principal conferred with the principal, who decided to defer making a decision. At this point, the salesperson left and Respondent returned to the gym. He then found C. B. and her two friends at Respondent's desk in the locker room area. Respondent walked up to C. B. and demanded, "What the devil are you doing here?" She replied that she had to say goodbye one more time. Respondent told her to get out. He told C. B.'s two friends to get out too. The three students left the school area at that time. C. B. testified to a different version of events. She described sexual encounters with Respondent just before Christmas break in 1991 and on the last day of school in 1992. For the reasons set forth below, C. B.'s testimony has been discredited. C. B. testified that Respondent flirted with her intensely in December 1991. She testified that on one occasion he declared that he would kiss her before Christmas. She testified that Respondent gave her a pass to leave math class and go to the library. Instead, C. B. and Respondent met in his office and kissed, according to C. B. When his hand wandered toward her buttocks and breast, she testified that she left, and he said that he would show her how much he cared for her. Initially, C. B.'s testimony on direct stopped at this point in the description of the alleged December incident. Later in direct, she added that Respondent had exposed his penis, masturbated in front of her, and ejaculated. C. B. testified that Respondent gave her two or three audio cassettes of love songs by which to remember him, after he had turned in the notes in January 1992. C. B. testified that her relationship with Respondent resumed toward the end of the 1991-92 school year. She testified that she met Respondent in his office before school each morning during the last couple of weeks of school and that each meeting he would try to kiss her. She testified that Respondent promised that he would show her how much he loved her on the last day of school. C. B. testified on direct examination that she and a girlfriend went to the FFA room on the last day of school when school ended. She did not mention the boy. C. B. testified that Respondent met her in the FFA room, held her hand, and said that he loved her. She testified that, in a 45-60 minute period, Respondent exposed his penis, masturbated, and ejaculated three times--once in the FFA room, once a few minutes later on the gym floor, and once a few minutes after that in his office in the locker room. She testified that he masturbated in the FFA room after she told him her two friends were in the adjoining storage room. There are many problems with C. B.'s testimony. In her deposition given on September 22, 1993, C. B. testified that the first time she saw anyone's penis was during the alleged June encounter. She stated in her deposition that Respondent's penis remained in his pants during the December encounter. Likewise, she never mentioned in other statements the penis, masturbating, or ejaculating that she testified took place in December 1991. There are also variations concerning C. B.'s description of the alleged June encounter with Respondent. On cross-examination, C. B. admitted for the first time that a boy had accompanied her girlfriend to the storage room adjoining the FFA room. She had testified previously on direct and in deposition that only her girlfriend had accompanied her to the FFA room. C. B. explicitly mentioned only one of the three incidents of masturbation and ejaculation when she gave her statement to the school in March 1993. She clearly omitted from her statement the June office encounter, which was also omitted from her deposition testimony. C. B. also testified in her deposition that, immediately afterwards, she told her waiting girlfriend that Respondent had masturbated and ejaculated in front of her. The girlfriend testified that C. B. said only that she had kissed Respondent and implied either that more sexual activity had happened or that she had wished that more had happened. Besides these discrepancies, C. B.'s story lacks credibility due to its improbability. The last day of school is chaotic, and it is highly unlikely that Respondent would masturbate in the FFA room, after being told that two students were in the adjoining room; then on the gym floor, with unlocked doors all around him; and lastly, in his office just a few minutes later, as C. B. testified. Likewise, C. B. testified that the December encounter took place during the school day in front of a window between the office and locker room. C. B. is a spirited, sensitive young person. It is not uncharacteristic of middle school students that they engage in sexual fantasizing, and C. B. is no exception in this regard. C.B.'s sexual fantasizing has extended to two adult males besides Respondent--Deputy Starling and Mr. Brown. In the case of Deputy Starling, C. B. acknowledged the attraction at least once in a classmate's yearbook, as she did repeatedly as to Respondent. In the case of Mr. Brown, C. B. sent numerous notes, as she did to Respondent. C. B.'s reputation of truthfulness is poor among her peers and even her friends. There is no doubt that she deviated from the truth numerous times during her testimony. In addition to the matters set forth above, she testified that she never told anyone that she liked Deputy Starling and that she never left notes for Mr. Brown in his underwear drawer. At various times, C. B. said different things to her friends concerning her alleged relationship with Respondent. To a current girlfriend of hers, C. B. said that she "sucked [Respondent's] dick." She admitted to the same person that she had made up at least some things concerning her and Respondent. To another girlfriend, C. B. said that she and Respondent performed oral sex and intercourse, but later said to her that she never had sex with Respondent. For the above-cited reasons, none of the above-cited testimony of C. against Respondent can be credited. Student 3 is C. Ba., who is now 14 years old. She moved to Highlands County around February 1, 1993, while she was in sixth grade. She was assigned to Respondent's physical education class. One day during class, evidently not long after C. Ba. had entered Avon Park Middle School, Respondent named a team of crab soccer players as Ba.'s Bimbos. C. Ba. may not have known, but it was Respondent's custom to give the teams silly alliterative names, such as M.'s Maniacs. C. Ba. objected strongly to the name, claiming that she believed that it meant that she was a prostitute. According to local usage, a "bimbo" is an "airhead." According to the dictionary, a "bimbo" is a "thick-headed" person of either sex. Respondent intended the remark in this fashion, and most persons in Avon Park, including sixth grade students, would not have taken the remark to mean that Respondent was calling C. Ba. (or, strictly speaking, her team) prostitutes. Although in retrospect the name selected for the team was ill- considered, Respondent did not thereby reasonably cause C. Ba. any embarrassment or discomfort. As testified by the Superintendent, the school principal adequately handled this minor problem at the time. When asked to give a statement to the school on March 2, 1993, C. Ba. wrote that Respondent flirted with her. She specified that Respondent tickled her, placed his hands where her back and buttocks join, and called her "bimbos" [sic]. The note also adds: "There's a rumor, not really a rumor, but a girl by the name of [C. B.]. [C. B.] told [another girl] during an FFA meeting that [Respondent] and [C.B.] had screwed each other." In testifying, C. Ba. said that she could tell that Respondent was flirting with her due to the shine in his eyes-- the same look that she has seen boys get when they have tried to pick up other girls. There is no credible evidence that Respondent tickled C. Ba. or looked at her suggestively. If any contact really took place in the area of C. Ba.'s lower back, it was strictly incidental. Student 1 is S. H., who is 15 years old. She was in seventh grade during the spring of 1993. S. H. testified that Respondent touched her at the top of the buttocks while passing her in a crowded hall. Based on S.H.'s description of the circumstances, Respondent, who has no recollection of such an event, testified that he would have been trying to get through a crowd of students during a short break between classes in order to see someone in the office. There is no credible evidence of an intentional or otherwise inappropriate touching. The circumstances surrounding the reporting of S. H.'s story are pertinent. She did not report the matter, which was clearly casual contact. When the other allegations against Respondent emerged, she mentioned the "incident" to her boyfriend, who reported the "incident" to school officials. The spring and summer of 1993 was a fertile time for rumors and innuendos concerning Respondent among the minority of persons in the school and outside communities easily susceptible to suggestion or perhaps predisposed to dislike Respondent for some reason unrelated to the present case. For instance, rumors linked Respondent to at least two physical education teachers. There is no substance to these rumors, or even to allegations that Respondent inappropriately touched these teachers, such as by draping a leg over their legs in the presence of students (or at any other time). Other rumors were that Respondent entered the girl's locker room while girls were present and dressing. There is no substance to these rumors. Rumors of Respondent's flirting with numerous other students began to circulate. In the end, evidently, the only students to step forward with sufficiently substantial charges to warrant inclusion in the subject case were B., C. Ba., and S.H. As a result of the allegations of the three students, Petitioner suspended Respondent with pay in March 1993. Petitioner suspended Respondent without pay when, in the summer of 1993, the State Attorney filed criminal charges against Respondent based on the allegations of C. B. The record does not reveal much about the decision to arrest Respondent and the ensuing investigation, except that C.B.'s father never bothered to give the State Attorney the notes that his daughter had written Respondent. In any event, the criminal case was eventually dropped, presumably for lack of evidence. Petitioner's newly elected Superintendent had been a classroom teacher for 20 years. He testified that Respondent had a reputation as a flirt, although the Superintendent described this reputation as part of Respondent's personality and not anything specific. The Superintendent elaborated that the reputation was based on Respondent smiling, getting close to people, and combing his hair at halftime during football games that he officiated. More importantly, the Superintendent testified that Respondent has lost his effectiveness as a teacher, and his opinion on this matter would not change even if C. B. withdrew her charges. The Superintendent's opinion appears to be based in part on the perception that Respondent did not do what he could to stop the rumors. But if Respondent had dignified the rumors with a public denial, he would only have added fuel to the fire. The Superintendent's reasoning is also based in part on community opinion. However, media coverage of the charges has been reserved, factual, and balanced. Most of commentary against Respondent has come from a person or persons who chose to remain anonymous. By contrast, an impressive array of persons chose to appear at the hearing and publicly support Respondent and his reputation. A retired teacher, who had taught physical education with Respondent during her last 10 years of teaching, testified that she never saw Respondent touch students in the breast, buttocks, or genitals and never saw Respondent in the girls' locker room while it was occupied. A math and science teacher, who taught 12 years at Avon Park Middle School, testified that Respondent could teach effectively in Highland County if the charges were unproved. The Field Director of the Heart of Florida Girl Scout Council, who had two daughters in classes taught by Respondent and a son awaiting Respondent's return, testified that his reputation contains nothing derogatory and he never said or did anything improper. A secretary at Avon Park Middle School and wife of a local circuit judge, who had a daughter in classes taught by Respondent for four years and who has younger children not yet of middle school age, testified that she and her husband would have no problem with Respondent teaching their younger children and that Avon Park Middle School employees would have no problem with Respondent's returning. A substitute teacher and school volunteer, who has a daughter at Avon Park Middle School, testified that she would be comfortable with Respondent teaching her daughter and other children. A local attorney, who is active in local organized baseball, testified that Respondent is an honest person, good teacher, good coach, and someone involved with children and that the local community believed that Respondent was innocent until proven guilty. The Director of a local Christian preschool, who has daughters in seventh and ninth grades, testified that Respondent had a good reputation, parents wanted him back, and he could return to Avon Park Middle School and be effective. An employee of the Department of Corrections facility in Avon Park, who has had two daughter who recently finished middle school, testified that Respondent's reputation is good and that the people of the community have not prejudged his guilt, but instead want him back at Avon Park Middle School where he could return as an effective teacher. The coach and athletic director at Sebring High School for the past 25 years testified that Respondent could return as an effective teacher if cleared of the charges. Respondent also enjoys substantial support among students. On the other hand, Petitioner offered insubstantial evidence that Respondent could not return as an effective employee in the Highlands County school system or even at Avon Park Middle School, if the underlying charges were not proved. The greater weight of the evidence is that Respondent can return to teach physical education at Avon Park Middle School, or anywhere else in the Highland County school system, and enjoy the support of students, parents, teachers, administrators, and the public.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Highland County School Board enter a final order reinstating Respondent and awarding him full back pay for the time that he was suspended without pay. ENTERED on May 4, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on May 4, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-2 (second sentence): adopted or adopted in substance. 2 (third sentence)-5: rejected as unsupported by the appropriate weight of the evidence. 6-8: adopted or adopted in substance. 9: rejected as unsupported by the appropriate weight of the evidence. 10: rejected as irrelevant. 11-13: rejected as unsupported by the appropriate weight of the evidence. 14-15: adopted or adopted in substance except that she only gave him two of the notes. 16 (first sentence): adopted or adopted in substance. 16 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 17: rejected as recitation of evidence. 18-20: adopted or adopted in substance. 21 and 23: rejected as subordinate. 22: adopted or adopted in substance. 24: rejected as subordinate. 25: rejected as unsupported by the appropriate weight of the evidence. 26-32: rejected as unsupported by the appropriate weight of the evidence. 33 (first and second sentences): adopted or adopted in substance. 33 (third sentence): rejected as unsupported by the appropriate weight of the evidence. 34: adopted or adopted in substance except for proposed contradiction in Respondent's testimony. 35 (first sentence): rejected as unsupported by the appropriate weight of the evidence except that Respondent came to the FFA room. (second sentence)-36 (first sentence): adopted or adopted in substance. (second sentence): rejected as unsupported by the appropriate weight of the evidence. 37-45: rejected as unsupported by the appropriate weight of the evidence. 46: rejected as irrelevant. 47: rejected as unsupported by the appropriate weight of the evidence and subordinate. 48-51: rejected as unsupported by the appropriate weight of the evidence. 52: rejected as irrelevant. 53-73: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, subordinate, and irrelevant at least as to anything but a few isolated, unfounded rumors. 74: adopted or adopted in substance except for the attitude of the friends who know her well, which is rejected as unsupported by the appropriate weight of the evidence, subordinate, and irrelevant. 75: rejected as unsupported by the appropriate weight of the evidence except that Respondent did refer to C. B.'s teammates as "[B.]'s Bimbos." 76-95: rejected as unsupported by the appropriate weight of the evidence. 96-148: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, repetitious, subordinate, and irrelevant. 150-58: rejected as irrelevant and subordinate. 159-71 and 173-90: rejected as irrelevant, recitation of evidence, subordinate, repetitious, and unsupported by the appropriate weight of the evidence with respect to the prevailing reputation of Respondent in the relevant communities. 172: adopted or adopted in substance as there was nothing he could say or do without intensifying the rumors. 191-311: rejected as recitation of evidence, unsupported by the appropriate weight of the evidence, legal argument, and irrelevant as Petitioner proved neither the underlying conduct nor the impaired reputation. Rulings on Respondent's Proposed Findings 1-3: adopted or adopted in substance. 4: rejected as subordinate. 5-17: adopted or adopted in substance. 18 (first three lines): rejected as unsupported by the appropriate weight of the evidence. 18 (remainder)-53 (second sentence): adopted or adopted in substance. 53 (third sentence)-54: rejected as unnecessary. 55: adopted or adopted in substance. COPIES FURNISHED: James F. McCollum James F. McCollum, P.A. 129 S. Commerce Ave. Sebring, FL 33870 Ronald G. Meyer Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302 Dr. Richard Farmer Superintendent Highlands County School District 426 School St. Sebring, FL 33870-4048
Findings Of Fact At all times relevant hereto James E. Wilkins, Jr. was a continuing contract teacher employed by the Pinellas County School Board. He has been employed in the field of education since 1950 and has been employed by the Pinellas County School Board since 1964. During the school year 1983-84 Wilkins was employed as a guidance counselor at Tarpon Springs Middle School. During the school year 1984-85 Wilkins was employed as a biology teacher at Tarpon Springs High School. While serving as counselor at Tarpon Springs Middle School several girls in the sixth grade came to Wilkins for assistance in deterring one of their classmates from pilfering makeup and shoes from their lockers. They had previously gone to another counselor for help in the matter but she had declined to intervene. They were sitting in Wilkins' office with the suspected culprit. After listening to part of the girl's complaints and in order to assure accuracy in recreating the proceedings, if necessary, Wilkins took out his tape recorder, placed it on his desk, asked the girls if they objected to having the conversation taped and after receiving no objection turned on the tape recorder. Wilkins testified that he asked the girls as a group if they objected to their statements being recorded and no one objected. One of the students present confirmed that Wilkins, during the course of their discussion, took his tape recorder out of his desk and asked them if they had any objection to having their comments taped. All said no. Later the suspected culprit went to another counselor and complained that she was afraid she was going to get beat up and that Wilkins had tape recorded the meeting without her permission. During the investigation which followed Wilkins acknowledged that he had in fact tape recorded the session after asking them if anyone objected. He did not poll the students to ask each one individually if she objected to the tape recorder. All were aware the conversation was being taped. Harry Danielson, Supervisor of guidance, Pinellas County School System, also questioned Respondent regarding the taping incident. Danielson's testimony that Respondent admitted to him that he taped the girls without their permission was explained by Respondent as a misunderstanding on his part as he thought Danielson asked if he had obtained written permission to tape the conversation. Danielson testified that the code of ethics of the counseling profession proscribes taping students without their knowledge or permission and that counselors are usually advised to get permission in writing before taping students. Danielson also opined that a counselor should not become involved in investigating a theft. This incident constitutes a part of the letter of reprimand issued by the superintendent on November 20, 1984. While at Tarpon Springs Middle School, Wilkins hung on the wall of his office a Ph.D. diploma from Loyola University of Paris, France. Earlier Wilkins had heard that he could perhaps obtain such a degree and did not see this university listed as a diploma mill and as not accredited. He forwarded to Loyola University transcripts of all courses he had taken including more than sixty hours of courses he had completed subsequent to completing his master's degree. These curricula were "evaluated" by Loyola University and Wilkins was issued a Ph.D. degree. He presented the information to the school board clerk handling post graduate records for Pinellas County teachers and requested the information be sent to the Department of Education in Tallahassee for evaluation. The Department advised that Loyola was not recognized as an accredited school and the degree would not be recognized by the Department. Respondent took no further action but to ask the clerk if the transcripts submitted to Loyola should be removed from his personnel file. She told him that would not he necessary. Subsequently the principal at Tarpon Springs Middle School saw the diploma on Mr. Wilkins' office, checked some information that he had that described Loyola University of Paris as a diploma mill and reported the "spurious" diploma to Nancy Zambito, Director of Personnel Services, Pinellas County School Board. Ms. Zambito questioned Respondent about the degree. He readily acknowledged that he had not taken any courses at Loyola and the degree was issued based on transcripts he had sent to Loyola for evaluation. Ms. Zambito on May 31, 1984, issued Wilkins a letter of reprimand (Exhibit 1) for unethical behavior and poor judgment. This incident also constituted a ground for the reprimand issued to Respondent by the Pinellas County Superintendent of Schools on November 20, 1984 (Exhibit 4), and as one of the charges in the suspension letter dated June 25, 1985. James Gregory, principal at Tarpon Springs Middle School 1983-84, gave Respondent a less than satisfactory evaluation in two areas as a result of the taping of the meeting with the students and for obtaining the diploma from Loyola University. At the close of this school year Gregory recommended that Respondent be removed from a counseling position and returned to the classroom as a teacher. As a result of this recommendation Respondent was transferred to Tarpon Springs High School as a biology teacher for the 1984-85 school year. Gregory opined that investigating theft is not part of the duties of a counselor but belongs solely in the realm of the administrative assistants. (TR. p. 19 Vol. I) During school year 1984-85 Leroy Birch was sitting next to the projector in Respondent's class when slides were being shown. Someone had smeared one of the slides and Birch and others were laughing. Birch was not sitting fully in his seat. Respondent thought Birch had smeared the slides and put his hand on Birch's shoulder to push him back down in his seat. Birch told Respondent to "take his god damn hand off my shoulder." Respondent, when questioned by administrative personnel about this incident, acknowledged that he had placed his hand on Birch's shoulder near a "pressure point" but that he did not squeeze the pressure point. Birch testified to no numbness or pain resulting from a squeezing of the pressure point. Birch further testified that Respondent had disciplined him and that he hated Wilkins when he was disciplined. Birch was one of many who testified Respondent used "damn" and "hell" in class more than other teachers. Ann Marie Levy was a student in Respondent's class in 1984-85 school year. She was copying notes from the overhead as she was supposed to be doing when Respondent slapped her on the shoulder to get her attention when he thought she was writing a note to a classmate. Ann Marie was more surprised than hurt by this incident which was observed by others in the class. Respondent has no recollection of striking Ann Marie but, if he did, it was accidental when he was trying to get her attention and not as a punishment nor intended as a punishment. This incident was the other striking episode referred to in Exhibit Ann Marie also testified that she never liked Respondent and that he expected a lot from his students. Ronald Cohalla was in Respondent's class last year (1984-85) and testified that while he was talking to another student Respondent told him if he didn't be quiet he would "deck him". Ron also testified that Respondent threw an eraser at him twice and that Respondent used curse words more than other teachers. During both of these eraser "throws" Ron was sitting at his desk in the front row some four or five feet from Respondent and talking to another student. On neither throw did the eraser get beyond Respondent's desk. Respondent denies ever telling Cohalla he would deck him if he didn't be quiet. Respondent is 6'1" tall and weighs 350 pounds. He was once a wrestling coach and is obviously well coordinated for a man his size. Had he attempted to throw an eraser at Cohalla, it is quite certain he could have hit Cohalla from a distance of four feet. The same credence, none, is given to Cohalla's testimony that Respondent threatened to deck him as is given to the testimony that Respondent threw an eraser at Cohalla. Several witnesses testified that Respondent had called them stupid. On cross examination these students testified that in response to a question Respondent frequently said "that's a stupid question." Respondent denies ever calling a student stupid. Many of the witnesses called by Petitioner testified that Respondent used "damn" and "hell" more than other teachers in class, that he was short in patience and frequently raised his voice in class. Many considered him a strict and demanding teacher. Respondent acknowledged that he often raised his voice to quiet down an unruly or a noisy class but did not consider this to be different than other teacher's reactions to noisy classes. Amy Levinson, who thinks Respondent is not a good teacher acknowledged that when Respondent raised his voice in class it was because the class was unruly. Use of the words "hell" and "jackass" by Respondent in class was one of the charges in Exhibit 4. No evidence was presented that Respondent used the word "jackass" in class. During the 1984-85 school year while Respondent was teaching biology at Tarpon Springs High School, Kirsten Kissinger testified she was embarrassed by Respondent once when she had stomach cramps. She asked Respondent if she could go to the bathroom then changed her mind and asked if she could go to the clinic. Respondent asked her why and she told him she had cramps. Respondent asked her to repeat her reason which she did. Kristen felt embarrassed by having to repeat her reason and thought other students were laughing at her. Another student in the class with Kristen, Stephanie Salsgiven, has no recollection of the incident in which Kristen states she was embarrassed. Respondent has been teaching middle grade and high school girls in Pinellas County Schools for more than twenty years. His testimony that anytime a girl tells him she has cramps she automatically gets permission to leave the class is more creditable than is testimony that Respondent would intentionally embarrass a female student. During a biology class at Tarpon Springs High School a discussion about mammary glands was held and one girl asked what Respondent had said. Two witnesses testified they overheard Respondent reply to this question "mammary glands -- I hope you develop some soon." The student to whom this comment was allegedly made did not appear as a witness and Respondent denies ever making such a statement to one of his students. One of these accusing witnesses also testified that Respondent had responded to a black male in the class and in a remark to him Respondent referred to the black's flat nose. John Thompson, the person referred to, testified that no such incident occurred. Once during one of Respondent's classes one student, apparently trying to be facetious, asked Respondent what obese meant. Respondent patted his stomach and replied that is what I am as are a few others in the class. Cynthia Shindler testified that Respondent specifically named her and John Thompson as obese people -- much to her embarrassment. John Thompson testified Respondent did not refer to him by name as obese. Respondent denies referring to anyone other than himself as being obese. No evidence was submitted that Respondent ever sent students on errands with unopen notes about other students or that the taping incident involved another teacher as alleged in the dismissal letter. On one occasion while passing down the corridor at Tarpon Springs High School, as Respondent passed an area known as "Greek corner" he heard someone call out in a loud voice "fat ass." Respondent did not stop. When Respondent returned a few minutes later he stopped near Greek corner to talk to a student in one of his classes. He again heard someone call out "fat ass" and, from the tone of the voice suspected Philip Stavrakis who was in the group. When Respondent called Phillip aside to admonish him Philip became very abusive and disrespectful. Respondent took Philip to the office for discipline. When he arrived he was unable to find anyone in the Dean's office to take Philip. Respondent told Philip to sit down while he looked for a dean. Philip sat on a table instead of the chair indicated and continued his harangue with Respondent. Unfortunately Respondent had also become very angry at the disrespect and abuse he was receiving from Philip and also raised his voice trying to get Philip to do as he was told. Dr. Van Fleet heard the commotion outside and emerged from behind the closed door of her office to see Respondent and Philip facing each other near the table and yelling loudly. She moved between them and told Respondent she would take over and Respondent departed. Philip contended he was not the one who had called Respondent "fat ass" and resented being so accused. Philip Stavrakis told Respondent he would get Respondent in trouble.
