Findings Of Fact Respondent holds a valid Florida teaching certificate, No. 150877. That certificate allows him to teach in the areas of business education, mathematics, social studies and vocational education and is valid through June :30, 1995-. Respondent has been an employee of the School Board of Nassau County since 1979. He teaches mathematics at West Nassau High School in Callahan, Florida where he also serves as the chairman of the mathematics department. Respondent taught general math to a male student, Joey Roundtree, in the school 1985-86. One day while the student was in class he stood at Respondent's desk. Respondent was to the right of the student seated his chair. The student laid a book or piece of paper down and the Respondent reached across to pick up the book or paper and the back of his hand touched the student in the area of his midsection or the zipper of his pants. Respondent's hand moved straight across. Nothing was said by Respondent to the student at that time nor did Respondent make any facial gestures at that time. The student said nothing to the Respondent about this and no other action of this nature occurred between the Respondent and the student on any other occasion. While the Administrative Complaint by the Commissioner describes it as inappropriate conduct in that the Respondent is alleged to have "reached across the desk and brushed against the student's lower midsection", this touching by the Respondent is not found to be inappropriate. It is also significant that counsel to the Commissioner in the proposed fact finding does not urge upon the fact finder that this touching was inappropriate. While Joey Roundtree was in Respondent's general math class in the school year 1985-86 he recalls Respondent making sexually suggestive comments or innuendoes from statements made by other students. While Roundtree can not recall specific statements as they were made he remembers that generally the nature of the exchange between Respondent and a student would be to the effect that the student would say something like, "this is a hard question" and Respondent would say "well it's extremely hard" and in doing so the Respondent would emphasize the word hard. Roundtree recalls walking between the desks on several occasions at which time the Respondent would stare below Roundtree's belt until Roundtree arrived at Respondent's desk at which time time Respondent would lick his lips and look above his glasses. On many occasions Roundtree observed, almost daily, that if a comment was made about length, size or shape that the Respondent would turn this around in a suggestive way that was sexual. Roundtree in his 1985-86 school year understood that the Respondent was referred to as "Dirty Rob" and after being in class Roundtree recognized that the basis for that name was associated with what Roundtree refers to as dirty and nasty and suggestive conduct by the Respondent. These terms by Roundtree equate to sexual innuendos by the Respondent. `This even extended to Respondent and his conduct involving sexual innuendos out of the classroom and in the hallway. Roundtree observed that the Respondent in emphasizing the word "hard" would make facial gestures by looking down above his glasses and licking his lips at Roundtree as a member of the class and smiling and laughing when he said the word "hard". Roundtree recalls Respondent making comments to female members of the class of a sexual nature in the school year 1985-86 but cannot specify what those comments were. He did observe that they were accompanied by liplicking and smiling. Those actions by the Respondent met with comments by some of the female students to the effect "you're being nasty" or "I know what your trying to say," to which the Respondent would reply that "well, your mind is in the gutter". Roundtree has no recollection that the female students appeared embarrassed by the actions of Respondent directed to them, actions which were an every day occurrence. Allegations in the Administrative Complaint and Statement of Charges concerning the school year 1989-90 as to inappropriate and unprofessional conduct involving the touching of the breast and buttocks of a female student, sexually suggestive comments to a female student, inappropriate comments to a female student about her appearance, touching a male student in the genital area, making innuendoes from statements made by students and the use of profanity in front of and directed at students were not proven except to this limited extent: Dana Kriete was a math student taught by the Respondent in the year 1989- She overheard the Respondent talk about a girl's breasts, how large they were. That girl was Dell Evans. More specifically Respondent commented that he wondered "what her boyfriend could do with them," referring to Evans' breast. This comment was made in the presence of other students and loud enough so that the other students could have heard the remarks. When the remarks were made about Dell Evans, Evans appeared upset. The general remarks about Dell Evans were made on approximately five occasions. Kriete also overheard the Respondent use profanity in the classroom, specifically the words "ass" and "damn." In the school year 1990-91 Respondent taught consumer math to Carla Bass, a female student. Bass routinely attended class which was held on each school day, five consecutive days. While attending class Bass overheard the Respondent make sexually suggestive comments. Most of these comments were directed to Sylvia Brantley, a female student, regarding the breasts of Ms. Brantley. Bass overheard Respondent describe how big Sylvia Brantley's breasts were. Bass also heard Respondent say in class that when Brantley was asleep that Respondent was going to "kiss Brantley and wake her up like they do in Snowwhite". These remarks by Respondent were stated loud enough for other students to hear them. In the school year 1990-91 Bass heard Respondent refer to a female student whose name is Christine Hughes as Christine "Huge" which was an innuendo having to do with the student's breasts. Bass observed that when Respondent would make remarks about Brantley and Hughes that Brantley and Hughes would appear embarrassed. In the school year 1990-91 Bass observed the Respondent while staring at her breasts lick his lips and roll his eyes. Bass observed the Respondent lick his lips and raise his eyebrows while looking at other female students in particular certain parts of their bodies. While Bass was in the Respondent's class in the school year 1990-91 she overheard Respondent make suggestive comments about a student Jason Englert whom Respondent referred to as "inch". Englert would be cheating in class and giving out answers to other students and would refer to a measurement associated with inches to which the Respondent said, "yeah, I heard that's how long it was" taken by the student Bass as a sexual connotation referring to Englert's genitals. That connotation could be drawn by Bass from the remarks made by Respondent concerning the student Englert. The use of sexual connotations in the classroom made Bass feel uncomfortable and embarrassed her. On one occasion in the school year 1990-91 Respondent told Bass to "get the hell out of his classroom." This had occurred at a time when Bass was disrupting the Respondent. As previously alluded to, Respondent taught math to Sylvia Brantley in the school 1990-91. At hearing Brantley described events in the Respondent's classroom. She recalled the sexually suggestive manner in which the Respondent spoke of Christine Hughes as being Christine "Huge." This was done in Brantley's presence while Respondent called the class attendance roll. This occurred throughout the time that Christine Hughes was in school in that academic year. In the school year 1990-91 Brantley overheard Jason Englert give answers out in class referring to "an inch" and the Respondent would say something that had a sexual connotation, to the effect, "is that all it is" or "I know that's how small it is". Brantley observed the Respondent roll his eyes and lick his lips after making statements in the class that had a sexual connotation. Brantley observed the Respondent look at the breasts and as she refers to it "the behind" (posterior) of a female student while rolling his eyes and licking his lips. Brantley also observed the Respondent roll his eyes and lick his lips while looking at male students. The class which Brantley attended in the school year 1990-91 had approximately 28 to 30 students. Sabrina Silcox was a female student in Respondent's math class in the school 1990-91. When the Respondent would refer to her name in class he would refer to her as Sabrina "Silcock." This was a reference which had a sexual connotation. Respondent made this reference twice during the school year. This reference was made in front of approximately 20 students. On one occasion someone came to the class to get Sabrina Silcox and asked for her by that name, to which Respondent said "do you mean Sabrina Silcock." The person who had called for the student in the class then said "no sir, Sabrina Silcox". Silcox recalls that in class she observed the Respondent "do a little smirk and then do his eyes or something like that, just look at us out of his eyes, the corner of his eyes funny and stuff". Silcox did not pay any attention when Respondent made these gestures. Silcox indicated that at times she was embarrassed by Respondent's mispronunciation of her name. When she observed Respondent make the gestured with his facial expressions the other students would laugh and she was unaware if any of those students were embarrassed by Respondent's actions. Stella Darlene Metts, a female student, was taught math by the Respondent in the school year 1990-91. While in the class she heard Respondent make sexually suggestive comments. She heard Respondent refer to Christine Hughes as Christine "Huge," seen as a sexual innuendo referring to the student Hughes's breasts. An innuendo which was correctly interpreted by Metts under the circumstances in which that reference was made by the Respondent. Respondent made these remarks about the student Hughes while looking at her in a manner which Metts describes as perverted. Metts also saw the Respondent look at Sylvia Brantley in that fashion. The looks made toward Hughes were to Hughes's breasts. Respondent then would look back at the rest of the class and laugh about the situation with Hughes. Christine Hughes had large breasts, as observed by Metts when commenting about the events in Respondent's classroom, and when Respondent would look at Hughes's breasts the male students in the class would think that these antics were funny because to looking at Hughes's breasts Respondent would gain the attention of the male students in the class and laugh. The male students would state, while the Respondent was looking at Hughes, "yeah look at Mr. Roberts looking at you you better not wear red". The reference to the color red had to do with Respondent's expressed fondness for that color. Crystal Hicks, a female student, was in a math class taught by the Respondent in the 1990-91 school year. In the class Respondent made sexual innuendo statements in front of Hicks. First, reference football players Respondent stated, "all they do is get out of class and get down and hut all day up the butt." In referring to the band members Respondent stated, "all they do is beat and blow all day." As Hicks established, these statements were made "every now and then". Hicks observed the Respondent raise his eyebrows and stick his tongue out, like licking his lips, when staring at female students in the class. She was unable to determine exactly where those stares were directed concerning the students' bodies. About the use of profanity, which Hicks described Respondent using in class, the swear words "damn" and "hell" are found to have been stated in the presence of that witness. Jennifer Yawn, a female student, was in Respondent's math class in the school year 1990-91. Yawn described how Respondent would act if Yawn were chewing gum, that Respondent would say to "quit advertising." Yawn described the sexual connotations behind the remarks of the Respondent as "he would just say it like you were doing something with a sucker", by which Yawn meant that Respondent was describing what the student was doing with a sucker. While making the remarks about advertising Yawn saw the Respondent raise his eyebrows and lick his lips. The comments about advertising with the gum had to do with the instances in which the student blew bubbles. This made Yawn uncomfortable. Yawn also heard the Respondent use profanity in class, the words "hell" and "damn." Jason Englert was a male math student taught by the Respondent in the school year 1990-91. He overheard Respondent talk about Sylvia Brantley's breasts in the classroom, in an instance in which Respondent called Sylvia Brantley's breasts "pillows." He recalls sexual gestures by the Respondent when he was talking to Ms. Brantley. Those gestures involve staring at Ms. Brantley's breasts, moving his eyebrows and licking his lips. In addition Respondent made a sexually suggestive comment to Englert while Englert was walking away from the Respondent's desk. Englert glanced back at the Respondent and Respondent was looking at Englert's "butt," (posterior) Englert put his hands over his posterior, to which Respondent said, "well, that's the part I want to see." There were other persons standing by the desk who could have heard the remarks by Respondent. Those persons looked at Englert and laughed. This circumstance did not bother Englert. Englert also overheard the Respondent speak of Carla Bass and her breasts as being "pillows." Students other than Joey Roundtree, (school year 1985-86), who were in the Respondent's classes in the school year 1990-91 and who testified at the hearing made mention of the Respondent's nicknames "Dirty Rob" and "Red Rob". These references have to do with perceived conduct by the Respondent leading to the impression that his personality was that of an individual who was perverse, having to do with his involvement with sexual innuendoes. The students knew of Respondent's reputation for sexual innuendos before entering the classroom. Such knowledge might influence their reaction to Respondent's conduct which they observed first hand. However the impression which the students gained from his actions in the classroom as reported in these facts were not so influenced by his prior reputation that the students are found to have misinterpreted Respondent's intentions by his remarks and facial expressions which had sexual connotations. In crediting the testimony by the students which pointed out the inappropriate conduct by Respondent in engaging in sexual innuendoes, some of the circumstances which the students identified as being in a similar category have been discounted and any doubt about Respondent's conduct in those instances resolved in his favor. Moreover the decision to favor the impression which the students had about some of these events recognizes that the classroom conduct by some of the students who testified at the hearing was less than commendable in its own right. The conduct by those students did not control or excuse Respondent's improprieties in engaging in sexual innuendoes. The fact that some students who had been in the Respondent's math classes at various years, after the school year 1985-86 but including the school years 1989-90 and 1996-91 did not observe the Respondent participate if any form of misconduct involving sexual innuendoes does not change the impression held about the testimony given by students who described those sexual innuendoes. This refers to testimony by Vicki Giveons and Bryan Hopkins who did not observe misconduct by the Respondent in their classes. The classes that they attended were different from the classes attended by witnesses who identified Respondent's sexual innuendoes. Finally, Respondent's testimony concerning these events in which he has been found to have acted inappropriately with regard to sexual innuendoes is rejected. Racial discussions were held in the Respondent's classes; however, the remarks which he made about racial issues were not biased when examined in the context of the testimony presented at hearing. Likewise the Respondent did not engage in any form of misconduct for which he is held accountable pertaining to the racially inflammatory notes, racially inflammatory replica of a grave site cross, racially inflammatory replica of a grave site tombstone, and racially inflammatory replica of a coffin and funeral carriage. Jeff Rieves, a male student in one of Respondent's math classes in the school year 1990-91 was responsible for producing the notes and other paraphernalia. Rieves contends these items were produced in an environment that was cordial or done in the way of a joke. Although the Respondent created the appearance that he was somewhat indulgent concerning the insensitive acts by the student, a stance taken by the Respondent to minimize the impact created by the correspondence and paraphernalia, Respondent did not believe that these incidents were intended to be all in good fun. It is not accepted that Rieves gave the notes and paraphernalia to the Respondent intending it wholly as a joke and that the Respondent perceived that these items were presented as a joke. Whether what extent Rieves intended his actions to have a more sinister influence, to the extent that you could say that Rieves intended racial harassment is less clear. Being uncertain concerning the student's intent, Respondent was prudent to make officials within the Nassau County School District aware that these circumstances existed and to be a willing participant in the investigation that ensued by the Nassau County Sheriff's Office. When interviewed by the principal at his school and officers from the Nassau County Sheriff's Office, both before and after the law enforcement officials had spoken to Jeff Rieves about this incident, Respondent did not name Rieves as the individual who had prepared the tombstone, coffin and funeral carriage. Whatever suspicions the Respondent may have had that Rieves was the person who had constructed these items, especially given the realization that Rieves had written notes with overtones that bore a racial threat, those notes having been sailed in Respondent's direction by Rieves as paper airplanes, Respondent did not know absolutely that Rieves had constructed the paraphernalia. Contrary to Rieves' assertion, the cross, headstone, coffin and funeral carriage were not handed overt directly to the Respondent as Rieves had told the law enforcement officers when interviewed. Respondent discovered these items where Rieves had left them in his class. Having held their conversation with Rieves, rather than confiding to the Respondent that the sheriff's office had ascertained who the culprit was, the officers for reasons that are not apparent, chose to believe Rieves' comment to the effect that Rieves had directly presented the paraphernalia to the Respondent and to confront the Respondent with this belief by asking the Respondent once again who the person was who had created the paraphernalia. When Respondent did not respond that Rieves was the person who had prepared the paraphernalia in a setting in which the sheriff's office was convinced that he did know, he was charged with giving false information to a police officer concerning the alleged commission of a crime by claiming that he had been harassed by persons not known to the Respondent when indeed he knew who the individual was who had constructed the paraphernalia. Under summons the State Attorney's Office for the Fourth Judicial Circuit of Florida took action against the Respondent on the theory of the false reporting concerning the alleged commission of a crime in Case No: 91-301218, August 1, 1991. This matter was disposed of through the misdemeanor pretrial intervention program involving deferred prosecution. Respondent served the 40 hours of community service contemplated by the disposition in the case. He did this upon advice of counsel that if he went to a trial that he might not prevail in that case. Notwithstanding his decision to conclude the court action by subjecting himself to the requirements set forth in the pretrial intervention, for purposes of this hearing it is not found that the statements which Respondent made concerning his knowledge about the person who had constructed the paraphernalia were false, in that Respondent did not know with certainty who had prepared the paraphernalia. Although the sheriff's office interviewed Rieves and another individual Michael Lloyd who had been involved in the creation of the paraphernalia, neither the sheriff's office nor the administrative prosecutor sought to verify the information received from the culprits who had created the paraphernalia to determine from a more unimpeachable source that Respondent knew who had created the paraphernalia, in that the Respondent had been given the paraphernalia personally in the classroom as Rieves describes, before attributing false motives to the Respondent in complaining about the racial harassment. This could have been achieved by interviewing students who would have been in attendance at the time when Rieves purportedly presented the paraphernalia to the Respondent in the classroom. Absent that effort Respondent was charged upon information provided by a less than credible source and tried in the present case, leading to the impression that Respondent's explanation about this event is more compelling. Craig Marsh, Superintendent, Nassau County School District, a professional educator, was accepted as an expert in the field of education. As an expert Marsh expressed the opinion that the Respondent, based upon his participation in the sexual innuendos discussed in the fact finding, were matters so serious that they impaired Respondent's effectiveness in the school system. That opinion is accepted.
Recommendation Based upon the findings of fact and the conclusions of law reached, it is, RECOMMENDED: That the School Board of Nassau County enter a final order which dismisses the Respondent from his employment as a continuing contract teacher based upon the violations found. That the Education Practices Commission suspend Respondent's teaching certificate for a period of three years during which time Respondent shall submit himself to evaluation by a qualified professional to ascertain the underlying causes for the conduct which has brought about this discipline. If the qualified professional believes that Respondent needs to participate in a program to gain insight and correct any underlying condition in the interest of the Respondent and his prospective students, then Respondent shall cooperate in that endeavor. If Respondent fulfills any necessary requirement for counseling or if counselling is not deemed necessary, then the last year in the suspension period shall be served in a probationary status during which time Respondent shall not engage in conduct which violates Chapter 231.28, Florida Statutes, and the associated rules found within Chapter 6B, Florida Administrative Code. DONE and ENTERED this 13th day of May, 1992, in Tallahassee, Florida. CHARLES C. ADAMS 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 13th day of May 1992. APPENDIX CASE NO. 91-6677 The following discussion is given concerning the proposed facts of the parties: Petitioner Castor Paragraphs 1 through 13 are subordinate to facts found, except the date in Paragraph 7 which should be 1989-90. Paragraphs 14 through 16 are rejected for reasons of credibility. Paragraphs 17 through 19 are subordinate to facts found. Paragraph 20 is rejected. Paragraphs 21 through 24 4re subordinate to facts found. Paragraph 25 is rejected. Paragraph 26 is subordinate to facts found with exception to the last phrase of profanity which is rejected. Paragraphs 27 through 42 are contrary to facts found in their suggestion that the Respondent acted in a racially biased manner or gave false information or reports as alleged in the Administrative Complaint. Paragraph 43 is subordinate to facts found. Paragraphs 44 through 46 are not necessary to the resolution of the dispute. Paragraphs 47 and 48 1 not necessary to the resolution of the dispute and are contrary to the legal conclusions drawn. Petitioner Marsh Paragraph 1 is subordinate to facts found.. Paragraph 2 see discussion of Paragraphs 1 through 26 for Petitioner Castor. Paragraph 27 is subordinate to facts found. Paragraphs 28 and 29 are not necessary to the resolution of the dispute. Respondent's Facts in the Prosecution by Commissioner Castor Paragraph 1 is subordinate to facts found.. Paragraphs 2 through 36 are not necessary to the resolution of the dispute. Paragraph 37 is contrary to facts found. Paragraph 38 in its first two sentences are subordinate to facts found. The remaining sentence is rejected as it attempts to absolve the Respondent of his conduct. Paragraph 39 is contrary to facts found. Paragraph 40 is consistent with the disposition of the case. Paragraphs 41 through 43 are contrary to facts found. Paragraph 44 is consistent with the disposition in the case as are Paragraphs 45 through 48. Paragraph 49 is subordinate to facts found where it describes use of profanity but conary to facts concerning the number of times. Paragraph 50 is rejected in its attempt to be persuasive in countering the notion that Respondent used profanity in the classroom more than an isolated incident. Paragraphs 51 and 52 are subordinate to facts found. Paragraphs 53 and 54 are not necessary to the resolution of the dispute. Paragraph 55 is subordinate to facts found. Paragraph 56 is not necessary to the resolution of the dispute. Respondent's Facts in the Prosecution by Superintendent Marsh Paragraph 1 is subordinate to facts found. Concerning Paragraphs 2 through 15, see discussion of facts in the Castor prosecution, Paragraphs 3-7 through 50. COPIES FURNISHED: Thomas W. Brooks, Esquire Post Office Box 1547 Tallahassee, FL 32302 Karen Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Lane Burnett, Esquire 331 East Union Street, Suite 2 Jacksonville, FL 32202 Brian T. Hayes, Esquire 245 East Washington Street Monticello, FL 32344 Craig Marsh, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, FL 32034 Robert Johnson, Chairman Nassau County School Board Post Office Box 436 Callahan, FL 32011
Findings Of Fact On or about March 8, 1988, Petitioner filed a charge of discrimination based upon sexual harassment with the City of Clearwater, Office of Community Relations, involving Respondent. Petitioner had been employed at Respondent from approximately April, 1987 until she resigned in November, 1987. This case was duly noticed for hearing on August 24, 1988, by Notice of Hearing dated June 6, 1988. Petitioner received this Notice of Hearing, and did appear at the hearing. Petitioner testified, under oath, at the hearing that she did not want to pursue her claim of sexual harassment, and would offer no evidence in support of her claim. In fact, she did not offer any evidence in support of her claim.
Recommendation Based upon the foregoing, it is recommended that Petitioner's claim of discrimination based upon sexual harassment against Respondent be DISMISSED. DONE AND ENTERED this 6th day of September, 1988 in Tallahassee, Florida. DONALD D. CONN 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 6th day of September, 1988. COPIES FURNISHED: Elizabeth Moore 1411 Illinois Avenue Palm Harbor, Florida 34663 Scott McGregor, Owner Heavenly Bodies II 3323 U.S. 19 North Clearwater, Florida 34619 Ronald M. McElrath Office of Community Relations Post Office Box 4748 Clearwater, Florida 34618 Miles Lance, Esquire Post Office Box 4748 Clearwater, Florida 34618
The Issue The issue is whether Petitioner terminated Respondent's annual contract as a teacher for just cause.
Findings Of Fact Petitioner hired Respondent, an inexperienced teacher who had recently graduated from college, and assigned him to teach and serve as an assistant basketball coach at Dixie Hollins High School during the 2000-01 school year. For the 2001-02 school year, Petitioner reassigned Respondent to Tarpon Springs High School, where Respondent assumed the duties of head basketball coach. During both school years, Respondent was on annual contract. Initially, an administrator at Tarpon Springs High School informed Respondent that he would teach American history and economics, which are the subjects that he had taught at Dixie Hollins High School. When Respondent reported for duty at Tarpon Springs High School, administrators did not give him a schedule until a couple of days before classes started. At that time, Respondent learned that, during the first quarter, he was to teach counseling and personal fitness, neither of which he had taught before. He also learned that, the following quarter, he was to teach Freshman Experience, which was a relatively new course, and personal fitness. In the third quarter, he was due to teach earth-space science in place of personal fitness. At least for the first two quarters, Respondent was assigned students in the GOALS program, which is designed for students who have not made substantial academic progress due to social problems. In this program, the students take only four classes per quarter. Each class runs one hour and forty-five minutes, five days weekly. Respondent had difficulties assembling materials for the peer counseling course. Teachers who had previously taught the course were not available. Extensive renovations at the school made it difficult to locate materials for this and other courses. Respondent finally visited a teacher at another school and obtained books, guides, and tests for peer counseling. These materials advised Respondent to help the students learn to settle their disputes peaceably without adult intervention and suggested that the teacher supplement the book with relevant movies dealing with peer pressures, conflict, and social issues. Respondent experienced similar difficulties with the personal fitness course, for which he had books, but no teacher edition or worksheets. However, Respondent's background in athletics presumably prepared him to teach this course. Although Respondent voiced similar complaints about Freshman Experience, he had a quarter to try to obtain materials. Also, no one else at the school had any experience with this course, which the District had abruptly required the high schools to teach. Similar to peer counseling, Freshman Experience is a motivational course that also covers personal and academic issues, as revealed by the titles of the required books, Chicken Soup for the Soul and Ten Steps for How To Manage Time. The seven charges listed in the Preliminary Statement fall into four groups. Charges 1 and 2 are the most serious; they allege that Respondent kissed two students and touched the vaginal area of one of these students. Charges 3 and 4 are also sexual in nature; they allege that Respondent made inappropriate comments to female students about their appearance and inappropriate sexual comments to or in front of students. Charges 5 and 6 pertain to classroom management; they allege that Respondent allowed students to come to his classroom for no legitimate purpose and encouraged students to leave campus to get him food. Charges 7-9 pertain to curriculum, administration, and instruction; they allege that Respondent used noncurriculum-related materials (such as videos), lacked appropriate recordkeeping, and lacked appropriate classroom instruction. Petitioner wisely dropped Charges 6, 8, and 9. No evidence in the record supported these allegations prior to Petitioner's announcement that it was not pursuing these allegations. Charges 5 and 7 require little more analysis. The evidence supports neither of these allegations. Concerning Charge 5, unenrolled students visiting Respondent's classroom included basketball players. While Respondent remained the basketball coach, these players briefly visited the room from time to time to discuss something about the basketball program. Petitioner did not show the extent of these visits or that they were illegitimate. Unenrolled students who were not participating in the basketball program infrequently visited Respondent's classroom. Although the principal testified that one of his assistant principals told him that there was a problem with unenrolled students visiting Respondent's classroom, he added that she rejected his offer to talk to Respondent and said she would handle it. After that conversation between the principal and assistant principal, the principal said the problem was eliminated. Interestingly, though, neither the assistant principal nor anyone else ever talked to Respondent about this issue, which appears not to have loomed large at the time. Concerning Charge 7, Petitioner never proved the rating of any of the films mentioned during the hearing as shown in Petitioner's classroom. Films mentioned during the hearing as shown in one of Respondent's classes include With Honors, Rudy (shown repeatedly), Finding Forrestor, Saving Private Ryan, The Hurricane, [The Mask of] Zorro, and assorted basketball videotapes. The record reflects disagreement among Petitioner's administrators as to the policy concerning the application of the District policy regarding R-rated films. According to the representative of the Office of Professional Standards, The Patriot (apparently an R-rated film) "could" violate this policy, but, according to the principal, who is now handling workforce development in the District office, The Patriot "probably" would not be a problem. Even if The Patriot were a problem, as an R-rated film, it would be so only if Respondent had not obtained permission slips from parents to show this and perhaps other R- rated films. Respondent testified that he did so. Notwithstanding the testimony of one student to the contrary, Petitioner never proved that Respondent failed to obtain permission slips. The issue of the relationship, if any, between the films and the courses fails because Petitioner failed to prove the contents of the films or to prove adequately the prescribed content of the courses, so as to permit a finding that the films were irrelevant to the courses. The broad outlines of peer counseling in particular, at least as established in this record, would appear to accommodate a vast array of films. A sufficient number of students testified in sufficient detail to a broad array of bookwork, class discussion, and other instructional and assessment methods in both peer counseling and Freshman Counseling to overcome whatever proof that Petitioner offered in support of Charge 7. The crux of this case lies in the charges involving sexual improprieties, as alleged in Charges 1-4. The quality of proof was considerably different between Charges 1 and 2, on the one hand, and Charges 3 and 4, on the other hand. Analyzing Charges 3 and 4 first may help explain the findings as to Charges 1 and 2. Concerning Charges 3 and 4, Petitioner proved that Respondent made numerous inappropriate comments to female students, of a sexual nature, that understandably made the students feel uncomfortable. Respondent directed three of these comments and one behavior to T. R., a junior. While walking around the track during the personal fitness class that T. R. was taking from Respondent, he asked her what she thought of a 26-year-old dating an 18-year-old. T. R. was either 18 years old or Respondent implied that the dating would await her 18th birthday; either way, T. R. reasonably believed that Respondent meant her. Although actually 29 or 30 years old at the time, Respondent typically told his students that he was only 26 years old, so T. R. reasonably believed that Respondent meant him. T. R. was so uncomfortable with this question that she mentioned it to a female teacher at the school, Cheryl Marks- Satinoff. Thoughtfully considering the matter, Ms. Marks- Satinoff found that the question was "odd," but not "extremely inappropriate" and "on the fence." Ms. Marks-Satinoff's characterization of the question, in isolation, is fair. In the context of other comments to T. R. and other female students during the relatively short period of two school quarters--little else, if any, of which was Ms. Marks-Satinoff was then aware--the comment acquires its proper characterization. To T. R., Respondent also said, "If I were still in high school, I'd be climbing in your window at night." T. R. was "shocked" by this comment, but her mother or stepmother, when told by T. R. about the comment--again, in isolation--did not attach much importance to it. On another occasion, when a female student asked why T. R.'s grade was better than D. P.'s grade, Respondent replied, "T. R. and I have an agreement." While taking Respondent for personal fitness, T. R. found Respondent staring at her repeatedly. Accordingly, T. R. switched from stretch pants to baggies. T. R.'s testimony is credible. She spoke with adults about two of the comments roughly at the time that they were made. Also, T. R. bore no grudge against Respondent. She said that she did not think twice about the dating comment, although she obviously gave it enough thought to raise it with Ms. Marks- Satinoff. T. R. freely admitted that Respondent made the comment about crawling into her window in a joking manner. She discredited D. P., who is the alleged victim of the most serious sexual incident, discussed below, as a person who always lies, convincingly. T. R. added that D. P. told her once that Respondent "tried" to kiss her and put his hand up her skirt and did not understand why D. P. confided in her initially. T. R. testified that she never heard Respondent do or say anything inappropriate in the personal fitness class that she took with D. P. T. R. testified that Respondent made her and her friends leave if they disturbed his class the few times they got out of their assigned class to visit his office and watch movies. T. R. described another female student, B. H., who testified to several inappropriate comments made by Respondent, as someone who "likes to stir the pot." To A. T., an 18-year-old who graduated from Tarpon Springs High School in June 2002, Respondent alluded to the size of her breasts, in front of the class, and used his hands to frame them. Although done in connection with a warning that A. T. was violating the school dress code due to the revealing nature of her shirt, Respondent delivered this warning in a sexual manner that was obviously unnecessary for the purpose of reminding the student to conform to the dress code. A. T. testified that she liked Respondent as a teacher, but he made her uncomfortable, and he should be more a teacher than a friend. Like T. R., A. T. seemed not to bear any negative feelings toward Respondent, but instead merely seemed to be describing an insensitive incident as it happened. To N. S., a junior at the time, Respondent said, upon learning that she had surgically implanted rods in her back, that he wanted to have sex with her. N. S. testified that she was not bothered by the remark. N. S.'s testimony is credited. She was friendly toward Respondent and had long dated Respondent's teacher assistant. To A. M., Respondent said that she looked pretty and could get any guy she wanted. A. M.'s testimony is credited. She did not have much interaction with Respondent and was not part of any group interested in causing him trouble. She seems simply to have truthfully reported an ill-advised comment that Respondent made to her, although she did not describe her reaction to the comment. To L. D., Respondent said that he had a bracelet of hers that she had lent him and that, whenever he looked at it, it reminded him of her. L. D. felt uncomfortable about this remark. L. D. also testified that Respondent sometimes tried to get the boys to treat the girls with respect, and her testimony is credited. Other witnesses, especially D. P. and B. H., described other comments, but their credibility is poor, and their testimony cannot be credited. The demeanor of two witnesses favorable to Respondent revealed something bordering on exasperation with him, even as they testified that he never said anything sexually inappropriate in class. The demeanor of each witness was consistent with someone who believed that Respondent was only joking around in class, when making sexually charged comments, and had suffered more than enough due to the consequences of lies told by two female students, as described below. In isolation, the comment about having sex with a student with orthopedic rods in her back is sexually offensive, as is the sexual comment and gesture framing a female student's breasts is sexually offensive. The comments about the agreement between T. R. and Respondent, the bracelet reminding Respondent of L. D., and A. M. being able to sufficiently pretty to get any boy are not sexually offensive, in isolation, but, even in isolation, betray a tendency by Respondent to regard certain of his female students as females more than students. With the exception of the comment to A. M., all of the comments, gesture, and behavior, in the aggregate during a relatively short period of time, depict a transformation by Respondent of the relationship between a teacher and several of his students to a more ambiguous relationship, at times resembling the relationship that might exist between these girls and the boys with whom they attended high school. Nearly all of these incidents embarrassed the female students; all of them, except perhaps A. M., reasonably should have been embarrassed by them. Several of these incidents suggest that Respondent regarded these female students as available for him in some role other than that of student--for instance, as females with whom to flirt. Petitioner has proved that Respondent exploited these female students, with the possible exception of A. M., for personal gain. This characterization of these comments, gesture, and behavior is confirmed by Respondent's implausible assertion that all of these students, except N. S., are lying. If confident that the comments, gesture, and behavior were innocuous or at least not improper, Respondent could have gained credibility by admitting these incidents and explaining their innocence. With one exception, Petitioner has not proved that Respondent sexually harassed or discriminated against his female students or these students in particular. The record does not suggest any quid pro quo in the sexual incidents, although the agreement with T. R. approaches the type of proof required. Nor does the record suggest that the sexual commentary, gesturing, or behavior were so pervasive as to create a hostile environment. Two students, N. S., A. M., and L. D., were each the subject of a single comment. One student, A. T., was the subject of a single incident, which consisted of a comment and gesture. On this record, Petitioner failed to prove that Respondent's treatment of these students rose to harassment or discrimination of them or of his female students in general. However, Respondent's treatment of T. R. rose to harassment and sexual discrimination because he made three sexually inappropriate comments and engaged in one sexually inappropriate behavior that caused her to alter her mode of dress. Respondent implicitly asked her to think about dating him--now or later--with the comment about a 26-year-old dating an 18-year-old. Respondent implicitly identified the possibility of their having sex with the comment about climbing in her window. Respondent alluded to the possibility of sex between T. R., a student, and himself, a teacher with the power of the grade, with the comment about her grade resulting from an agreement. And Respondent leered at T. R. sufficiently to cause her to change her workout clothes. In partial mitigation of the sexual comments, gesture, and behavior, but not the harassment or discrimination, no one seems to have provided Respondent with any timely feedback on this manner of interacting with certain female students. The only reports to adults seem to have been of isolated comments. In addition to the two reports noted above, a male student reported inappropriate comments, midway through the first quarter, to the teacher who was head of GOALS. Although the teacher did not describe the inappropriate comments, she said that she talked only to the two female students involved and evidently decided that the matter was not sufficiently important to discuss with Respondent or the administration. As noted above, Ms. Marks-Satinoff learned from T. R. of a borderline inappropriate comment. Sometime later, in January, she spoke briefly with Respondent and advised him to watch inappropriate comments. This marks the only feedback, and it was too late to alter the course of events. However, for the same reason that this lack of feedback does not mitigate at all the harassment and discrimination involving T. R., the value of this mitigation is largely undermined by the fact that the knowledge of the need to refrain from improper personal references to students is not granted only to the most experienced teachers or administrators. Perhaps Respondent was not fully aware that his comments, gesture, and behavior were sexually charged and did not realize the effects of these comments, gesture, and behavior on his students, as some teachers may not be fully aware of their sarcasm and its effect on their students. However, Respondent, as a teacher, remains responsible for determining the effect of his interaction upon his students and ultimately must bear the consequences if he fails to identify the problem. D. P. is the complainant in Charge 1. She was born in September 1984 and was a senior during the 2001-02 school year. Respondent taught her peer counseling during the first quarter and personal fitness during the second quarter. D. P. testified that on Monday, January 14, 2002, she approached Respondent to ask if she could exempt a final exam. She testified that he said to return after lunch. When she did, she testified that they met in his office where he kissed her and moved his hand up her leg until he digitally penetrated her vagina. D. P.'s testimony is unbelievable for several reasons. First, two different students testified that they heard her say that she would get Respondent into trouble. One of the students testified that he heard her say this immediately after an argument D. P. had with Respondent over absences and tardies. D. P. was upset with Respondent because her numerous absences and tardies prevented him from exempting her from the final examination in his class. D. P. did not tell anyone of the alleged incident until immediately after she found that she could not obtain an exam exemption from Respondent. Second, D. P.'s testimony is unusually inconsistent with other statements that she has given. Some inconsistencies are not fatal to credibility, but the number and importance of inconsistencies in her testimony and statements preclude a finding of credibility. Numerous material discrepancies exist between D. P.'s testimony at the hearing and her testimony in a prehearing deposition. Other discrepancies exist between her testimony at the hearing and earlier statements given to law- enforcement officers or made to others. These discrepancies include differences of two hours as to when during the day the incident occurred and one day as to which day on which it occurred. D. P.'s implausible implication is often that the persons taking down her version of events made a mistake. Third, D. P.'s testimony is improbable. First, Respondent was aware of the investigation into his dealings with female students by the morning of January 14. The investigation was already underway by the end of the prior week. For instance, D. P. had given her first statement on January 11. It is unlikely that Respondent would engage in such egregious sexual abuse of a student while he knew that he was under investigation. Second, Respondent's teacher assistant testified that he was in the office during the entire time that the incident supposedly would have taken place, and he never saw D. P. Fourth, D. P. has a poor reputation for honesty among her peers who know her well. D. P. testified that she told several persons about the sexual abuse, but they all denied such conversations. At one point during her testimony, she stated that everyone at school had his or her own opinion concerning rumors as to with which student Respondent was accused of having an improper relationship. As she testified, D. P. seemed clearly to have relished the attention that she had gained by making the charge. S. Y. is the complainant in Charge 2. S. Y. was born in April 1987 and was a sophomore during the 2001-02 school year. She was a student of Respondent. She testified that Respondent taught her Freshman Experience during the third quarter, although she was not a freshman and Respondent did not teach very long into the third quarter before he was terminated, as described below. S. Y. testified that Respondent kissed her one day while they were alone in his office. A number of reasons exist that undermine the credibility of this assertion. First, S. Y.'s testimony is also unusually inconsistent with other statements that she has given. At different times, she has attested that the kiss occurred between Thanksgiving and Christmas, before Thanksgiving, and in January. Second, S. Y.'s timing in reporting the kiss is suspect. First, three times she told investigators nothing about a kiss. Second, she reported the kiss only after she knew that D. P. had accused Respondent of sexual improprieties. S. Y. admitted that emotions were running "sky high" at the time. Unlike D. P., who did not like Respondent, S. Y. liked him, at one time even having a crush on him. S. Y. appeared capable of jealousy regarding her feelings about Respondent, as evidenced by the following facts. Third, S. Y. reported the kiss immediately after he referred her to the office for abruptly interrupting his class and loudly demanding that he tell her who else he was "fucking." Although she denied knowledge that Respondent was having sexual intercourse with any students, including herself, S. Y. admitted that the referral prompted her to report the kiss to an investigator. Fourth, S. Y. engaged in embellishment concerning her relationship with Respondent, as would be consistent with a fantasy attachment to him. Although S. Y. implausibly denied it, she told Ms. Marks-Satinoff that she had been to Respondent's home, which was in a poor section of Clearwater. Respondent's home is not in a poor section of Clearwater. S. Y. also has said that Respondent proposed that she and another girl perform in a porn movie that he would make. The reality is either that she proposed it to Respondent, who told her never to suggest such a thing again, or that a former boyfriend proposed the porn movie--without Respondent's involvement. For the reasons listed above, it is impossible to credit the testimony of D. P. or S. Y. that Respondent sexually abused them. Although the presence of multiple accusations of this type may sometimes be indicative of their reliability, they are more likely due to Respondent's sexual banter and flirtation and repeated failure to maintain appropriate boundaries between the professional and the personal. Both D. P. and S. Y. were doubtlessly aware of Respondent's tendencies in this regard, and, from this sexually charged atmosphere, which Respondent himself had helped create, they struck back at Respondent by making sexual allegations. D. P. chose to strike out at Respondent for not granting her an exemption to which she was not entitled, and S. Y. chose to strike out at Respondent for referring her to the office and not meeting the unrealistic expectations that she and her infatuation on Respondent had generated. Shortly after D. P. and possibly S. Y.'s charges emerged, law enforcement officers arrested Respondent, who remained in jail for nine days. In June 2002, the state attorney's office dropped the charges, although D. P. testified at the hearing that she intended to sue Respondent and Petitioner. Petitioner then terminated Respondent's employment six weeks prior to the end of the term of his annual contract. A proper penalty must reflect the nature of the offense and its impact on the students. Some students who were the subject of improper comments, gesture, and behavior denied embarrassment. Of those admitting to embarrassment, it does not seem to have been traumatizing or even especially painful. Not entirely without reason, some of the students implied that Respondent had already suffered enough, having been fired and served nine days in jail on accusations that were not established on this record. Also, the mitigation discussed above, as to the failure of authority figures to provide Respondent with timely feedback as to the improper comments, gesture, and behavior, but not harassment and discrimination, plays a role in setting the penalty. Petitioner's representative from the Office of Professional Standards testified that Charges 3 and 4 would suffice to warrant dismissal, depending on the frequency of the improper comments. The improper comments warrant, at most, an unpaid suspension of three days, but the harassment and discrimination involving T. R. warrant a more serious penalty. In the absence of the other sexually inappropriate comments and gesture, the harassment and discrimination involving T. R. probably would warrant a long suspension. However, two facts warrant termination. First, the harassment and discrimination involving T. R. are accompanied by the sexually inappropriate comments and gesture involving the other students. Second, still not grasping the requirements of a professional's proper relationship toward his students, Respondent has continued, implausibly, to deny all of the sexually inappropriate comments, except for an admission of a vague version of the comment about the orthopedic rod in N. S.'s back. By branding these students liars when he himself is lying, Respondent makes the case for Petitioner that termination is the proper remedy.
Recommendation It is RECOMMENDED that the Pinellas County School Board enter a final order dismissing Respondent from employment. DONE AND ENTERED this 13th day of February, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jacqueline M. Spoto, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942
The Issue Did the Respondent inappropriately touch students while employed by the Taylor County School Board? Did the Taylor County School Board follow a program of progressive discipline in this case? Was the Respondent grossly insubordinate by continuing to touch students after being warned to cease such conduct? Was the Taylor County School Board justified in suspending the Respondent without pay pending the outcome of an administrative hearing?
Findings Of Fact The Respondent, Jeff Silvers, was employed by the Taylor County School Board (the Board) as a science teacher at the Taylor County Middle School (the school). He had been an employee of the Board for several years. The Board was party to a contractual agreement with the Taylor County Education Association, FTP-NEA. On or about September 14, 1995, the Petitioner became aware that two female students had complained about Silvers rubbing their shoulders, touching their hair, and making an off color remark to them. The matter was brought to the attention of the Dean of Students at Taylor County Middle School, Reginald Wentworth, who reviewed the facts and counseled Silvers to refrain from touching his students. On or about September 15, 1995, four additional students complained that Silvers occasionally touched them which made them feel uncomfortable. As a result of these complaints, an investigation was undertaken of Silvers’ conduct and the statements of his students were taken. Their statements were reviewed at the Board level, and Paul Dyal, Principal of Taylor County Middle School was directed to counsel Silvers and advise him to alter his teaching style and not to touch students. Dyal advised Silver in writing to be careful of his comments to students and keep them professional.1 Silvers received an informal verbal and an informal written reprimand which was maintained in his personnel file. Thereafter, a mother of one of the girls who had originally complained about Silvers began to complain to the administration at the school and district about Silvers’ conduct with regard to the original incident. As a result of pressure put on the district by this parent, the matter was reinvestigated and the formal statements of the students originally involved were taken again. In addition, other students complained of Silvers touching them. Many of these students were called to testify at hearing, and their statements were introduced into evidence. None of these students described touching which was sexually explicit or overtly inappropriate because of the parts of the body which were touched. The touching described was “inappropriate” given the age of the young female students, and Silvers was properly directed to refrain from touching the students in this manner; however, the touching was not of a nature to establish “immoral” behavior. With the exception of two children, Maria V. and Michelle W., none of the children could fix the date of that Silvers touched them. It was not established that Silvers touched any of the other students after he was directed not to touch them. The incident involving Maria was typical of the reports of touchings reported by the students other than Amber M. and April E. The Respondent touched Maria on the shoulder while at her desk on December 1, 1996, answering a question she had. She reported that she did not feel uncomfortable because of Silvers’ touching her and would not have considered it except of the controversy over Silvers then being reported in the paper. Because of the diary entry she made, she could place the date of the incident. The other incident involved the Respondent touching Michelle on the leg while he plugged a pencil sharpener during class. Michelle was seated on a stool, with her feet on the upper rungs of the stool, and her knees and legs roughly parallel with her hips. The electrical outlet was between her knees on the upper part of the lab bench at which she was sitting. The Respondent, who was standing beside her, unplugged the sharpener into the outlet and accidentally touch her leg. Michelle thought nothing about it, was not concerned about it, and did not complain about it. This well documented occurrence was accidental and was not contrary to the directions which Silvers had received. The testimony of the two students who originally complained about Silver is discounted. In part, this is because their allegations continued to change during the investigation; however, the testimony of April at hearing was not credible. The testimony of Amber was not supportive of April regarding Silvers’ comments. Amber’s descriptions of Silvers’ conduct in the classroom was more detailed and differed from the testimony of the other students regarding Silvers’ behavior. Her descriptions of classroom touchings were of rubbing and lifting bra straps which would have been wholly inappropriate; however, she and April were the only students who offered such statements and testimony and it came late in the investigative process, casting doubts upon its credibility given the atmosphere which prevailed after the letter to the editor from April’s mother. In sum, the testimony of Ellison and Mauldin was sufficient to base the informal actions of the Board; however, their later testimony lacks the credibility to sustain the Board’s suspension and termination of Silver. The letter-writing campaign by April’s mother resulted in an atmosphere in which the young women in Silvers’ classes were overly suspicious of his every move. In addition, the administration re-investigated the matter and obtained the statements of additional girls that Silver had touched them. In response to leading questions, their statements indicated these were recent touchings; however, under oath and on cross examination they were unable to fix accurately the dates of the incidents of touching. On February 7, 1996, the Respondent was advised he would be suspended with pay pending an administrative hearing before the Board scheduled for February 13, 1996. The letter of suspension which is considered the original charging document, advised that he was charged with gross insubordination and immorality as the result of touching students in a inappropriate manner and continuing to do so after being directed not to touch students. Subsequent to Silvers’ requesting a hearing before the Division of Administrative Hearings, the Petitioner suspended the Respondent without pay on February 22, 1996.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Board enter an order dismissing the charges against the Respondent, and reinstate the Respondent to his former position with back pay DONE and ENTERED this 12th day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1997.
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1999), to terminate Respondent's employment as a non-instructional employee for alleged misconduct consisting of sexual harassment, inappropriate touching, and inappropriate comments. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner employs Respondent as a security guard at the Alternative Learning Center High School (the "ALC"). Petitioner has employed Respondent in the capacity since November 21, 1995. The ALC includes a High School and Middle School. At all times material to this proceeding, Petitioner employed Respondent at the High School. Respondent has also worked continuously for the Department of Juvenile Justice from July 16, 1993. The Department employs Respondent as a group leader at the Price Halfway House. The Price Halfway House is a level six facility for delinquent youths between the ages of 14 and 18. Before Petitioner suspended Respondent from his employment with the Board, Respondent worked at the ALC from 7:00 a.m. until 2:30 p.m. each school day. Respondent then worked at the Price Halfway House from 3:00 p.m. until 11:00 p.m. Petitioner gave Respondent good performance assessments throughout Respondent's employment at the ALC. Respondent attained a rating described as an "effective level of performance observed." The ALC principal never had cause to question Respondent's professional conduct. The principal described Respondent's position as a "very tough position." Respondent deals with students who have discipline problems, and Respondent rarely has occasion to deal with students in a positive manner. Students at the ALC have violated the rules or code of conduct at their geographic school or have been arrested for a criminal felony offense. The ALC is an alternative to expulsion from the geographic school. The ALC is a "lock-down facility." Classrooms are locked while class is in session. Students are not allowed to move outside the classroom without permission. A student who has obtained permission to move outside the classroom cannot do so before personnel outside the classroom are notified by two-way radio of the student's movement. Group movement to and from school and during lunch is closely monitored by school personnel. Respondent's duties at the ALC consisted of monitoring activity on the school campus to ensure that students and faculty enjoyed a safe environment. Respondent's duties required him to monitor students for weapons, drugs, fights, gang behavior, and similar activity. Respondent interceded disruptive behavior by students, including fights and escorted students to the administrative offices for discipline and other matters. Petitioner maintains a policy that prohibits employees from engaging in sexual harassment of another employee or student. The policy defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other inappropriate verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment includes conduct that has the purpose or effect of unreasonably interfering with a student's educational performance or creating an intimidating, hostile, or offensive school environment. The policy lists examples that include repeated remarks with sexual or demeaning implications and unwelcome or inappropriate physical contact such as unnecessary touching. Respondent was aware of the policy. The Allegations On June 28, 1999, two female students at the High School reported to the principal at the Middle School that Respondent made inappropriate sexual comments to them and touched them in a sexual manner. The two students are Kimberly Battle and Stephanie Day. The principal of the Middle School is Mr. Charles Dailey. Ms. Battle and Ms. Day told Mr. Dailey that toward the end of the 1998-1999 school year and during summer school Respondent touched them on their buttocks and made inappropriate sexual comments to them. However, Ms. Battle is the only complainant who testified at the hearing. Ms. Day did not testify at the hearing. A representative from a home for unwed mothers represented that Ms. Day did not want to testify in the action and preferred to "drop the charges." The ALJ excused Ms. Day from her subpoena on the basis of a note from Ms. Day's physician recommending that she not be required to testify until she is "six weeks postpartum." Ms. Battle claims that Respondent violated the school policy prohibiting sexual harassment through repeated incidents of inappropriate comments and unnecessary touching. The incidents allegedly occurred during the regular school year and during the summer school session. Respondent allegedly made inappropriate sexual comments to Ms. Battle in the hallway of the high school towards the end of the 1998-1999 school year. Respondent allegedly said "look at that butt" and "I'm going to get that." Ms. Battle claims that Respondent made similar comments to her during the 1998-1999 school year while she was on the bus ramp before and after school. Respondent allegedly continued to make inappropriate comments throughout the 1999 summer school session. Ms. Battle also claims that Respondent repeatedly touched her buttocks with his hand and said it was a mistake. On June 23, 1999, Ms. Battle and Ms. Day told Ms. Elsa Rosado, the school bus aide, that Respondent was "a pervert or something, and he was all nasty." Ms. Rosado told the bus driver and spoke with Ms. Day's mother. On Friday, June 25, 1999, Ms. Battle claims that Respondent pulled up her skirt on two separate occasions in the high school. She claims Respondent pulled up her skirt the first time in the break room at approximately 12:18 p.m., and did so the second time in the office of the School Resource Officer after 1:00 p.m. During the second alleged incident, Ms. Battle claims that Respondent pulled out the waistband of her underwear and looked inside her underwear. On Friday, June 25, 1999, Ms. Battle rode the school bus to the Middle School. She intended to report Respondent to Mr. Dailey. Mr. Dailey was not at school that day. On Monday, June 28, 1999, Ms. Battle and Ms. Day reported the alleged incidents to Mr. Dailey. Mr. Dailey reported the allegations to Petitioner. Petitioner investigated the allegations, and this proceeding ensued. The Hallway and Bus Ramp Petitioner failed to show by a preponderance of the evidence that Respondent made inappropriate comments to Ms. Battle or touched her unnecessarily while she was in the high school hallway or bus ramp. Ms. Battle claims that Respondent engaged in those incidents when "everybody was around" including students, teachers, the principal, and assistant principal. Ms. Battle could not say whether any of the people around at the time heard the alleged comments or saw any unnecessary touching. Petitioner did not call any witnesses that verified the alleged comments or touching. The school principal testified that repeated inappropriate comments or touching by Respondent in the hallway or on the bus ramp would have been observed by either the principal, assistant principal, or some other staff member. The school principal, assistant principal, guidance counselor, school resource officer, and the classroom teacher for Ms. Battle each testified that Respondent consistently conducted himself in a professional manner for more than five years. None of those individuals observed the comments or behavior alleged by Ms. Battle. Ms. Battle was uncertain of the frequency of the alleged comments and touching. She first estimated that Respondent made inappropriate comments on approximately 10 occasions but revised that estimate to "about three or four, two or three, somewhere around there." Ms. Battle's testimony was vague and inconsistent regarding the content of the comments allegedly made by Respondent and the specifics surrounding on alleged touching. Lifting the Skirt Petitioner failed to show by a preponderance of the evidence that Respondent touched Ms. Battle unnecessarily by lifting her skirt and committing the other acts and comments alleged by Ms. Battle. Respondent was not present in school at the time of the second alleged touching. At the time of the first alleged touching, Respondent was either not at school or was in the process of leaving school. Ms. Battle claims that Respondent lifted her skirt the first time in the school break room while she was on break at approximately 12:18 p.m. She claims that the second incident occurred later the same day in the office of School Resource Officer sometime after 1:00 p.m. The school principal authorized Respondent to leave school with Mr. Eugene Robinson between 12:00 noon and 12:30 p.m. to perform plumbing repairs in Mr. Robinson's home. Respondent did so and worked on the repairs continuously until after 3:00 p.m. when Respondent left for his second job. Mr. Robinson was well known to the principal. Mr. Robinson had been an employee of Petitioner for over 40 years including 32 years as an administrator. Before retiring, Mr. Robinson was an assistant principal for the ALC. Mr. Robinson had an emergency plumbing problem in his home on June 25, 1999. He knew that Respondent had skills as a plumber and that the school resource officer, Mr. Robinson's son- in-law, had used Respondent as a plumber previously. Mr. Robinson went to the ALC High School between 12:00 noon and 12:30 p.m. on June 25, 1999. Mr. Robinson requested that the principal authorize Respondent to leave campus, and the principal granted the request. Respondent left school immediately with Mr. Robinson. The two drove separate cars to Mr. Robinson's house. After leaving school, Respondent took 15 minutes to stop at his house to pick up his tools and proceeded directly to Mr. Robinson's house where he worked until approximately 3:30 p.m. Respondent then went to his second job. Respondent did not sign the "sign-out" log when he left school on June 25, 1999, in violation of school policy. Although the policy required staff to sign the log when they came and left school, staff occasionally failed to do so. The guidance counselor, for example, was in school from June 22 through June 30, 1999, but failed to sign in. Even if Respondent were present after 12:00 noon on June 25, 1999, Petitioner failed to show by a preponderance of the evidence that Respondent committed the acts alleged by Ms. Battle. The allegations are inconsistent with several aspects of the evidentiary record. Students began summer school at 8:30 a.m. and ended their day at 1:30 p.m. The same classroom teacher had the same students all day. Students took a 15-minute break sometime around noon to get a drink and a snack at the break room. Ms. Battle's class took their break from 12:00 noon until 12:15 p.m. Two other classes took their break at the same time. Each teacher escorted his or her class to the break room. The principal dispensed change at the vending machines that were in close proximity to the break room. Students purchased drinks and food from the vending machine and then went into the break room to eat and drink. The break room door remained open. The principal located himself by the doorway in the hall. The assistant principal and Respondent positioned themselves inside the break room to monitor the students. Ms. Battle testified that the assistant principal gave her permission to remain in the break room for a couple of minutes after the other students left because she was about three minutes late getting to her break. Ms. Battle's regular break was over at 12:15 p.m. Between 12:15 p.m. and 12:30 p.m., Respondent had either already left school with Mr. Robinson or was involved in the process of obtaining approval from the principal and preparing to leave with Mr. Robinson. Ms. Battle testified that she "distinctly remembered" the assistant principal allowing her to remain in the break room after others had left. She also claims that the assistant principal and principal were outside of the break room the first time that Respondent allegedly lifted her skirt. Ms. Battle claims that she could hear the principal and assistant principal talking in the hallway outside of the break room. However, the assistant principal was in Massachusetts attending a wedding and was not present at school on June 25, 1999. Ms. Battle did not tell anyone of the alleged incident in the break room at that time. She returned to her classroom. She later obtained permission from her classroom teacher to go to the principal's office to request permission to go to the Middle School to speak with Mr. Dailey. The principal was not available, and Ms. Battle returned to her classroom. Ms. Battle claims that her classroom teacher later excused Ms. Battle to go to the bathroom. Ms. Battle claims that before she entered the bathroom Respondent signaled for her to come over to him by the office of the School Resource Officer. It was between 1:00 p.m. and 1:30 p.m., and classes for the day were almost over. Inside the office of the School Resource Officer, Ms. Battle claims that Respondent stood between the closed door and Ms. Battle. Ms. Battle claims that Respondent held the door handle with his left hand behind his back and indicated that the elbow of Respondent left arm was bent at more than 90 degrees. However, there was insufficient distance between the door handle and the wall to accommodate Respondent's elbow. Respondent allegedly lifted Ms. Battle's skirt with his right hand, pulled back her underwear with a finger of his right hand, and then released the door handle and placed his left hand on his groin while he looked at her "private area." Ms. Battle claims that she told Respondent her teacher would be mad at her and that she needed to return to class. Respondent allegedly allowed Ms. Battle to leave. Ms. Battle claims she returned to her classroom, sat in the back of the class, put her head down and cried. Ms. Battle claims Respondent relieved Ms. Battle's classroom teacher for the final 15 minutes of class because the classroom teacher had to attend to some other business. According to Ms. Battle, Respondent sat in the back of the classroom. Ms. Battle turned around to look at him and claims that Respondent "made his private area jump" without thrusting his hips or pelvis. Contrary to Ms. Battle's testimony, Ms. Battle's classroom teacher made Ms. Battle sit directly in front of her desk at all times to control her behavior. The teacher never allowed Ms. Battle to sit in the back of the class. Ms. Battle's teacher personally taught class on June 25, 1999. Ms. Battle sat directly in front of her desk at all times. Ms. Battle never appeared disturbed the entire day. The teacher never observed Ms. Battle put her head down on her desk, cry or otherwise appear distraught. Although Respondent did sit in for the teacher occasionally, it was never for more than two or three minutes. Whenever a student is not in class, staff maintain radio contact with each other concerning the student's location. When Ms. Battle left her classroom to go to the bathroom, her classroom teacher notified the front office, and staff monitored her movement by radio. The bathroom is in plain view of the front desk of the administrative offices. The door of the office of the School Resource Officer is visible from the front desk of the administrative office. Staff members would have known by radio contact of Ms. Battle's movement from her classroom and would have monitored her movement closely. Procedural Deficiencies Petitioner's investigation of the charges made by Ms. Battle and Ms. Day suffered from several deficiencies. The investigation did not include statements from either Mr. Dailey, Mr. Robinson, or Ms. Battle's classroom teacher. When Mr. Dailey told Mr. Robinson of the charges against Respondent, Mr. Robinson informed Mr. Dailey that Respondent was working on a plumbing problem at Mr. Robinson's house on June 25, 1999. Mr. Dailey did not tell Mr. Robinson to disclose the information to anyone else and did not relay the information to Petitioner's investigator. A statement from Mr. Dailey presumably would have uncovered the information from Mr. Robinson and led to a statement from Mr. Robinson. When Respondent disclosed in his predetermination conference that he was with Mr. Robinson on June 25, 1999, Petitioner did not obtain a statement from Mr. Robinson. Mr. Dailey was not friendly with Respondent. Their friendship had ended in 1998 over a disagreement concerning a female teacher. Mr. Dailey "banished" Respondent from the Middle School where Mr. Dailey was principal. On Monday, June 28, 1999, Ms. Battle and Ms. Day informed Mr. Dailey of the charges against Respondent. Mr. Dailey interviewed the two together rather than separately. Ms. Battle and Ms. Day had discussed the matter together the preceding weekend and that Monday morning before meeting with Mr. Dailey. On Monday morning, June 28, 1999, Ms. Battle and Ms. Day obtained permission to leave the High School to talk to Mr. Dailey in the Middle School. The guidance counselor at the High School observed the two students sign out. They obtained a pen from Respondent to sign out and did not display any apprehension in Respondent's presence. Rather, they exchanged "high fives." Ms. Battle and Ms. Day completed written statements for Mr. Dailey in the same room. They later gave collective statements to Petitioner's investigator and police investigators.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the underlying factual allegations; finding that there is not just cause to terminate Respondent's employment; and reinstating Respondent with back pay from the date of his suspension. DONE AND ENTERED this 28th day of September, 2000, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September 2000. COPIES FURNISHED: Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Bruce Harter, Superintendent Lee County School Board 2055 Central Avenue Boulevard Fort Myers, Florida 33901-3916 Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman and Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089
The Issue The issue for consideration in this matter is whether Respondent should be dismissed from employment with the Polk County School Board because of the matters alleged in the letter of intent prepared by the Superintendent of Schools.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for providing public primary, secondary and adult education in Polk County, Florida, and operated Haines City High School, (HCHS), in Haines City. Respondent had been employed at HCHS for eight years, and in the last two years prior to the incidents herein taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. DCT students are allowed to leave campus before the end of the school day to work at jobs in the local area. However, Respondent allowed some students to leave school during the morning hours for the purpose of getting breakfast and, coincidentally, to bring items back to school for her to eat. There is also allegation that Respondent would solicit students to run personal errands for her during school hours but would not give them a pass to allow them to lawfully leave the campus. Allegedly, she advised them that they were on their own and she would deny responsibility or knowledge if they were caught. Taken together, the evidence establishes that Respondent did allow students to leave class on personal business and did not give them passes to be off campus. It also appears that she solicited them to pick up items for her while they were away, but not that she solicited students to leave class to run errands off campus for her. Even so, her actions are in violation of the Board policy regarding student absence from campus, a policy about which Respondent had been briefed. In addition, some time during the Autumn of 1994, Respondent overheard a student on the school's football team, Bradford Parton, discussing with his girlfriend the fact he was having cramps. Respondent advised him he should take potassium and on at least one occasion, during a class session, gave Parton a pill which, she said, would give him energy and take away his cramps. She believed the pill was the functional equivalent of one banana. Respondent was aware that it was a violation of Board policy for anyone other than the school nurse to administer any form of pill or medication to a student. When the Principal learned that Respondent had given Parton the pill, he directed an investigation into the matter. On November 17, 1994, after he had heard that Respondent was making comments in class to the effect that the students were getting her in trouble with the administration, the Principal gave her verbal instructions not to discuss these matters with the students and to limit her conversations with them to matters related to class work. His comment to her included, "Just teach the class. Just don't bring yourself down to their level." The following day, on November 18, 1994, after receiving word that Respondent had again spoken to Parton after he had warned her not to do so, the Principal reduced his prior comments to writing and again instructed her not to discuss the matter with any students, warning her that he considered her doing so a matter of insubordination which, if repeated, would result in severe disciplinary action. There is some indication Respondent, in early December, 1994, advised several students after the warning she was going to have them removed from her class She subsequently advised the school's guidance counselor that several of the students involved should be removed from her class because they appeared to be "unhappy" in it. The students denied being unhappy in class and urgently resisted being removed because they needed the credit to graduate. Respondent's comments to the students constituted insubordination, and her action in urging removal of the students was considered by the administration to be an attempt at retaliation against them because of their allegations made against her. There is also indication that while the investigation into the allegations against her was under way, Respondent spoke with Ms. Denmark, another teacher, who was in the room when Respondent gave the pill to Mr. Parton, in an effort to get her to change her statement. School Board officials consider Respondent's blatant violation of school rules and policies by allowing students to leave campus without a pass and by improperly administering a pill to a student combine to severely impair her effectiveness as a teacher. Under the circumstances established here, this appears to be the case. Prior to the initiation of this action, Respondent had received a verbal warning regarding drinking in front of students at a conference and regarding making untoward comments about Blacks. Her personnel record, commencing with the teacher evaluation of her performance in the 1988-1989 school year, reflects positive comments and no substantial criticism. However, in July, 1994, the Superintendent advised Respondent of his intention to suspend her without pay for five days for making improper comments of a sexual nature toward students and for allowing students to grade papers, to average grades and to have access to her grade book. Respondent requested hearing on this proposed action. That hearing was held consolidated with the instant hearing and no final action has been taken by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova's, suspension without pay pending hearing be sustained and that she be dismissed from employment as a teacher with the Polk County School Board because of misconduct in office and gross insubordination as described herein. RECOMMENDED this 3rd day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-2599 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 4. Accepted and incorporated herein. - 9. Accepted and incorporated herein. Accepted in so far as Respondent allowed students to leave campus and periodically suggested those who did run errands for her. - 13. Accepted and incorporated herein. 14. Accepted and incorporated herein. FOR THE RESPONDENT: & 2. Accepted and incorporated herein with the understanding that the term, "no further details regarding the allegations were provided" refers to the charging letter, and that Respondent was provided with specific allegations of misconduct prior to hearing. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 8. Accepted and incorporated herein. First sentence accepted and incorporated herein. Second sentence rejected. See Partain's December 2, 1994 letter to Chapman. Accepted and incorporated herein. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U. S. Highway 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Lloyd Wright, was a teacher employed by the St. Lucie County School District at Westwood High School. Tenecia Poitier was, during the 1986-1987 school year, a student of Respondent in his world history class. In early February, 1987, she filed a complaint against him with school officials because, she says, she got tired of his repeated comments to her of a sexual nature. Reportedly, on one occasion, Respondent indicated to her that he was going to "... fuck her brains out." This comment was overheard by another student in the class, Tony Lee, who believed Respondent was only joking with her. No follow-up action was taken by Respondent on this threat. Ms. Poitier also alleges that on one occasion, while in the school library, Respondent came over and sat down next to her and touched her on the leg. This was observed by Felicia Newton who was sitting across the library table from Ms. Poitier and who, because she was sitting out somewhat from the table, could see Respondent touch her on the outside of the leg. The hug Respondent also gave Ms. Poitier was more of a friendly hug than one with sexual overtones as was the touch. When Ms. Poitier told him to stop, he did and immediately thereafter left the table. Respondent has never hugged or touched Ms. Newton and she has never heard any other girl say Respondent has hugged or touched them except Ms. Poitier, who had told her prior to the library incident that she didn't like the way Respondent was always touching her. On one other occasion, according to Ms. Poitier, when she got chocolate on her pants in class, she asked to go to the rest room to wash it off. In response, she claims, Respondent grabbed her "butt" and commented, "Girl, I want that thing" or words to that effect. Ms. Poitier claims that when he did that, she "cussed him out." Ms. Poitier filed her complaint with school officials after reporting the incident to her father. It would appear, however, that the complaint was motivated by fear of punishment herself, as Respondent contends that on the day prior to the complaint, he observed her doing her math homework in his history class and confiscated and destroyed it. When he did this, she became irate and indicated she was going to tell her father. With that, Respondent summoned a representative of the administration and had her ejected from class. He also wrote a letter to her counselor complaining that she refused to follow class rules and was disruptive and requested she be taken out of his class because she was not doing the required work. There is ample independent testimony from others, including Ms. Poitier herself; that she curses frequently in class and her reputation for telling the truth is not good. In addition, Respondent had notified Ms. Poitier that she had been denied membership in the Millionaire's Club which he sponsored, because she would not follow club rules. She was also dismissed from membership in the Pep Club because of her forgery of Respondent's name to hall passes. Neither these latter actions nor the allegations of her removal from class, testified to only by Respondent, were corroborated by independent evidence. Ms. Poitier denies being put out of the Pep Club and claims she quit the Millionaire's club to join another one. Ms. Poitier indicates, on the other hand, that she was written up because she had threatened to tell her father what Respondent had said and done to her. Her veracity being successfully attacked, however, it is found that Respondent's story is more believable. Respondent, Ms. Poitier claims, also hugged other girls and touched at least one, Ms. McGee, on the leg when she came up to his desk on one occasion. In fact, she claims, he will touch any girl who will put up with it. McGee, on the other hand, denied that Respondent touched her on the leg as alleged by Poitier, but contends he did hug her around the shoulder from the side on one occasion. More significant, however, is the fact, admitted by the Respondent, that early one morning, while driving his mother to the grocery store, he saw Ms. McGee walking with two boys, one of whom was her brother. Respondent drove up beside them, waved and blew his horn to get their attention, and then told her he was going to take her to the woods. He claims he did not mean the comment to be taken literally but more as a joke like the kids would make. He did not believe that McGee took the comment seriously but, in fact she did, and the comment was totally inappropriate for a teacher to make to a female student under any circumstances. Other students, such as Eugenia Lunsford, report improper comments by Respondent to them or others. Ms. Lunsford claims she heard him tell girls, in the classroom, that he liked them and ask them if he could have a chance with them. She contends she heard him state that he'd like to "fuck" Cochina Hall and Tenecia Poitier. Ms. McGee remembers Respondent stating he would like to do something sexual to her, and on one occasions, when she asked him to stop peeling a grapefruit in class, he asked her if he could touch her. He never did, however, except to give her a hug. She considers the term "touch" to mean a sexually oriented touching of a girl's private parts. She also recalls an incident where she saw Respondent pull Ms. Foster's shirt away from her body by the pocket and look down the front. She thinks he was looking at her breasts. Ms. Foster, however, denies this incident happened. In light of this, Ms. McGee's testimony is suspect and, like Ms. Poitier, her credibility is slight. There is no evidence that by any of the hugs that he gave the various girls he in any way committed any inappropriate touching of the breasts or any place else or that though unwelcome, they were sexual in nature. The report by Ms. Lunsford of Respondent's touching Ms. Foster's "butt" was denied by Ms. Foster. In substance, Ms. Lunsford's testimony is not credible and Ms. Foster considers Respondent a good teacher. She would not fear going back into his class. Tony Lee, who heard Respondent make the inappropriate comment to Ms. Poitier, also heard him say to a female student, "Pull your pants down and let me touch you." At the time, Respondent and a group of female students were laughing and joking together and he does not feel that Respondent's comment was seriously made. In fact, Respondent frequently joked with his students, both male and female, making suggestive comments, and everyone knew they were jokes. Lee knows of no incident where Respondent ever attempted to follow up on these comments. He denies ever hearing that Respondent attempted to touch Ms. McGee. To the contrary, she allegedly told Lee she had attempted to touch Respondent and Lee told her she was crazy to do that. Only one parent had direct knowledge of Respondent's relationship with his students. At one parent/teacher night, Mrs. Johnson was attending Respondent's presentation to a group of students and parents when he reportedly stopped in mid- sentence and ogled one or more female students who came into the room. Mrs. Johnson felt his stare, which, she claimed, constituted a visual undressing of the girls, was inappropriate and embarrassing. Her comments were endorsed by her daughter Josephine, who would not want to go back into Respondent's class. In this incidents however, Respondent neither said anything to or about these girls nor did he attempt to touch them. Petitioner presented testimony to establish that at one time, Respondent humiliated a male student in his class by implying he was a homosexual. Both the student and his mother were permitted to testify to this incident without objection by Respondent. This is, however, irrelevant to the issues framed by the Notice of Charges and in any case, the student admits that he and another student were smirking at allegedly inaccurate statements made by Respondent during his lecture, misconduct and out-of-line behavior in and of itself. Assuming, arguendo, that Respondent's reaction to the student was inappropriate, it has no relevance to the conduct complained of in the Notice of Charges. Other present and former students of Respondent indicated that he had a good rapport with his students and is a good teacher. None of these individuals including, Ms. Shaw, Ms. Donovan, Ms. Fuller, Ms. Frazier, and Ms. Diaz have ever seen him be improper or sexual in orientation with students notwithstanding numerous observations. He is not known by these people to flirt with or improperly touch students or to make suggestive comments to them though he would hug from time to time. The extent of his familiarity would be comments like, "Hey, baby. How ya doin'?," or words to that effect, comments readily admitted by Respondent. According to Ms. Frazier, a student in Respondent's class with Ms. Poitier, some students would speak improperly to Respondent by cussing at him. Usually, he would warn them but if they got out of hands he would write them up. Respondent is described by some, and by himself, as a friendly, outgoing, caring person who tries to get his students to achieve their potential. He is a tough taskmaster who expects his students to do their best. By his own admission, he tries to relate to his students by speaking their language and using their phrases. He tries to get his students to relate to him by relating to them and in 9 1/2 years as a teacher he has never before been told this was improper. He admits to hugging his students from the side and to touching them on the arm or head in encouragement while teaching. He rides up and down the aisles in his classroom on a rolling chair so he can sit next to students who are having trouble to help them. He uses flattery, even personal comments such as "You are beautiful" in an effort to motivate his students and denies that any of his comments or touchings were salacious or sexually oriented. From an evaluation of the evidence, it becomes clear that Respondent did not touch or handle his female students in a lewd, lascivious, or indecent manner. It is equally clear, however, that on several occasions he did make lewd, lascivious, or indecent comments to female students which could be construed as advances though it is doubtful he would have followed through on them. These comments, however, in the expert opinion of Ms. Bretherick, an experienced teacher, are never appropriate for a teacher to make to a student. A teacher who made such comments would be ineffective as a teacher. Exposure to such a teacher adversely effects the students' capacity to learn the subject matter and clouds or distorts the concept of the teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore; RECOMMENDED that the Respondent, Lloyd Wright, be discharged from employment with the St. Lucie School District because of misconduct in office. RECOMMENDED this 27th day of July, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 27th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1366 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By Petitioner Petitioner, by letter, specifically declined to submit proposed findings of fact. By Respondent Accepted and incorporated Finding of Fact. Irrelevant. Accepted and incorporated Finding of Fact. Accepted and incorporated Finding of Fact. Accepted as to the ultimate fact that the comment was made. Motivation is irrelevant. Irrelevant. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Irrelevant. Irrelevant. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. First sentence is. Accepted and incorporated in the Finding of Fact. Second Sentence is irrelevant to the issues. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted. Accepted. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. COPIES FURNISHED: George R. Hill, Superintendent School Board of St. Lucie County 2909 Delaware Avenue Fort Pierce, Florida 33450 Jack Gale, Esquire The Boston House 239 South Indian River Drive Fort Pierce, Florida 33450 Lorene C. Powell, Esquire Asst. Gen. Counsel FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Daniel B. Harrell, Esquire First Citizens Federal Building 1600 South Federal Highway, Suite 200 Fort Pierce, Florida 33450 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JULY TERM 1988 LLOYD WRIGHT, Appellant, DOAH CASE NO: 87-1366 CASE NO. 87-2723 v. SCHOOL BOARD OF ST. LUCIE COUNTY, FLORIDA, Appellee. / Decision filed December 28, 1988 Appeal from the School Board of St. Lucie County. Lloyd Wright, Fort Pierce, pro se appellant. Daniel B. Harrell of Gonano, Harrell & Sherrard, Fort Pierce, for appellee. PER CURIAM. AFFIRMED. HERSEY, C.J., DOWNEY and ANSTEAD, JJ., concur. MANDATE from DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT This cause having been brought to this Court by appeal, and after due consideration the Court having issued its opinion; YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this Court, and with the rules of procedure and laws of the State of Florida. WITNESS the Honorable George W. Hersey, Chief Judge of the District Court of Appeal of the State of Florida, Fourth District, and seal of the said Court at West Palm Beach, Florida on this day DATE: January 13, 1989 CASE NO.: 87-2723 COUNTY OF ORIGIN: School Board of St. Lucie Co. T.C. CASE NO.: 87-1366 STYLE: Wright v. School Board of St. Lucie Clyde Heath Clerk of the District Court of Appeal of the State of Florida, Fourth District ORIGINAL TO: School Board of St. Lucie county cc: Lloyd Wright, pro se Daniel B. Harrell, Esquire
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1999), to terminate Respondent's employment as a non-instructional employee for alleged sexual harassment of a co-worker. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner has employed Respondent as a maintenance worker at Yulee Primary School in Yulee, Florida (the "school") for approximately 18 years. Petitioner has employed Ms. Joyce Sullivan as a food service worker for approximately three years. Respondent and Ms. Sullivan are co-workers. Respondent has no supervisory authority over Ms. Sullivan, has no authority to discipline Ms. Sullivan, and has no authority to affect the conditions of employment for Ms. Sullivan. The material facts in this case transpired over approximately ten minutes during work hours on April 6, 2000. Respondent approached Ms. Sullivan in the back kitchen of the school cafeteria shortly after breakfast and asked to speak to her privately. Ms. Sullivan agreed, and the two moved to the adjacent serving area near the checkout counter in the cafeteria. Respondent asked Ms. Sullivan to pose for pictures that would be nude, semi-nude, or partially clothed and that Respondent would enter into a contest on the internet. Respondent explained that the pictures would not identify Ms. Sullivan because the pictures would be taken from the neck down and that Ms. Sullivan could wear a bikini, a thong, or a bra. Ms. Sullivan asked Respondent what he was talking about. Respondent assured Ms. Sullivan that she would not be identified because the pictures would not identify Ms. Sullivan's face. Ms. Sullivan told Respondent that he was crazy. The entire conversation lasted approximately three minutes. Ms. Sullivan left Respondent and walked to the cash register to "ring up" the school principal who purchased some food. Ms. Sullivan went to an office in the back of the cafeteria with Ms. Sullivan's assistant manager. Respondent went to the back room and told Ms. Sullivan that he would show her some pictures on his computer. Respondent exited the room through the back door of the room to retrieve a laptop computer. Ms. Sullivan and her assistant manager went outside the back room and discussed the situation. Ms. Sullivan was embarrassed. After four or five minutes, Respondent returned to the back room and placed the laptop on the desk in front of Ms. Sullivan. The assistant manager was in the same room at another desk engaged in a telephone conversation. It took about 1.5 minutes for Respondent to turn on the laptop and display some pictures. The pictures included pictures of partially clad women and topless women. The situation terminated after 1.5 minutes when the assistant manager ended her telephone conversation, a child asked Ms. Sullivan to "ring up" some papers, and Ms. Sullivan's manager approached the room. Respondent changed the computer screen to a picture of his daughter and began talking to Ms. Sullivan's manager. Respondent left the school with the computer. Ms. Sullivan reported the incident to her manager, but Ms. Sullivan did not file a complaint for sexual harassment or state to her manager that she had been sexually harassed. Ms. Sullivan's manager relayed the information to Respondent's supervisor who discussed the matter with Respondent. Respondent admitted to the facts and expressed regret. Respondent's manager relayed the information to the Superintendent. The Superintendent investigated the matter and determined that Respondent had engaged in sexual harassment. The Superintendent based his determination on the definition of sexual harassment in the Board's Official Rule 3.54I.C. Rule 3.54I.C., in relevant part, states that sexual harassment consists of: . . . unwelcomed sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when: . . . such conduct substantially interferes with an employee's work performance . . . or creates an intimidating, hostile, or offensive work . . . environment. Respondent's request for Ms. Sullivan to pose for sexually revealing pictures was either an unwelcomed sexual advance, request for sexual favor, or other inappropriate oral or written conduct of a sexual nature within the meaning of Rule 3.54I.C. Respondent's conduct substantially interfered with Ms. Sullivan's work performance or created an offensive work environment. The Superintendent testified during cross-examination that he would not have determined that Respondent engaged in sexual harassment if Ms. Sullivan had not said no to Respondent's request. A preponderance of the evidence fails to show that Ms. Sullivan expressly said "no" when asked pose or view pictures. However, a preponderance of the evidence shows that Ms. Sullivan was embarrassed and that the entire episode was unwelcomed and offensive within the meaning of Rule 3.54I.C. Respondent has no previous discipline history. Article VII of the collective bargaining agreement between the Board and its employees prescribes progressive discipline procedures for this case. Except in unusual circumstances, employment can be terminated only after an oral warning for a first offense, a reprimand for a second offense, a written warning for a third offense, and suspension for a fourth offense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of sexual harassment and suspending Respondent from employment for the time of the current suspension. DONE AND ENTERED this 20th day of November, 2000, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November 2000. COPIES FURNISHED: Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. John L. Ruiz, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32304 Brent P. Abner, Esquire Suite F 4741 Atlantic Boulevard Jacksonville, Florida 32207 Brian T. Hayes, Esquire 245 East Washington Street Monticello, Florida 32344 Martha F. Dekle, Esquire 806 G Street Post Office Box 1644 Jacksonville, Florida 32207
The Issue The issues are whether Petitioner committed an unlawful employment practice by discriminating against Petitioner based on her sex in violation of Section 760.10(1)(a), Florida Statutes (2008), and by retaliating against her contrary to Section 760.10(7), Florida Statutes (2008).
Findings Of Fact Respondent hired Petitioner as Finance Director in September 2005. Petitioner took the position during a very challenging time because the budget was immediately due, an audit was six months past due, and allegations of embezzlement had been lodged against the former finance director. Petitioner successfully managed these challenges. Petitioner reported directly to the City Manager. The City Manager reported to the City Commissioners. The City Manager directed the day-to-day supervision and management of Petitioner and other department heads. Bill Veach was the City Manager when Respondent hired Petitioner. Mr. Veach gave Petitioner excellent performance evaluations. Additionally, Randy Bush, City Commissioner from 2002 to 2006, and Bob Mish, City Commissioner from 2004 to 2006, commended Petitioner for her work. At the time of the hearing, Ron Vath had been a City Commissioner for eight years. Mr. Vath frequently went to the City Hall to pick up his mail. He often asked Petitioner to compile information or answer questions related to finance matters, especially during budget time. Initially, Mr. Vath was satisfied with Petitioner's work performance. In addition to seeking financial information from Petitioner, Mr. Vath made inappropriate sexual comments to Petitioner. For instance, Mr. Vath would look at Petitioner and say "yum yum." He commented on Petitioner's clothes as being sexy and told her that she "had very nice looking legs." On one occasion, Mr. Vath and Petitioner were standing near the copy machine. Mr. Vath stated in a very low tone, "I don't know what's been going on with my mind lately, it could be the new medication I'm on, but I've been having very erotic dreams lately and you've been in some of them." Sometime in June or July 2006, Mr. Vath was in or near Petitioner's office cubicle discussing some figures. When Mr. Vath became very quiet, Petitioner inquired if he was okay. Mr. Vath then leaned across Petitioner's desk, looked her straight in the eye, and said, "I'm okay, but I have a very big hard on right now." Petitioner pushed her chair away from her desk and told Mr. Vath, "You need to go home and take that up with your wife." After Mr. Vath's inappropriate comment, Petitioner saw James Ramer, Respondent's Water Plant Superintendent. Petitioner told Mr. Ramer that Mr. Vath had made a pass at her. Roger Free was Respondent's Chief of Police until September 2007. Petitioner told Chief Free about Mr. Vath's "hard on" comment. Chief Free advised Petitioner to follow Respondent's procedures and talk to Mr. Veach. A couple of days later, Petitioner verbally reported Mr. Vath's "hard on" comment to Mr. Veach. Mr. Veach suggested that Petitioner file a complaint. Petitioner told Mr. Veach that she did not want to file a written complaint because it might cause her trouble. Mr. Veach honored her request and did not make a written record of the complaint or perform any type of investigation. Bernard Murphy became Interim City Manager in September 2006. When he took the position, Petitioner was introduced to him as "someone people liked and could do good work." In November 2006, Petitioner told Mr. Murphy about Mr. Vath's "hard on" comment. Once again Petitioner decided that she did not want to make a formal complaint followed by an investigation. Mr. Murphy did not make a written record of the allegations, but he told Petitioner to let him know if it happened again. Petitioner requested that Mr. Murphy keep her concern about Mr. Vath's comment confidential. Mr. Murphy honored that request until he learned that Petitioner was telling other city employees and city commissioners. Mr. Murphy then questioned Mr. Vath, who denied making the inappropriate comment. Mr. Vath's attitude toward Petitioner immediately changed. He continued to question Petitioner about her work and to complain to Mr. Murphy about her job performance. However, Petitioner did not experience anymore specific instances of sexually inappropriate comments from Mr. Vath. At all times relevant here, Elizabeth Kania was Mr. Murphy's assistant/human resource director. Months after the incident occurred, Petitioner told Ms. Kania, in an informal conversation, about Mr. Vath's "hard on" comment. Petitioner told Ms. Kania that Petitioner would not report it unless it happened again. Petitioner complained on a regular basis to Ms. Kania about Mr. Vath's questions and requests for additional financial information that added to Petitioner's workload. Elizabeth Mathis was Respondent's utility services manager. Petitioner supervised Ms. Mathis whose workspace was approximately three feet from Petitioner's cubicle. At some point in time, Petitioner told Ms. Mathis about Mr. Vath's sexually inappropriate comment. Kathleen Doyle served as an accountant under Petitioner's supervision. Petitioner complained to Ms. Doyle about one sexually inappropriate comment by Mr. Vath. Ms. Doyle also observed that Petitioner took offense to Mr. Vath's questions. Mr. Murphy, Petitioner, and other members of Petitioner's staff often told off-color jokes to each other. They occasionally used vulgar language and made profane statements in the work place. As a participant in this type of inappropriate office behavior, Petitioner was in no position to complain. Occasionally, Mr. Murphy made specific inappropriate comments that Petitioner never complained of until she resigned. For example, he referred to his former assistant as having big tits. He also stated that his dermatologist was sexy and that a woman in a bathing suit outside his window was attractive. After returning from a humanitarian mission to India, Mr. Murphy stated that Indian women were sensual. These comments occurred over a period of many months. Initially, Petitioner and Mr. Murphy were on a first name basis. However, as time went on, Mr. Murphy began to have justifiable concerns about Petitioner's work performance. At times, Mr. Murphy would become angry and raise his voice at Petitioner. On another occasion, Mr. Murphy inappropriately used his finger to "flip a bird" at Petitioner as he walked off after a disagreement about Petitioner's work. However, there is no persuasive evidence that Mr. Murphy's inappropriate conduct was in retaliation for Petitioner's allegations against Mr. Vath. Mr. Murphy's only formal disciplinary action against Petitioner concerned an attendance issue. He gave Petitioner a written reprimand on April 8, 2008, because she misrepresented the reason for taking sick leave. Petitioner admits that she was not absent on April 7, 2008 due to illness. Instead, Petitioner was in Savannah, Georgia, interviewing for the position that she presently holds. The greater weight of the evidence refutes Petitioner's claim that she was constructively discharged. Petitioner first reported her allegation of sexually offensive behavior against Mr. Murphy in her resignation letter dated April 22, 2008. Specifically, Petitioner claimed that Mr. Murphy spoke about women as being "sensual" and that he made comments about bodily characteristics of women. Petitioner complained about Mr. Murphy's management style of verbal abuse as being belittling, demeaning, and offending. City Commissioner Jane Mealy investigated the complaints contained in Petitioner's resignation letter. Ms. Mealy was unable to substantiate the allegations of sexually inappropriate and harassing behavior. Petitioner had been looking for another job for over one and one-half years because of her low tolerance to criticism. Petitioner resigned her employment with Respondent only after she received an offer of employment from her current employer, Chatham Area Transit Authority. At all relevant times, Petitioner was aware of Respondent's sexual harassment policy. The policy defines sexual harassment as "[u]nwelcome sexual advances of whatever nature, requests for sexual favors or other verbal or physical conduct of a sexual nature." See Section 2-200, Personnel Code of City of Flagler Beach (Personnel Code). Section 2-202 of the Personnel Code states as follows: The city shares a common belief that each employee should be able to work in an environment free of discrimination, and any form of harassment, based on race, color, religion, age, sex, pregnancy, national origin, handicap or marital status. To help assure that none of our employees feel that they are being subjected to harassment and in order to create a comfortable work environment, the city prohibits any offensive physical written or spoken conduct regarding any of these items, including conduct of a sexual nature. This includes: Unwelcome or unwanted advances, including sexual advances. Unwelcome requests or demands for favors, including sexual favors. Verbal or visual abuse or kidding that is oriented toward a prohibited form of harassment, including that which is sexually oriented and considered unwelcome. Any type of sexually oriented conduct or other prohibited form of harassment that would unreasonably interfere with work performance. Creating a work environment that is intimidating, hostile, abusive or offensive because of unwelcome or unwanted conversation, suggestions, requests, demands, physical contact or attentions, whether sexually oriented or other related to a prohibited form of harassment. If an employee believes that he or she is being subjected to any of these forms of harassment, or believes that he or she is being discriminated against because other employees are receiving favored treatment in exchange for sexual favors, he or she must bring this to the attention of appropriate persons in management. The very nature of harassment makes it virtually impossible to detect unless the person being harassed registers his or her discontent with the city's representative. Consequently, in order for the city to deal with the problem, the employee must report such offensive conduct or situation to the city manager. A record of the complaint and the findings will become a part of the file and will be maintained separately from the employee's personnel file. It is understood that any person electing to utilize this complaint resolution procedure will be treated courteously, the problem handled swiftly and confidentially, and the registering of a complaint will in no way be used against the employee, nor will it have an adverse impact on the individual's employment status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 22nd day of May, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 22nd day of May, 2009. COPIES FURNISHED: Michael H. Bowling, Esquire Bell, Roper & Kohlmyer, P.A. 2707 East Jefferson Street Orlando, Florida 32803 Thomas A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent violated subsections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j), Florida Statutes1/, and Florida Administrative Code Rules 6B- 1.006(3)(a),(e),(h) and (5)(a), and if so, what discipline should be imposed.
Findings Of Fact Background Respondent holds Florida Educator’s Certificate 940141, covering the area of Middle Grades Integrated Curriculum, which was valid through June 30, 2013. At all times pertinent to the allegations in the Amended Administrative Complaint in this case, Respondent was employed as a Mathematics Teacher at Citrus High School (“CHS”) in the Citrus County School District ("District"). Respondent worked as a teacher at CHS from approximately 2005 until his resignation in 2009. The allegations in the Amended Administrative Complaint revolve around Respondent's relationship with Jillian Messer ("Ms. Messer”), who graduated from CHS in June 2009. Respondent was Ms. Messer’s math teacher in her freshman year, but did not teach her in any subsequent years. Ms. Messer turned 18 years old on April 17, 2009, approximately six weeks prior to her graduation. Beginning in March 2009, Respondent, who has custody of his two young sons, needed an occasional babysitter to accommodate his out-of-town football coaching duties. He sought a recommendation from a co-worker, Shannon Justice ("Ms. Justice"), a guidance clerk at CHS at the time, about a babysitter he might use. Ms. Justice, who used Ms. Messer as a babysitter for her daughter, checked with Ms. Messer to see if she would be amenable to sitting for Respondent’s children from time to time. Ms. Messer informed Ms. Justice that Respondent could contact her to set up sitting arrangements. Between March, 2009 and May, 2009, Ms. Messer babysat Respondent’s two boys on approximately five occasions. Ms. Messer continued to provide babysitting services to Ms. Justice during the spring of 2009 as well. Ms. Messer’s last day of testing as a CHS senior was on Friday, May 29, 2009, and her last day of classes was June 1, 2009. However, notwithstanding the completion of exams and classes, Ms. Messer remained a CHS student until she received her diploma from the District superintendent of schools and was declared a graduate on the evening of June 2, 2009. Genesis of the Complaint Tammy Everhart ("Ms. Everhart") was a guidance office colleague of Ms. Justice’s during the 2008-2009 school year. The two women were cordial in the workplace, but were not close friends. Ms. Justice became wary of Ms. Everhart during the 2008-2009 school year because she often found her too interested in the personal lives of her colleagues. In May, 2009, a week before the CHS graduation ceremony, Ms. Justice allegedly told Ms. Everhart that Respondent and Ms. Messer were “seeing each other” and “dating outside the county.” According to Ms. Everhart, Ms. Justice also told her that the relationship between Respondent and Ms. Messer was "O.K." because Ms. Messer was 18 years old and “she (Ms. Messer) planned on remaining a virgin.” Ms. Everhart asked Ms. Justice to report this information to the school administration. There is no indication that Ms. Justice did so. About two weeks later, Ms. Everhart told her husband about her conversation with Ms. Justice regarding Respondent and Ms. Messer. Ms. Everhart’s husband is a District school administrator and was aware that any inappropriate relationship between a teacher and a student must be reported to a school district administrator. On the following school day, Ms. Everhart reported her concerns to Assistant Principal Linda Connors, who then reported it to the school principal, Leigh Ann Bradshaw. Principal Bradshaw contacted the District office and an investigation was then initiated by the Superintendent. At hearing, Ms. Justice denied having spoken to Ms. Everhart about Respondent’s dating or planning to date Ms. Messer. Ms. Justice and Respondent had spoken at times during the spring of 2009 about his dating relationship with a woman from the Clearwater area, and it is possible Ms. Everhart overheard some parts of those conversations and mistakenly assumed it was Ms. Messer whom Respondent was dating away from Inverness. The District's Investigation At a preliminary interview conducted in the early afternoon of June 17, 2009, Respondent was questioned by the District’s Director of Human Resources, David Roland, and Policy Compliance Officer, Teresa Royal. The interview concerned whether or not Respondent was involved in a romantic relationship with Ms. Messer, and whether he had communicated with others about such a relationship. There was no record of the precise questions asked during the interview, or of Respondent’s precise answers. During this interview, Respondent told the investigators that he had spoken with Ms. Messer five or six times, and that those conversations related to Ms. Messer babysitting his children. During the course of this interview Respondent acknowledged that Ms. Justice had sent him some pictures of her daughter's birthday party, and that Ms. Messer may have been in one of the pictures. He added that the pictures were of kids in the pool and other group pictures. Toward the end of the June 17th interview, Respondent confirmed the existence of e-mails between him and Ms. Justice that included references to the possibility of Respondent developing a dating relationship with Ms. Messer after she graduated. Respondent was not presented or confronted with those e-mails during the June 17th meeting. Although there is some evidence that Respondent did not initially acknowledge the existence of the e-mails when asked about them, it does not appear that he attempted to hide the existence of the e-mails between him and Ms. Justice. During the initial interview of June 17, 2009, and again in written form during a second interview held later that same afternoon, Mr. Roland and/or Ms. Royal cautioned Respondent against communicating with others about the subject matter of the investigation; however, he was not prohibited from speaking with Ms. Messer or Ms. Justice about unrelated matters. The "Notice of Investigation" memorandum Respondent signed during the second interview that afternoon specifically prohibits only discussions “regarding the matter under investigation.” Ms. Royal also interviewed Ms. Messer on June 17, 2009. During that interview Ms. Messer denied that there was an inappropriate relationship with Respondent. The Pool Party and Photograph of Messer On Sunday, May 31, 2009, Ms. Justice invited 45-50 people to her home for a pool party to celebrate her daughter’s birthday. Respondent, his children, several other children, Ms. Messer, and many adult friends and CHS work colleagues attended this afternoon party. Ms. Messer was invited both because Ms. Justice’s daughter adored her babysitter, and to assist Ms. Justice before and after the party. Ms. Messer arrived at, and left, the party alone. Most of the guests wore swimsuits during the pool party and Ms. Justice took pictures of children, including Respondent’s sons, and some of the adult guests, including Ms. Messer, who was wearing a bikini. On June 2, 2009, Ms. Justice forwarded several party pictures, mostly of his sons, to Respondent’s school e-mail address as attachments to an e-mail with the subject line “Pictures from Party.” One of these photographs was of Ms. Messer in the bikini she wore during the pool party. Although Ms. Messer is clad in a bikini, the photograph itself is unremarkable, and portrays a young female appropriately attired for a pool party. Other children are visible in the background of the photo. The E-Mails between Respondent and Justice Between June 1, 2009, and June 5, 2009, Respondent and Ms. Justice exchanged a series of e-mails that included subject matter related to the possibility that he and Ms. Messer might consider starting a dating relationship in the future. In an e- mail dated June 2, 2009, Ms. Justice specifically noted that Respondent and Ms. Messer had not yet had enough time to spend together to have discussed the possibility of future dating: Sent= Tues. 6/2/09 @ 1:00pm To: Randall Worley From: Shannon Justice Ok. I am back you sound so negative about yourself. I know that we are always so hard on ourselves but you are not destined for singlehood you will find someone someday and don't think JM is out of the question you haven't ever had enough time to be with her or even discuss dating. Two days later, on June 4, 2009, a series of e-mails between Respondent and Ms. Justice indicate that Respondent and Ms. Messer had recently discussed the possibility of a future dating relationship. This is the first time Respondent mentioned to Ms. Justice having spoken to Ms. Messer at all about dating, and the first time Respondent and Ms. Messer discussed the possibility of dating in the future. The full text of those June 4, 2009, e-mails follows: Sent = Thurs. 6/4/09 @ 8:44 am To = Shannon Justice From = Randall Worley So yeah I have been talking to JM lately. She is not sure what parents would say. * * * Sent = Thurs. 6/4/09 @ 8:48 am To = Randall Worley From = Shannon Justice Have you been texting or talking. So she is definitely interested??? I don’t think her parents would actually mind I think maybe you all should date a while then find out where that leads before talking about parents. That is just from experience. We dated almost 4 months before my parents ever knew. Then they never met Kevin’s parents till our rehearsal dinner. * * * Sent = Thurs. 6/4/09 @ 8:55 am To = Shannon Justice From = Randall Worley As far as she goes, yes she is interested. But I don’t think she wants to not tell them. It would be hard for us to date without them knowing wouldn’t it? And funny story, I apparently had her mom in my car graduation night and didn’t know it. Well yesterday her mom was talking to the family about how this nice sweet guy was her driver and that I was pretty cute. So she was like that’s coach Worley. That’s funny. And we have been doing both texting and talking. * * * Sent = Thurs. 6/4/09 @ 9:26 am To = Randall Worley From = Shannon Justice As far as JM my opinion is go for it. You guys have similar thing in common and plenty to talk about with regards to her parents you can play it off. It isn’t that hard you guys can really do it if you want. That is funny about her mom thinking you were cute buy (but?) cuteness only goes so far right??? * * * Sent = Thurs. 6/4/09 @ 9:32 am To = Shannon Justice From = Randall Worley Ain’t that the truth. And yes we never have enough to talk about. We are always talking and laughing and all that. We have fun together. I talked to my mom and uncle about it last night. They were totally cool with it too. I think JM just need some reassurance about it. That where maybe you come into play right. * * * Sent = Thurs. 6/4/09 @ 9:43 am To = Randall Worley From = Shannon Justice Of course I have always talked good about you to her. I will keep it up. I think she may babysit sometime next week she is suppose to call me tonight about watching sissy next week. I will help the most I can so do you still have her on your mind all the time? * * * Sent = Thurs. 6/4/09 @ 9:46 am To = Shannon Justice From = Randall Worley As a matter of fact I do. It is crazy. It has been 2 years since I have been with anyone and even the few girls that I have dated I didn’t think about like this. I don’t know if this is good or not?? * * * Sent = Thurs. 6/4/09 @ 10:44 am To = Randall Worley From = Shannon Justice Well maybe she is special to you and you may have feelings for her that you didn’t know you did. It may be a really great thing for the both of you. * * * Sent = Thurs. 6/4/09 @ 10:51 am To = Shannon Justice From = Randall Worley Seriously. I can’t get her out of my head. I don’t think that I have really felt like this in a very very very very long time. It is scary because of the feeling itself but also because of the circumstance. I don’t really know if I should feel this way? * * * Sent = Thurs. 6/4/09 @ 11:49 am To = Randall Worley From = Shannon Justice You are crazy for her. That is good. * * * Sent = Thurs. 6/4/09 @ 2:26 pm To = Shannon Justice From = Randall Worley No kidding. This is soooooooo not good. I don’t like this feeling at all. * * * Sent = Thurs. 6/4/09 @ 2:29 pm To = Randall Worley From = Shannon Justice Have you talked to her today? * * * Sent = Thurs. 6/4/09 @ 2:43 pm To = Shannon Justice From = Randall Worley Yes I have. We should probably talk when you get a chance. So call me sometime.When you leaving work? Telephone Records of Calls between Respondent and Messer Telephone records received in evidence (over the hearsay objection of Respondent)2/ indicate that there were 89 telephonic communications between Respondent and Ms. Messer between March 3, 2009 and June 18, 2009. The records also reflect that phone conversations did take place between Respondent and Ms. Messer on June 17, 2009. However, there is no evidence as to the subject matter of those communications, nor credible evidence that they spoke about anything related to the investigation. Another interview with Respondent was conducted by Ms. Royal on July 8, 2009. At that time Respondent again acknowledged having received the e-mailed photograph of Ms. Messer in a bikini. Publicity Regarding the Investigation The only area newspaper article written about the allegations against Respondent appeared on August 19, 2009, in the Citrus County Chronicle. The impetus for the article appears to be the filing of the formal complaint against Respondent, and his subsequent resignation. The article did not name Ms. Messer as an involved party, but included her anonymous statement to the effect that nothing unprofessional happened between her and Respondent, and quoted District officials to the effect that there was no evidence of sexual harassment or of Respondent expressing his feelings to the student. At hearing, Superintendent Himmel testified about the generic impact of negative teacher articles upon some in the community. On cross- examination, Ms. Himmel did not rule out re-hiring Respondent as a teacher if he is cleared of wrongdoing in this matter. Lack of Direct Evidence of a Relationship During the District’s interviews with him, to the extent Respondent’s recollection of the number, duration, and subject matter of every phone conversation he had with Ms. Messer between March and June 2009, was limited or inaccurate, such limitations reasonably appear to be the result of the passage of time, and not purposeful deception. There is no evidence that Respondent and Ms. Messer ever discussed dating, or any inappropriate subject, during any telephone, text, or in-person communications between them while she was a student. Although Respondent and Ms. Messer spoke on the phone from time to time about babysitting concerns and logistics, and apparently on other occasions about Ms. Messer’s college aspirations, scholarship opportunities, college selection, and related matters, there is no direct evidence of what they specifically spoke about. At hearing, no witness testified to having personal knowledge of such conversations, and both Respondent and Ms. Messer denied to District officials that they ever engaged in any discussions about dating or about any inappropriate matters prior to her June 2, 2009, graduation date. Although Ms. Messer and Respondent occasionally saw each other outside the school setting through babysitting- related interactions, the record lacks any credible evidence that they ever dated or engaged in any inappropriate physical contact. Further, Respondent, Ms. Messer, and Shannon Justice, all have specifically and consistently denied that there was any physical, romantic, dating, or sexual relationship between Respondent and Ms. Messer at any time. Although the telephone records introduced by Petitioner establish that Respondent and Ms. Messer spoke frequently, there is insufficient competent substantial evidence to establish that the subject matter of the conversations was inappropriate, or that the two were involved in a prohibited teacher/student relationship prior to Ms. Messer's graduation on June 2, 2009.3/ By letter dated July 28, 2009, Respondent was informed of his suspension from employment with the District, and that his termination would be recommended to the school board. Respondent resigned his teaching position with the District effective August 11, 2009.
