The Issue Whether the Duval County School Board (Board) may terminate Respondent, Cleveland F. William, Jr.'s, employment as a teacher based upon incompetence under the Duval Country Teachers Tenure Act (the Act). This issue is dependent upon whether the Board showed Respondent to be incompetent and whether the Board complied with the procedural requirements of the Act.
Findings Of Fact Respondent was first assigned to Fort Caroline Middle School during the academic year 2000-2001 to teach 6th grade science. Kathy Kassees was the principal at Fort Caroline Middle School during that school year. Respondent's brother was extremely ill and died during the school year. Respondent's performance evaluation for that school year was less than satisfactory. See Exhibit 2, 2000-2001 Performance Evaluation. Respondent concedes that his performance in 2000-2001 was less than satisfactory. See paragraph 56 of Respondent's Post-hearing Brief. When a tenured teacher in the Duval County system has a performance evaluation of less than satisfactory, the teacher may elect to transfer to another school, and Respondent exercised that option for the school year 2001-2002. Respondent was moved to Stillwell where he was assigned to teach 7th grade science. In addition, he was assigned for the first time to teach inclusion classes. Inclusion classes are made up of students who are exceptional education students who may have various exceptionalities. These exceptionalities may include disabilities such as deafness, emotional and behavioral problems, and developmental disabilities. Behavioral problems may include students diagnosed with attention deficit disorder and hyperactivity. Stillwell utilizes a program of instruction called the America's Choice Plan (ACP). The ACP is a comprehensive educational program which covers all aspects of instruction, organization of the classroom, and display of student materials in the classroom. ACP has its own vocabulary of terms to describe activities and things. For example, "artifacts" refers to student work and other materials posted in the classroom. It is expected that "artifacts" will be posted and changed periodically. Weekly meetings to discuss the system are called "Tending the Garden" meetings. ACP had been used at Stillwell previously and the returning faculty were familiar with it. Respondent had never worked with ACP before. Ms. Kassees had prepared a Success Plan for Respondent after he received his unsatisfactory evaluation to help him improve his deficiencies. Respondent took this plan with him to Stillwell, but the plan did not address ACP or inclusion classes. Mr. Marjenhoff, the principal at Stillwell, met with Respondent and discussed Marjenhoff's expectation of Respondent. They did not discuss any special requirements or changes necessitated by ACP or inclusion classes. Petitioner was unable to establish that it had prepared and delivered a new Success Plan to Petitioner at Stillwell. After his poor evaluation in February of 2002, Respondent asked Mr. Marjenhoff for a copy of the Success Plan and one was produced which was signed by Mr. Marjenhoff and dated August 6, 2001, and by Respondent on March 27, 2002. See Exhibit 13. Respondent did attend various ACP, "Tending the Garden" in-service educational classes presented by Dianne Rahn; Urban Systemic Initiative (USI) seminars presented by Rose Curry; and classes presented by his department head, Margarita Arroyo. His attendance and punctuality at these meetings was on par with his peers. The first indication of evaluative inspections came in a November 28, 2001, memo to Respondent from Marjenhoff stating that Dianne Dunn, a cadre member, would be contacting him about setting up a classroom visit. She did not conduct a visit until January 28, 2002. See Exhibit 11 and attachments. The annual evaluation of faculty occurs in February. Petitioner concedes that other than the cadre work by Dunn and some instruction on USI by Curry, little was done by way of individualized in-service training to address Respondent's shortcomings. Respondent was not afforded much in the way of unique, individualized oral counseling or critiques of his performance during the first part of the school year. See paragraphs 21 and 22 of Petitioner's Post-hearing Brief. A review of Curry's visits reflects she met with Respondent approximately once each month for a rough average of an hour, with the exception of the first meeting which was four hours. Curry's logs do not reflect the corrective actions taken with regard to Respondent's teaching. This hardly constitutes an accelerated effort to improve Respondents performance. See Exhibit 21. The dates of the various class visits and evaluations by Marjenhoff are in February and March. See Exhibits 12, 18 and 19. A review of the records of the in-class visits and commentaries by the observers reveal that too many general recommendations were made rather than specific, concrete changes to implement. For example, Darrell Perry visited Respondent's class and was concerned about its physical organization, i.e., where the television was located, the direction in which the seats were oriented, and where Respondent's desks was located. This was written up in March, which was late in the year to raise these issues, and Perry did not suggest or volunteer to help Respondent alter the room to meet Perry's expectations. Also see Exhibit 11 and attachments. In sum, there was too much jargon and too little performance-oriented, hands-on correction of Respondent. Memoranda relating to Respondent's performance all seem to be dated after January 2002. See Exhibits 16 and 17. The corrections that were made came too late to have a meaningful impact upon the improvement of Respondent's teaching performance.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board provide Respondent another year in which timely and appropriate in-service training is provided to correct his deficiencies in teaching. DONE AND ENTERED this 29th day of January, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 29th day of January, 2003. COPIES FURNISHED: David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Michael B. Wedner, Esquire City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact On or about January 30, 1979, Respondent, State of Florida, Department of Education (hereinafter "Department") issued an Announcement of Position Vacancy for Position number 00533 for an Educational Data Analyst I (hereinafter "EDA-I"). The deadline for filing applications was February 20, 1979. The minimum qualifications were: Graduation from an accredited four-year college or university and two years of experience in school administration, teaching or experience directly related to the specific school service program. Professional or technical experience in one of the above areas may be substituted for the required college training on a year-for-year basis. These qualifications, known as class specifications, are issued by the Department of Administration. The advertised position was in the Teacher Certification Section. John Stables was the Administrator for the Teacher Certification Section during all times material hereto. The first step in the selection process begins with the request for announcement of position vacancy. When this is approved, the Department issues an Announcement of Position Vacancy. The Announcement contains a closing date by which all those interested in the position must file their applications. The applications are received in the Department's Personnel Office and are screened to determine whether or not the applicant meets the minimum qualifications as set forth in the Announcement. As the applications are received, they are forwarded to the section where the vacant position is available. After the applications are received by the section that has the vacant position, the applications are reviewed, interviews are conducted, and the top candidates are designated. A specific recommendation is made by the section head, approved by the Division Director, and then reviewed by the Personnel Office for compliance with appropriate rules and to verify that all paperwork has been properly completed. The recommendation is then forwarded to Francis N. Millett, Jr., the Deputy Commissioner of Education, who is also the Department's Equal Employment Opportunity Officer, who reviews it. The recommendation then goes to Commissioner Turlington, who makes the final decision and signs the appointment letter. In the Teacher Certification Section, Patricia Wortham had the duty of receiving all applications and compiling a list of the applicants. It was also her duty to make arrangements for interviews of any applicants that requested an interview. In addition, when the Section had made its recommendation, she typed the Department's form containing statistical information and returned the form with the applications of those who had not been selected to the Personnel Office. In the Teacher Certification Section, Myra Burkhalter, an Educational Consultant III, had the duty of conducting interviews with the applicants in the first instance. Burkhalter had been employed in the Section for approximately ten years and had served as an Educational Consultant III for the last three or four of those years. The Educational Data Analysts I and II were under her general supervision. She was the highest ranking employee in the Section, outranked only by Staples, and was specifically given the task of interviewing applicants. After Burkhalter completed her interview with a particular applicant, she would introduce the applicant to Staples if he were available. The EDA-I position is a meticulous job that requires from one to one and a half years of training before the individual is capable of performing the job. There is contact between the EDA-I and persons in educational institutions outside the Department. The analysts review transcripts of persons applying for a teaching certificate in the State of Florida. The duties require counseling and interviewing with teacher-applicants and further require an almost instant recall of all the statutes and State Board of Education teacher certification rules. The analyst reviews the courses and experience of the teacher-applicant and applies the course work and credits against the rules to determine whether the person applying for a certificate meets the minimum qualifications. Some 1,600 to 1,700 institutions from which the certification applicants obtained schooling have to have their accreditation status verified by the analyst in order to determine whether or not that institution meets the standards set by the State of Florida. Additionally, many applicants have degrees from institutions in countries other than the United States, and the analyst must either know or be able to find information regarding the schools in those foreign countries. Staples and Burkhalter considered the interview process of an applicant for an EDA-I position to be imperative. Burkhalter explained to the applicant in some detail the preciseness required in performing the job and the pressures of the job, since there were always teacher certification requests to be analyzed. The year's training procedure, the amount of knowledge that must be acquired by the analyst in order to perform the required functions, and the importance of the screening process of the certification applicants in order to assure that only qualified teachers are certified were explained to the interviewee. Additionally, Burkhalter talked with the EDA-I applicant to determine how that person's reaction would be (as near as possible in an interview) to the type of work and duties of the position. The communicative skills of the job applicant were discussed. It is absolutely essential that the EDA-I have the ability to communicate both orally and in writing. The reason for the high degree of communication ability is that an EDA-I, after the training period, writes letters to educational institutions concerning transcripts and talks to and corresponds with persons requesting certification. Part of the duties involve contact with the public. An analyst spends one week out every six or eight weeks at the front desk working with office visitors. Good communicative skills are required in order that the EDA can answer questions posed by applicants for teacher certification. The interviewing process is thus required in order to ascertain the applicant's communicative skills. Another purpose of the interview is to determine as nearly as possible the applicant's attitude in interpersonal relationships, since there are approximately eighteen analysts doing the same thing, and it is essential that they work as a team. The job places the EDA-I under considerable pressure in working closely with other people, especially during the training period. The training period, by necessity, requires close supervision of the EDA-I and involves frequent correction of the trainee's work. Since the Department invests over a year in the training of an EDA-I, it is essential that an applicant's future plans be discussed, particularly the applicant's intentions concerning how long the applicant intends to remain in Tallahassee, the job location, and how long the applicant intends to remain in the position. Inasmuch as the information to be given to and received from the interviewee can only be communicated and evaluated in a face-to-face meeting, it is essential that those applying for the position be interviewed. The Department has no established policy regarding the conducting of employment interviews. The method utilized is left up to the particular section doing the interviewing. Furthermore, the Department of Administration has promulgated no rules or guidelines requiring that interviews be conducted in a certain manner, that an agency interview a certain number of applicants, or that an agency interview any applicants. Since there were no state or department rules for conducting interviews, it was the practice of the Section to interview those applicants requesting an interview. Since there were many applicants for each EDA-I position, and since most of the applicants met the minimum qualifications, experience had shown that there would be a sufficient number of applicants that requested an interview from which the top four or five names would be submitted to Staples for his recommendation. Staples believed that the fact that a person would call and ask for an interview was indicative of the person's enthusiasm and interest in the job itself. He believed it was a further indication of the person's self-confidence and desire to obtain employment. Burkhalter and Staples endeavored to evaluate whether the applicant would fit into the EDA-I job during the interview process. Staples and Burkhalter never refused to interview anyone who requested an interview. Additionally, no one was hired who had not been interviewed. On or about February 16, 1979, Petitioner filed an application with the Personnel Office for the EDA-I Position number 00533. She was born in Puerto Rico, where the main language is Spanish. Her family spoke French and Spanish while she was growing up, and Petitioner speaks English with an accent and Spanish. Petitioner's application was forwarded to the Teacher Certification Section. Twenty-five applications were received for Position number 00533. Eight persons were interviewed by Burkhalter for Position number 00533--five were interviewed in February and March, 1979, and three had been interviewed on previous occasions. Approximately two weeks after Petitioner filed her application at the Personnel Office, she called the Teacher Certification Section inquiring as to what action had been taken with her application. Since the person answering the telephone had no information regarding the applications for the position, Petitioner requested that Staples return her phone call. When she did not receive a return call from Staples, she again called the Teacher Certification Section, again spoke to someone with no information regarding the pending applications, and again requested that Staples return her call. When she did not receive a return phone call from Staples, Petitioner called the Teacher Certification Section a third time. Patricia Wortham, the person in charge of scheduling interviews of applicants, took the third phone call and distinctly remembers her conversation with Petitioner. Petitioner asked if the position had been filled and why she had not been called for an interview. Wortham explained that the Section did not call applicants to schedule interviews, but rather waited until an applicant requested an interview. Wortham asked Petitioner if she would like to come in for an interview, and Petitioner replied that she did not want an interview. Wortham was surprised by Petitioner's refusal to come in for an interview since in the seven years that Northam had worked in that position, she had never had an applicant decline to come in for an interview. Petitioner's telephone conversation with Wortham concerning an interview occurred before anyone had been selected to fill the position. Petitioner was informed that the position had not been filled, and that an interview was available. Although Petitioner denies that she was offered an interview, she does admit that during her third phone call to the Teacher Certification Section an interview was discussed. By the time Petitioner called the Section for the fourth time, the position had been filled, and she was so advised by Burkhalter. Shortly thereafter, she received a letter officially notifying her that a selection had been made. Margaret Goforth filled an application and met the minimum qualifications for the position. She requested and was granted an interview. Since she was believed to be the best applicant of those interviewed, she was selected. Staples signed the recommendation to hire Goforth on March 16, 1979, and she began work on April 24, 1979. After Ralph Turlington became Commissioner of Education in 1974, he determined that the Department needed to have an Equal Employment Opportunity (hereinafter "EEO") policy committee and EEO officer. The Department subsequently instituted an EEO policy. The purpose of the policy is to provide people of all racial and ethnic backgrounds a greater opportunity to apply for and be selected for positions in the Department. To implement the policy, the Department began to advertise widely positions that became open so that people meeting the qualifications would have an opportunity to apply. An EDA-I is considered a professional position. The Department sends position vacancy announcements for professional positions to approximately six hundred locations, including universities, community colleges, school districts, minority groups, affirmative action groups, and also distributes the announcement within the Department. The purpose of the EEO policy is to ensure that all applications for positions are given equal treatment. The policy sets forth target areas such as minorities, handicapped persons, and affirmative action groups in order for these persons to be notified and have the opportunity to apply for positions. The EEO policy does not specify how job applicants are to be interviewed or selected for interviews. The procedure for conducting the interviews and making the final selection is left up to the individual section, provided the procedure used does not discriminate against an applicant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered by the Florida Commission on Human Relations finding that Esther C. Reedy was not discriminated against on the basis of her age or national origin and dismissing her Petition for Relief with prejudice. RECOMMENDED this 31st day of August, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1982. COPIES FURNISHED: Robert I. Scanlan, Esquire Post Office Box 10311 Tallahassee, Florida 32302 Gene T. Sellers, Esquire State Board of Education Knott Building Tallahassee, Florida 32301 Aurelio Durana, Esquire Assistant General Counsel Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Mr. Richard Williams Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301
Findings Of Fact David B. Clark, Respondent, is employed by the Leon County School Board on continuing contract and was so employed at all times here involved. By Request for Leave dated May 31, 1978 (Exhibit 2) Respondent requested leave without pay from August 1978 through June 1979 for the purpose of continuing education. The request was forwarded approved by the Respondent's principal and approved by N. E. (Ed) Fenn, Petitioner. The principal who recommended approval of Respondent's leave request testified he would not have recommended approval had he not believed Respondent would pursue graduate studies. At the time Respondent submitted his application for leave he had been assured of financial assistance from his family to provide him the necessary funds to be a full-time student at Florida State University in the Masters program in public administration. In July Respondent learned he would be unable to get the financing he had expected to allow him to attend school full time. He proceeded to the school personnel office, advised the personnel director of his dilemma and requested advice. She advised him to go to the school at which he was employed the past school year and ask for his position back for the 1978-79 school year. When he did so he found a new principal had been appointed who was unsure of the job availability but he advised Respondent that his previous year's position had been filled by someone else. Respondent went back to the personnel officer for Leon County School Board where he learned there were no jobs available but he could be listed on the rolls as a substitute. He also was told that he should attempt to take some graduate courses even if he couldn't afford to go full time. Respondent agreed to try and do so. By letter dated 31 July 1978 (Exhibit 5) Respondent applied to be placed on the rolls as a substitute teacher for the 1978-79 school year. Respondent then took a sales job at which he worked in the late afternoon and early evening while also working as a substitute teacher. After the first semester, Respondent quit his sales job and worked full-time as a substitute teacher until the end of the school year. He was then offered a summer job on a construction project in Georgia, which he took. After Respondent reapplied and was employed for the 1979-1980 school year, the charges of gross insubordination and misconduct in office followed. Respondent's evaluation reports (Exhibit 4) contain a satisfactory rating in all categories for the past three years. Only in the year 1974-1975 was a "needs to improve" rating given in any of the categories for evaluation. Subsequent to the 1974-1975 evaluation year Respondent was placed on continuing contract status.
Findings Of Fact Pursuant to the Order of the Second District Court of Appeal, Dr. Spiegel was reinstated as Chairman of the Orthopaedic Department at the University of South Florida (USF), retroactive to October 31, 1988. He was given a contract as Chairman to run until October 19, 1990. On February 2, 1990, USF commenced proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department, and the matter was referred to the Division of Administrative Hearings for a formal 120.57(1), Florida Statutes, hearing. Prior to the commencement of the formal hearing, Dr. Spiegel's contract as Chairman of the Orthopaedic Department expired and was not renewed by the USF. On the expiration date of that contract, October 19, 1990, the USF proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department became moot. Dr. Spiegel's appointment as Chairman of the Orthopaedic Department ended as provided in this contract, the contract was not renewed, and Dr. Spiegel was no longer chairman of the Orthopaedic Department. Dr. Spiegel timely filed a grievance to challenge the non-renewal of his contract as Chairman of the Orthopaedic Department. By stipulation of the parties, the issues raised in the grievance merged into the instant proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department. Since that issue became moot with the expiration of Dr. Spiegel's contract on October 19, 1990, the only issue now remaining is whether the failure to renew Dr. Spiegel's contract was in violation of Dr. Spiegel's right to academic freedom or for the alleged impermissible violation of his First Amendment right to freedom of speech. In other words, the allegation is that Dr. Spiegel's contract was not renewed because he exercised the rights guaranteed to him under the First Amendment of the United States Constitution.
The Issue The issue for determination is whether Respondent's teaching certificate should be disciplined for alleged violation of various provisions of Section 231.28, Florida Statutes, and Rule 6B
Findings Of Fact Respondent Clayton McWilliams holds Florida teaching certificate number 653517, covering the area of substitute teaching, which is valid through June 30, 1994. He is 27 years of 1989, from Valdosta State College in Valdosta, Georgia. After a few brief months employment in retail sales in Tallahassee, Florida, Respondent returned to Madison, Florida, where he was born and lived prior to attending college. Respondent returned to Madison in August of 1989, after being contacted by the high school coach there regarding the possible employment of Respondent as an assistant coach at the high school from which Respondent graduated. He was employed in the 1989 County School Board. Subsequently, he was employed by the Board during the 1990 high school. Respondent served as an assistant coach during this period. While serving as a substitute teacher during the 1989 Respondent was responsible for a ninth grade science class. Female students M.B., R.B., J.D., and R.C., were in a group surrounding Respondent's desk, talking with Respondent. All the students in the group were curious about Respondent and asked him such questions as what are you going to coach, are you married, do you have a girl friend, and why did you come back to Madison? Respondent knew many of the students on a first name basis and, in the course of bantering with the group, responded at one point to the students' questions about his private life by asking the students about their social lives, if they kissed their boy friends with their mouths open, and if they used their tongues. There was general laughter from the students, although R.B. didn't think the question was "any of [Respondent's] business." This was the only question or comment that Respondent ever made that bothered R.B. R.B. regarded Respondent's conduct in the ensuing two years as "flirting" and "didn't ever think anything bad about it." The next year when R.B. was in the tenth grade (1990 photograph. Respondent later told R.B. that he stared at the photograph every night. When R.B. was in the eleventh grade and not a student in a class taught by Respondent, Respondent jokingly asked R.B. in the presence of D.C., her boyfriend at the time and an athlete with whom Respondent enjoyed a rapport, why she wanted to date such a "big, old dummy." There were other times that Respondent would see R.B., tell her that she looked nice, wink at her and blow her kisses. During the 1990 M.B., by asking her if she kissed with her mouth open, and would she teach Respondent how to do this. Respondent also told M.B. that she looked beautiful. M.B. was not a student in a class taught by Respondent. During the 1991-1992 school year, M.B. was a high school junior and a varsity cheerleader. Respondent continued to speak to M.B., although she was not his student, when he saw her on the school campus or at sporting events. He continued to ask M.B. about kissing with her mouth open, whether she would teach Respondent how to do this, and when could she teach him. M.B. declined to specify any time or place to meet with Respondent. M.B. did not disclose Respondent's behavior to anyone at this time. On one occasion, M.B. and other eleventh grade students, including her boyfriend, were in the high school library, ordering their class rings. Respondent became involved in conversation with the students and asked M.B. again about teaching him to kiss open would lose his job for M.B. Although he heard these comments, M.B.'s boyfriend considered Respondent to be joking. In the fall of the 1991 Wakulla County for a game which would determine whether the team could compete in the district championship playoff. Upon boarding the bus after the game for the trip home, Respondent was asked by M.B. if he was going to sit with her on the bus. He replied that he would if she saved him a seat. Respondent stored the athletic equipment which he was carrying, returned to the forward section of the bus and assumed the vacant seat beside M.B. Since the team had lost the game, most passengers on the bus were despondent. In the course of the trip, M.B. and Respondent leaned their heads against the back of the seat in front of them and Respondent talked about college and how being from a small high school had been difficult when he had attended the University of Florida before transferring to Valdosta State. Respondent had his hands between his knees as he talked and at one point placed it on M.B.'s knee or patted her knee. She, feeling discomfited by the gesture, brushed his hand away. This was the only time that Respondent touched a student where such touching was interpreted by a student to have sexual significance. Respondent testified that he patted M.B. because she acted as though "something had been bothering her" and characterized the pat as something he would give "football players or baseball players at school." Eventually, M.B. became sleepy and rested her head against the bus window. Respondent in a normal tone of voice offered to let her place her head on his shoulder, but M.B. declined. During the 1991 photographs. On the back of his photograph, Respondent wrote: M., I remember when I first saw you, you struck me as beautiful. I really think you are. You are truly special to me. Please know that I love you. Stay sweet and pretty. Love, Clayton. P.S., Please teach me sometime. Mary Rice, a teacher at the high school, began teaching there at approximately the same time as Respondent. Rice, like Respondent, was single. Rice, like Respondent, enjoyed informal relationships with some students, such as the cheerleaders for whom she served as staff sponsor. The cheerleaders, similar to many students who called Respondent by his first name, referred to Rice as "Mary". She became engaged in October of 1991 to Scott Alley, another teacher who occasionally substituted at the school. Rice and Respondent had a normal collegial relationship. Prior to Christmas of 1991, Rice and Respondent were in the school office discussing what they were getting their significant others for Christmas. Respondent told Rice that he would tell her what he was getting his girl friend for Christmas if Rice would have sex with him. Later in the day, Respondent got down on his knees in the hallway outside of Rice's classroom in the presence of students and asked Rice to "go with me before you get married". While Respondent meant that he wanted to have sex with Rice, he did not explicitly state such in the hallway. Later, Respondent sent Rice a note containing four blanks for letters. According to Rice, the note stated that Respondent would tell Rice what he was getting for his girlfriend for Christmas if Rice would " ". Rice assumed the four blanks to represent a sexually suggestive word. Rice stored the note in her desk drawer. She determined not to tell anyone about the note. In February of 1992, her fiancee, Scott Alley, discovered the note in the desk while he was substituting for Rice. He showed the note to Debra Wetherington, a school secretary, and later asked Rice about the note. Rice was startled that Alley had found the note and became upset. Later, in a telephone conversation initiated by Respondent, he discussed the note with Alley. Respondent apologized to Alley for any misunderstanding about the note, stating that he had written it merely to get a laugh from Rice. Respondent told Alley that he, Respondent, just flirted with everyone and that was "how I broke the ice with everyone." After Respondent's apology, the two men agreed to remain friends. Subsequently, the note was destroyed by Alley. Debra Wetherington, the secretary at the high school, frequently interacts with the teaching staff. Initially, Respondent and Wetherington enjoyed a good working relationship no different than those she shared with other teachers. She had known Respondent all of his life. Over a period of time, Respondent began to flirt with Wetherington, asking her about open mouth kissing. At these times, Wetherington ignored his remarks or laughed them off as a joke. When his behavior persisted, she told him that his conduct bothered her and that he should stop. She never told her husband or any one else about Respondent's attentions, hoping to resolve the matter without confrontation and embarrassment. On or about February 25, 1992, Respondent came into the school office and physically put his arms around Wetherington in a "bear" hug and, according to Wetherington, tried to put his tongue in her ear. Also present in the room were the school resource officer and another office worker. No eyewitness corroboration of Wetherington's allegation that Respondent attempted to put his tongue in her ear was offered at the final hearing and she had not reported this detail in an earlier affidavit regarding the incident. Respondent denies he attempted to put his tongue in her ear. Respondent's testimony is more credible on this point and it is not established that he attempted to put his tongue in Whetherington's ear. Wetherington later complained about Respondent's conduct to Lou Miller, the school principal. Miller called Respondent into her office, discussed the incident with him, and directed him to have no such contact with Wetherington in the future. Respondent apologized for his conduct, both to Miller and Wetherington. While Respondent and Wetherington had no further contact, Wetherington later asked another teacher, Tony Stukes, if Respondent was angry with her since she had not seen or heard from him lately. On or about March 24, 1992, Respondent saw M.B. in the hallway outside the door of his classroom while classes were changing. Respondent spoke to M.B. and told her that he had a dream about her. M.B. went to see Mary Rice, the cheerleading sponsor, who had earlier asked M.B. if she was having any problems with a teacher. Rice had taken this action following the discovery of Respondent's note in Rice's desk by Rice's fiancee. M.B. had confided in Rice about Respondent's previous flirtatious behavior toward her. Rice told her to write down future incidents. After relating to Rice the comment of Respondent about having a dream, M.B. was asked by Rice to go back to Respondent and find out more about the dream. M.B. went into Respondent's class where the students were working on a geography project. An overhead projector displayed the continent of South America on a board. Some students were tracing the projection on the board, preparatory to cutting the shape out of the board. Other groups were cutting out other continents. The lights in the room were turned on. Respondent was sitting at his desk, cutting out the Asian continent. M.B. went to a chair by Respondent's desk and sat down. M.B. was on her lunch break and was not a student in the class. However, in the context of the situation, her entry into the classroom was not that unusual. Respondent had on previous occasions entered an art class where M.B. was a student and had spoken with her or, on some of these occasions, had also spoken with the teacher in the class. After seating herself by his desk, M.B. asked Respondent to tell her about his dream. Respondent replied that he couldn't, but M.B. persisted. Finally, Respondent wrote on a piece of paper, "I had a dream about you and me." M.B. then wrote on the paper, "Well, what happened?" The rest of the written exchange is as follows: Respondent: "Well, all I remember is you were teaching me." M.B.: "Teaching you what?" Respondent: "Guess." M.B. "I don't know. Why don't you tell me what I was supposedly teaching you." Respondent: "How to kiss with my mouth open. I liked it, too. I woke up sweating and holding my pillow to my mouth." M.B. then took possession of the piece of paper on which she and Respondent had been writing, left the class and went back to see Mary Rice. M.B. discussed the matter with Rice. After this discussion, M.B.'s feelings about Respondent solidified and she determined that she detested Respondent. At Rice's suggestion, she then went to see Principal Miller. Miller and School Superintendent Eugene Stokes confronted Respondent with the note. Respondent stated he meant no harm by his conduct, recognized that he had a problem and needed help for his aberrant behavior. After a discussion of options, including suspension or resignation, Respondent thought about the matter overnight and submitted his resignation to Stokes on March 27, 1992. Respondent was told that the matter must be reported to the Professional Practices Commission. Respondent was, however, under the impression that his resignation would conclude the necessity for any further proceedings of a disciplinary nature. Until the time of his resignation, Respondent had received good evaluations. His contract was renewed annually. However, as expressed at final hearing by Miller and Stokes, they would not rehire Respondent in view of his past behaviors which now, in their opinion, would reduce his effectiveness as a teacher at Madison High School. Subsequently, Respondent was informed on May 28, 1992, that an investigation regarding alleged misconduct been instituted by the Professional Practices Commission. In August of 1992, Respondent sought and was appointed to a teaching position in Hawthorne, Florida, at the combined junior/senior high school in that city for the 1992 completion of course work for issuance of a five year teaching certificate from the State of Florida which he received in October of 1992. Dr. Lamar Simmons, the supervising principal at the school in Hawthorne, Florida, where Respondent is presently employed is acquainted with Miller. Simmons contacted Miller at the Madison High School, prior to employing Respondent. Miller informed Simmons that Respondent had been a satisfactory employee. Miller did not disclose Respondent's alleged misconduct to Simmons because she assumed Respondent was receiving professional help for his problem and that the issuance of Respondent's five year certificate indicated that further disciplinary proceedings by the Professional Practices Commission had been abandoned. Respondent later disclosed the instant disciplinary proceeding to Simmons. To date of the final hearing, Respondent continues to teach at the school in Hawthorne without apparent incident.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the third, fourth, and fifth count of the Administrative Complaint, and placing Respondent's teaching certificate on probation for a period not to exceed three years upon reasonable terms and conditions to be established by Petitioner, including the following requirements: That Respondent present himself for psychological evaluation by a qualified professional selected by Petitioner. That Respondent complete such course of psychotherapy as may be prescribed as a result of that evaluation. That Respondent assume the cost of such evaluation and subsequent therapy, if any. That Respondent enroll and complete a minimum of six hours of continuing education courses in the area of professional conduct for educators. That in the event that Respondent fails to comply with any of the terms and conditions of probation, Respondent's teaching certificate shall be subjected to a period of suspension not to exceed two years, and that compliance with these conditions of probation serve as the prerequisite for any reinstatement of Respondent's teaching certificate in the event that suspension for noncompliance with these conditions occurs. DONE AND ENTERED this 1st day of June 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1993. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following constitutes my specific rulings on proposed findings of fact submitted by the parties: Petitioner's proposed findings 1.-12. Accepted. Rejected as to D.C.'s feelings, hearsay. Accepted. (Note: this is the second finding numbered 13.) Rejected as to "two or three times", accepted as to touching on the knee one time, on the basis of resolution of credibility on this point. (Note: this is the second finding numbered 14.) Accepted. Accepted in substance, not verbatim. 16.-18. Accepted. Rejected as to tickling reference since no sexual significance was ascribed by M.B. to this action, she did not supply a point in time when this occurred and inclusion would imply a significance not proven at the final hearing. Rejected, unnecessary. 21.-23. Rejected, subordinate to Hearing Officer findings on this point. 24.-42. Accepted, but not verbatim. 43. Accepted as to bear hug, remainder rejected on basis of creditibility. 44.-57. Accepted, but not verbatim. Respondent's proposed findings 1.-20. Accepted, but not verbatim. 21. Rejected, unnecessary. 22.-23. Accepted, but not verbatim. Rejected, unnecessary. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Thomas E. Stone, Esquire Post Office Box 292 Madison, Florida 32340 Karen Barr Wilde Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practice Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Sidney H. McKenzie, Esquire General Counsel Department of Education The Capitol PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact On September 9, 1982 Petitioner filed an application with the Teacher Certification Section of the Florida Department of Education to be re-certified as a teacher in the State of Florida. He was previously certified as a teacher in Florida from September 3, 1974 until 1979 in the field of cooperative distributive education. Mr. Hill is a graduate of the University of South Florida with a bachelor's degree in distributive education and he has 20 to 25 hours of credit towards his master's degree in administration Supervision. From 1974 until 1977 he successfully taught school in the Orlando area. In December of 1979 Petitioner had an argument with his father. During the course of that argument Mr. Hill picked up a 12 gauge shotgun and hit his father in the stomach several times. Petitioner was arrested, charged with aggravated assault, and subsequently adjudicated not guilty by a reason of insanity. The court order adjudicating him not guilty found that "At the time of the alleged offense, defendant's psychological condition caused him to function under paranoid delusions and persecutory relations. He not only had such thoughts and beliefs, but they were held so firmly that he was acting upon them." After the entry of that order on March 24, 1980, Petitioner was found to meet the criteria for involuntary commitment to a state mental hospital pursuant to the provisions of the Baker Act. He was treated at G. Pierce Wood Memorial Hospital until June 1980 and then released to the Peace River Center for Personal Development as a resident there. In either October or November 1981 Mr. Hill ceased taking the psychotropic medication which had been prescribed for him. By March 1982 he was again readmitted as an involuntary patient at G. Pierce Wood Memorial Hospital and after treatment there he was released in August 1982 back to the Peace River Center. Dr. M. Saleem Jeewa has been his treating psychiatrist since June of 1980. At the present time Dr. Jeewa prescribes Mellaril, a major tranquilizer, and Pamelor, an anti-depressant medication for Petitioner. Mr. Hill now visits Dr. Jeewa on a monthly basis unless something unusual happens in the interim. Additionally Petitioner attends group therapy three times a week and lives in one of the satellite apartments at Peace River Center. The satellite apartments are an arrangement where three or four patients live together to share expenses and help each other as a peer group. The satellite apartments are not part of a residential facility but are leased out in the community by the Peace River Center. In April 1983 Petitioner began working at American Building Maintenance, a Tampa janitorial service. His other employment history subsequent to his arrest, but prior to this hearing, includes janitorial work for Goodwill Industries. This employment was terminated when, due to an automobile accident, Mr. Hill was injured and physically unable to perform his job. Prior to that employment he worked for a CETA program where he assisted in locating jobs for handicapped persons. With respect to Mr. Hill's present psychological state he has no evidence of any thought disorder. His speech is logical, coherent and relevant. He has a fair amount of insight into his own condition and his judgment is adequate. No psychosis is apparent. He continues however to display a mild form of mixed anxiety and depression. At the present time it would be difficult however, for Mr. Hill to handle a job where he is fairly independent, must be flexible with considerable responsibilities and handle a variety of tasks. In order for Mr. Hill to be a successful teacher in a classroom situation with responsibility for 15 to 20 children, he would initially need some additional assistance and support over and above that normally required by a new teacher. It is unlikely that due to Mr. Hill's present condition he would cause any harm or be dangerous to students or other people around him. While it is within the realm of possibility that Petitioner, if certified, could successfully handle the responsibilities of a distributive education teacher, that possibility is not probable in view of Petitioner's present fragile psychological state.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED: That the State Board of Education as the head of the Department of Education, enter a Final Order denying Petitioner's application for certification as a teacher in the field of distributive education. DONE and RECOMMENDED this 4th day of November, 1983, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1983.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Board is responsible for the operation of the public schools within the Dade County School District. Teachers assigned to the various schools are recommended to the Superintendent for employment or contract renewal by their respective principals. The Superintendent, in turn, presents a recommendation regarding the teacher's employment to the Board. At all times material to the disputed facts of this case, Respondent was a teacher employed by the Board and assigned to a public school within the district. Teachers employed by the Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system records deficiencies which may have been observed during the evaluation review and provides a prescription (a plan) for performance improvement. At all times material to this case, the TADS method was employed to evaluate the Respondent's performance. Respondent began employment with the Dade County public schools in September, 1961, and taught until February 13, 1963. She returned to teaching in March, 1982, and was employed pursuant to a professional service contract. During the 1986-87 school year, Respondent was assigned to a second grade class at Ojus Elementary School (Ojus). Jeanne Friedman was the principal at Ojus and was primarily responsible for Respondent's TADS evaluation. At the conclusion of the 1986-87 school year, Respondent was given an annual evaluation. This evaluation found the Respondent deficient in four of the seven areas of evaluation. Specifically, Respondent was found to be in need of remediation in the following categories: knowledge of the subject matter, classroom management, techniques of instruction, and teacher-student relations. A prescription was devised to assist Respondent improve in the areas deemed to be deficient, and she was informed that should she not improve in the areas noted by the end of the next year, that she would not be recommended for employment for the 1988-89 school year. The evaluation for the 1986-87 school year was predicated on observations which had been conducted on December 5, 1986, January 22, 1987, and March 2, 1987. On December 5, 1986, Jeanne Friedman conducted a TADS evaluation of the Respondent. Ms. Friedman met with Respondent on December 11, 1986, to review the evaluation and to assist in the implementation of the prescription. On December 18, 1986, a conference for the record was held to address the Respondent's performance and her future employment status. At this meeting, Respondent was reminded of the suggestions given to correct the deficiencies noted in the evaluation conducted December 5, 1986. Those deficiencies were related to Respondent's preparation and planning. On January 22, 1987, Respondent was evaluated in follow-up to the December review. This observation was discussed with the Respondent on January 23, 1987. Respondent's prescription for the deficiencies noted in this evaluation required corrections to be implemented by February 2, 1987. The deficiencies were in the area of preparation and planning. On March 2, 1987, Respondent was evaluated by Jeanne Friedman and Emilio Fox. The evaluations were performed during the same class period, language arts, but the evaluators did not communicate with one another nor compare their notes regarding Respondent's performance. Both evaluators found the Respondent to be deficient in three of the areas of evaluation: preparation and planning, knowledge of subject matter, and techniques of instruction. Respondent had failed to follow the lesson plan book for the entire class time, had failed to plan the activity which was conducted, wrote several erroneous items on the class board, and did not explain the nature of the lesson to the class. Several of Respondent's errors were brought to her attention by the students (second graders). Margaret Roderick and Leeomia Kelly evaluated Respondent on April 27, 1987. These TADS assessments found Respondent deficient in the areas of knowledge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. On May 29, 1987, a conference for the record was held regarding Respondent's poor performance year. At that time, Respondent was advised that if she failed to remediate the areas noted to be deficient by the end of the 1987-88 school year, she would not be recommended for continued employment. At her request, Respondent was assigned to a kindergarten class at Ojus for the 1987-88 school year. Approximately 30 students were initially enrolled in Respondent's section. A second kindergarten section was taught by Ms. Kramer. A TADS evaluation conducted by Leeomia Kelly on September 17, 1987, found Respondent to be acceptable in all categories reviewed. After this evaluation, several parents wrote to Ms. Friedman asking that their children be moved from Respondent's class to Ms. Kramer's section. The number of students enrolled in Respondent's class dropped to approximately 23. On October 22, 1987, Jeanne Friedman conducted an observation of the Respondent's class. This evaluation found the Respondent deficient in the area of classroom management. Ms. Friedman met with Respondent on October 23, 1987, to go over the prescription for improvement and outlined a time deadline for each suggested resource. A second evaluation conducted on November 30, 1987, also found the Respondent deficient in the area of classroom management. On December 11, 1987, a conference for the record was conducted to review Respondent's performance. Respondent was reminded that a failure to correct deficient areas would result in termination of employment. Doretha Mingo and Leeomia Kelly conducted evaluations of Respondent on March 1, 1988. These evaluators found Respondent deficient in the areas of classroom management, techniques of instruction, and teacher-student relationships. On March 9, 1988, a conference for the record was held to summarize Respondent's work performance. At that time Respondent was given an annual evaluation which found her to be unacceptable in the following areas of performance: classroom management, techniques of instruction, and teacher- student relationships. Respondent was notified at this conference that the principal would be recommending nonrenewal of the employment contract. Respondent was observed on April 13, 1988, by Ms. Friedman and Michael Conte. Both evaluators found Respondent to be deficient in the areas of classroom management and techniques of instruction. In each of the TADS reviews given to Respondent, conclusions of deficiency were based upon objective observations made during the class period. For example, students found to be off task were observed to be disregarding Respondent's instructions and findings of inadequate planning were based upon inadequacies found in Respondent's plan book (not describing the lesson taught or incompletely stating the subject matter). In each instance, Respondent was given a prescription as to how to correct the noted deficiency. Respondent was given copies of the evaluations at the time they were reviewed with her. Further, Respondent was given copies of the memoranda kept regarding the conferences for the record. Resources were offered to Respondent to assist her to make the corrections required. On April 25, 1988, Respondent was notified that the subject of her continued employment would be raised at the Board meeting to be conducted April 27, 1988. Respondent was advised that the Superintendent intended to recommend nonrenewal of Respondent's contract which, if accepted, would preclude future employment. This letter was written by Patrick Gray, Executive Assistant Superintendent. The Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1988-89 school year. On April 28, 1988, Patrick Gray wrote to Respondent to advise her of the Board's action. In each of the years for which she received unacceptable evaluations, Respondent's students performed satisfactorily on school-administered standardized tests. Such tests were not, however, gauged to measure the subject matter which Respondent had been responsible for teaching in those years. During the 1987-88 school year Respondent failed to correct the deficiencies in performance which had been identified during the 1986-87 school year. Respondent repeatedly failed to perform the duties which were expected of her despite many attempts to assist her with any remediation needed. Further, by her failure to remediate in the areas of classroom management and techniques of instruction, Respondent failed to communicate with her students to such an extent that they were deprived of a minimum educational experience.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE and RECOMMENDED this 20th day of March, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 20th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2798 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 3 are accepted. The first 3 sentences of paragraph 4 are accepted. The last sentence is rejected as irrelevant commentary. Paragraphs 5 through 12 are accepted. The first two sentences of paragraph 13 are accepted. The last sentence is rejected as irrelevant commentary. Paragraphs 14 through 19 are accepted. With the deletion of the phrase "sometime in February, 1988," and the following qualification, paragraph 20 is accepted. The opinions expressed by the parents were based upon the observations made and not necessarily the comment of their children. The parents drew the conclusions based upon their observation but no conclusion is reached by the undersigned as to the accuracy of those conclusions. It will suffice for the purposes herein that the-parents believed their conclusions to be correct. No time was clearly established for the parental comments regarding Respondent's ability or performance. Paragraph 21 is accepted. With regard to paragraph 22, with the following qualification, it is accepted. The opinion expressed by Conte that students "were not comprehending what they were doing or what they were supposed to be doing ..." Such comments have not been considered as Mr. Cote's ability to read the minds of the children. Rather, such comments have been read to more accurately mean: based upon his experience and expertise, "the students did not appear to comprehend, etc." The last sentence of paragraph 22 is rejected as argument. Paragraphs 23 through 25 are accepted. Paragraphs 26 through 28 are rejected as irrelevant, argument, conclusions of law or comment not appropriate for a finding of fact. Paragraphs 29 and 30 are accepted. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT AS SET FORTH IN THE AMENDED RECOMMENDED ORDER (HAVING PRESUMED IT SUPERSEDED THE EARLIER FILED RECOMMENDED ORDER): Paragraph 1 is accepted as to Respondent's age but the balance is rejected as unsupported by the record. The weight of the evidence established Respondent has not taught for 32 years. She has been a teacher by profession that long but not working all that time. Paragraphs 2-4 are accepted. Paragraph 5 is rejected as argument or a conclusion of law not accurate under the facts of this case. Paragraph 6 is accepted to the extent the subject matter is qualified and addressed in finding of fact paragraph 22, otherwise is rejected as contrary to the weight of the evidence or irrelevant to the conclusions reached herein. Paragraphs 7 and 8 are rejected as contrary to the weight of credible evidence presented. Paragraph 9 is accepted. Paragraph 10 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: Frank Harder Twin Oaks Building, Suite 100 Dr. Joseph A. Fernandez 2780 Galloway Road Superintendent Miami, Florida 33165 School Board of Dade County 1450 Northeast 2nd Avenue William DuFresne Miami, Florida 33132 DuFRESNE AND BRADLEY 2929 South West Third Avenue, Suite One Miami, Florida 33129 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132
The Issue The issue for determination is whether Respondent should be suspended without pay and terminated from employment with Petitioner for falsification of documentation and insubordination.
Findings Of Fact Mr. Chappelle has been employed with the School Board since around August 2002. His supervisor was John Dierdorff. At the time of the hearing, Mr. Chappelle had been a communications technician with the School Board for approximately five years.1 No dispute exists that, at all times material hereto, Mr. Chappelle was a non-instructional employee with the School Board. Additionally, his supervisor for the entire time of his employment in communications with the School Board was Mr. Dierdorff. Approximately one year after beginning his employment with the School Board, Mr. Chappelle was having attendance problems, i.e., absenteeism. Mr. Dierdorff attempted to assist Mr. Chappelle improve his attendance, but to no avail. At a point in time, Mr. Chappelle had exhausted all of his sick leave and had no available sick days. When Mr. Chappelle was absent due to illness, he was required to submit a doctor’s excuse. On December 17, 2007, Mr. Chappelle received a written reprimand for falsification of documentation from the School Board’s Director of the Department of Employee Relations. He had submitted to Mr. Dierdorff a “fraudulent or false doctor’s note that was purported to be from [his doctor].” Among other things, Mr. Chappelle was “directed to cease such conduct immediately” and “to desist from engaging in the same or similar conduct in the future” and was informed that his failure to do so would result in “further disciplinary action up to and including termination.” Mr. Chappelle acknowledged receipt of the written reprimand by signing it on December 17, 2007. The evidence demonstrates that the Director of the Department of Employee Relations had the authority to give Mr. Chappelle the directive. The evidence further demonstrates that the directive was reasonable in nature. Regarding the written reprimand, at hearing, Mr. Chappelle admitted that he had falsified the doctor’s note, submitted it to Mr. Dierdorff, and had received the written reprimand as disciplinary action. Moreover, Mr. Chappelle admitted that he had self-reported the wrongful conduct to the School Board; the School Board had no knowledge that he had falsified the doctor’s note. Mr. Chappelle further admitted that he engaged in the wrongful conduct because, at the time, he was suffering from health issues and having money problems, including no money to pay for a doctor’s services, and his wife was having mental health issues. Several months later, on or about September 29, 2008, Mr. Chappelle submitted a doctor’s note to Mr. Dierdorff. Among other things, the note indicated that Mr. Chappelle was medically cleared for work starting September 29, 2008; and that he was not to work from September 17, 2008, through September 29, 2008. Mr. Dierdorff believed that the doctor’s note had been altered or falsified because the note had whiteout on it and the date of the note appeared to be “9/24/98,” not “9/24/08.” As a result, he referred the matter to the Department of Employee Relations for possible investigation. Subsequently, Mr. Chappelle became the subject of an investigation by Employee Relations. The investigation was based upon the allegation that he had falsified the doctor’s note and had acted in an insubordinate manner by engaging in the same or similar conduct for which he had been previously disciplined. The doctor’s note that was contained in the medical file at the physician’s office was not the same as the doctor’s note submitted to Mr. Dierdorff. Instead of indicating that Mr. Chappelle was medically cleared for work on September 29, 2008, the doctor’s note in the medical file indicated September 25, 2008. Further, instead of indicating a period of time in which Mr. Chappelle was not to work, the doctor’s note in the medical file was blank and, therefore, did not indicate a period of time. However, the doctor’s note in the medical file did indicate that the date of the doctor’s note was “9/24/08,” the same as the doctor’s note submitted to Mr. Dierdorff. The evidence demonstrates that the doctor’s note submitted to Mr. Dierdorff on or about September 29, 2008, was altered and falsified. Mr. Chappelle denies that it was he who altered and falsified the doctor’s note. Mr. Dierdorff denies that he altered or falsified the doctor’s note. Mr. Chappelle does not deny that it was he who submitted the doctor’s note to Mr. Dierdorff. The evidence demonstrates that Mr. Chappelle altered and falsified the doctor’s note that he submitted to Mr. Dierdorff on September 29, 2008.2 Mr. Chappelle’s conduct on September 29, 2008, was the same as or similar to his previous conduct for which he was disciplined on December 17, 2007, by a written reprimand. Among other things, Mr. Chappelle was notified in the written reprimand that the same or similar conduct would result in further disciplinary action up to and including termination. The evidence demonstrates that Mr. Chappelle intentionally committed the same or similar conduct and intentionally failed to abide by the directive to no longer engage in such action. By letter dated April 24, 2009, the Superintendent, Arthur C. Johnson, Ph.D., advised Mr. Chappelle, among other things, that sufficient just cause existed to impose disciplinary action pursuant to Sections 1012.22(1)(f) and 1012.27(5), Florida Statutes; School Board Policies 1.013 and 3.27; and Article 17, Section 6 of the Collective Bargaining Agreement between the Service Employees International Union, Florida Public Services Union, and the School Board. Further, Superintendent Johnson advised Mr. Chappelle that he (Superintendent Johnson) was recommending to the School Board, as discipline, suspension without pay and termination from employment. Mr. Chappelle acknowledged that he received the letter by signing and dating it on April 25, 2009. Superintendent Johnson’s recommendation was submitted to the School Board. The School Board agreed with the recommendation. Mr. Chappelle timely requested an administrative hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order suspending Augustus Chappelle for 15 days and re- instating him at the expiration of the suspension. DONE AND ENTERED this 10th day of May 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 10th day of May, 2010.
Findings Of Fact Between December 6, 1994, and October 15, 1995, Respondent was employed by the Petitioner as a school bus driver and, subsequently, as a materials handling technician who delivered textbooks and supplies. His performance evaluations for that work were satisfactory or better. Prior to October 15, 1995, a teacher aide position became vacant at H. L. Johnson Elementary School, one of the public schools in Palm Beach County. This vacancy was in the special education classroom taught by Harriet Lurie. Although he had no experience or training for this type work, Respondent was hired to fill this vacancy. Respondent began this employment on October 15, 1995. The students in this classroom require constant supervision and assistance. Ms. Lurie, an experienced ESE teacher, the Respondent, and one other teacher aide were expected to provide the care and supervision required by these students. Respondent and Ms. Lurie were unable to develop an effective working relationship. The conflicts between Respondent and Ms. Lurie escalated, despite the efforts of the principal, Penelope Lopez, to encourage them to work together. December 15, 1995, was the last day of school prior the Christmas holidays. Following an incident between Respondent and Ms. Lurie earlier that day, Respondent appeared in Ms. Lopez's office and requested that he be transferred from Ms. Lurie's class to any other available position. Ms. Lopez explained to Respondent that there were no other available positions. Because he was adamant about not returning to Ms. Lurie's classroom, Ms. Lopez agreed during that meeting to let Respondent perform custodial duties for the remainder of the day. January 2, 1996, was the first day of school following the Christmas holidays. On that date, Respondent reported to Ms. Lopez's office and met with her prior to the beginning of school. Respondent again asked that he be transferred from Ms. Lurie's classroom. Respondent became upset when Ms. Lopez denied his request for transfer and thereafter gave him a written reprimand. The reprimand, which accurately reflects efforts by Ms. Lopez to resolve the problems between Respondent and Ms. Lurie, provided, in pertinent part, as follows: I have had conferences with you on December 6, 12 and 15, 1995 and numerous other impromptu meetings in which we discussed your concerns, my concerns and conflicts you were having with the teacher and the other teacher aide in the K-1B classroom (Ms. Lurie's classroom). The students in this classroom need consistent supervision in a warm nurturing environment. I am very unhappy with the conflict going on between you and the teacher and you and the other aide, at times in front of the students . . . There appears to be no effective working relationship between you and these associates . . . * * * 6. As a teacher-aide (sic), you report to the teacher in the K-1B class and work under her direct supervision. You are expected to follow directions and not argue with her . . . I have requested at each meeting with you to work cooperatively with the teacher and your coworker to solve problems or enhance the classroom setting and work as a team. I had to remove you from the classroom on December 15, 1995 due to a conflict with the teacher. Since you have not heeded my previous advice, I'm presenting you with this written reprimand as disciplinary action. I expect your behavior to improve immediately in all of these areas. Should you fail to improve your attendance and abide by established and published rules and duties of your position, you will subject yourself to further discipline. After Ms. Lopez gave Respondent the written reprimand, on January 2, 1996, she instructed him to return to his duties in Ms. Lurie's classroom. Respondent refused this instruction and left the school campus. Respondent did not return to the school campus on January 2, 1996. Respondent had seven days of sick leave available for his use as of January 2, 1996. Further, he qualified for additional unpaid leave pursuant to the Family and Medical Leave Act (1993), 29 USC Sections 2611 et seq. Respondent did not requested nor had he been given any type of authorized leave for January 2, 1996. Respondent asserts that the School Board has no grounds to terminate his employment for his conduct on January 2, 1996, because he left school to go visit his doctor. The assertion that he left campus on January 2, 1996, because he was sick or in need of a doctor is contrary to the greater weight of the evidence in this proceeding. Based on the greater weight of the evidence, it is found that after he left the school campus on January 2, 1996, Respondent spent the balance of the day attempting to contact district administrators to complain about the letter of reprimand he had received. The greater weight of the evidence establishes that Respondent did not seek medical attention on January 2, 1996. 1/ Respondent disobeyed Ms. Lopez's clear and direct instructions on January 2, 1996, and he willfully neglected his official responsibilities. This action was not justified by a need for medical attention. On January 3, 1996, Respondent reported to Ms. Lopez's office at approximately 7:45 a.m. Ms. Lopez told Respondent that he was needed in Ms. Lurie's class and told him to report to duty. Respondent replied that he was going to the doctor and left school campus. When Ms. Lopez asked why he had not gone to the doctor when he was away from school on January 2, Respondent replied that he had been too busy attempting to do something about the reprimand he had been issued. Respondent was entitled to use sick leave to visit the doctor on January 3, 1996, and he was entitled to use paid sick leave, to the extent of its availability, between January 3, 1996, and the time of his tests on January 16, 1996. Good Samaritan Primary Care is a group of doctors who have associated for the practice of medicine. Leonard A. Sukienik, D.O., and Karen Kutikoff, M.D., are employed by that group practice. On January 3, 1996, Respondent was examined by Dr. Sukienik. Following that examination, Dr. Sukienik scheduled certain medical tests for Respondent to be conducted January 16, 1996. Dr. Sukienik wrote the following note dated January 3, 1996: To whom it may concern, Mr. Frank Sedor is a patient in my office and is noted to have stress related anxiety attacks with chest pain symptoms. This stress may be related to his job and Mr. Sedor may benefit from time off from work. Respondent returned to Johnson Elementary and met with Ms. Lopez at approximately 1:30 p.m. Respondent gave Ms. Lopez the note written by Dr. Sukienik. When Ms. Lopez asked Respondent to return to work, he informed her that he was not going to return to work until after the tests scheduled for January 16, 1996, had been completed. Respondent thereafter left the school campus. Respondent did not request any type of leave on January 3, 1996. Prior to her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez did not intend to recommend that Respondent's employment be terminated because she hoped that the problems between Respondent and Ms. Lurie could be resolved. After her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez sent a memorandum to Louis Haddad, Jr., the coordinator of Petitioner's Employee Relations office in which she requested that further disciplinary action be taken against Respondent for his refusal to report to his classroom as instructed on January 2, 1996, and for thereafter leaving the school site. The School Board, based on the superintendent's recommendation, voted to terminate Respondent's employment at its meeting of February 7, 1996, on grounds of insubordination and willful neglect of duty based on Respondent's conduct on January 2, 1996. 2/ The School Board is not seeking to terminate Respondent's employment for conduct after January 2, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. The final order should also terminate Respondent's employment as a teacher aide. DONE AND ORDERED this 30th day of December, 1996, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1996.
