Findings Of Fact By operation of the Constitution of the State of Florida, Article IX, Section 4(b), the Board is charged with the operation, control and supervision of all schools within Volusia County, Florida. By state law, Section 230.01, Florida Statutes (1991), the State of Florida has delegated to the Board the responsibility for the actual operation and administration of all schools within Volusia County. Section 230.23, Florida Statutes (1991), provides that the Board will exercise, inter alia, the following general powers: (5) PERSONNEL - Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of Chapter 231: (a) Positions, qualifications and appointments. - Act upon written recommendations submitted by the Superintendent for positions to be filled . . . Section 230.33(7)(a), Florida Statutes, requires the Superintendent of Schools to make written nominations of persons to fill positions established by the School Board. With respect to classroom teachers employed by the Board, such employees may be granted tenure, that is the right to continuing employment subject to removal upon certain conditions. The tenure rights of classroom teachers employed by the Board are provided by the Volusia County Teachers' Tenure Law, Chapter 18964, Laws of Florida (1937), as amended (hereinafter referred to as "the Volusia County Tenure Law" or "the tenure law.") The procedure used by the Board in determining which teachers are to be granted tenure begins with a recommendation made by the principal who is supervising the teacher in question. The recommendation is made to the Board's personnel office which then passes it on to the Superintendent, who either supports the recommendation by making it to the School Board or not. Only the Board may reelect a teacher for employment, and such reelection is an essential precondition to the obtainment of status as a tenured teacher. The Volusia County Tenure Law provides for a probationary period of three years following which, if the teacher is reelected to employment for a fourth consecutive year and fills other requirements set forth in the tenure law, he or she will obtain tenure. In the case of the three individual Petitioners who are parties to this action, each was denied tenure following her third year of employment, but did obtain employment in the status of a fourth year probationary employee. The alternative to this fourth year of probation was described by the Board's representative as a "failure to enter into a contract for an additional year and termination." The Union introduced a list of three teachers besides the individual Petitioners in this action as Petitioners' Exhibit 7. Of the three persons listed in that exhibit, one, Hall, was granted tenure after her fourth year of probation. Another, Maynar, was granted tenure after his fifth year of probation. The third, Powers, was granted tenure after seven years of probationary status. The fact that two of those teachers served probationary periods in excess of four years was described to be as the result of "oversight" on the part of the Board. Petitioners' Exhibit 1 sets forth tenure treatment of classroom teachers employed by the Board from and including the 1988-89 school year to and including the 1991-92 school year. In the 1988-89 school year, 123 teachers received tenure after a third year of probation, 12 teachers were granted tenure after a fourth year of probation, 115 teachers were non-renewed (terminated) after their third year, and 23 accepted a fourth year of probation. In the 1989-90 school year, 110 teachers received tenure after their third year, 22 were granted tenure after a fourth year of probation, 25 were non-renewed, and 25 accepted a fourth year of probation. In the 1990-91 school year, 155 teachers received tenure after their third year, 25 were granted tenure after a fourth year of probation, 28 were not renewed after their third year, and 41 accepted a fourth year of probation. In the 1991-92 school year, the last year for which records were available at the time of the hearing, 198 teachers received tenure following a third year of probation, 46 were granted tenure after a fourth year of probation, 33 were not renewed after their third year of probation, and 9 accepted a fourth year of probation. On March 30, 1993, Dr. Willie D. Brennon, Assistant Superintendent for Personnel for the Board, issued an interoffice memorandum to all principals and department heads which informed those principals and department heads that contract "Status 5," that is the granting of a fifth probationary year, was no longer an option open to principals and department heads dealing with classroom teachers. The Board's Division for Personnel Services has also issued a document entitled "Procedure for Giving Notice of Non forms for the employment and treatment of teachers. The Board has not promulgated any set of standards to be used by a principal in deciding whether he or she will recommend a classroom teacher for tenure. On April 19, 1991, Pearl Coleman was employed by the Board as a classroom teacher. On that same day, Ms. Coleman's principal, Rowena Reddix, completed a form entitled "Instructional Personnel Reappointment 1991 School Year." In that form, Ms. Reddix requested that Ms. Coleman be recommended for reappointment for the 1991 On May 10, 1991, Ms. Reddix recommended that Ms. Coleman be granted tenure by completing a form entitled "Recommendation for Tenure 1991-92 School Year." However, Ms. Reddix later rescinded her recommendation that tenure be granted to Ms. Coleman. After the recision, on June 13, 1991, Ms. Reddix recommended that Ms. Coleman be appointed as a probationary (non employee for the 1991 document, Ms. Coleman accepted employment as a probationary employee by executing a sworn statement that read as follows: This is to inform you that I voluntarily accept classification as a probationary employee for the 1991-92 school year. When Ms. Coleman signed that statement and accepted employment as a probationary employee, she understood that, but for her acceptance of this status, she would not be employed by the Board. Furthermore, although Ms. Coleman believed she would receive tenure after her fourth year of probation, she understood that she did not have tenure in that fourth year. On May 15, 1992, Mr. Gerald L. Gill, who succeeded Ms. Reddix as Ms. Coleman's principal, signed a letter, which informed Ms. Coleman that she would not be recommended for employment for the 1992-93 school year and that the Board would not enter into a contract of employment with her for any period subsequent to the 1991-92 school year. Linda L. Williams was employed by the Board as a classroom teacher for the 1989-90, 1990-91, and 1991-92 school years. In her third year of employment, Ms. Williams was employed as a classroom teacher at Woodward Avenue School and served under principal Jo Anne Rodkey. In the same year, Ms. Rodkey informed Ms. Williams that she would not be recommended for reemployment because the school was losing a unit and therefore there was no position for her at the school. On May 12, 1992, Ms. Rodkey delivered to Ms. Williams a letter informing Ms. Williams that Ms. Rodkey would not be recommending her for tenure. Subsequently, Ms. Williams applied for a position as a sixth grade teacher at Holly Hill Middle School. Ms. Williams previously had been informed by Ms. Rodkey that any further employment by the Board would be as a probationary employee. Ms. Williams specifically understood that the only way she would be hired at Holly Hill was on a probationary basis and further understood that if she had not agreed to probationary status she would not have been employed at Holly Hill Middle School. Ms. Williams accepted employment at Holly Hill under these conditions. On June 12, 1991, Petitioner Lynne Demarest was employed as a classroom teacher at South Daytona Elementary School. On that same date, Ms. Demarest executed a notarized statement which stated: This is to inform you that I voluntarily accept classification as a probationary employee for the 1991 Subsequently, on June 14, 1991, Mr. David C. Butler, who was the principal at South Daytona Elementary School, recommended the reappointment of Ms. Demarest as a probationary employee for the 1991 time that Ms. Demarest accepted employment on probationary status, she understood that this was the only condition upon which she would be employed by the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition is DENIED and DISMISSED. DONE and ORDERED this 12th day of October, 1993, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1993. APPENDIX TO THE FINAL ORDER IN CASE NO. 93-1862 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Florida Education Association et al. 1. Proposed findings of fact 1-11 are unsupported by the competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, School Board of Volusia County 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-17(1-17). COPIES FURNISHED: Lorene C. Powell Chief Trial Counsel, FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Thomas M. Gonzalez Attorney at Law 109 North Brush Street, Suite 200 Post Office Box 639 Tampa, Florida 33601 Carroll Webb Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, FL 32399-1300
The Issue The issue is whether the allegations contained in the Second Amended Administrative Complaint filed by Petitioner are true, and if so, what discipline should be imposed.
Findings Of Fact The School Board has employed Dr. Whalen since 1997. She first worked as a teacher at Gladys Morse Elementary School. When Morse closed she was transferred to Taylor Elementary School, a new school. She continued teaching at Taylor Elementary School until January 19, 2005. Her employment was pursuant to a professional services contract. Dr. Whalen holds Florida Educator's Certificate No. 530568. Dr. Whalen has been confined to a wheelchair for almost 55 years. She cannot move her lower extremities and she is without feeling in her lower extremities. On January 19, 2005, she was approximately 58 years of age. During times pertinent Dr. Whalen taught a "varying exceptionalities" class. A "varying exceptionalities" class is provided for students who have a specific learning disability, or have emotional difficulties, or who have a physical handicap. She has been an exceptional student education teacher for about 20 years. She has never been disciplined by an employer during her career. In addition to her teaching activities she is also County Coordinator for the Special Olympics. The Commissioner of Education is the chief educational officer of the state and is responsible for giving full assistance to the State Board of Education in enforcing compliance with the mission and goals of the K-20 education system. The State Board of Education's mission includes the provision of certification requirements for all school-based personnel. The Education Practices Commission is appointed by the State Board of Education and has the authority to discipline teachers. Nonviolent Crisis Intervention Kathy Kriedler is currently a teacher at Taylor Elementary School. She is certified in teaching emotionally impaired children and has taught emotionally impaired children in Taylor County since 1983. She is an outstanding teacher who was recently named Taylor County Elementary School Teacher of the Year and Taylor County District Teacher of the Year. Ms. Kriedler is a master level instructor in Nonviolent Crisis Intervention, which is a program of the Crisis Prevention Institute. The use of skills associated with the program is generally referred to as CPI. CPI arms teachers with the skills necessary to de-escalate a crisis involving a student, or, in the event de-escalation fails, provides the skills necessary to physically control students. Ms. Kriedler has been the School Board's CPI teacher since 1987. CPI teaches that there are four stages of crisis development and provides four staff responses to each stage. These stages and responses are: (1) Anxiety-Supportive; (2) Defensive-Directive; (3) Acting Out Person-Nonviolent Physical Crisis Intervention; and (4) Tension Reduction- Therapeutic Rapport. The thrust of CPI is the avoidance of physical intervention when possible. The CPI Workbook notes that, "The crisis development model . . . is an extremely valuable tool that can be utilized to determine where a person is during an escalation process." It then notes, helpfully, "Granted, human behavior is not an orderly 1-4 progression." The CPI Workbook provides certain responses for a situation that has devolved into violence. CPI physical control techniques include the "children's control position" which is also referred to as the "basket hold." CPI also provides a maneuver called the "bite release" which is used when a child bites a teacher and the "choke release" which is used when a child chokes a teacher. CPI specifically forbids sitting or lying on a child who is lying on the floor because this could cause "positional asphyxia." In other words, an adult who lies upon a child could prevent a child from breathing. CPI holds are not to be used for punishment. The School Board encourages teachers to learn and apply CPI in their dealings with students. The use of CPI is not, however, mandatory School Board policy nor is it required by the State Board of Education. Dr. Whalen took and passed Ms. Kriedler's CPI course and took and passed her refresher course. She had at least 16 hours of instruction in CPI. She could not accomplish some of the holds taught because of her physical handicap. The alleged chain incident Ms. Amanda Colleen Fuquay taught with Dr. Whalen when both of them were teachers at Gladys Morse Elementary School. Ms. Fuquay, like Dr. Whalen, taught exceptional children. Ms. Fuquay's first teaching job after receipt of her bachelor's degree was at Morse Elementary School. At the time Ms. Fuquay began teaching, Dr. Whalen was also a teacher at Morse. The record does not reveal when Ms. Fuqua initially began teaching at Morse, but it was after 1997 and before August 2002, when Morse Elementary merged into the new Taylor Elementary School. During Ms. Fuqua's first year of teaching she entered Dr. Whalen's class. She testified that upon entry she observed a male student chained to a chair at his desk. The chain may have been about the size of a dog choker. She said that the chain ran through the student's belt loop and around the chair. Ms. Fuqua said that she inquired of Dr. Whalen as to the reason for the chain and she replied, in perhaps a joking way, that the student wouldn't sit down. The evidence does not reveal when this occurred or even in what year it occurred. The evidence does not reveal the name of the alleged victim. The evidence does not reveal the victim's response to being chained to the chair. The evidence does not reveal whether Dr. Whalen chained the child or if someone else chained the child or if it just appeared that the child was chained. Robin Whiddon was Dr. Whalen's aide for school years 1998-99, 1999-2000, and 2000-2001, and she testified at the hearing. She did not mention this incident. Ms. Fuqua could not discern if this was a serious matter or whether it was some sort of a joke. She said, "I didn't have a clue." Ms. Fuqua failed to report this incident because she was new to teaching and she had not, "learned the ropes." Dr. Whalen denied under oath that she had ever chained a student to a chair, and specifically denied that she had done it in 1999, which is within the time frame that Ms. Fuqua could have observed this. Moreover, she specifically denied having chains in her classroom. The Commissioner has the burden of proving the facts in this case, as will be discussed in detail below, by clear and convincing evidence. Undoubtedly, Ms. Fuqua saw a chain of some sort that appeared to be positioned in such a manner as to restrain the unidentified student. However, the lack of any corroborating evidence, the paucity of details, and the denial of wrong-doing by Dr. Whalen prevents a finding, by clear and convincing evidence, of maltreatment. The alleged incident involving S.A. On August 13, 1998, at Morse, Ms. Kriedler was called by Dr. Whalen to her class. When Ms. Kriedler entered the class she observed Dr. Whalen holding S.A.'s arms to his desk with her right hand and holding the hair of his head by her left hand. She stated to Ms. Kriedler that, "If he moves a quarter of an inch, I'm going to rip the hair out of his head." Dr. Whalen also related that S.A. had kicked her. Dr. Whalen also said to S.A., in the presence of Ms. Kriedler, "Go ahead and kick me because I can't feel it." This referred to her handicap. By this time S.A. was motionless. After a discussion with Ms. Kriedler, Dr. Whalen released S.A. and Ms. Kriedler took him to her classroom. Subsequently, Ms. Kriedler requested that he be transferred to her class and that request was granted. Ms. Kriedler reported this incident to Shona Murphy, the Taylor County School District Exceptional Student Education Administrator. Ms. Murphy stated that Ms. Kriedler reported to her that that S.A. was flailing about and kicking when Dr. Whalen threatened to pull his hair. Robin Whiddon was Dr. Whalen's aide on August 13, 1998. She recalls S.A. and described him as a troubled young man who was full of anger. He would sometimes come to school appearing disheveled. He had blond hair that was usually short. Ms. Whiddon has observed him lash out at others with his hands. Ms. Whiddon was not present in the classroom when the incident described by Ms. Kriedler occurred. However, upon her return to the classroom, Dr. Whalen informed her that she had grabbed S.A. by the hair until she could control him. Ms. Murphy discussed the incident with Principal Izell Montgomery and Superintendent Oscar Howard in late August 1998. As a result of the discussions, these officials decided to video-tape Dr. Whalen's classroom, and to take no other action. Dr. Whalen denied under oath that she grabbed S.A.'s hair. Despite Dr. Whalen's assertion to the contrary and upon consideration of all of the evidence, it has been proven by clear and convincing evidence that Dr. Whalen grabbed and held S.A.'s hair and threatened to pull it out. Grabbing a student's hair is not an approved CPI hold. However, at the time this occurred Dr. Whalen was not required to use CPI methods. Grabbing a student's hair is generally unacceptable conduct unless, for instance, it is done in self- defense, or in order to protect the student or others. It has been not been proven by clear and convincing evidence that grabbing S.A.'s hair was impermissible. Dr. Whalen told Ms. Kriedler that S.A. had been kicking her. This statement raises the possibility that the action was initiated as a self-defense measure. When one considers that Dr. Whalen has limited mobility, and that her aide was not present, she was permitted to take reasonable actions to defend herself. Grabbing a student's hair may have been reasonable under the circumstances and, in the event, the record does not provide enough evidence to permit a determination. The video-tape of November 20, 2002 A video-tape, that included audio, and which was made part of the record of the case, portrays events on the morning of November 20, 2002. The video-tape was brought to the attention of the school administration by a parent who had received the video-tape from Dr. Whalen. The picture quality of the video is satisfactory but the audio is derived from a microphone near Dr. Whalen's desk. Therefore, it is clear that the microphone did not record all of the words spoken in the classroom at the time and date pertinent. Accordingly, facts found as a result of viewing the video-tape are limited to those which are clearly depicted by it. The School Board had discussed the wearing of apparel with representations of the Confederate battle flag on them in a meeting immediately prior to November 20, 2002. Early in the morning of November 20, 2002, there was a discussion with regard to the School Board deliberations among some of Dr. Whalen's students. The discussion came close to degenerating into physical conflict. This was reported to Dr. Whalen's aide, Ruth Ann Austin. It was further reported that some students called some of their fellow students "rebels," and others called other students "Yankees" and "gangsters." Assistant Principal Verges visited the classroom at the beginning of the school day, at Dr. Whalen's request, and he explained the matters discussed at the School Board meeting. Upon the departure of Assistant Principal Verges, Dr. Whalen unleashed a torrent of criticism upon her students addressing the subject of name-calling. Dr. Whalen spoke to the students in a loud and threatening tone of voice. While delivering this tirade, Dr. Whalen traveled to and fro in her motorized wheelchair. The video-tape revealed that this wheelchair was capable of rapid movement and that it was highly maneuverable. The lecture was delivered in a wholly confrontational and offensive manner. The lecture continued for more than 30 minutes. This behavior was the opposite of the de-escalating behavior that is suggested by CPI. However, Dr. Whalen had never been directed to employ CPI. S.O. was a student in Dr. Whalen's class and was present on November 20, 2002. He was a student of the Caucasian race who had, prior to this date, displayed aggressive and violent behavior toward Assistant Principal Verges and toward Ruth Ann Austin, Dr. Whalen's aide. Some on the school staff described him, charitably, as "non-compliant." S.O. was quick to curse and had in the past, directed racial slurs to Ms. Austin, who is an African-American. Because of his propensity to kick those to whom his anger was directed, his parents had been requested to ensure that he wear soft shoes while attending school. On November 20, 2002, S.O. was wearing cowboy boots and a Dixie Outfitters shirt with the Confederate battle flag emblazoned upon the front. Subsequent to Dr. Whalen's tirade, S.O. slid out of his chair onto the carpeted floor of the classroom. Dr. Whalen instructed him to get back in his chair, and when he did not, she tried to force him into the chair. She threatened S.O. by saying, "Do you want to do the floor thing?" When S.O., slid out of his chair again, Dr. Whalen forcibly removed S.O.'s jacket. Thereafter, Ms. Austin approached S.O. Ms. Austin is a large woman. Ms. Austin removed S.O.'s watch and yanked S.O.'s boots from his feet and threw them behind his chair. Dr. Whalen drove her wheelchair into the back of S.O.'s chair with substantial violence. Thereafter, Ms. Austin removed S.O. from the classroom. Removing S.O.'s jacket, watch, and boots was acceptable under the circumstances because they could have been used as weapons. The act of driving the wheelchair into the back of S.O.'s chair, however, was unnecessary and unhelpful. A memorandum of counseling was presented to Dr. Whalen by Principal Ivey on December 2, 2002, which addressed her behavior as portrayed by the video-tape. The S.O. and C.C. incidents Reports from time to time were made to Assistant Principal Verges, and others, that Dr. Whalen engaged in an activity commonly referred to as "kissing the carpet." This referred to physically taking children down to the floor and sitting on them. During April 2003, Dr. Whalen reported to Assistant Principal Verges and Ms. Kriedler that she had recently put two students on the carpet. During the four years Mr. Verges was Dr. Whalen's Assistant Principal, Dr. Whalen reported a total of only about four instances of having to physically restrain students. Dr. Whalen has never told Mr. Verges that she has regularly restrained children on the floor. Dr. Whalen's agent for using physical restraint is her aide, Ms. Austin, because Dr. Whalen's handicap does not permit her to easily engage in physical restraint. Ms. Austin physically restrained children five or six or seven times during the four years she was Dr. Whalen's aide. On four occasions a child actually went to the floor while being restrained by Ms. Austin. One of the two students who were reported to have been physically restrained during the April 2003, time frame was S.M. During this time frame S.M. became a new student in Dr. Whalen's class. S.M. was unhappy about being placed in a "slow" class. It was Ms. Austin's practice to meet Dr. Whalen's students when they exited the school bus in the morning. Accordingly, she met S.M., the new student. S.M. was "mouthy" when she exited the bus and would not get in line with the other children. S.M. and the rest of the children were taken to the lunch room in order to procure breakfast. While there, S.M. obtained a tray containing peaches and other food and threw the contents to the floor. Ms. Austin instructed S.M. to clean up the mess she made. S.M. responded by pushing Ms. Austin twice, and thereafter Ms. Austin put S.M. in a basket hold. S.M. struggled and they both fell on the floor. Ms. Austin called for assistance and someone named "Herb" arrived. Herb put a basket hold on S.M. while Ms. Austin tried to remove S.M.'s boots because S.M. was kicking her. S.M. was almost as tall as Ms. Austin and was very strong. At the end of the day, Ms. Austin was trying to "beat the rush" and to get her students on the school bus early. She was standing in the door to the classroom attempting to get her students to form a line. She and Dr. Whalen had planned for S.M., and another student, with whom she had engaged in an ongoing disagreement, to remain seated while the rest of their classmates got on the bus. While the line was being formed, S.M. and her fellow student had been directed to sit still. Instead, S.M. rose, said that she was not going to wait, and tried to push by Ms. Austin. Ms. Austin responded by asking her to sit down. S.M. said she would not sit down and pushed Ms. Austin yet again. Ms. Austin tried to restrain her and told the other students to get to the bus as best as they could because she was struggling with S.M. and was having substantial difficulty in restraining her. Ms. Austin asked for help. She and S.M. fell to the floor. S.M. was on the carpet. Dr. Whalen slid from her wheelchair and attempted to restrain the top part of S.M.'s body. Ms. Austin held the bottom part of her body and attempted to remove her boots with which S.M. was kicking. S.M. was cursing, screaming, and otherwise demonstrating her anger. Dr. Whalen talked to her until she calmed down. They then released S.M. The actions taken by Ms. Austin and Dr. Whalen were appropriate responses to S.M.'s behavior. The S.M. affair precipitated the C.C. incident. C.C. was a large male student who had no history of violence. C.C. teased S.M. about having been "taken down" by Ms. Austin. C.C., teasingly, told Ms. Austin, that he did not think Ms. Austin could take him down. Ms. Austin said she could put him in a basket hold which she did. C.C. challenged Ms. Austin to put him on the floor and she did. This was considered a joke by C.C. and Ms. Austin. This incident was nothing more than horseplay. As the result of the comments made by Dr. Whalen, addressing the S.M. and C.C. incidents, to Ms. Kriedler and to Assistant Principal Verges, a memorandum issued dated April 7, 2003. It was signed by Principal Sylvia Ivey. The memorandum recited that Dr. Whalen's comments raised concerns with regard to whether Dr. Whalen was using appropriate CPI techniques. The memorandum stated that Dr. Whalen's classroom would be video-taped for the remainder of the school year, that Dr. Whalen was to document each case of restraint used, that she should use proper CPI techniques, and that she should contact the office should a crisis situation arise in her classroom. The J.R. incident On January 19, 2005, J.R. was a student in Dr. Whalen's classroom. On that date, J.R. was a ten-year-old female and in the third grade. J.R. had been a student in Dr. Whalen's classroom only since about January 10, 2005. Dr. Whalen did not know much about J.R.'s history on January 19, 2005. At the hearing J.R. appeared physically to be approximately as large as Dr. Whalen. A determination as to exactly who was the larger could not be made because Dr. Whalen was seated in a wheelchair. Assistant Principal Verges found that J.R.'s physical strength was greater than average for an elementary school student on an occasion when he had to restrain her after she bit another person. J.R. brought a CD player to class on January 19, 2005, and after lunchtime, Dr. Whalen discovered it and confiscated it. Dr. Whalen took possession of the CD player because school rules forbid students to have CD players in class. Dr. Whalen put it in a drawer by her desk. When this happened, in J.R.'s words she, "Got mad." A heated discussion between Dr. Whalen and J.R., about the dispossession of the CD player ensued, but after a brief time, according to Dr. Whalen's aide, Angela Watford, "the argument settled." Even though Ms. Watford's lunch break had begun, she remained in the room, at Dr. Whalen's request, until she was satisfied that the dispute had calmed. Subsequent to the departure of Ms. Watford, J.R. approached Dr. Whalen, who was seated behind her desk working. The configuration of the desk and furniture used by Dr. Whalen was such that she was surrounded by furniture on three sides. In order to obtain the CD player, it was necessary for J.R. to enter this confined space. J.R. entered this space, moving behind Dr. Whalen, and reached for the drawer containing the CD player in an effort to retrieve it. When Dr. Whalen asked her what she was doing, J.R. said, "I am getting my CD player and getting out of this f class." Dr. Whalen told J.R. to return to her desk. J.R. continued in her effort to obtain the CD player and succeeded in opening the drawer and grasping the headset part of the CD player. Dr. Whalen attempted to close the drawer. J.R. reacted violently and this surprised Dr. Whalen. J.R. attempted to strike Dr. Whalen. Dr. Whalen reared back to avoid the blow and then put her arm around J.R. When J.R. pulled away, this caused Dr. Whalen to fall from her wheelchair on top of J.R.'s back at about a 45-degree angle. Immediately thereafter, J.R. bit Dr. Whalen several times. The bites broke Dr. Whalen's skin in three places and the pain caused her to cry. J.R. began cursing, screaming, and kicking. J.R. said she was going to "kick the s _ _ _" out of her teacher. In fact, while on the carpet, J.R. kicked Dr. Whalen numerous times. Dr. Whalen believed she would be in danger of additional harm if she allowed J.R. to regain her feet. This belief was reasonable. J.R. was in no danger of asphyxiation during this event because Dr. Whalen removed part of her weight from J.R. by extending her arms. Upon returning from lunch Ms. Watford spotted T.B., a boy who appears to be eight to ten years of age. T.B. was standing outside of Dr. Whalen's classroom and he calmly said to Ms. Watford, "Help." Ms. Watford entered the classroom and observed Dr. Whalen lying on top of and across J.R., who was face down on the carpeted floor, and who was cursing and kicking while Dr. Whalen tried to restrain her. Ms. Watford ran over to assist in restraining her by putting her legs between J.R.'s legs. J.R. thereafter tried to hit Ms. Watford with her right hand. Ms. Watford grabbed J.R.'s right arm and was severely bitten on the knuckle by J.R. The three of them ended up, Ms. Watford related, "in a wad." Within seconds of Ms. Watford's intervention, Frances Durden, an aide in the classroom next door came on the scene. She was followed by Takeisha McIntyre, the dean of the school, and Assistant Principal Verges. Ms. McIntyre and Mr. Verges were able to calm J.R. and safely separate her from Dr. Whalen. Then J.R. stated that Dr. Whalen had bitten her on the back. Dr. Whalen and Ms. Watford went to the school's health clinic to have their wounds treated. The wounds were cleaned and Ms. Watford subsequently received an injection. While Dr. Whalen and Ms. Watford were at the health clinic, J.R. was ushered in by Ms. McIntyre. J.R.'s shirt was raised and the persons present observed two red marks between her shoulder blades. Dr. Whalen said that the marks must have been produced by her chin or that possibly her teeth may have contacted J.R.'s back. She said that she had forced her chin into J.R.'s back in an effort to stop J.R. from biting her. Ms. McIntyre took photographs of the marks. The photography was observed by Mr. Verges. The photographs reveal two red marks positioned between J.R.'s shoulder blades. The two marks are vertical, parallel, and aligned with the backbone. They are from one, to one and one half inches in length. The skin is not broken. There is no wound. Teeth marks are not discernible. A teacher who has many years of experience in the elementary or kindergarten education levels, and who has observed many bite marks, may offer an opinion as to whether a mark is a bite mark. Mr. Verges has the requisite experience to offer an opinion as to the nature of the marks on J.R.'s back and he observed the actual marks as well as the photographs. It is his opinion that the two marks were caused by a bite. Ms. McIntyre, who has also observed many bite marks in her career, and who observed the actual marks as well as the photographs, stated that the marks were consistent with a bite. Registered Nurse Cate Jacob, supervisor of the School Health Program observed Julia's back on January 19, 2005, and opined that the red marks on J.R.'s back were bite marks. J.R. reported via her mother, the day after the incident, that she had been bitten by a boy on the playground of Taylor Elementary School, by a black boy with baggy pants, possibly before the incident with Dr. Whalen. Facts presented at the hearing suggest that it is unlikely that J.R. was bitten on the playground under the circumstances described in this report. T.B. was the only nonparticipant close to the actual combat who was a neutral observer. He did not see Dr. Whalen bite J.R., but did see her chin contact J.R.'s back and he heard Dr. Whalen say words to the effect, "I am going to make you say 'ouch.'" Dr. Whalen denied biting J.R. She stated at the time of the event, and under oath at the hearing, that she forcibly contacted J.R.'s back with her chin. She stated that it was possible that in the heat of the struggle her teeth may have contacted J.R.'s back. The opinion of the school personnel as to the origin of the marks upon J.R.'s back is entitled to great weight. On the other hand, a study of the photographs exposed immediately after the incident, reveals no teeth marks and no broken skin. The marks could be consistent with pressing one's chin upon another's back or pressing one's teeth in one's back. In the latter case, whether J.R. was bitten may be a matter of definition. Generally, a bite occurs when the victim experiences a grip or would like that experienced by Ms. Watford or Dr. Whalen in this incident. Although J.R. asserted that the marks occurred because of the actions of, "a boy on the playground," given J.R.'s general lack of credibility, that explanation is of questionable reliability. The evidence, taken as a whole, does not lend itself to a finding of the origin of the marks on J.R.'s back. Because proof by clear and convincing evidence is required in this case, it is not found that Dr. Whalen bit J.R. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. It is clear that for many months Dr. Whalen's classroom was video-taped and until the November 20, 2003, incident, none of her actions caused attention to be drawn to her teaching methods. It is found that the assault on Dr. Whalen was sudden and unexpected. Any actions taken by Dr. Whalen were taken in permissible self-defense. J.R. was suspended from Taylor Elementary School for ten days following this incident. Miscellaneous Findings Sylvia Ivey has been the principal of Taylor Elementary for three years. She has evaluated Dr. Whalen three times. She has evaluated Dr. Whalen as "effective," which is the top mark that a teacher may receive. From approximately 1997, when the S.A. hair pulling allegedly occurred, until December 2, 2002, not a single document was created indicating dissatisfaction with Dr. Whalen's teaching methods. Dr. Whalen's normal voice volume is louder than average. She would often elevate her already loud voice, intimidate students and pound on her desk. The aforementioned activities are not part of CPI. On the other hand, these methods worked for Dr. Whalen for 20 years. She was not required to use CPI until subsequent to the memorandum of April 7, 2003. There is no evidence that she failed to use CPI once she was required to employ it. As revealed by the testimony of Dr. Whalen, Ms. Kriedler, Assistant Principal Verges, Ms. Austin, and others, some of these children would strike, kick, bite, throw objects, curse, and hurl racial epithets at their teachers. Teaching some of these children was difficult.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of Counts 3 and 4, that she be issued a reprimand, that she be placed on probation as that term is defined in Florida Administrative Code Rule 6B-11.008, for a period of one year. DONE AND ENTERED this 15th day of June, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2005. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32302 Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street 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
The Issue Whether Respondent Gadsden County School Board (the School Board or Respondent) discriminated against Petitioner Ronald D. Jones by terminating him on the basis of his gender in violation of the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes
Findings Of Fact Petitioner is a male, who, in the past, has held a professional teaching certificate from the Florida Department of Education. Petitioner held a professional teaching certificate from July 1, 1994, until June 30, 1999, with a certification to teach social science to students in grades five through nine. Petitioner's professional teaching certificate expired on June 30, 1999, and, as a result, Petitioner was no longer deemed eligible to teach by the Florida Department of Education. Petitioner, however, was still eligible to be employed as a substitute teacher. The School Board is the governing body responsible for the administration of public schools in Gadsden County, Florida. The Discrimination Complaint filed by Petitioner alleges: I believe I was terminated because of my sex (male). I was initially hired as a substitute teacher in March 2007 and received an appointment to an instructional position on February 26, 2008. I received a letter from Superintendent Reginald James dated July 29, 2008 informing me that I would not be reappointed for the 2008-2009 school term. I was replaced by a female employee. Petitioner's Discrimination Complaint is based upon the fact that he was not reappointed at George Munroe Elementary School (George Monroe) for the 2008-2009 school year. Petitioner initially worked at George Monroe beginning March 2007, as a substitute teacher. For the 2007-2008 school year, Petitioner continued to work as a substitute for George Monroe until he was hired on January 14, 2008, to an instructional position, left vacant by the resignation of another teacher. In this position, Petitioner taught fourth grade from February 28, 2008, until the end of the school year. At the time he was hired to the instructional position, Petitioner did not hold either a temporary certificate or a professional certificate to teach in Florida. Rather, Petitioner had applied to obtain another certificate to teach social science for grades 5 through 9 and held an Official Statement of Status of Eligibility (Official Statement) from the Florida Department of Education dated August 1, 2007. According to the Official Statement, in order to obtain a three-year nonrenewable Temporary Certificate covering Social Science (grades 5-9), Respondent needed to submit: a) verification of employment and request for issuance of certificate on the appropriate form from a Florida public, state-supported, or nonpublic school with an approved Professional Education Competence Program; and b) the results of his fingerprint processing from the Florida Department of Law Enforcement and FBI. In addition to the submissions required for a temporary certificate, the Official Statement advised that in order for Petitioner to receive a Professional Educator Certificate valid for five years covering Social Science (Grades 5-9), Petitioner must also submit: a) a completed CG-10 Application Form; b) a $56 fee; c) a passing score on the Professional Education Test; d) a passing score on the social science (grades 5-9) subject area examination; e) evidence of completion of an approved competence program; and f) evidence of additional semester hours or teaching experience in specified areas. At the time that Petitioner was hired to the instructional position in January 2008, because George Monroe was experiencing a shortage of teachers, it was possible for individuals with an application pending with the Florida Department of Education to be placed in an instructional position where there was an immediate need, pending completion of all requirements. Therefore, even though Petitioner did not have either a temporary certificate or professional certificate, Petitioner was hired to the instructional position because there was an immediate need and he had a pending application. His hiring, however, was also considered an "out-of-field" placement because he did not hold either a current or a pending certificate to teach the fourth grade. Near the end of the 2007-2008 school year, George Monroe began preliminary classroom and grade assignments in preparation for the 2008-2009 school year. Petitioner was preliminarily assigned to a fifth-grade position pending appointment by the Superintendent. This preliminary assignment was reflected in the agenda and supporting materials for a faculty meeting held May 28, 2008, at George Monroe to discuss the upcoming year. The grade and room assignments showed Petitioner as tentatively transferring from teaching fourth grade in B3 room 6 to teaching fifth grade in room P 99-08. In addition to Petitioner's tentative assignments, there were a number of other preliminary grade and tentative room assignments reflected in the agenda and supporting materials for the May 28, 2008, faculty meeting. In addition to Petitioner being preliminarily assigned to fifth grade, Ms. Avila and Mr. Clum were tentatively transferred to fourth grade, and Ms. Sylvester was moved from fourth grade to fifth grade. The agenda and supporting materials also reflect new room assignments for those teachers. Being given a preliminary grade or tentative room assignment as reflected on the agenda and supporting materials was not a guarantee of continued employment. Because of budget constraints for the upcoming 2008- 2009 school year, George Monroe's school district (School District) instructed its school principals to reduce staff. Staff reduction strategies from the School District included the suggestion that principals recommend to the Superintendent for termination those teachers who were not certified or were teaching out-of-field. Teaching "out-of-field" occurs when a teacher, although holding a temporary or professional teaching certificate, is not certified to teach the particular subject area or grade level to which they have been assigned. In Florida, teachers are not considered highly qualified if they are teaching out of field. The strategy of recommending for termination those teachers who are uncertified or teaching out-of-field was designed to meet budget constraints by first reducing teachers who were not highly qualified. Ida Walker, who at the time was the principal of George Monroe, met with Petitioner at the end of the 2007-2008 school year, but prior to June 30, 2008,1/ to discuss the status of his teaching certificate. During that meeting, Petitioner acknowledged that he was having problems obtaining his temporary certificate, and Ms. Walker reminded him that in order to teach, he had to have the paperwork to show that he was qualified to teach. Ms. Walker, together with School District staff, recommended to School Board Superintendent Reginald James (Superintendent) that he not reappoint six teachers at George Monroe, including Petitioner, who had not provided evidence of a valid teaching certificate or who otherwise did not meet the requirements for certification set forth in their individual statements of eligibility received from the Department of Education. Consistent with that recommendation, in a letter dated July 10, 2008, the Superintendent informed Petitioner that Petitioner would not be re-appointed for an instructional position for the 2008-2009 school year.2/ Unknown to Ms. Walker or the Superintendent, on July 7, 2008, prior to the date of the July 10, 2008, letter from the Superintendent, the Florida Department of Education (Department) issued Petitioner a temporary certificate certifying Petitioner to teach social science for grades five through nine. There is no evidence, however, that Ms. Walker, the School District, the School Board, or the Superintendent received notice that the temporary certificate had been issued. The Department, as a matter of course, does not provide such notification. Rather, it is the responsibility of the applicant, in this case, Petitioner, to provide such notification. In a letter to the School Board dated July 29, 2008, the Superintendent listed the names of various teachers and other personnel employed by the School Board that he recommended for termination. Petitioner's name, as well as the names of five other teachers at George Monroe that had been earlier identified by Ms. Walker and District staff for non- reappointment, was included on the Superintendent's list of recommended terminations. The other five teachers from George Monroe on the Superintendent's termination list were all female. At the School Board meeting held July 29, 2008, the School Board approved the Superintendent's recommended terminations. Of the six teachers from George Monroe who were not initially reappointed, two, not including Petitioner, were subsequently rehired by the School Board after they provided proof of proper certification, reapplied to a particular school, and were accepted by a receiving principal. Prior to the final hearing in this matter, Petitioner never provided a copy of his temporary certificate that was issued by the Department on July 7, 2008, to anyone in an effort to be reappointed to teach at George Monroe. In fact, November 15, 2010, the date of the final hearing in this case, was the first time that either Ms. Walker or the School Board was made aware of the fact that Petitioner had been issued a temporary certificate on July 7, 2008.3/ Even if Petitioner had provided George Monroe or the School Board with a copy of his temporary certificate, he still would not have been reappointed to George Monroe for the 2008- 2009 school year. That is, because Petitioner's certification is in social science, not elementary education, and his continued teaching at George Monroe would have been considered out-of-field. In addition, the evidence does not support Petitioner's allegation that he was replaced by a female employee. Although Petitioner was teaching fourth grade at the end of the 2007-2008 school year and was preliminarily assigned to the fifth grade, Petitioner was not guaranteed a position teaching fourth or fifth grade at George Monroe for the next school year. The evidence shows that there were two teachers, one male and one female, moved from the third grade to teach fourth grade, and one new female teacher from another school hired to teach fifth grade at George Monroe. All three teachers had valid professional teaching certificates in elementary education and were qualified to teach in the grades they were assigned at George Monroe. In contrast, Petitioner failed to demonstrate that he was qualified to teach elementary school at George Monroe for the 2008-2009 school year prior to his termination. There was otherwise no evidence submitted by Petitioner indicating that his termination was based on anything other than his failure to submit proof of his qualifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 19th day of January, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 19th day of January, 2011.
The Issue Whether Respondent should be dismissed from her employment as a teacher in the Orange County Public Schools based on charges of incompetency and gross insubordination, as set forth in the letter of L. Linton Deck, Jr., dated August 16, 1977.
Findings Of Fact Respondent Ethel R. Jones has been an elementary school teacher for twelve years. She taught a year in Georgia before obtaining her degree in commercial education at Bethune-Cookman College at Daytona Beach, Florida, in 1960. After teaching for one year at Hungerford Elementary School in Eatonville, Orange County, Florida, in 1963, she pursued further studies and received her certification in elementary education. After teaching several years in various Orange County and Highlands County public schools, she became employed at Ocoee Elementary School, Ocoee, Florida, in 1970 and taught there for seven years through the 1976-77 school year. She was on annual contract for the first four years and then was granted a continuing contract the following year. She taught a sixth-grade class her first year at Ocoee and then became a fourth-grade teacher until the 1976-77 year when she again instructed a class of approximately 31 sixth-grade pupils. (Testimony of Respondent) Respondent served under three principals at Ocoee from 1972 to 1977. School records reflect that from 1973 two of the principals each rendered two annual performance reports on respondent termed "Assessment of Instruction." During the first year of each of these periods, the principals noted that respondent needed improvement in maintaining good rapport with students, parents and co-workers. During the second year of each period, each principal rated the respondent satisfactory in all respects. The third principal, Maxie Cinnamon, assumed her duties at Ocoee during the 1976-77 school year. (Petitioner's Composite Exhibit 1) During the first month of the school year, Principal Cinnamon received approximately twelve-complaints about the respondent from parents of children in her class. Most of these complaints dealt with apprehensions concerning respondent's teaching ability based on her prior performance with fourth-grade students. As a result, Cinnamon visited the respondent's classroom on September 9, 1976, and observed class instruction for several hours. She noted a number of deficiencies in the quality of respondent's teaching. These included unfamiliarity with the definitions of common words, inadequate preparation and lesson plans, inappropriate grouping of students and poor communication with students. These observations were set forth in great detail in a written document, dated September 14, 1976, which was provided to respondent as recommendations for improvement. Additionally, an unofficial "Assessment of Instruction" was rendered by the principal that indicated need for improvement in various areas. (Testimony of Cinnamon, Petitioner's Composite Exhibits 1, 7) During the course of the school year, the principal continued to receive complaints from parents and requests that their children be transferred from respondent's class. These complaints included reports that respondent was an inadequate teacher and that her disciplinary methods were inappropriate. In addition, no improvement in the previously-noted areas of deficiency had been observed by the principal. A number of conferences between Cinnamon and the respondent transpired in the fall of 1976 in an attempt to resolve these continuing problems, but achieved little or no success. Cinnamon directed a number of memorandums to respondent pointing out problem areas and suggesting remedial steps. She also suggested special courses and seminars that respondent could attend to improve her classroom instruction and to achieve a better relationship with parents and students. The respondent referred students to the principal's office on disciplinary matters some 35 times during the school year. For the most part, these referrals involved male students who were low achievers and either disrupted the classroom or failed to complete lesson assignments. (Testimony of Cinnamon, Respondent, Petitioner's Exhibits 8,9, 11-14) In December, 1976, Principal Cinnamon requested the Professional Practice Council of the State Department of Education to make a professional reviewer available to observe respondent's classroom performance and provide any necessary suggestions or recommendations for improvement. Thereafter, on January 31 and February 1, 1977, Mrs. Gretchen M. Olcott, a classroom teacher from Pinellas County, was sent to Ocoee Elementary School and conducted a "remediation review" concerning respondent. She rendered a report of her observations which was furnished to the respondent on March 11, 1977. The report contained many critical remarks concerning the quality of respondent's teaching ability and included detailed recommendations and suggestions for improvement. Most of Olcott's observations paralleled closely the previous deficiencies noted by Cinnamon and dealt primarily with inadequate lesson plans, lack of organization, poor student behavior patterns, lack of effective use of teaching materials and equipment, and the need to establish clear objectives and long-range goals. Also on March 11, Cinnamon wrote a letter to the respondent again listing her deficiencies and providing recommendations in that regard. The letter informed the respondent that unless she showed substantial improvement in all the noted areas by May 1, 1977, it would be necessary that she be recommended for dismissal to the Superintendent of the Orange County Schools. (Testimony of Cinnamon, Petitioner's Exhibits 3-5) During the ensuing weeks, Cinnamon was of the opinion that respondent had not materially improved her shortcomings despite efforts to assist her. At a conference in March, she told respondent that if she made no substantial improvement by May 23, she would recommend dismissal. She also requested that another reviewer be provided by the Professional Practices Council. Mr. Richard Svirskas visited respondent's classroom from May 11 to 13, 1977, for the Professional Practices Council. His report was similar to that of the previous reviewer and it concluded that respondent was far below average in ability in comparison with the majority of teachers known to the reviewer. (Testimony of Cinnamon, Petitioner's Exhibit 6) As a result of the reviewers' reports and respondent's failure to show improvement, Principal Cinnamon, on June 7, 1977, recommended to the Superintendent of Orange County public schools that she be dismissed from employment. Based on this recommendation, the Superintendent, by letter of August 16, 1977, charged the respondent with 14 areas of incompetency and three instances of gross insubordination. On August 18, 1977, the Superintendent recommended to the School Board of Orange County that respondent be suspended without pay pending a hearing on the charges if requested. The school board approved the recommendation and suspended the respondent without pay. Respondent thereafter requested a hearing in the matter. (Testimony of Cinnamon, Case File) Respondent testified as a witness and maintained that she had received no support during the year from the school administration and that she could not please Principal Cinnamon in any respect. She feels that she was the victim of a conspiracy between Cinnamon and parents of her students, and that the independent reviewers sent to assess her classroom performance were "against" her because they had met with Cinnamon in private during their visit. The respondent further implied that Cinnamon had a dislike for her because she was the only black teacher in the intermediate level. No black students were enrolled at Ocoee Elementary School during the 1976-77 school year, but there were five black teachers including the respondent. The respondent further claimed that she had done her utmost to follow the recommendations for improvement made to her by Cinnamon and the reviewers, but that she received no assistance from the administration in this regard. Further, she claimed that she was unable to enroll in certain reading, student discipline, and teacher effectiveness courses for various reasons; however, she did take a mathematics course at her own expense and attended several seminars. Although Cinnamon had testified that she had instructed respondent not to set up learning centers in her classroom because of her lack of organizational ability, the respondent denied that she was given such instructions. She testified that she established this system of instruction because Cinnamon had recommended it to her. She also denied that she had placed children in the halls for disciplinary reasons, or deliberately omitted to teach reading and math on each school day, contrary to instructions, as claimed by Cinnamon. (Testimony of Jones, Cinnamon) Based on the evidence presented at the hearing, it is found that during the 1976-77 school year: Respondent failed to make adequate plans and set definite objectives for her class- room instruction. Respondent failed to provide learning situations consistent with students' abilities. Respondent failed to exhibit adequate command of the subject matter that she taught. Respondent failed to communicate clearly and effectively with the students. Respondent failed to control the class so that a positive learning environment was created and maintained. Respondent failed to adequately pursue her professional growth and to seek ways of correcting identified deficiencies. It is further found that there is insufficient evidence to establish that the respondent committed the following alleged acts of gross insubordination: Suspended children from class by placing them in the hall and otherwise leaving them unsupervised after being specifically told not to do so. Failed to teach reading and math on each school day as specifically instructed to do. Failed and refused to maintain and utilize a plan book as instructed by the principal. It is further found that insufficient evidence was presented to establish that the respondent was a victim of a conspiracy by the principal of Ocoee Elementary School or anyone else, or that any racial discrimination was practiced against her.
Recommendation That respondent Ethel R. Jones be dismissed from employment by the School Board of Orange County, Florida, for incompetency, pursuant to Section 231.36(6), Florida Statutes. Done and Entered this 5th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph W. DuRocher, Esquire 326 North Fern Creek Avenue Orlando, Florida 32803 Howard W. Cooper, Esquire 101 South Lake Avenue Orlando, Florida 32801 John W. Bowen, Esquire 308 North Magnolia Avenue Orlando, Florida 32801
The Issue The issue in this cause is whether the Petitioner Duval County School Board should dismiss the Respondent for professional incompetence pursuant to the Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197 (1941) as amended.
Findings Of Fact The Petitioner is the Duval County School Board. The Respondent, Bobby Palmore, has been an employee of the Petitioner since the 1992-93 school year. The Respondent is a tenured teacher assigned as a guidance counselor. During the 1997-98 school year, the Respondent was a guidance counselor at North Shore Elementary School. The Principal at the school in 1997-98 was Larry Davis. Concerns regarding the Respondent’s work performance at North Shore were raised early in the school year regarding his participation with Intervention Teams. An Intervention Team is formed to assist a guidance counselor with a particular student. The team meets when requested by the guidance counselor. Notwithstanding that the Intervention Team convened at the Respondent’s request, he missed the meeting scheduled for September 29, 1997. His erratic attendance at other Intervention Team meetings was of concern to the Assistant Principal, Martha Johnson, and the Principal. Ms. Johnson spoke with the Respondent about this, and Mr. Davis wrote the Respondent about his attendance at these meetings. Respondent’s attendance did not improve. The Respondent’s erratic attendance at Intervention Team Meetings was unsatisfactory performance of his duties and showed a lack of understanding of the subject matter. The Respondent repeatedly interrupted classroom teachers with unannounced and unscheduled calls and visits to their classrooms. This disrupted their classes, and they complained to administrators about Respondent’s conduct. These interruptions were frequently to obtain information regarding students who were being staffed for one reason or another, an activity coordinated by the guidance counselor. The Respondent was officially counseled about these interruptions by Ms. Johnson, but continued to interrupt classes and cause disruptions. This was unsatisfactory job performance and showed the Respondent’s failure to follow directions, plan his activities effectively, and manage his time well. These are considerations in Competency 2 of the Evaluation criteria. The Respondent was asked by Ms. Johnson to make a sign to direct parents and others to a December 12, 1997, Child Study Team (CST) meeting. He did not do so. This also showed the Respondent’s inability to follow direction. On January 13, 1998, the Respondent told Deborah Nurse, an employee of the school, in a rude and loud voice, that she was not to use the copying machine that was outside his office. Mr. Davis counseled the Respondent in writing regarding his behavior on January 16, 1998. On January 14, 1998, at a CST meeting, Ms. Slaughter asked the Respondent for a cumulative folder on a student. The Respondent had been asked to the meeting because of his lack of cooperation regarding the folder. The Respondent accused Ms. Slaughter of not respecting him in the meeting, and insisted that she ask him again for the folder. The Respondent’s actions were embarrassing to the professionals present at the meeting and showed a lack of professionalism on the part of the Respondent. He was counseled in writing by Ms. Johnson about his conduct. On January 15, 1998, a meeting was held to discuss a student between Ms. Johnson, Mrs. Shabazz, and the Respondent. Mrs. Shabazz indicated that a pertinent document was missing from the student’s folder that could effect his educational program and result in a loss of funding for the school. It was Respondent’s responsibility to maintain the student’s records in the guidance office. Ms. Johnson counseled the Respondent about his responsibilities in maintaining records and their importance to the school. She offered to assist the Respondent in reviewing the cumulative folders prior to their processing. The Respondent was responsible for preparation of materials for and participation in CST meetings on students. The Respondent placed students on the CST agenda without completing the data in their folder. This failure interfered with the proper and timely placement of students, and evidenced an unsatisfactory performance of a basic part of the Respondent’s job. As a result of the complaints about the Respondent’s work and conduct, a Success Plan was developed. This plan outlined areas in which the Respondent was not performing satisfactorily, identified objectives for improving his performance, and strategies to meet the objectives. A team was created to assist the Respondent including Mr. Davis, Ms. Johnson, the Respondent’s supervisor in guidance services, and the professional development facilitator. The Intervention Team had decided that team members should receive a response from the Respondent within three days. This time limit was incorporated in the Respondent’s Success Plan; however, the Respondent did not submit the CST packets within the time limits. In addition, the Respondent’s tone in speaking with the teachers was such that they complained to Ms. Johnson about the Respondent. Ms. Johnson counseled the Respondent about the lateness of his submittals and his interactions which the teachers. The Respondent did not improve his conduct that directly resulted in student’s needs not being met. The Respondent continued to be late to or to miss meetings and scheduled classroom visits. On February 4, 1998, he was late to a classroom visit. He cancelled a classroom visit he had scheduled. He did not follow the weekly calendar of guidance activities as required in his Success Plan. On February 4, 1998, Mr. Davis met with the Respondent to discuss the proper procedures for conducting a CST meeting as a means of assisting the Respondent. On February 6, 1998, Mr. Davis counseled the Respondent about his continued interruption of classes, and the Respondent forgot about a scheduled guidance session and did not attend, until reminded by Ms. Dennis. On February 6, 1998, Ms. Anderson met with the Respondent to discuss the guidance program and to offer assistance to him. She suggested that he use a weekly, hour-by- hour calendar to plan his time and activities. She also counseled with him about using a lesson plan for a small group session to provide a clearly defined objective for the session. Ms. Anderson directed the Respondent to follow-up with her in a week. The Respondent did not follow-up with Ms. Anderson or follow any of her advice. On February 9, 1998, Mr. Davis observed the Respondent conduct a meeting with staff regarding the Florida Writes Test. The Respondent’s conduct of the meeting was unsatisfactory. Issues were left unresolved and staff members were confused about the presentation. Some of the material presented was inconsistent with the information in the manual. Mr. Davis wrote the Respondent about these matters, and referred the Respondent to his Success Plan. On February 9, 1998, the Respondent failed to provide proper parental notification of a CST meeting pursuant to district guidelines. On February 9, 1998, the Respondent failed to provide proper parental notification of a CST meeting pursuant to district guidelines. On February 9, 1998, the Respondent failed to make to two-scheduled classroom visitations. On February 10, 1998, the Respondent missed a scheduled classroom visitation. The Respondent was not following a weekly calendar of activities, and his performance was unsatisfactory and contrary to the Success Plan. On February 10, 1998, the Respondent attempted to counsel the wrong child about the death of the child’s mother, and was prevented from doing so by the teacher. This reflected poorly on the Respondent’s attention to his duties, and his professionalism. On February 10, 1998, the Respondent was provided a list of counselors at other schools who had agreed to let the Respondent attend classroom guidance or CST meetings at their schools. The Respondent was late and showed a lack of interest while attending a classroom guidance session at Lake Forrest. On February 11, 1998, Mr. Davis observed a CST meeting at North Shore. It was evident that the parents had not received the required seven days' notice of the meeting. The Respondent had not conducted the pre-conferences, and had not coordinated the scheduling with the teachers. The Respondent did not have the proper forms in the cumulative folders, and had not conducted any classroom observations in preparation for the CST meeting. In sum, the Respondent’s performance showed a complete lack of competence and knowledge of his duties as a guidance counselor. On February 11, 1998, the Respondent missed his scheduled classroom guidance visit. On February 12, 1998, the Respondent missed his scheduled classroom guidance visit because he was late in arriving. On February 12, 1998, The Respondent discovered a coding error on the Florida Writes Test. He reported the error to Mr. Davis and accused the teacher of coding the test incorrectly. Davis directed the Respondent to correct the mistake and notify the testing department regarding the possible problem. The Respondent did not correct the test as directed, but placed a note on the box and resealed it to be mailed. The Respondent’s actions violated the testing procedures, and he did not do as he had been directed. On February 17, 1998, Ms. Johnson counseled with the Respondent concerning his failure to respond to student and staff needs. She advised him he was not meeting his Success Plan goals, and students were not receiving services they needed. The Respondent refused to counsel with a developmentally disabled student who had been sent to guidance by his teacher. The proper paper work had been completed for the student to participate in the group counseling session; however, the Respondent refused to allow the student to participate, chasing the student around the room telling him to "get out." The student was confused and embarrassed. Ms. Johnson, who was observing the session, and took charge of the student by having him sit with her, resolved the situation. The Respondent's actions demonstrated a complete lack of understanding of the role of a guidance counselor, sensitivity for students, and ability to conduct a class or counseling session. On March 9, 1998, Mr. Davis completed the Respondent’s Annual Performance Evaluation. The evaluation consisted of eight competency areas. The Respondent received an unsatisfactory rating in three of the competency areas, which constituted an overall unsatisfactory evaluation. The facts as presented at hearing confirm the evaluation, and show that the Respondent was clearly incapable of performing his job duties. He lacked knowledge of his duties or how to perform them. He was insensitive to the students' needs and did not meet them. He did not follow the direction of his Principal and did not maintain a professional relationship with his coworkers and superiors. After receiving this evaluation, the Respondent continued in the same pattern of behaviors. He did not prepare and use a calendar of activities. He continued to provide materials late. He refused to assist a parent obtain the proper papers to enable the parent’s child to enroll in another school. He continued to disturb classes. He failed to notify staff of CST meetings at which they needed to attend. He took seven months to complete the paper work to have one child tested. In fact, there were several students who were awaiting CST processing at the end of the year. The Respondent was treated fairly and provided assistance by the school’s administration. Based upon his unsatisfactory evaluation in 1997-98, the Respondent was administratively transferred to J.E.B. Stuart Middle School the following year for an additional year of observation of in-service training. Carol Daniels is the Principal of Stuart Middle School. She met with the Respondent and advised him that he was starting with a clean slate at her school. School Board Policy required that Ms. Daniels confer privately with the Respondent and develop a Success Plan. She met with the Respondent on August 24, 1998. The Success Plan outlined goals and objectives to improve the Respondent’s performance as a guidance counselor. A support team was created to assist him. Soon after the school year began, Ms. Daniels counseled the Respondent about the proper method to request student records. She arranged for him to attend New Counselor Training on or about August 31, 1998. The Respondent was negative and adversarial about being requested to attend the training. He officially complained about the request, but upon review the Regional Superintendent determined that Ms. Daniels’ request was not arbitrary and was appropriate. The Respondent was counseled by Mr. Gilmore, the Vice Principal, on the need to process gifted students under the ESE program. He had failed to process several of these students, and he was given a deadline for processing these students. On September 8, 1998, the Respondent did not exit the building during a fire drill. Ms. Daniels counseled him in writing about the need for everyone to evacuate the building during drills. Mr. Gilmore counseled in writing the Respondent about the lack of lead-time in requesting information about students, and his abruptness and tone in making requests. On October 26, 1998, Linda Bailey requested an ESE/CST Agenda from the Respondent. The Respondent replied he was too busy to provide the information. On October 28, 1998, Ms. Bailey again asked for the information in writing. The Respondent did not provide the information. On October 26, 1998, Ms. Bailey also requested progress reports for the ESE students who would be reevaluated on November 9, 1998. These reports had been used at Stuart Middle School for many years as a best practice strategy. The Respondent advised that he had no intent of providing the progress reports and refused to do so. On October 26, 1998, the Respondent accused the District ESN Admissions Representative of taking ESE forms from his office. His tone and manner were threatening and confrontational. On October 27, 1998, Ms. Daniels notified the Respondent that he would have an evaluation and conference on October 30, 1998, pursuant to district guidelines. On October 28, 1998, Charlotte Robbins, ESE Interventionist, met with the Respondent to discuss three students. It was the Respondent’s responsibility to provide information to Ms. Robbins in a timely manner. The Respondent did not provide Ms. Robbins the necessary information prior to the meeting. The Respondent also invited parents to the meeting without advising Ms. Robbins. On November 2, 1998, Norma Peters, a speech therapist, advised Ms. Daniels that she had requested the Respondent to provide her a list of students to be evaluated two to three weeks before CST meetings. The Respondent told Ms. Peters he would not be able to provide the information as requested, although previous guidance counselors had provided Ms. Peters the names three to four weeks in advance of meetings. Although Ms. Daniels spoke with the Respondent about Ms. Peter’s concern, the Respondent did not provide the information as requested. On November 5, 1998, the two eighth grade counselors met with the Respondent to discuss the need for him to be a team member. They raised the fact that he did not answer the phone, assist parents, or help the guidance clerk when necessary. They also advised him to improve his communication with the ESE teachers, CST members, speech pathologist, and interventionist. A CST meeting was held on November 9, 1998, and only half the parents had been noticed and invited to come to the meeting. The Respondent had been responsible for contacting the parents in compliance with district policies. This failure prevented the CST team from addressing the needs of students. Not only did it potentially deny students services, it frustrated teachers, staff, and parents. On November 24, 1998, the Respondent interrupted class instruction by bringing a parent into the class who had missed an earlier appointment with the teacher. On November 25, 1998, Kathee Cook telephoned the Respondent regarding contacting children for the December 9, 1998, CST meeting. The Respondent refused to contact the parents of the students because ESE procedures required that Ms. Cook contact him seven days prior to the designated date. Ms. Cook reported this to Ms. Daniels, who discussed it with the Respondent, explaining that the requirement was for at least seven days notice. Ms. Daniels advised him that he was responsible for notifying parents for CST meetings, and his position potentially jeopardized notice to the parents as required by district policy. Ms. Daniels directed the Respondent to give the Vice Principal all of the parental notices by December 2, 1998. On December 2, 1998, the Respondent gave Mr. Gilmore ten notice letters; however, he did not provide notices to eleven other parents. The Respondent excused his failure by asserting his interpretation of the seven-day rule. On November 25, 1998, Ms. Daniels advised the Respondent that he had made little improvement in his performance. She discussed with him performance of his duties; and being courteous and respectful to faculty, staff, and parents. The Respondent did not accept the evaluation and was confrontational and adversarial with Ms. Daniels. He refused Ms. Daniels' offer of assistance. On or about January 5, 1999, the Respondent placed seven notice letters to parents in Mr. Gilmore’s box for the January 11, 1999, CST meeting. Not only were the letters late, if intended for the January 11th meeting, but they were addressed to the parents of children being staffed in the January 22, 1999, meeting. The Respondent failed to discontinue ESE services to a student contrary to the parent’s request on three separate occasions, to include at least one request in writing. The Respondent’s failure resulted in the matter being re-assigned to the chair of the guidance department to discontinue the services in accordance with the parent’s wishes. The Respondent left the campus without following the procedures for leaving early. These requirements had been explained during orientation and were in the teachers’ handbook. Ms. Daniels had to notify the Respondent in writing of his oversight. On January 25, 1999, Ms. Daniels notified the Respondent pursuant to the collective bargaining that his work performance was unsatisfactory. He was advised that his performance in Competencies 1, 2, 4, 8 and 9 needed improvement by March 15, 1999. On February 2, 1999, the Respondent was notified that this memorandum would be placed in his personnel file. The Respondent met with parents who were not enrolled in Stuart Middle School during the middle of the school day. Ms. Daniels advised him in writing on February 11, 1999, that this was inappropriate, and he should limit meeting to parents or students enrolled or engaged in enrolling at Stuart. On March 10, 1999, the Respondent made a presentation to an ESE class. His Success Plan required him to schedule presentations during Advisor/Advisee time period. The Respondent’s presentation was arbitrary and he did not seek assistance from his support team. On March 11, 1999, Ms. Daniels completed the Respondent’s annual evaluation. The evaluation addressed nine competency areas. Th Respondent received an unsatisfactory in five of the nine areas, which constituted an overall unsatisfactory evaluation. The Respondent’s performance in Competency 1 (ability to plan and deliver instruction), Competency 2 (demonstrates knowledge of subject matter), Competency 4 (shows sensitivity to student needs by maintaining a positive school climate), Competency 8 (demonstrates a commitment to professional growth), and Competency 9 (shows evidence of professional characteristics) was unsatisfactory. Not only was his performance unsatisfactory, he continued to be unwilling to accept support and assistance. He failed to comply with many areas of his Success Plan and failed to perform his duties. On March 17, 1999, the Respondent interrupted Mrs. Bascombe’s class. Ms. Daniels counseled the Respondent in writing about class interruptions, and how to handle situations by checking the master schedule and placing notices in teacher mailboxes. On March 23, 1999, Ms. Daniels relieved the Respondent of his responsibilities for ESE students because of his poor performance and its impact on the students' welfare. He had failed to timely notify parents. He had failed to communicate with parents, the staff, faculty and the district. His failures had adversely affected the operations of the ESE program. The Respondent was assigned to handle seventh grade non-exceptional education students. Ms. Daniels had to direct the Respondent in writing to relinquish the ESE forms to his successor. On April 20, 1999, after being relieved of his ESE duties, he met with the mother of an ESE student who was then receiving services from his successor. The Respondent was treated fairly at Stuart Middle School. All of the personnel were ready and willing to provide him assistance. He was negative, and refused to co-operate or perform his duties as directed. On May 19, 1999, the Respondent was notified by the Superintendent that he was charged with professional incompetence. He was advised that he would be discharged from the Duval County School System if the charge was sustained by the School Board. He was advised of his right to request a hearing within two days of receipt of the letter dated May 19, 1999. On June 15, 1999, Ms. Daniels provided John Heavner, Director of Professional Standards, written notice that the Respondent had not completed the requirements of his Success Plan. The Respondent requested a formal hearing by letter on July 10, 1999. Notwithstanding that this was late, he was afforded a hearing. On August 5, 1999, the Respondent was notified that he would be suspended without pay effective August 12, 1999. The Respondent was advised that the suspension would be considered at the September 7, 1999, regular meeting of the School Board. The Respondent is charged with incompetence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that: A final order be entered denying the Respondent’s disciplinary appeal and demands set forth in his pleadings, and dismissing the Respondent for incompetence. DONE AND ENTERED this 27th day of March, 2000, 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 27th day of March, 2000. COPIES FURNISHED: Lashanda R. Johnson, Esquire City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Bobby G. Palmore 863 Poydras Lane, West Jacksonville, Florida 32218 John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 321399-0400
The Issue Whether Respondent made inappropriate comments towards his students while in class on February 22, 2006, and further engaged in a crude and vulgar exchange with a student in regard to those comments. If proven, do the above-described acts violate the Code of Ethics of the Education Profession and/or Principles of Professional Conduct for the Education Profession in Florida. Fla. Admin. Code Chapter 6B-1. If proven, do the above-described acts constitute misconduct in office and constitute conduct unbecoming a public employee sufficient to warrant suspension and/or termination of Respondent's annual contract.
Findings Of Fact Based upon the testimony and evidence received at the formal hearing, the following Findings of Fact are made: At the time of his suspension in February of 2006, Respondent, Sylvester Jones, had been employed as a math teacher with the Brevard County School District for approximately seven months and was under an annual contract for the 2005-2006 school year. As a first year employee and teacher, Respondent had been assigned to Bayside High School, where John Tuttle was principal. Respondent was also assigned a mentor teacher, Ms. Robin Howard, in order to assist him with any issues pertaining to teaching. Respondent was also furnished a document outlining the "teacher's code of conduct," which included inter alia the Code of Ethics of the Education Profession and Principles of Professional Conduct for the Education Profession of Florida. The Brevard County School District had further provided Respondent with training as to the proper method to be utilized in a classroom in the event a student makes disparaging remarks to a teacher. During the school year 2005-2006, Respondent taught math as a "roamer," moving physically from one classroom to another during the course of the school day. The complainant, A.C., was a student at Bayside High School, and was a student in Respondent's fourth period math class. The class was made up of a high-spirited group of challenging students, 40 percent of whom required special services or special accommodations. This made the class difficult to teach. While Respondent was teaching at the front of the class, on February 22, 2006, a note was being passed between some of Respondent's students and the students from the adjoining classroom that was being taught by a teacher by the name of Scott Teter. The note was found by Teter, and he brought it to the attention of Respondent by coming into Respondent's classroom during the class period. Throughout the proceeding at hand, Respondent has given differing versions as to whether Teter had read the note to Respondent's class or whether the note was merely handed to Respondent by Teter during the class. Initially Respondent alleged that Teter had read the note out loud to the class. Later in his testimony, Respondent provided a demonstration during the hearing, whereby he claimed that Teter had displayed the note to the class. It is undisputed that the note referred to Respondent as being "a fag," and it appears that said note was handled by and partly generated by A.C. Upon reading the note, Respondent felt that he had been insulted and that his manhood was being attacked; Respondent testified that the note was an "assassination" of his character. In response to the note, the persuasive evidence is that Respondent made the following statement in front of his class: "Whoever thinks that I am a fag, ask your mother to bend over, and I will prove if I am a fag or not." One of Respondent's students, namely A.C., then began to vocalize his concern about Respondent's statement and questioned Respondent as to whether Respondent's comment meant that he wanted to have sexual activity with the student's mother. During his fourth period class, Respondent denied A.C.'s challenge, but then repeated his comment, as reflected above, to the entire class. The student, A.C., later decided to notify his mother regarding Respondent's statements, but due to his mother's work schedule, did not do so until the evening of February 23, 2006. The student's mother felt Respondent's comments were vulgar and "disgusting." Upon learning of the comments, M.C. escorted her son to school the next day, February 24, 2006, and met with the school's principal, Tuttle. They related A.C.'s recollection of the incident on February 22, 2006, to him. This is the first time that any school official had been notified of the allegations. Based on the complaint from the parent/student, Tuttle instructed his staff to obtain statements from each of the students in Respondent's fourth period class. Tuttle sought to determine the veracity of the assertions being leveled against a teacher by a parent. Upon obtaining written statements from students in regard to Respondent in the classroom, the principal set up a meeting with Respondent. During this meeting, Respondent claimed that his remarks to his class on February 22, 2006, were as follows: "if anyone thinks that I am a fag to have their mother bend and bow before him." Respondent claimed he was trying to teach them respect, using the "Japanese ritual" of bowing. Respondent became very agitated during the meeting and asked for time to write a statement. He was given until February 27, 2006, to provide his version of the events to the principal. On February 27, 2006, Respondent submitted his written response to the principal as to his version of events. His statements claim that the note was presented to him by Teter and the note had said, "Dr. Jones is a fag, don’t bend over." Respondent then remarked to the class that, "if any one thought he was a fag to ask his mother." Respondent stated that he had hoped this statement would have caused the students to discuss the matter with a parent, and maybe he would have a teacher- parent conference. Although Respondent had advised the principal of having the note in his possession, he never produced the note to the principal or any school official, nor was it presented in this proceeding to confirm his claim as to the contents of the letter. Further, Respondent never set up a parent-teacher conference in this regard with any students, nor did he refer the student, A.C., to the principal's office for discipline. Respondent's versions with regard to his actual comments made to his students are in direct conflict with the version given by many of his students at the hearing. The credible testimony is that Respondent had at least twice repeated the statement in front of the class, "If anyone thinks I am a fag, ask your mother to bend over and I will prove if I am a fag or not." Unlike the students' testimonies regarding the comments, Respondent has changed his version of events on several occasions. Subsequent to the February 27, 2006, statement, he has modified it as attested to by Robin Howard. In early March 2006, Respondent told her that he had said, "if anyone thinks that I am a fag to bow." Respondent claimed that this was a teaching technique, but did not recall the name of the technique. During his meeting with the superintendent, he claimed that this is a technique called "metaphoric contrast." At the hearing, Respondent did not produce any authority which described this technique. Instead, Respondent presented the testimony of Dr. Sharail Jones, who is an assistant pharmacist and a student in Respondent's bible class at the Greater Blessed Assurance Church, of which Respondent is pastor, who claimed that Respondent uses this technique as part of his way of teaching. Respondent's assertion that he was using the technique of "metaphoric contrast" during the incident on February 22, 2006, a term that is unknown to an experienced teacher such as Ms. Howard, is not credible. The teacher's code of conduct specifically states that a teacher shall be honest in all his professional dealings. See Fla. Admin. Code R. 6B-1.006. This teacher's conduct throughout this cause has been a direct violation of this rule. At first, he denied the assertion and claimed it was a fabrication. Thereafter, he has modified his version of his remarks and then at the hearing asserted that he does not have a present recollection as to whether he made the remarks or not. Then, during cross-examination, Respondent claimed that he may have said the comments as attested to by his students; however, he does not view such a remark as inappropriate, even though his own witnesses concede that the remarks as attested to by the students would be inappropriate. The comments were viewed by some students as having a sexual connotation, seen as embarrassing, and were alarming enough to cause one of Respondent's students, A.C., to get into a confrontation with Respondent as to whether the teacher wanted to have sex with the student's mother. His concern was great enough to cause the student to notify his mother. As the superintendent testified, a teacher is a role model and is expected to adhere to the teacher's code of conduct. A teacher is in a position of authority. This type of comment displays a lack of respect for the students and their families. Respondent's usage of vulgar and sexual comments directed to a student's mother in the classroom setting created an atmosphere that was not conductive to learning and allowed his students to respond back to him with unacceptable language and with impunity. The evidence in this proceeding has proven that Respondent engaged in conduct that unnecessarily embarrassed several students and created an atmosphere detrimental to learning in his fourth period class on February 22, 2006. Teaching Effectiveness Respondent was formally evaluated on two occasions during the 2005-2006 school year. Respondent's first evaluation, dated October 26, 2005, resulted in a rating of "Effective" in five categories and "Needs Improvement" in five categories. No "Unsatisfactory" score was assigned to Respondent. "Effective" is the highest performance rating that a teacher can achieve. Respondent's annual evaluation, dated February 14, 2006, resulted in a rating of "Effective" in eight categories and "Needs Improvement" in two categories. Compared to his performance ratings in October 2005, Respondent's annual evaluation demonstrated a significant improvement in teaching performance during the course of his first year with the Brevard County School District. The evidence indicated that prior to the date of the incident, Respondent worked hard at improving his teaching skills and providing his students with a positive learning environment. Respondent had not been formally disciplined or issued directives prior to being relieved of duty on February 24, 2006. There was no evidence which indicated that Respondent had ever used inappropriate language with his students prior to the statements made on February 22, 2006. Reputation as a Member of the Community Church members testified that Respondent, as minister of the Greater Blessed Assurance Church, tutored children at his church, maintained a transitional facility for people who need temporary homes, and is a role model to the community. Collective Bargaining Agreement Petitioner entered into a collective bargaining agreement, called the "Agreement between the School Board of Brevard County and the Brevard Federation of Teachers, Local 2098 [BFT], Florida Education Association, AFL-CIO, Inc., American Federation of Teachers, National Education Association, 2005-2006" (Agreement) On Petitioner's annual contract with Respondent is a statement which indicates that Petitioner is bound by the terms of the Agreement with the BFT. Article II, Teacher Protection, Section (G) of the Agreement states: Any disciplinary action taken against a teacher based on a complaint by a parent or student shall be limited to informal action unless the matter is first reported to the teacher in writing. Formal disciplinary action resulting from such complaint shall be limited to those matters which have been reported to the teacher in writing. Dismissal Process The first notice that Respondent received of any misconduct on his part occurred on February 24, 2006, when the principal held a meeting with Respondent and handed him a letter stating that he would be removed from the classroom immediately and placed on administrative leave with pay due to allegations of misconduct. The action which resulted in Respondent's being placed on administrative leave due to allegations of misconduct was initiated by the actions or statements of a parent and/or student(s). BFT representative, Janet Eastman's uncontroversial testimony was that the removal of a teacher from teaching duties and placement of a teacher on administrative leave constitutes disciplinary action for purposes of interpreting the Agreement. Respondent received no written notice of the incident in question prior to the disciplinary action taken on February 24, 2006. Petitioner and Respondent both set forth the following undisputed sequence of events: On Friday, February 24, 2006, the principal met with Respondent and notified him of the nature of the allegations in writing and immediately placed Respondent on administrative leave with pay. On Monday, February 27, 2006, Respondent presented his version of events, in writing, to the principal. On March 8, 2006, Respondent received a letter from the Superintendent notifying Respondent of the charges and a recommendation to the School Board that he be terminated. On March 8, 2006, John Russo of the BFT made a written request for the investigative files pertaining to Respondent. On March 9, 2006, Russo, on behalf of Respondent, requested a meeting with the Superintendent. On March 14, 2006, the meeting between Respondent and Superintendent took place, with Russo present. That night, on March 14, 2006, the School Board met and voted to terminate the Respondent's annual teaching contract. On March 15, 2006, Respondent requested a formal hearing to contest Petitioner's tentative action. The request was granted and this matter was referred to DOAH on March 22, 2006 for a de novo formal hearing.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent's annual contract with the School Board be terminated, effective March 14, 2006. DONE AND ENTERED this 30th day of June, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 30th day of June, 2006. COPIES FURNISHED: Harold T. Bistline, Esquire Stromire, Bistline & Miniclier Post Office Box 8248 Cocoa, Florida 32922 Elizabeth F. Swanson, Esquire Egan, Lev and Siwica, P. A. Post Office Box 2231 Orlando, Florida 32802-2231 Benjamin B. Garagozlo, Esquire 3585 Murrell Road Rockledge, Florida 32955 Dr. Richard A. DiPatri, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6601 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the Respondents The School Board Of Marion County, Florida (Board) discriminated against Petitioner, Dorothy Quibell because of her race while employed with the Board.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Petitioner is a white female who was employed by Respondent as a substitute custodian on January 27, 1987. Petitioner was hired as a four-hour custodian at Howard Academy Community Center (Howard) on February 10, 1987. During Petitioner's employment the Board offered her, on more than one occasion, an eight-hour night-time custodial position but Petitioner declined any night-time position because she needed to be at home at night. During Petitioner's employment with the Board she continued to request assignment to an eight-hour day-time custodial position. At no time during Petitioner's employment with the Board did any supervisor complain of the quality of her work. On May 9, 1988, Juanita P. Cunningham, Program Manager for Howard Academy Community Center, who is black, wrote a letter to Petitioner criticizing her punctuality and reliability. There was insufficient evidence to show that Ms. Cunningham's criticism of Petitioner was unjustified. On May 13, 1988, Glen Cook, Area Coordinator of Custodial Services, issued a written reprimand to Petitioner with regard to her absence from work and failure to contact Ms. Cunningham of Petitioner's absence. There was insufficient evidence to show that the reprimand was unjustified. During the same time period that Petitioner was employed and received her reprimands, disciplinary actions were taken against eleven custodial employees within the school system, two of whom are white and nine of whom are black. Jack D. Copeland, Jr., Supervisor of Custodial Services, who is white, offered, and Petitioner agreed to, a re-location to Shady Hill Elementary School (Shady Hill) on a trial basis as an eight-hour day custodian with the understanding that the job included learning to drive a tractor and mowing twenty acres. Petitioner was re-located to Shady Hill on or about June 27, 1988. It is customary practice in the school system for eight-hour day custodians to be located in schools on a trial basis subject to final approval by the principal. This trial period does not mean that an employee who has reached permanent status is placed back on probationary status but, only that the assignment is on a trial basis so that a principal can determine if the custodian is compatible with the administrative staff, teachers and students of that school. The eight-hour day custodian who was located at Shady Hill on a trial basis prior to Petitioner was black and was transferred out for disciplinary reasons. Petitioner was returned to Howard from Shady Hill on or about August 28, 1988 at the request of Charles McAulay, principal of Shady Hill, who is white, after an unsuccessful trial period due to her constant questioning of whether the requested task was within her description and general attitude about performing her job. After Petitioner was returned to Howard from Shady Hill, she was given the opportunity to interview for a custodial position at Fort McCoy School, but was not selected for that position. The custodian selected for the position at Fort McCoy School was white. Petitioner was neither requested nor required to perform duties at Howard or Shady Hill other than those duties included in the job description for a custodial position. While it is clear from the record that Petitioner continually questioned her immediate supervisors in regards to whether a particular duty assignment was within her job description, sometimes even going to a higher level of supervisor, it is also clear from the record that the responses given by the supervisor did not always clarify the situation for the Petitioner. Therefore, because of this continuous questioning by Petitioner the supervisors concluded that she did not have a "good attitude" about her work. Regardless of the supervisor's opinion concerning Petitioner's attitude toward her work, Petitioner continued to perform her duties as a custodian up to and sometimes exceeding standards and, was treated no differently than other custodial employees of Board.
Recommendation Based on the foregoing Findings of Fact, the Conclusions of Law, the evidence off record, the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that Florida Commission On Human Relations enter a final order denying relief to the Petitioner, Dorothy Quibell, and dismissing her Amended Petition. DONE AND ENTERED this 20th of July, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5252 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Petitioner has presented her Proposed Findings of Fact by categories and they will be addressed in the same fashion. Category 1: Exhibits 3, 4 Cunningham & Cook's Reprimands. 1, 2, and 3 (numbered 2). Rejected as not being supported by substantial competent evidence in the record. Category 2: Tape Recording FCHR. a. - d. Rejected as not being part of the record. Category 3: Notarized Statement. 1, 2(a-b), 3(d-e)(there was no a-b), 4, and 5. This mostly a restatement of testimony or questions asked in the transcript but if considered as findings of fact where possible they would not be material or relevant or would be unnecessary. But see Findings of Fact 14, 15 and 16. Category 4: Important Facts Concerning the Transfers. 1.-14. Same as for Category 3 above. But see Findings of Fact 11.-16. Category 5: Job Schedule. 1.-5. Same as for category 3 above. But see Findings of Fact 15 and 16. Category 6: Job Description. 1.-4. Not supported by any substantial competent evidence in the record. Category 7: Contradictions in Testimony. 1.-11. Same as for Category 3 above but additionally they are not supported by substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-15. Adopted in Findings of Fact 1, 2, 6, 7, 8, 4, 9, 10, 11, 13, 12, 13, 14, 15 and 17, respectively. COPIES FURNISHED: Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird, Esquire, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dorothy Quibell, Pro Se 5914 Northwest 56th Place Ocala, Florida 32675 Janet W. Behnke, Esquire 121 Northwest Third Street Ocala, Florida 32670
Findings Of Fact Exception Number 1 is withdrawn by Petitioner. Exception Number 2 is accepted as a matter law. Section 90.803(23), F.S., permits introduction of the affidavit of Chad Johnson proffered as PE-3. Therefore the Conclusions of Law in the Recommended Order, paragraphs 27, 30-35 are modified to the extent they are inconsistent with the legal ruling on admissibility of the affidavit. Further, the Commission adds to Findings of Fact those facts adduced in the affidavit and outlined in Petitioner'S proposed findings of fact, paragraphs 19-27. It concludes these facts are supported by competent substantial evidence in the record, the affidavit of Chad Johnson. Exception Number 3 is withdrawn. Exception Number 4 is withdrawn. Exception Number 5 is withdrawn. RULINGS ON EXCEPTIONS - CONCLUSIONS OF LAW Exception Number 1 is accepted in conjunction with Exception Number 2 to factual findings that, as a matter of law, the affidavit is admissible. Exception Number 2 is accepted, having accepted the facts contained in PE-3, the affidavit of Chad Johnson, that as a matter of law Petitioner has proven that Roy Proctor is guilty of immorality. Paragraph 35 of the Hearing Officer's Recommended Order is rejected.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 5th day of January 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 5th day of January, 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. Rejected, legal argument. 2.-3. Accepted. 4. Rejected, not supported by weight of the evidence. 5.-11. Accepted. 12. Rejected, subordinate to Hearing Officer's findings on this point. 13.-18. Accepted. 19.-27. Rejected, unreliable hearsay. Accepted. Rejected, unnecessary. Rejected, unsupported by weight of the evidence, hearsay. The transcript indicates that the guidance counselor was told by C.J. that Respondent wanted to flick C.J.'s penis. Accepted. 32.-33. Rejected, subordinate to Hearing Officer's findings on this point. 34.-37. Rejected, unnecessary. 38.-40 Accepted. 41.-46. Rejected, subordinate to Hearing Officer's findings on this point. Respondent's proposed findings Respondent's proposed findings were not referenced to any particular transcript citation or evidentiary exhibit. However, the proposed findings have been reviewed, and to the extent possible, are addressed by the foregoing findings of fact. COPIES FURNISHED: Robert J. Boyd, Esquire Post Office Box 26 Tallahassee, Florida 32302 Guy D. Adkins, Esquire 2821-A Bolton Road Orange Park, Florida 32073 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
The Issue Whether Respondent should be placed in the school system's alternative education program at J. R. E. Lee Opportunity School. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Evelyn R. Brown, Margaret Cullins, and Jacqelene Koptowsky, and had admitted into evidence four exhibits. There was no appearance on behalf of Respondent. No transcript was filed; no proposed findings of fact and conclusions of law were filed.
Findings Of Fact Respondent Gabriel Vieira, Student I.D. No. 7961148, was at all times material hereto, a student at Rockaway Junior High School in Dade County, Florida. During the 1985-1986 school year, Respondent was in the seventh grade. During the 1986-1987 school year, he was in both the seventh and eighth grades due to a mixed class schedule. On April 11, 1986, Margaret Cullins had Respondent in her seventh grade English class. On that date, she had to step between Respondent and another student who were about to fight and she sent Respondent to the principal's office. After his parents were contacted, Respondent was assigned three days of School Center Special Instruction (SCSI). This is the equivalent of an indoor suspension. On November 26, 1986, while he was assigned to her eighth grade English class, Ms. Cullins again referred Respondent for administrative management. The previous Friday, he had disrupted class. At that time, he also had no required materials, would not stay seated, and had not turned in any homework. That day Ms. Cullins had asked him for his telephone number; he gave her a false one. The request and false response were repeated Monday. It may be inferred that Respondent's false answers were intended by Respondent to prohibit Ms. Cullins from reaching Respondent's parents. On Tuesday, November 25, 1986, Ms. Cullins succeeded in contacting Respondent's parents on her own initiative, despite the false telephone numbers given her by Respondent. Respondent's misbehavior on November 26 apparently arose out of his anger at Ms. Cullins for having called his parents on November 25. That day he twice yelled at her, refusing to obey her instructions to work at assigned tasks and otherwise was loud, rude, belligerent, and surly to her in front of the other students, saying that he did not have to do anything she asked and would not do anything she asked. The disciplinary result of Ms. Cullins's November 26, 1986 referral is somewhat confused because Respondent was already on indoor suspension for someone else at the time. During the 1986-1987 school year, Evelyn Brown, mathematics teacher, had cause to refer Respondent to the office on five occasions. On September 23, 1986, she referred Respondent for not doing his homework, consistently disrupting class, walking around the classroom, failing to follow class work directions, and failing to follow previous instructions to bring necessary materials to class. The student management referral form on this incident reflects that either the teacher or the administrator made contact with Respondent's parents concerning the situation and that Respondent was assigned three days of SCSI. On November 13, 1986, Respondent was again referred by Ms. Brown for wasting time, failing to do any class work, failing to turn in any homework assignments, and for continued refusal to stay in his assigned seat. His behavior disrupted the class and disturbed other students' concentration. Although contact with Respondent's parents was attempted by the teacher and school administrators, it was not consummated on this occasion, and Respondent served detention for the teacher. On December 16, 1986, Ms. Brown told Respondent to change seats. He replied, " I will sit anywhere I want. You cannot tell me where to sit." This incident, together with other rude talk and walking around the room so as to disrupt the students who were trying to concentrate on the assigned work, resulted in the teacher contacting the Respondent's grandfather, since his parents were unavailable. Respondent was ultimately assigned four days of SCSI. On January 15, 1987 and February 10, 1987, Ms. Brown referred Respondent for the same type of inappropriate, disruptive, and nonproductive classroom behavior as she had reported on September 23, 1986. After each incident, Respondent's parents were contacted and on the last date, three days of SCSI were assigned. Jacqelne Koptowsky is assistant principal at Rockaway Junior High School. Her presentation of 20 pages of Student Case Management Referral Forms (P-3) reveal numerous incidents similar to those reported and testified to by Ms. Cull ins and Ms. Brown. Additionally, Respondent has been returned to the school by the security guard for truancy on one occasion. For this and other truancies, he has been referred by the school administration to the Department of Health and Rehabilitative Services and to the Dade County visiting teacher for correction of the truancy problem. Respondent also has failed to dress-out in physical education class thirteen times and has been reported to the administration on two occasions for use of provocative language in either Spanish or English to students or teachers. At various times; Respondent has been counseled reprimanded assigned teacher and administrative detentions, received two strokes of corporeal punishment, and been given indoor suspensions. It is a policy of the administration at Rockaway Junior High School not to assign an outdoor suspension to any individual with a truancy problem. In the 1986-1987 school year, Respondent was absent 13 times; several times were as a result of refusals to serve detentions and his attempts to transfer to other schools so as to avoid serving assigned detentions. In the 1985-1986 school year, Respondent failed four subjects and got D's in three others. At the conclusion of the first half of the 1986-1987 school year, Respondent had failing grades in all of his subjects. Respondent has met with the school guidance counselor at least 20 times, primarily with a view toward dropout prevention. Ms. Koptowsky has worked with a Metro-Dade Social Worker to rethink the benefits and drawbacks of assignment of Respondent to an opportunity school. Having determined from psychological and intelligent quotient (I.Q.) test scores, that Respondent is normal and therefore not eligible for any special programs for low I.Q., hyperactive, or learning disabled students, Ms. Koptowsky recommended his assignment to an alternative education program at J. R. E. Lee Opportunity School.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the School Board of Dade County enter a Final Order assigning, Respondent to the alternative education program at J. R. E. Lee Opportunity School, until a competent evaluation determines that it is appropriate for him to be returned to the regular school system. DONE and RECOMMENDED this 26th day of August, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 26th day of August, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis 0. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 Mr. and Mrs. Gabriel Vieira 3649 Southwest 99th Avenue Apartment #6 Miami, Florida 33165
