The Issue Whether Respondent violated sections 1012.795(1)(g) and 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(2)(a)1. and 6A-10.081(2)(c)1., as alleged in the Administrative Complaint; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Based on the evidence, testimony, and stipulated facts, the following Findings of Fact are made. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is then responsible for filing a formal complaint and prosecuting the complaint pursuant to chapter 120, if the educator disputes the allegations in the complaint. Respondent holds Florida Educator Certificate No. 834897, covering the areas of elementary education, English for Speakers of Other Languages (“ESOL”), and varying exceptionalities, which is valid through June 30, 2023. At the time of the allegations in the Administrative Complaint, Respondent was employed as an exceptional student education (“ESE”) teacher at Wyomina Park Elementary School (“WPES”) in the Marion County School District (“MCSD”). Ms. Miller has served as an elementary education teacher since the 2000-01 school year. Thus, she has a 20-year career with MCSD. From 2008 to 2018, Respondent taught third, fourth, and fifth grades at Reddick Collier Elementary (“Reddick Collier”’). Since she holds certification in ESE, she also taught ESE inclusion students in her general education classrooms. However, she has never taught a classroom of only ESE students. In 2018, Respondent’s value-added model (commonly referred to as VAM) scores rendered her ineligible to continue teaching at Reddick Collier because it was one of the District’s lowest performing schools. As a result, she was involuntarily transferred to WPES. Ms. Baxley testified that Respondent was initially assigned to teach students with academic issues, not behavioral issues. The initial assignment was consistent with her experience and previous work with ESE inclusion students. Respondent had maintained certification in ESE so that she could better serve academically low-performing ESE students in a general education inclusion environment. While Respondent had training in an inclusion environment, she did not have training or certification in Treatment and Education of Autistic and Communication Handicapped Children (“TEACCH”) or Crisis Prevention Intervention de-escalation techniques for use with students with behavioral issues. Ms. Baxley believed that Respondent had been trained to work with children with behavioral issues. After the initial assignment, students were reassigned between Ms. Miller and Patricia Poag. Respondent became responsible for only students with behavioral issues. Some of the students assigned to Respondent had extensive behavioral issues to the extent they required medication treatment. Respondent’s new assignment was a kindergarten through second grade self-contained ESE class of 12 to 13 students. Generally, a self- contained ESE classroom is a group environment with students who have special needs. Respondent’s students required increased supervision, structure, visuals, and very specific direct instruction. Respondent, Ms. Davis, and Ms. Poag testified that the classroom assignment was very “challenging, overwhelming, and distressing.” The new classroom structure included six or seven more students than previously assigned. Respondent had one paraprofessional to assist with supervision of the students. Respondent requested additional staff support, but never received it. In addition to learning to navigate the struggles with the student’s behavioral issues, Respondent was struggling with paperwork. Respondent made the effort to get help with completing necessary documents and learning how to complete IEP’s and behavior plans. She had no experience in completing these documents, or in working with “severe maladaptive behaviors” before being assigned to WPES. Allegations Involving Classroom Management As an ESE instructor, Ms. Miller’s primary responsibility was to ensure compliance with services or accommodations required for ESE students assigned to her classroom. Gina Gazzaniga is the MCSD ESE specialist. Her primary responsibility is to ensure compliance with services/accommodations required for all ESE students. Ms. Gazzaniga visited Respondent’s classroom. While in Respondent’s classroom, Ms. Gazzaniga observed students run on tables, throw items, and elope from the classroom unsupervised. Ms. Gazzaniga testified that while students were engaged in this conduct, Respondent did not intervene. Ms. Gazzaniga also testified that when students eloped from the classroom, they would typically go to the Guidance office or the Dean’s office. Ms. Gazzaniga had the Behavior Team (behavior tech, behavior specialist and analyst, and school academic coaches) assist with structure and behavior/classroom management strategies in Respondent’s classroom. The team implemented procedures to help prevent students from eloping. However, Respondent would change the practices the behavior team implemented. Respondent testified that some of the practices put into place were not effective. For example, when tables were lowered, the students increased their jumping from table to table. In addition, the assistance button was not within the reach of the teachers in the classroom. Ms. Gazzaniga’s overall assessment was that she saw “limited improvement, or refusal to follow taught strategies.” Other members of the WPES administration expressed concerns about Respondent’s classroom management. While visiting Respondent’s classroom, Ms. Baxley, along with Kendra Hamby, saw student W.H. pulling the hair of M.D. W.H., a male student, dragged M.D., a female student, by her hair as she screamed. Ms. Baxley testified that she heard Respondent say “stop.” Ms. Baxley then approached the students and removed W.H.’s hand from M.D. so that he would “stop pulling M.D. around like a caveman on the floor.” Ms. Baxley testified that Respondent did not intervene to help M.D., but rather “she just stood there.” Ms. Hamby testified that “Ms. Miller was standing there, not intervening, not saying or doing anything. So that was extremely concerning.” On another occasion, while in Respondent’s classroom, Ms. Baxley saw students hitting each other with containers. Ms. Baxley testified that Respondent did nothing to intervene. Respondent testified that she approached the students and instructed them to return the containers. Jennifer Foster was a paraprofessional assigned to Respondent’s classroom. On one occasion two students were running around the room, fighting, and chasing each other. Ms. Foster tried to “get in the middle to separate them and they both ran behind the big solid wooden table.” When Ms. Foster went in front of the table in an effort to separate them, the two students picked up the table and tossed it over on the side. Ms. Foster was able to move one foot out of the way, but the table landed on her other foot. Ms. Foster testified “I eventually got up and hobbled over to push the panic button and asked for assistance.” Her foot was injured as a result of the incident involving the students. Ms. Foster indicated that Respondent did not assist her. Allegations Involving Failure to Supervise Students In addition to concerns about classroom management, the Administrative Complaint alleged Respondent failed to supervise students. One of those incidents involved K.C. K.C. was one of Respondent’s kindergarten students. He is an ESE student with a medical condition. On September 6, 2018, a teacher informed Assistant Principal Troy Sanford that Respondent’s student, K.C., was found standing at the exit door of a hallway that opens to the playground. Mr. Sanford saw K.C. approaching the exit doors to the playground alone at 11:24 a.m. K.C. stood there alone until 11:29 a.m., at which time the teacher spoke to K.C. After consulting with another teacher, Ms. Hawthorne, about where K.C. belonged, the teacher took him to Respondent’s classroom. Respondent denied allowing K.C. to stand alone in the hallway for several minutes. She testified that while standing at her classroom door, awaiting the arrival of students coming from the restroom, K.C. began to walk from Ms. Davis toward her. This was customary for her students if children needed additional time in the restroom. As K.C. got close to Respondent, L.G.R. began climbing on the top shelf of a bookcase in the classroom. Since their routine was for the students to come into the classroom, she assumed K.C. would follow the customary practice and enter the classroom. Respondent testified that she made a judgment call to turn her attention to L.G.R. to ensure his safety and prevent harm to him. Instead of entering the classroom, K.C. walked down the hallway. Based on the totality of the circumstances, Respondent’s actions were reasonable. A second incident involved a different student. Two first-grade teachers, Nancy P. Neal and Ireina Hawthorne, were outside on the playground with their students. When recess was over, they were gathering their students and doing a head count to go back inside to their classrooms when they noticed there was “an extra child” in line. The student did not belong in their classroom. The student was nonverbal so they could not determine to which classroom he belonged. Ms. Hawthorne assumed that he belonged in Respondent’s class and took the student to Respondent’s classroom. When Ms. Hawthorne took the student to Respondent’s classroom, Respondent “ushered him into the classroom.” Respondent testified that she was in the hallway, counting her students before going to her classroom. She explained that she had a substitute paraprofessional, Ms. Foster, who did not know all of her students. In addition, this was the first time she had Ms. Foster serve as a substitute. To help remedy the issue regarding the student left outside, Respondent asked her assigned paraprofessional not to take breaks or lunch during recess. Whether Respondent was in her classroom (as stated by Ms. Hawthorne) or in the hallway, the student was left outside without her supervision, which could be harmful to the student’s safety. A third incident related to supervision involved student L.G.R. On October 19, 2019, L.G.R. entered Ms. Gazzaniga’s office and hid under a table. The evidence offered at hearing demonstrated that when the student eloped from the classroom, Respondent immediately followed the student into the guidance office. However, she did not see the L.G.R., so she continued to search for him. A minute or so later, Ms. Gazzaniga saw Respondent walk down the hallway towards the main office. Respondent later learned the student was in the guidance office at the time she initially searched that location. However, Ms. Gazzaniga did not alert Respondent that L.G.R. was in her office. Ms. Gazzaniga testified that she “kept an eye on him while he was there.” After a short time, Ms. Gazzaniga went over to L.G.R. and spoke to him. He came from under the table and went to the doorway of the office. At the same time, Respondent was walking back down the hallway and saw L.G.R. and took him back to her classroom. The credible evidence demonstrates that Respondent made reasonable efforts to locate the student by searching for him immediately after his elopement from the room. DP-3 Assessment On September 10, 2018, Ms. Scott gave Respondent a Developmental Profile Third Edition (“DP-3”) to complete for student A.M.S. Students who are developmentally delayed must have a DP-3 completed for re-evaluation to determine what ESE services need to be continued. A DP-3 is an assessment tool used to evaluate nonverbal or low achieving students that have not reached the cognitive level to take an IQ test. MCSD uses the DP-3 to assess the student’s level of achievement. The DP-3 assesses five areas of development, including the child’s cognitive functioning, physical development, communication skills, social, emotional, and adaptive skills. The assessment is completed by completing a series of questions on whether a student can or cannot perform a particular task. Respondent returned the DP-3 to Ms. Scott on September 25, 2018. Respondent circled items indicating a “yes” response. During the hearing, however, Respondent acknowledged the student would not be capable of performing the tasks. In addition, Ms. Scott did not believe A.M.S. could perform the skills for which Respondent answered yes. Based on the evidence offered at hearing, some of the responses Respondent provided on the DP-3 were inaccurate. Performance Assessments Throughout her career, Respondent had been assessed as progressing or effective related to instructional practice as an educator. For the 2018 informal classroom teacher instructional assessment performed by Ms. Baxley, Ms. Cino, and Mr. Sanford, Ms. Miller was assessed as unsatisfactory in multiple areas.1 However, in the areas of criticism, it was also noted that Ms. Miller was engaged in instruction of students. Interestingly, she was criticized for a child wandering to her desk, and then, criticized for leaving the group of students she was working with to redirect the wandering student. In another instance, the observers were critical of a Positive Behavioral Interventions Support plan but Ms. Miller was never trained in the area of behavioral management. For the 2019 informal classroom teacher evaluation, Ms. Miller was assessed effective in each category, including areas where she was assessed unsatisfactory in 2018. Disciplinary Action at WPES For the first time in her career, Respondent received disciplinary action while working at WPES. On or about September 10, 2018, Respondent was issued an oral reprimand for purported failure to supervise the students assigned to her. On or about September 26, 2018, Respondent was issued a written reprimand for misconduct for purported falsification of documents. On or about October 26, 2018, Respondent was issued a written reprimand for alleged failure to supervise a student assigned to her. On or about November 26, 2018, Respondent was issued Step One progressive discipline for substandard performance due to behavioral concerns in her classroom and failure to report grades. On or about December 11, 2018, Respondent was issued a Step Two verbal reprimand regarding substandard performance. 1 In 2018, Ms. Miller was assessed unsatisfactory in the following areas: 2b. establishing a culture for learning, managing student behavior; 3b. using questioning and discussion techniques; and 3c. engaging students in learning. On or about December 18, 2018, Respondent was issued a Step Three progressive discipline written reprimand regarding substandard performance. Respondent’s educator certificate has no prior discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that: Respondent violated the statues and rules as referenced above; Respondent be placed on probation for a period of two years, with conditions to be determined by the Education Practices Commission. DONE AND ENTERED this 31st day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2021. Emily Moore, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Lisa M. Forbess Interim Executive Director Education Practices Commission 325 West Gaines Street, Room 316 Tallahassee, Florida 32399 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated Subsections 231.28(1)(c), (f), and (i), Florida Statutes (1999), and Rule 6B-1.006(3)(a), (b), (e), and (f), Rule 6B-1.006(4)(a) and (b), Rule 6B-1.006 (5)(a), (c), (d), (e), (f), (o), and Rule 6B-1.001(1), (2), and (3), Florida Administrative Code, and, if so, what penalty should be imposed.
Findings Of Fact Mr. Jenkins holds a Florida Educator Certificate. At all times pertinent to this proceeding, he was employed as a physical education teacher at Pasedena Lakes Elementary School (Pasedena Lakes) in the Broward County School District, where he had been teaching for 15 years. Mr. Jenkins was a Master Steward for the teachers' union. He was also a member of the School Advisory Council (SAC) and was chair of the Safety and Discipline Committee, which is a part of SAC. Jill Wilson has been the principal at Pasedena Lakes for six years and has a total of 29 years of educational experience. The assistant principal at Pasedena Lakes is Charlene Hogan, who has been at Pasedena Lakes for five years and has a total of 28 years of experience in the field of education. On October 29, 1998, at approximately 5:00 p.m., Mr. Jenkins came to Ms. Wilson's office and yelled at her, accusing her of discrediting him and making things worse at the school. During this incident, Donna Blank, a former employee of Pasedena Lakes, was leaving the building and, through a window, observed Mr. Jenkins pounding on Ms. Wilson's desk and saying, "You're not my boss." Ms. Blank went to her car, but returned to the building because she felt that she could not leave Ms. Wilson alone in that situation. When Ms. Blank went to Ms. Wilson's office, Ms. Wilson was visibly shaken. Ms. Wilson felt intimidated by Mr. Jenkins and, as a result of the incident, issued a memorandum to Mr. Jenkins dated October 30, 1998. The memorandum outlined the events that had taken place in Ms. Wilson's office on October 29, 1998, advised Mr. Jenkins that his actions were inappropriate, and required him to schedule future meetings with her secretary so that she could have another staff member present when they met. Pasedena Lakes has about 900 elementary students. Parking was a problem at the school, as well as traffic congestion when parents dropped off students in the mornings. Parents would park in the teachers' parking spaces, and there would be disruptions in the flow of traffic when the parents would take time to dole out lunch money, dress the children, say farewells, and otherwise take up additional time as they were dropping off the students. Mr. Jenkins volunteered to help direct traffic in the mornings in order to reduce the congestion in the parking lots. His mode of directing traffic was more aggressive than the methods that had been used previously by the other teachers. Mr. Jenkins used a bull horn to shout at the parents to move the traffic along and to tell them to kiss their kids at home and not at school. At first his efforts were commendable, but he began to become frustrated with the job. Mr. Jenkins would yell at the parents and the students, upsetting both the parents and the students. On one occasion while on traffic duty, Mr. Jenkins, using his bullhorn, called another teacher "Deadwood," belittling her in front of students, parents, and other staff members. Sometime during the fall of 1999, Patricia Lewis was bringing her two children to the school. Ms. Lewis needed to talk to one of her children's teachers, so she dropped her children off and told them to wait for her while she parked the car. While she was parking the car, Mr. Jenkins yelled at her children, "You little monkeys, hurry up and get back to class." Ms. Lewis, a Haitian-American, was upset at his remarks and confronted him. She told Mr. Jenkins, "My kids have a name. You do not call them that." Mr. Jenkins replied, "If you don't like it, go get a lawyer, and my lawyer will win." Visibly upset, Ms. Lewis went to the school administration's office and asked to speak to the principal. She talked with Ms. Wilson and explained what had happened in the parking area. Ms. Wilson assured her that she would take care of the matter and talk to Mr. Jenkins. Ms. Lewis left the office and went to find her child's teacher to talk with her as originally planned. She ran into Mr. Jenkins in the hallway. Mr. Jenkins said, "Oh, you're the one who went to the principal." Ms. Lewis told him that she did not want to talk with him and turned away. Mr. Jenkins began to yell at her, and she went back to the office in tears. When she got to the principal's office, Ms. Lewis was loud and upset. Again Ms. Wilson calmed her down. In the fall of 1999, the Safety and Discipline Committee had concerns over the traffic problems at Pasedena Lakes and over unauthorized visitors on campus. A meeting of SAC was scheduled for November 9, 1999, to discuss these issues. The Safety and Discipline Committee met and drafted a letter which was to be sent to the parents asking them to come to the meeting and outlining the concerns which would be discussed. Ms. Hogan was on the Safety and Discipline Committee, and she edited the draft letter with input from other committee members so that the letter would fit on one sheet of paper. Mr. Jenkins was not happy with the edited version, but he did not tell Hogan of his displeasure at the time the letter was rewritten. Mr. Jenkins helped distribute the letter to the parents in the parking lot. Alice Lacy, a teacher at Pasedena Lakes, was the chair of SAC, and Hogan was co-chair. On November 1, 1999, Mr. Jenkins told Ms. Lacy that he wanted to have a meeting prior to the SAC meeting scheduled for November 9, 1999, in order to get the teachers to form a coalition and come to the November 9 meeting to support him. As chair of SAC, Lacy told Mr. Jenkins that it would be better to send a memorandum to the teachers rather than schedule a separate meeting. Later on the same day, Mr. Jenkins told Ms. Lacy that he was demanding that the teachers come to the November 9 SAC meeting. He became angry with Ms. Lacy and told her that it was a personal issue and that the teachers owed it to him. He stormed away from Ms. Lacy. Ms. Lacy became concerned about the November 9 SAC meeting and felt that Mr. Jenkins should clarify his intentions prior to the meeting. She sent Mr. Jenkins a memorandum, requesting that he provide her with an agenda by November 5. Mr. Jenkins did not supply an agenda. Ms. Lacy heard him yelling at teachers outside her classroom on November 5, but did not know what he was discussing with the teachers. Ms. Lacy became concerned and sent a memorandum dated November 5, 1999, to Ms. Wilson and Ms. Hogan, urging that the November 9 SAC meeting be postponed until the issues involving Mr. Jenkins could be resolved. The administration met with Mr. Jenkins, and Ms. Lacy was assured that Mr. Jenkins understood that the SAC meeting would be under Ms. Lacy's direction, the agenda would be followed, and the meeting would take place in the media center. When Ms. Lacy went to the media center on the evening of November 9, 1999, she found that the media center was locked and that Mr. Jenkins was setting up the meeting in the cafeteria, where he could have teachers sit on stage with him to lend him support. Lacy confronted Mr. Jenkins and told him that the meeting would take place in the media center as planned. Mr. Jenkins shook his finger at Ms. Lacy and told her that she was making a big mistake. When Ms. Lacy was calling the meeting to order, Mr. Jenkins called out of turn and said, "I motion to move this meeting to the cafeteria." Ms. Lacy called Mr. Jenkins out of order. There was a large turn-out for the SAC meeting, and it was agreed that each speaker would be limited to two minutes. When Mr. Jenkins began to make his presentation for the Safety and Discipline Committee, Ms. Lacy felt that he was unprepared and was improvising. Several times Mr. Jenkins spoke and went over his two-minute limit. When he did, Ms. Lacy would cut him off and go on to the next speaker. After this happened three times, Susie Ruder, a teacher at Pasedena Lakes, sent a note to Ms. Lacy, telling Ms. Lacy that she felt Ms. Lacy was being rude to Mr. Jenkins. After Ms. Lacy received the note, she gave Mr. Jenkins more time to speak. The day after the meeting, Mr. Jenkins ran into Ms. Hogan and Cathy Greenspan, a reading resource specialist at Pasedena Lakes, on the school campus. Mr. Jenkins shook Ms. Hogan's hand and commented that the SAC meeting had been a good meeting. Approximately ten minutes later, Mr. Jenkins went to Ms. Wilson's office. He was wearing shorts, a shirt, and a fanny pack. His purpose for the visit was to discuss sending flyers to parents advising them of the decision of SAC to require parents to obtain a visitor's pass to come on the school campus. Ms. Wilson told him that the passes had been ordered but had not arrived and that she did not want the flyers to be sent until the passes had arrived. Mr. Jenkins shifted the conversation and told Ms. Wilson that she was responsible for the rumor mill around school and accused her of changing a letter that had been written by the Safety and Discipline Committee in October to advise the parents of the November 9 SAC meeting. Mr. Jenkins said the letter that went home to the parents was not the letter the Safety and Discipline Committee had agreed upon. Ms. Wilson did not know about the changes to the letter and called Ms. Hogan to come into the office to discuss the letter. Ms. Hogan brought in the disc on which the letter had been saved, and they viewed it on the computer. Mr. Jenkins again shifted the conversation to the November 9 meeting and held Ms. Wilson responsible for the rudeness he felt Ms. Lacy displayed at the SAC meeting. Mr. Jenkins then shifted the discussion again and wanted the South Area Office to look into what Ms. Wilson's role was on SAC. Mr. Jenkins started to yell and point his finger in Ms. Wilson's face. His face got red, and his voice became louder. He told Ms. Wilson that she would be in charge of damage control. Ms. Hogan told him not to point his finger at Ms. Wilson. Mr. Jenkins turned to Ms. Hogan and said, "I've got an attorney, I've got the union, and I've got a gun." Both Ms. Wilson and Ms. Hogan asked Mr. Jenkins what he said. He replied that he did not know what he said and that he had been interrupted. Either Ms. Wilson or Ms. Hogan told him that he had said, "I've got a gun." Mr. Jenkins became flustered and walked out of the office. Both Ms. Wilson and Ms. Hogan were shocked by Mr. Jenkins' outburst. Neither woman could tell whether Mr. Jenkins actually had a gun in his fanny pack. A conference room was located next to Ms. Wilson's office. Cathy Greenspan, Donna Blank, and Barbara Perkins were in the conference room when Mr. Jenkins was meeting with Ms. Wilson and Ms. Hogan. Both Ms. Blank and Ms. Perkins heard Mr. Jenkins say the word, "gun." Ms. Greenspan heard Mr. Jenkins say, "I've got a gun." After Mr. Jenkins left the administration office, Ms. Hogan called the Special Investigative Unit (SIU), which is the school police, and requested assistance. Investigator Evelyn McCabe came to the school. Ms. Hogan was afraid of what Mr. Jenkins might do and locked herself in her office until Inspector McCabe arrived. Mr. Jenkins returned to the administration office with Sydna Satterfield, a teacher at Pasedena Lakes and a friend of Mr. Jenkins. Mr. Jenkins, Ms. Satterfield, Investigator McCabe, Ms. Wilson, and Ms. Hogan went into to Ms. Wilson's office. A few minutes later Susie Ruder, another teacher and friend of Mr. Jenkins, joined them. Mr. Jenkins denied saying that he had a gun and then stated that he did not know what he said. He threw his keys on Ms. Wilson's desk and asked to be transferred to an "F" school. He walked out of the office but returned and said that he wanted an investigation. Ms. Wilson told him to think about whether he wanted an investigation or wanted to work out things. She advised him that she was willing to work with him on their problems. Mr. Jenkins said he did not know what he said, but apologized for whatever he had said. Mr. Jenkins and Ms. Wilson hugged, and they agreed to try to work together. That evening and the next morning, Ms. Wilson received calls from staff members who feared for their safety and the safety of their children as a result of the incident with Mr. Jenkins. Ms. Wilson began to think about what had happened and the complaints from staff. She also saw an article in the newspaper concerning a colleague who had not contacted authorities concerning an incident that had happened at his school and had tried to resolve the situation by himself. She felt she had to get assistance. Ms. Wilson called Bruce Wagar, who is in charge of professional standards. He advised her to file a complaint with SIU, which resulted in an investigation. As part of the investigation, Mr. Jenkins underwent a psychological evaluation in April 2000 by Dr. Joel Kimmel. The evaluation report stated: Personality tests and behavioral observations indicate that Mr. Jenkins is a frustrated individual who believes he is being prevented from doing his job. His responses to the personality tests indicate that he tends to define his identity based upon his position and derives a lot of satisfaction from his job. He enjoys working with students and motivating them to achieve their potential. He likes the status and recognition he receives from his position and may have a lonely life outside his job. He also appears to be somewhat incompetent, or inefficient. When frustrated, he can escalate and demand his way. However, there are no signs of any violent behaviors in any of his responses suggesting that he probably will not act out when frustrated. He does believe in the benefit of talking things out. However, he does want to do things his way and may not respect others if they disagree with him. He also does appear to have some boundary issues in terms of not understanding where his authority ends and being able to accept the authority of others. His greatest fear is that of failure and losing his job which could represent a failure for him. His provisional diagnosis would be Adjustment Disorder with Mixed Emotional Features (DSM IV 309.28). It is highly recommended that Mr. Jenkins participate in sensitivity training and interpersonal relationship programs in order to develop his capacity to tolerate others' viewpoints as well as decrease his frustration. A stress reduction program would also be helpful in improving his ability to control his frustration and developing more patience. Meetings between he [sic], his principal, and a counselor may be of assistance in improving their relationship. Mr. Jenkins has demonstrated inappropriate behavior on different occasions involving his students. He showed his paycheck to a first grade class and asked them if that was not a lot of money. Another time, he read an article from a newspaper to a kindergarten swim safety class about a student who had drowned and told the class that they could drown. Mr. Jenkins left his physical education class outdoors unattended when their regular classroom teacher failed to pick them up on time. On November 17, 1999, Ms. Wilson inadvertently referred to Mr. Jenkins during a morning announcement as Thomas Wilson rather than Thomas Jenkins. Mr. Jenkins and his wife composed a letter to show how one word could be misconstrued. The letter, which Mr. Jenkins referred to as a private joke, stated that Mr. Jenkins thinks that Ms. Wilson fantasizes about him being her husband, that she wants his body, that Ms. Wilson was a "horny lady," and that she might lose control and have sex with him. Mr. Jenkins' wife shared the letter, which Mr. Jenkins called a "nothing" letter, with other employees of Pasedena Lakes. Both teachers and parents testified that they were fearful of Mr. Jenkins based on his past conduct and that he had created a hostile work environment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Thomas Jenkins violated Subsections 231.28(1)(c), (f), and (i), Florida Statutes (1999), and Rule 6B-1.001(1), (2), and (3), Rule 6B-1.006(3)(a), and (e), Rule 6B-1.006(4)(a), and Rules 6B-1.006(5)(d),(e) and (o), Florida Administrative Code; finding that Thomas Jenkins did not violate Rule 6B-1.006(3)(b) and (f), Rule 6B-1.006(4)(b), and Rule 6B- 1.006(5) (a), (c), and (f), Florida Administrative Code; suspending Thomas Jenkins' teaching certificate for 60 days followed by a probation period of three years; requiring that Thomas Jenkins take courses in professional responsibility, improving interpersonal communication skills, and sensitivity training; requiring Thomas Jenkins to have periodic psychological evaluations prior to and after returning to work; and requiring Thomas Jenkins to have a fitness-for-duty examination. DONE AND ENTERED this 30th day of March, 2001, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2001. COPIES FURNISHED: Randy A. Fleischer, Esquire 4801 University Drive, Suite 3070 Davie, Florida 33328 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Frank L. Till, Jr., Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125
Findings Of Fact Respondent holds Florida Teaching Certificate No. 390381, covering the area of biology, valid through June 30, 1985. At all times material, Respondent was an employee of the School Board of Dade County at Centennial Junior High School. On or about December 9, 1981, while a teacher at Centennial Junior High School, Respondent touched a student, Jessica Delatorre, in an obscene manner, by pushing her against the wall, placing his arm around her shoulder, feeling her on her buttocks and attempting to feel her breast before being pushed away by Miss Delatorre. At the time of this incident, Miss Delatorre was fourteen years old. During May 1981, Respondent, while a teacher at Centennial Junior High School, unlawfully fondled the breast of a student, Jackie Rodriguez, and further made overt sexual advances toward her by putting his hand inside of her gym attire and feeling her thigh. At the time this occurred, Miss Rodriguez was fourteen years old. Respondent told Miss Rodriguez that she was "so fine" and that she had "a good body." During the 1980-1981 school year, Respondent made improper sexual advances toward the student, Teresa Webb, by asking her to go to bed with him. Further, Respondent grabbed Teresa Webb and touched her buttocks, put his arm around her and started feeling her breast. Respondent asked Miss Webb when she was going to come over to his house. At the time of this incident, Miss Webb was fourteen years old. On or about December 15, 1981, Respondent threatened a student, Gerald Evans, with bodily harm by drawing back his leg to kick the student and further threatened to beat the student so that he could not walk if the student reported anything involving this confrontation.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order permanently revoking Respondent's Florida Teacher's Certificate. DONE AND ENTERED this 28th day of September 1983 in Tallahassee, Florida. R. T. CARPENTER 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 28th day of September 1983. COPIES FURNISHED: George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 James E. Staton 212 Southwest 20th Street Apartment 4 Fort Lauderdale, Florida 33315 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA RALPH D TURLINGTON, as Commissioner of Education, Petitioner, vs. CASE NO. 83-1257 JAMES E. STATON, Respondent. /
Findings Of Fact At all times relevant hereto James E. Wilkins, Jr. was a continuing contract teacher employed by the Pinellas County School Board. He has been employed in the field of education since 1950 and has been employed by the Pinellas County School Board since 1964. During the school year 1983-84 Wilkins was employed as a guidance counselor at Tarpon Springs Middle School. During the school year 1984-85 Wilkins was employed as a biology teacher at Tarpon Springs High School. While serving as counselor at Tarpon Springs Middle School several girls in the sixth grade came to Wilkins for assistance in deterring one of their classmates from pilfering makeup and shoes from their lockers. They had previously gone to another counselor for help in the matter but she had declined to intervene. They were sitting in Wilkins' office with the suspected culprit. After listening to part of the girl's complaints and in order to assure accuracy in recreating the proceedings, if necessary, Wilkins took out his tape recorder, placed it on his desk, asked the girls if they objected to having the conversation taped and after receiving no objection turned on the tape recorder. Wilkins testified that he asked the girls as a group if they objected to their statements being recorded and no one objected. One of the students present confirmed that Wilkins, during the course of their discussion, took his tape recorder out of his desk and asked them if they had any objection to having their comments taped. All said no. Later the suspected culprit went to another counselor and complained that she was afraid she was going to get beat up and that Wilkins had tape recorded the meeting without her permission. During the investigation which followed Wilkins acknowledged that he had in fact tape recorded the session after asking them if anyone objected. He did not poll the students to ask each one individually if she objected to the tape recorder. All were aware the conversation was being taped. Harry Danielson, Supervisor of guidance, Pinellas County School System, also questioned Respondent regarding the taping incident. Danielson's testimony that Respondent admitted to him that he taped the girls without their permission was explained by Respondent as a misunderstanding on his part as he thought Danielson asked if he had obtained written permission to tape the conversation. Danielson testified that the code of ethics of the counseling profession proscribes taping students without their knowledge or permission and that counselors are usually advised to get permission in writing before taping students. Danielson also opined that a counselor should not become involved in investigating a theft. This incident constitutes a part of the letter of reprimand issued by the superintendent on November 20, 1984. While at Tarpon Springs Middle School, Wilkins hung on the wall of his office a Ph.D. diploma from Loyola University of Paris, France. Earlier Wilkins had heard that he could perhaps obtain such a degree and did not see this university listed as a diploma mill and as not accredited. He forwarded to Loyola University transcripts of all courses he had taken including more than sixty hours of courses he had completed subsequent to completing his master's degree. These curricula were "evaluated" by Loyola University and Wilkins was issued a Ph.D. degree. He presented the information to the school board clerk handling post graduate records for Pinellas County teachers and requested the information be sent to the Department of Education in Tallahassee for evaluation. The Department advised that Loyola was not recognized as an accredited school and the degree would not be recognized by the Department. Respondent took no further action but to ask the clerk if the transcripts submitted to Loyola should be removed from his personnel file. She told him that would not he necessary. Subsequently the principal at Tarpon Springs Middle School saw the diploma on Mr. Wilkins' office, checked some information that he had that described Loyola University of Paris as a diploma mill and reported the "spurious" diploma to Nancy Zambito, Director of Personnel Services, Pinellas County School Board. Ms. Zambito questioned Respondent about the degree. He readily acknowledged that he had not taken any courses at Loyola and the degree was issued based on transcripts he had sent to Loyola for evaluation. Ms. Zambito on May 31, 1984, issued Wilkins a letter of reprimand (Exhibit 1) for unethical behavior and poor judgment. This incident also constituted a ground for the reprimand issued to Respondent by the Pinellas County Superintendent of Schools on November 20, 1984 (Exhibit 4), and as one of the charges in the suspension letter dated June 25, 1985. James Gregory, principal at Tarpon Springs Middle School 1983-84, gave Respondent a less than satisfactory evaluation in two areas as a result of the taping of the meeting with the students and for obtaining the diploma from Loyola University. At the close of this school year Gregory recommended that Respondent be removed from a counseling position and returned to the classroom as a teacher. As a result of this recommendation Respondent was transferred to Tarpon Springs High School as a biology teacher for the 1984-85 school year. Gregory opined that investigating theft is not part of the duties of a counselor but belongs solely in the realm of the administrative assistants. (TR. p. 19 Vol. I) During school year 1984-85 Leroy Birch was sitting next to the projector in Respondent's class when slides were being shown. Someone had smeared one of the slides and Birch and others were laughing. Birch was not sitting fully in his seat. Respondent thought Birch had smeared the slides and put his hand on Birch's shoulder to push him back down in his seat. Birch told Respondent to "take his god damn hand off my shoulder." Respondent, when questioned by administrative personnel about this incident, acknowledged that he had placed his hand on Birch's shoulder near a "pressure point" but that he did not squeeze the pressure point. Birch testified to no numbness or pain resulting from a squeezing of the pressure point. Birch further testified that Respondent had disciplined him and that he hated Wilkins when he was disciplined. Birch was one of many who testified Respondent used "damn" and "hell" in class more than other teachers. Ann Marie Levy was a student in Respondent's class in 1984-85 school year. She was copying notes from the overhead as she was supposed to be doing when Respondent slapped her on the shoulder to get her attention when he thought she was writing a note to a classmate. Ann Marie was more surprised than hurt by this incident which was observed by others in the class. Respondent has no recollection of striking Ann Marie but, if he did, it was accidental when he was trying to get her attention and not as a punishment nor intended as a punishment. This incident was the other striking episode referred to in Exhibit Ann Marie also testified that she never liked Respondent and that he expected a lot from his students. Ronald Cohalla was in Respondent's class last year (1984-85) and testified that while he was talking to another student Respondent told him if he didn't be quiet he would "deck him". Ron also testified that Respondent threw an eraser at him twice and that Respondent used curse words more than other teachers. During both of these eraser "throws" Ron was sitting at his desk in the front row some four or five feet from Respondent and talking to another student. On neither throw did the eraser get beyond Respondent's desk. Respondent denies ever telling Cohalla he would deck him if he didn't be quiet. Respondent is 6'1" tall and weighs 350 pounds. He was once a wrestling coach and is obviously well coordinated for a man his size. Had he attempted to throw an eraser at Cohalla, it is quite certain he could have hit Cohalla from a distance of four feet. The same credence, none, is given to Cohalla's testimony that Respondent threatened to deck him as is given to the testimony that Respondent threw an eraser at Cohalla. Several witnesses testified that Respondent had called them stupid. On cross examination these students testified that in response to a question Respondent frequently said "that's a stupid question." Respondent denies ever calling a student stupid. Many of the witnesses called by Petitioner testified that Respondent used "damn" and "hell" more than other teachers in class, that he was short in patience and frequently raised his voice in class. Many considered him a strict and demanding teacher. Respondent acknowledged that he often raised his voice to quiet down an unruly or a noisy class but did not consider this to be different than other teacher's reactions to noisy classes. Amy Levinson, who thinks Respondent is not a good teacher acknowledged that when Respondent raised his voice in class it was because the class was unruly. Use of the words "hell" and "jackass" by Respondent in class was one of the charges in Exhibit 4. No evidence was presented that Respondent used the word "jackass" in class. During the 1984-85 school year while Respondent was teaching biology at Tarpon Springs High School, Kirsten Kissinger testified she was embarrassed by Respondent once when she had stomach cramps. She asked Respondent if she could go to the bathroom then changed her mind and asked if she could go to the clinic. Respondent asked her why and she told him she had cramps. Respondent asked her to repeat her reason which she did. Kristen felt embarrassed by having to repeat her reason and thought other students were laughing at her. Another student in the class with Kristen, Stephanie Salsgiven, has no recollection of the incident in which Kristen states she was embarrassed. Respondent has been teaching middle grade and high school girls in Pinellas County Schools for more than twenty years. His testimony that anytime a girl tells him she has cramps she automatically gets permission to leave the class is more creditable than is testimony that Respondent would intentionally embarrass a female student. During a biology class at Tarpon Springs High School a discussion about mammary glands was held and one girl asked what Respondent had said. Two witnesses testified they overheard Respondent reply to this question "mammary glands -- I hope you develop some soon." The student to whom this comment was allegedly made did not appear as a witness and Respondent denies ever making such a statement to one of his students. One of these accusing witnesses also testified that Respondent had responded to a black male in the class and in a remark to him Respondent referred to the black's flat nose. John Thompson, the person referred to, testified that no such incident occurred. Once during one of Respondent's classes one student, apparently trying to be facetious, asked Respondent what obese meant. Respondent patted his stomach and replied that is what I am as are a few others in the class. Cynthia Shindler testified that Respondent specifically named her and John Thompson as obese people -- much to her embarrassment. John Thompson testified Respondent did not refer to him by name as obese. Respondent denies referring to anyone other than himself as being obese. No evidence was submitted that Respondent ever sent students on errands with unopen notes about other students or that the taping incident involved another teacher as alleged in the dismissal letter. On one occasion while passing down the corridor at Tarpon Springs High School, as Respondent passed an area known as "Greek corner" he heard someone call out in a loud voice "fat ass." Respondent did not stop. When Respondent returned a few minutes later he stopped near Greek corner to talk to a student in one of his classes. He again heard someone call out "fat ass" and, from the tone of the voice suspected Philip Stavrakis who was in the group. When Respondent called Phillip aside to admonish him Philip became very abusive and disrespectful. Respondent took Philip to the office for discipline. When he arrived he was unable to find anyone in the Dean's office to take Philip. Respondent told Philip to sit down while he looked for a dean. Philip sat on a table instead of the chair indicated and continued his harangue with Respondent. Unfortunately Respondent had also become very angry at the disrespect and abuse he was receiving from Philip and also raised his voice trying to get Philip to do as he was told. Dr. Van Fleet heard the commotion outside and emerged from behind the closed door of her office to see Respondent and Philip facing each other near the table and yelling loudly. She moved between them and told Respondent she would take over and Respondent departed. Philip contended he was not the one who had called Respondent "fat ass" and resented being so accused. Philip Stavrakis told Respondent he would get Respondent in trouble.
The Issue The issues to be determined are whether Respondent violated section 1012.795(1)(f),(g), and (j), Florida Statutes (2015), and Florida Administrative Code Rule 6A-10.081(3)(a) and (e), as alleged in the Amended Administrative Complaint. If it is found that Respondent has committed any of the statute or rule violations alleged, the penalty that should be imposed must also be determined.
Findings Of Fact Based on the demeanor and credibility of the witnesses, the documentary evidence admitted and the record as a whole, the following findings of fact are found: Respondent holds Florida Educator’s Certificate 823554, covering the area of physical education. His certificate is valid through June 30, 2016. At all times material to the allegations in the Amended Administrative Complaint, Respondent was employed as a physical education (P.E.) teacher at Oakleaf Junior High School (Oakleaf) in the Clay County School District (the District). Mr. Ford also served as a track and field coach in the District and was heavily involved in volunteer activities to encourage youth fitness. In 2008, the Education Practices Commission issued a final order which adopted a settlement stipulation with respect to a prior complaint against Respondent. The settlement stipulation “neither admitted nor denied” the factual allegations in the Administrative Complaint giving rise to the disciplinary proceeding in that case. The Scene Oakleaf is a junior high with sixth through eighth-grade students. During the 2012-2013 school year, there were six P.E. teachers who typically had classes of at least 40 students each class period. These classes made use of the baseball and softball fields, tennis and basketball courts, and the gymnasium for class time. All of the students shared what were described as small girls’ and boys’ locker rooms adjacent to the gymnasium. Students and teachers have approximately ten minutes at the end of each class period to get to their respective locker rooms, change clothes, and get ready to move to the next class period. Usually one male and one female P.E. teacher were assigned to open the gender-specific locker rooms. Until the locker rooms were opened and after students finished dressing, the students congregated in the P.E. building hallway. The space where students waited was cramped at best, and not adequate to accommodate the large numbers of students. During the 2012-2013 school year, students were expected to wait in the hallway near the double doors closest to the P.E. fields for the ringing of the class bell. Students typically stayed as close to the doorway as possible in order to ensure a quick exit. While students were supposed to sit against the wall, they often either stood near the double doors or sat with their legs stretched out into the aisle-way. Traversing the area could be a challenge under the best of circumstances. A typical day could be described as loosely-organized chaos. As described by Bonnie Lawrence, Oakleaf’s physical education department head, “it’s not that the kids are so bad; it’s just that you’ve got a large amount of students that are hot . . . they’re worked up. . . . [A] lot of them are very competitive, so they’re still bringing it into the hallway, and it just . . . is a problem and it still is a problem.” In the first week of April 2013, one of the students attending Oakleaf was a seventh grader named D.O.2/ D.O. was a relatively tall student, described as a big boy between 5’8” to 5’10”. D.O. received exceptional education services for emotional behavioral disorder (EBD). EBD students are placed in EBD special education classrooms because of emotional and/or medical issues that render them unusually disruptive and volatile in a traditional classroom setting. D.O. participated in regular P.E. classes and was assigned to Coach Rountree’s class. D.O. was a difficult student and had been removed from P.E. class the week before spring break because of behavioral issues. D.O. was easily agitated and unpredictable. When angry, he used a lot of profanity and walked very quickly. D.O. had at least three disciplinary referrals processed during the school year for his misbehavior. One P.E. teacher admitted that she had been verbally attacked by him and found him intimidating. Ms. Lawrence stated that while she had never seen D.O. attack another student, she had witnessed him hitting the walls with his fists. Because EBD students can be prone to frequent outbursts and sometimes violent behavior, they are often escorted around campus and directly monitored by a behavioral aide when the students go to lunch, travel to and from bus areas, or participate in any regular education classes. Jessica Strunz was the aide assigned to escort D.O. during the timeframe relevant to this proceeding. Petitioner relies on her testimony almost exclusively concerning what happened with respect to the incident alleged in the Amended Administrative Complaint. April 2, 2013, was the first school day after spring break. D.O. had been removed from P.E. for misbehavior the week before spring break, but on April 3, he was back in the gym. D.O. was assigned to Coach Rountree’s class. Coaches Ford and Rountree observed paint on D.O.’s shoes, consistent with some paint used in recent vandalism of cars in the area. They asked D.O. about the paint, and talked to him about making better decisions, and the consequences that flow from making poor choices. Coach Ford used his own vehicle as an example, and told D.O. if someone were to spraypaint his wife’s truck, there would be damages that would have to be paid, as an illustration of the consequences of bad decisions. He indicated that a perpetrator’s parents would be responsible for those damages as one of those consequences. Ms. Strunz was present during this discussion. The Incident On April 3, 2013, D.O. was again present for P.E. Ms. Strunz escorted D.O. to P.E. but soon after left the area to assist another aide, believing that D.O. was fine with Coach Rountree. Coach Rountree’s class was going to be playing frisbee on the baseball field. However, Coach Rountree would not allow D.O. to be paired with his partner of choice, because they had previously caused disruptions in the class. When Coach Rountree told him he would have to partner with someone else, D.O. became angry and started using profanity and questioning Coach Rountree’s authority. As a result, Coach Rountree told D.O. to take a seat in a chair that was on the baseball infield as a time-out. Instead, D.O. flung the back of the chair over, and Coach Rountree spoke to him in an attempt to calm him down. Eventually, D.O. sat in the chair and Coach Rountree went back to supervising the rest of his class. Sitting in the chair, however, did nothing to calm D.O. Instead, he became angrier, kicked the chair, and started yelling insults and profanity at the other students in the class. He was apparently trying to provoke a reaction from another student by making statements such as, “you’re gay, and your father’s gay,” in addition to the profanity. At some point, he got up and threw the chair down rather than sit on it. Coach Ford was in the area supervising his students, who were split between the basketball and tennis courts. He approached D.O. and told him that he thought D.O. was supposed be sitting in the chair. Eventually, D.O. sat back down, but continued to spew profanities directed at another student in his class. Ms. Strunz returned to the field at this point and found D.O. sitting in the time-out chair. As she put it, D.O. was angry at the world, upset, yelling, and cursing. Rather than approach him directly, Ms. Strunz stayed on the other side of the fence and tried to calm him down by talking to him, but D.O. ignored her. At hearing, Ms. Strunz did not seem overly concerned about the propriety of D.O.’s behavior, saying, “he just does that.” D.O.’s tirade continued, and he stood and threw the chair down the baseline from first base toward home plate. At that point, he left the infield to sit in the bleachers behind home plate. As he passed the gate near the dugout, he reached up and pulled Coach Rountree’s grade book from where it was wedged between the fence sections and threw it up into the air. D.O. then sat down but continued to curse and yell. Coach Ford came back over to speak to D.O., attempting to calm him down and talking to him about making better choices. He also called Coach Rountree on his radio about D.O. moving from the seat where Coach Rountree had directed him to sit. Coach Rountree came over to the area and spoke with both Coach Ford and Ms. Strunz, who told him that D.O. had stood up out of his seat, kicked the chair, and thrown Coach Rountree’s grade book. At this point, D.O. was sitting in the bleachers and for the moment was calmer, so Coach Rountree went back to the rest of the class, believing Ms. Strunz had the situation under control. Ford, likewise, went to direct his class to line up and go in the building. D.O.’s mood fluctuated between calm and anger. It was, at best, unpredictable. After Coach Rountree went back to the rest of his class, D.O. got up from his seat in the bleachers and started walking quickly to the doors of the P.E. building, with Ms. Strunz following behind.3/ D.O. was yelling, cursing, and saying how much he hated the school. Coach Ford followed him in in an attempt to calm him down, continuing to talk to him about the need to make better choices. D.O. was not interested. Instead, as he approached the building, D.O. told Coach Ford to “shut the f**k up,”4/ slammed his hand against the left side of the double doors, and started to swing open the door to the hallway. At this point, Coach Ford reached out and restrained D.O. from behind to prevent him from going into the hallway. Coach Ford put his right arm around D.O.’s chest and used his own left arm to secure D.O.’s left forearm to keep D.O. from swinging it, and pulled D.O. away from the door. D.O. attempted to pull away from Coach Ford, and Coach Ford had to jerk him up slightly so as to keep him from falling off balance and into the eroded area next to the sidewalk. The momentum of keeping both of them out of the eroded area propelled them over to a railing near the walkway, beside an adjacent portable. The entire maneuver by all accounts lasted a matter of seconds. Coach Ford then told D.O. he was going to release him and that D.O. needed to stay calm and stand next to the building. Coach Ford’s purpose in having D.O. stand next to the building was to minimize the interaction between D.O. and the other students in Coach Rountree’s class, who were approaching from the baseball field in order to enter the hallway. D.O. stood next to the building as instructed. D.O. was not injuring himself and was not attacking any other student before attempting to enter the building. He was, however, about to enter a crowded area full of students in an angry and agitated state soon after kicking and throwing a chair and throwing a teacher’s grade book, and while shouting profanities and what could be interpreted as derogatory comments toward other students. Shortly thereafter, Coach Rountree and his students caught up to Coach Ford, and Coach Rountree, Coach Ford, and D.O. stood at the side of the building while Ms. Strunz was standing at the railing by the walkway. Once Coach Rountree caught up to them, Ms. Strunz went inside to coordinate with another aide, and Coach Rountree directed his other students to go inside. When Coach Rountree approached, both Coach Ford and D.O. appeared to be fairly calm. However, as was the case earlier, D.O.’s mood fluctuated between extremely agitated to calm to agitated again, and he started saying he was going to sue the school. Coach Ford continued to try and calm him, but dismissed D.O.’s threat of litigation by saying something to the effect that D.O. did not know what teachers are allowed to do. Ms. Strunz returned and Coach Ford left the area to attend to his students. D.O.’s mood continued to fluctuate, and he made a statement to the effect of, “you’re all screwed, and this place is going down,” and that the school was in big trouble because he was going to sue the school. When Coach Rountree asked him what he meant, D.O. was not listening to him, but kept repeating that they were all screwed. At some point during this tirade, which lasted about five minutes, D.O. noticed that he had a small scrape on his elbow about the size of a nickel, with a small amount of blood. This observation upset him all over again, and he started walking quickly to the administrative offices, with Coach Rountree and Ms. Strunz following behind. D.O. made his way to Assistant Principal Bridget Payne’s office, with Coach Rountree and Ms. Strunz following behind. D.O. told her, “look at what one of your teachers did to me.” He proceeded to show her his arm and to tell her that Coach Ford had put him in a chokehold and threatened to put him in the hospital. Ms. Payne asked him to pull down his shirt, and he did so, showing that there was some redness below the Adam’s apple. Ms. Payne testified that the red area was about half an inch to three quarters of an inch wide, and that she could not see it until he pulled down his shirt. After D.O. finished telling his story to Ms. Payne, Ms. Strunz was asked to confirm it or say anything about it, and she confirmed D.O.’s story. The Aftermath Both Coach Rountree and Ms. Strunz were asked to write statements, and both did so. Only Ms. Strunz’s statement refers to a chokehold. Ms. Payne called D.O.’s mother and informed her of the incident, and D.O.’s mother, in turn, called the police. Ms. Payne then notified Coach Ford that the police were coming but did not talk to him about the incident. Ms. Payne also sent D.O. to Mary Blazek, the school nurse, who examined his arm and neck. She treated the arm with Bactine and a Band-Aid, which she described as “not major first- aid treatment.” Ms. Blazek also observed some redness on D.O.’s neck. She had been told that he was restrained around his neck so she was looking for redness. She did not inquire as to any other reasons that might have caused his neck to be red, and there was no evidence indicating that Ms. Blazek or anyone else observed scratches, welts, or bruising on his neck, or that the redness extended around to either side of his neck. Ms. Blazek filled out an incident report, but not until eight days after the incident when she was asked to do so. Oakleaf’s principal contacted Toni McCabe, the assistant superintendent for the District, and Ms. McCabe began an investigation into the incident. Coach Ford was suspended with pay on April 4, 2013, pending completion of the investigation. Ms. McCabe did not interview D.O. as part of her investigation and did not review his disciplinary referrals other than the one issued to him regarding his behavior the day of the incident. She only spoke to those staff members who were directly involved in the incident and could provide eyewitness testimony. Based upon her investigation, she recommended to the superintendent that Coach Ford be terminated, and although it is not clear when, Coach Ford eventually resigned. Ms. McCabe testified that when she spoke to Coach Ford, he stated that he had used a Safe Crisis Management (SCM) hold, and that a chokehold is not a SCM hold. SCM training is generally provided to administrators and those teachers working in special education. Coach Ford had taken SCM training but was not currently certified. P.E. teachers at Oakleaf had requested SCM training repeatedly, but it was not provided to them. Coach Ford denied stating that he used SCM in dealing with D.O., and denied using a chokehold. Tracey Butler is the Florida Education Association representative who attended both meetings Respondent had with Ms. McCabe regarding the incident with D.O. Ms. Ware, a District employee, took notes of the meetings, as did Ms. Butler. Ms. Butler did not recall Coach Ford ever telling Ms. McCabe that he used a SCM hold. The only mention of the term in her notes was one indicating Ms. McCabe asked if Coach Ford had SCM training. Her review of Ms. Ware’s notes indicated the same question and response, but no indication that Respondent stated he used a SCM hold. The undersigned finds that Coach Ford did not state to Ms. McCabe that he was using a SCM hold. The Criminal Proceedings As noted previously, the Clay County Sheriff’s Office also investigated the incident. The statements taken by Coach Rountree and Ms. Strunz were also provided to the Sheriff’s Office. On April 8, 2013, Coach Ford was arrested for child abuse/simple battery as a result of the incident. On May 6, 2013, he was officially charged with violating section 827.03(1)(b), Florida Statutes.5/ His case was docketed as Case No. 2013-CF-000686. On June 4, 2013, Respondent entered an agreement to go into a pretrial intervention program (PTI). Consistent with the requirements for entry into the program in the Fourth Judicial Circuit, he signed a document entitled “Plea of Guilty and Negotiated Sentence.” The State Attorney in the circuit required that in order to enter into a pretrial diversion program, defendants were required to sign a guilty plea agreement which would not be entered on the docket of the court. Upon successful completion of the requirements of the PTI, the State Attorney’s Office would dismiss the charges. However, if a defendant failed to complete the PTI requirements, the guilty plea would be filed and the defendant would be sentenced based on the guilty plea. The form that Respondent signed states in part: Specific Terms of Negotiated Sentence: My sentence has been negotiated in this case in that I will be: Adjudicated guilty Adjudication of guilt withheld And I will be sentenced to: (Please print) In the blank space provided, the following agreement is hand-written: Post-plea PTI: upon completion of anger management and no contact with the victim, D.O., the state attorney will dismiss charges. If unsuccessful, plea will be an open plea to the court. The entry into the PTI program was discussed in open court, but the evidence did not establish that the trial judge engaged in a traditional colloquy regarding the voluntary nature of the plea, and the document that Respondent signed was not docketed in the court record. On June 6, 2013, a Diversion Referral Notice was sent to the Clerk of Court by the Assistant State Attorney advising that the case was being referred to the Felony Pre-Trial Intervention Program, and that the State would file a final disposition at the time of successful completion. On July 19, 2015, the Director of the PTI program notified the Clerk of Courts that the case had been accepted into the PTI program. On October 10, 2013, the State Attorney’s Office filed a Diversionary Nolle Prosequi dismissing the charges. The Case Summary for Case No. 2013-CF-000686 indicates that the following documents were filed on the criminal docket: a notice to appear; a notice of cash bond; the affidavit for arrest warrant; warrant returned served; arrest and booking report; notice of appearance, waiver of arraignment, not guilty plea and demand for trial; information; state’s discovery exhibit and demand for reciprocal discovery; victim information form; diversionary program referral notice; diversionary program referral (accepted); cash bond release; and diversionary nolle prosequi. The document entitled Plea of Guilty and Negotiated Sentence was not filed on the docket in the criminal proceedings. The Nature of the Restraint Throughout these proceedings, Petitioner has referred to the restraint of D.O. as a chokehold. The unfortunate use of the term originated with D.O.’s comments to Ms. Payne. D.O. did not testify in this case. The only witnesses to the actual incident that testified in these proceedings are Coach Rountree, Coach Ford, and Ms. Strunz. Coach Rountree candidly stated that he did not see the entire incident. He demonstrated what he observed of the interaction between Coach Ford and D.O. His demonstration indicates that Coach Ford had his arm across D.O.’s upper chest. Jessica Strunz was described as being somewhere between three feet and 30 feet away from Coach Ford and D.O. Given the testimony regarding D.O.’s size and pace as he walked toward the gym, the most plausible conclusion is that she was somewhere between 10 and 15 feet behind him.6/ It is Ms. Strunz’s testimony that places Ford’s arm around D.O.’s neck. That testimony is not credited. First, Ms. Strunz is shorter than D.O. and possibly shorter than Coach Ford. If she was behind Coach Ford, who was behind D.O. when he started to go through the door of the gym, it would be difficult, if not impossible, for her to see where Coach Ford’s arm was located in front of D.O. Second, the height difference between Coach Ford and D.O. also weighs in favor of a restraint across the chest, as both Coach Ford and Coach Rountree demonstrated. Third, the redness on D.O.’s neck was reported to be just above his collarbone at the front of his neck. He had to pull down his shirt in order for the red mark to be seen. Had Coach Ford had D.O.’s neck in the crook of his arm, as Ms. Strunz testified, it seems that any redness would have extended to at least one side of his neck, and no one testified that was the case. Moreover, D.O. had been outside on a baseball field on a warm day. He was angry, had been yelling, had kicked a chair, and had thrown a chair in the 30 minutes leading up to this event. There is not clear and convincing evidence that the redness on his neck was caused by the restraint at all. The same can be said for the small scrape on his elbow. The more persuasive testimony indicated, and it is found, that Coach Ford restrained D.O. by placing his arm across the upper chest area. He did so not because D.O. had hurt himself or anyone else at that point, but based upon his concern that should this demonstrably angry young man enter the crowded hallway, the normally chaotic atmosphere with close to 100 waiting students would turn into a dangerous one with a real possibility of injury to D.O., to other students in the hallway, or both. Reasonable Use of Force The District has adopted a definition of the reasonable use of force for teachers, as required by section 1006.11, Florida Statutes. The District’s policy states the following: CLAY COUNTY SCHOOL BOARD POLICY 6GX-10-2.32 2.32 USE OF REASONABLE FORCE As provided by Florida Statute 1006.11, this policy establishes the standards for the use of reasonable force by Clay County school personnel. Such use shall be for the purpose of establishing and maintaining a safe and orderly environment and shall provide guidance to school personnel in dealing with disruptions to that environment. Definition of Terms: The following definitions apply to terms used in this policy: Learning Environment: All events and activities authorized by the School Board requiring an employee to be on duty in/out of the classroom setting. Orderly: Devoid of disruption or violence; peaceful. An orderly environment is one in which learning can take place. Disruption: An interruption of or impediment to the usual course of harmony. Reasonable Force: Appropriate professional conduct including reasonable force as necessary to maintain a safe and orderly learning environment. Safe: Preventing injury or loss of life, a safe environment is one in which persons are protected from injury or threat of injury. School personnel: Employee/individual hired by the School Board. Conditions that may require use of reasonable force: While use of physical force may be needed at times to ensure a safe and orderly learning environment, alternatives to such force should be attempted, time permitting. The use of reasonable force is permitted to protect students from: conditions harmful to learning; conditions harmful to students’ mental health; conditions harmful to students’ physical health; conditions harmful to safety; other conditions which, in the judgment of on-site employee(s), threaten the safety and welfare of students or adults. Guidelines for the determination of “reasonableness” of force: When school personnel employ physical force in order to maintain or restore safety and/or order to a situation, determinants as to the reasonableness of force shall include, but not be limited to: severity of the offense(s); size and physical condition of participant(s); patterns of behavior; potential danger; physical and other; availability of assistance; other circumstances surrounding the offense; and actions taken prior to use of physical force. Other factors: Reasonable force cannot be excessive or cruel or unusual in nature. Physical force being used should cease upon the restoration of a safe and orderly environment. Nothing in this policy should be construed as addressing Clay County School Board polic(ies) on corporal punishment. Use of these guidelines shall provide guidance to school personnel in receiving the limitations on liability specified by Florida Statutes. (Emphasis added). There was testimony that under Clay County’s policy on reasonable force, restraint should be used only in the most extreme cases, such as when a student is going to seriously injure himself or someone else. None of those espousing this view indicated that they had ever had 40 students on a P.E. field or had ever taught P.E. Ms. Payne and Ms. Zimmerman both acknowledged that they had never done so. While such an example is certainly covered by the policy, the plain language of the policy is not that restrictive. Coach Ford testified, and maintained consistently throughout the various inquiries related to this incident, that his concern was for the safety of both D.O. and the other students in the hallway, should D.O. enter this crowded area at the level of crisis he was exhibiting in the period immediately prior to his approach to the door. Every P.E. instructor who testified emphasized that student safety is their primary concern. Here, Coach Ford was concerned about anyone getting run over or injured given D.O.’s clearly agitated state. This concern fits squarely within the policy’s directive to “maintain a safe and orderly learning environment,” including an environment which is “devoid of disruption or violence” and where “persons are protected from injury or threat of injury.”7/ It is found that Coach Ford’s actions fell within the confines of, and was not prohibited by, the District’s policy on the use of reasonable force. The Alleged Threat Ms. Strunz testified that Coach Ford threatened D.O. almost immediately prior to the restraint, saying that if he found paint on his car, he would come look for D.O. and would put him in the hospital; and that D.O. did not know what he was capable of. Coach Ford adamantly denied this allegation. These alleged threats were supposedly made just moments after, according to Ms. Strunz, Coach Ford was telling D.O. he needed to make better choices and was trying to calm him down. That anyone, including Coach Ford, would make such a statement immediately after working repeatedly to calm D.O. and after talking to him about better choices, simply strains credulity. It was not clear where Ms. Strunz was when Coach Ford told D.O. that D.O. was not aware what teachers were allowed to do. It may be that she misinterpreted this statement as a threat. In any event, there is not clear and convincing evidence that Coach Ford made any threat to D.O. Diminished Effectiveness Petitioner presented evidence of news accounts of the incident, in support of the allegation that Respondent’s effectiveness had been reduced, along with the opinion of Ms. McCabe (who believed that Respondent had used a chokehold) to that effect. On the other hand, Bonny Lawrence, the department head for the P.E. department at Oakleaf, testified that she would “absolutely not” have a problem with Coach Ford coming back on her staff. Janet Rowe, the athletic director and a P.E. teacher at Oakleaf, considers Ford to be a highly-effective P.E. coach. Edward “Smitty” Huffman, who has taught physical education for most of his 20 years in education, considers Coach Ford to be one of the better teachers he has ever known. It is found that Petitioner did not establish by clear and convincing evidence that Respondent’s effectiveness as a teacher has been reduced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 28th day of September, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 28th day of September, 2015.
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact Petitioner is a Caucasian male born December 30, 1952. At present he is 54 years old. Petitioner holds a bachelor's degree in criminology from Florida State University, which he obtained in 1976. He also holds a juris doctorate from Florida Coastal School of Law, obtained in December 1999. In between these two degrees, Petitioner's employment history, included with his application for employment with the School District, indicates that in 1976 he worked at Graham's Dairy farm; from 1979-1980, he worked in telephone communications doing telephone installation, repair, and telephone cable splicing for an unknown employer; and in 1981 he worked for GTE of Florida performing telephone installation and repair. In 1985 Petitioner was the operations manager for Ocala Mack Sales, handling small claims and tag and title work. In 1989, he returned to the telephone industry, splicing cable. There is no indication of the time frame or duration of each job. No credible explanation was given for the significant gaps in his work history, or the reasons for leaving the various jobs listed. Beginning in 1993, Petitioner substituted for a three- month period at Fort King Middle School in Ocala, Florida. This three-month period is the only experience in the education field that Petitioner possesses. That same year, Petitioner began taking additional classes at the community college level part time in an effort to go to medical school. He also stayed home caring for his children. When he was unsuccessful in getting admitted to medical school, he turned his efforts to law school. Beginning in 2001, after graduating from law school and passing the bar exam, Petitioner worked as an attorney for the Department of Children and Families. In April 2004, he resigned in lieu of termination.1/ After an eight-month period of unemployment, he was hired in November 2004 as a corrections officer with the Florida Department of Corrections, and remains in that position today. In 2004, Petitioner began applying for teaching positions in Marion County. To that end, he has applied for and received Statements of Status of Eligibility from the Florida Department of Education indicating that he is eligible for a temporary certificate in the areas of chemistry and biology, grades 6-12, for the period June 22, 2004, through June 22, 2007. The job description for a teaching position in the School District indicates that a candidate must have a bachelor's degree from an accredited institution and be certified by the State of Florida or have district vocational certification. School District Policy 6.10 requires that all personnel be appointed as prescribed by Florida Statutes and applicable rules of the School Board and the State Board of Education. The job description also lists the following in terms of required knowledge, skills and abilities: Knowledge of child growth and development, especially of characteristics of children in the age group assigned. Knowledge of prescribed curriculum. Knowledge of current educational research. Basic understanding and knowledge of use of current technology. Knowledge of learning styles and skill in using varied teaching methods to address student learning styles. Skill in oral and written communication with students, parents, and others. Ability to plan and implement activities for maximum effectiveness. Ability to effectively assess levels of student achievement, analyze test results, and prescribe actions for improvement. Ability to maintain appropriate student supervision so that students have a safe and orderly environment in which to learn. Ability to work effectively with peers, administrators, and others. Certification by the Department of Education in the subject matter to be taught is generally required. The School District may waive certification in a particular area only when there is a critical need for teachers in that area and there are no certified teachers available. Even in that instance, the School District usually looks for a closely related certification area. For example, when trying to fill special education positions, the School District will look first for applicants certified in reading if no one certified in special education is available. In addition to certification for individual subject areas, a teacher may obtain what is referred to as a middle grades integrated certification. Someone with this certification is preferred over other applicants in a middle school setting, because they can teach science, social studies, language arts and math, giving principals more flexibility in filling positions that might include teaching in more than one area. Petitioner does not hold a middle grades integrated certification. Petitioner has applied for 32 science teaching positions, two biology positions and one chemistry position in the School District. In addition to these 35 science-related positions, Petitioner has applied for 47 additional teaching positions in the reading and exceptional education, areas for which he understands there is a critical need, and in criminology and legal systems, areas where he believes he has practical experience. Because he is not certified in these areas, they would be considered out-of-field. Petitioner could only be considered for those positions in the event that there was no qualified and appropriately certified candidate available. He has also applied for approximately 50 other positions for which he is not certified. Petitioner has received five interviews for positions within the Marion County School District. He has received no offers of employment. The School District fills vacancies for teachers in several different ways. A person already working as a teacher in the School District may request a transfer, for example, to a different subject area for which they are qualified or to a different school. Under the teachers' collective bargaining agreement with the School District, that teacher is automatically considered as the preferred candidate for any vacancy consistent with their request, unless the principal at the hiring school presents a compelling reason why they should not be hired. Under these circumstances, no vacancy would be advertised. The School District also encourages applicants to participate at an annual district-wide Job Fair. At that Job Fair, principals at different levels (high school, middle school, elementary school) are available to conduct interviews. Candidates do not necessarily interview for particular positions; they interview with whatever principals are available. Finally, applicants may be called to interview with principals for openings at individual schools, should there not be a qualified applicant requesting a transfer or under "conditional contract" with the District. Conditional contracts will be discussed in more detail below. During interviews at the Job Fair, principals use standardized interview questions that have been approved by the School District. The standardized interview questions have eight categories of questions based upon qualities one would expect to find in a teacher: 1) likes kids; 2) dependable; 3) content knowledge; 4) ability to manage; 5) motivation; 6) positive attitude; 7) team player; and 8) communication. The interviewer selects a question from each category to ask the applicant, and awards one to three points per question, based on whether the answer exceeds expectations, meets expectations or does not meet expectations. The highest total score an applicant can receive based on his or her answers to these questions is 24. Principals may only choose from the questions provided. They may clarify a question should an applicant ask them to, but they may not ask other questions. If the principal is favorably impressed by an applicant and has a vacancy at his or her school in the area for which the applicant is certified, the principal may offer that applicant a position at the interview. If they have no such position available but think the candidate would be a good hire for the School District, they may offer what is referred to as a conditional contract. A conditional contract does not entitle the applicant to a job. However, as vacancies arise within the School District, if there are individuals with conditional contracts that are qualified for the vacancies, those individuals are referred to the hiring principal for consideration. The hiring principal chooses from among those candidates with conditional contracts, and if there is only one such candidate, he or she would, absent extraordinary circumstances, get the job. Petitioner participated in the School District's Job Fair in June 2006. He was interviewed by Lisa Krysalka, the principal at Belleview Middle School. When Petitioner appeared for his interview at the Job Fair, he was not wearing a suit and did not bring a resume. Ms. Krysalka's notes reflect that he did tell her he had served as a substitute 10 years before. Based on his answers to the standardized questions, Ms. Krysalka gave Petitioner an overall score of nine. She ranked his answers as not meeting expectations for eight out of nine questions. Her scoring was reasonable in light of the answers he gave. For example, when asked to describe his classroom management plan, Petitioner indicated that he had no plan because he did not have problems with discipline. When Petitioner was asked how he would get his students excited about entering the classroom, he stated that most kids are excited already, and he would have a plan (although unspecified) and stick to it. Other answers he gave were either not responsive to the questions asked or did not relate to a school setting or to work with children. Ms. Krysalka felt some of Petitioner's responses were unrealistic and showed that he was unprepared to teach middle school in today's climate. Ms. Krysalka's assessment is reasonable. Petitioner's answers to these standardized questions do not demonstrate that he possessed the knowledge, skills and abilities required to perform as a teacher in the Marion County School District. Petitioner interviewed at individual schools outside the purview of the Job Fair. None of those interviews resulted in offers for a teaching position. While Petitioner testified that he has applied for dozens of positions, he presented evidence regarding only seven of those positions. The qualifications for the successful candidates for the positions are listed below. Petitioner admitted at hearing that he had no personal knowledge as to the qualifications of any of these candidates. He simply felt that, given the number of positions for which he applied, the only reasonable explanation for his not getting a teaching position was his age. Matthew Bates was born in 1981, and is younger than Petitioner. He has a B.A. in history and is working on his master's degree in educational leadership. He has passed the M/J Integrated Certification exam. Bates was originally hired in September 2005 at Dunellen Middle School for a "split" position, teaching both seventh grade science and language arts. Mr. Bates requested and was granted a transfer within the School District under the collective bargaining agreement to fill a vacant seventh grade science position at the same school. Consistent with the School District's collective bargaining agreement, no other candidate was considered or interviewed. Petitioner has not established that he is equally qualified or more qualified than Mr. Bates for the position sought. Ronald Long was born in February 1981, and is younger than Petitioner. Mr. Long was selected for a science position at Forest High School. He holds a B.S. degree in biology; served as a substitute teacher for the School District during the 2003-2004 school year, and was an assistant and junior varsity basketball coach at Trinity Catholic High School during that time. Mr. Long's resume also indicates that he has worked with the Boy Scouts and several basketball teams at both the high school and college level. Based on his interview and experience, Milford Lankford, the principal at Forest High School, believed Long to be the better qualified candidate. Petitioner was interviewed for the position at Forest High School. At the time of his interview, Mr. Lankford was filling two positions in the science department. The first position was filled by Mr. Downs, who was 63 years old at the time he was hired. However, based on his interview, Mr. Lankford did not feel that Petitioner had the skills necessary to be successful in the classroom. His impression was confirmed after Petitioner interviewed with his assistant principal, Ms. Bounds. Mr. Lankford had eliminated Petitioner from consideration by the time he offered the second position to Mr. Long. In any event, his determination that Mr. Long was better qualified for the position is reasonable. David Mahfood, was born in 1983 and is younger than Petitioner. He was selected for a physics position at one of the high schools in the School District. The position required that the applicant be highly qualified in and certified to teach physics, and Mr. Mahfood met those qualifications. Petitioner is not certified in physics, as required for this position. Bret Mills, born in 1982, is also younger than Petitioner. He has a middle grades integrated certification. Mr. Mills holds a B.S. in animal biology and while his resume does not reflect any teaching experience, it does reflect experience working with children in church and little league, as well as working as a literacy program leader while at the University of Florida. Mr. Mills' certification was preferable for the position being advertised. Petitioner did not establish that he was equally or more qualified than the successful candidate for this position. Michael Orloff was hired for a seventh grade science position at West Port Middle School. Mr. Orloff was born in 1958, and is four years younger than Petitioner. He has a B.S. in marketing with a minor in chemistry. He was interviewed by Greg Dudley, the principal of West Port Middle School during the Job Fair. Based upon a favorable interview, he was offered a position at that school in accordance with School District policy. There is no evidence that Mr. Dudley even knew of Toms' application at the time that he offered Mr. Orloff the job. Mr. Richard Williams was born in 1971, and is younger than Petitioner. He was offered a position teaching science at Howard Middle School. Mr. Williams holds a B.S. degree in biology and a master's degree in environmental management. He also has experience as a resource teacher with Eckerd's Youth Alternatives and served in the Peace Corps as a forestry extension agent. Mr. Williams originally worked beginning in September 2005 as a substitute teacher at Howard Middle School. He participated in the 2006 Job Fair and interviewed with the incoming principal at Howard Middle School. Based on his outstanding scores on the Job Fair Interview, he was offered a job immediately. Petitioner was not a candidate brought to the attention of the hiring principal at the time of the Job Fair. As previously indicated, Petitioner's interview scores at the same Job Fair were not impressive. Unlike Petitioner, Mr. Williams' degrees and experience are in fields related to the area he was hired to teach. Mr. Williams was the more qualified candidate for the position for which he was hired. Finally, Kristen Wood was born in 1982 and is younger than Petitioner. She was hired to teach agriculture and biology. Ms. Wood graduated from the University of Florida with a major in agricultural education and had a teaching internship in agriculture. She was also certified to teach in both biology and agriculture, and had significant experience with the Florida Future Farmers of America Association. Petitioner is not certified in agriculture and had less experience related to education. Ms. Wood was the more qualified applicant for the position sought.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint and denying Respondent's request for attorney's fees and costs. DONE AND ENTERED this 17th day of August, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2007.
Findings Of Fact The Respondent, Ronald Miller, holds a Florida teaching certificate numbered 464113, covering the area of physical education. During the 1980-81 school year he was employed as a teacher of physical education at Miami Coral Park Senior High School in Miami, Florida. He was also hired that year by Miami Coral Park Senior High School to be an assistant basketball coach for the junior varsity basketball team and an assistant coach for the varsity football team. At the beginning of that school year, the head coach for the varsity basketball team, Mr. Edward Joyner, was delayed in his arrival at school. For this reason during the first three or four weeks of school, Mr. Miller was appointed to take Mr. Joyner's place in coaching the varsity basketball team as well. This was the first year of Mr. Miller's assignment as a full-time teacher. The Petitioners are, respectively, the School Board of Dade County, a public agency charged with the hiring, employment and regulation of the operations, activities and practices of teachers it employs to instruct students in the Dade County Public School System. The Education Practices Commission is an agency of the State of Florida within the Department of Education and is charged with the duty of licensing and regulating the licensure status, practice and practice standards of teachers in the State of Florida. During the 1980-81 school year, as in the recent past, Coral Park Senior High School had a club called the Cagerettes which assisted the school's junior varsity basketball and varsity basketball teams by helping to raise funds for different functions as well as to work with the coaching staff performing such services as taking statistics during games. Members of that group were selected from the student body after "tryouts" where the individual applicants were judged on their personality and participation. Cindy Castillo was the captain or president of club for the 1980-81 school year. This was her third consecutive year as a member of the club and her second year as its president. Cindy Castillo approached Mr. Miller shortly after he became employed and after the school year began and asked him to be the faculty sponsor for the club. He had had no previous experience as a club sponsor for any school, but based upon Miss Castillo's representations concerning his insignificant duties as club sponsor, he agreed to become the sponsor of the club. One of the initial witnesses called by the Petitioner was Mr. Doug Wycoff. Mr. Wycoff was an instructor in the English Department at times pertinent here to and also acted in the capacity of athletic business manager for Coral Park Senior High School. As athletic business manger, Mr. Wycoff was required to oversee the financial business and accounting for monies received by the athletic department. These duties included overseeing ticket sales, crowd control, personnel at athletic events, overseeing fund raising efforts and managing the money received therefrom and in general assisting the athletic director. Mr. Wycoff testified that the high school maintained its banking accounts with the Sun Bank. Any monies derived from fund raising activities should go to him as a member of the athletic office in charge of finance and then they would be deposited with the school treasurer. The treasurer typically makes deposits on a daily basis via the Wells Fargo Armored Express Company. At all times material to these proceedings the practice was to segregate all accounts with the bank so that each different sports activity and the personnel involved therein would have their own account and otherwise maintain constant accessibility to the account. Prior to the commencement of the 1980-81 school year, Mr. Wycoff gave general instructions to all faculty members involved with the athletic program regarding who to contact should they have any questions regarding their involvement with a fund raising activity and how to account for the money. Although it was the witnesses' opinion that the Respondent had been present at that meeting, the Respondent denied it and the record does not establish whether or not the Respondent was present at that particular meeting. A condition precedent to the establishment of any fund raising activity of the high school, or a club or a group operating under the auspices of the school, required that the sponsor of the group obtain approval from Mr. Wycoff. The school records reveal, through Mr. Wycoff's testimony, that there were only two functions which had previously been approved for the basketball team. One was a car wash held at the beginning of the year in question and the the second was an M & M candy sale which took place later during the spring of the 80-81 school year. The approval for the car wash was obtained from Mr. Wycoff by the Cagerette captain, Miss Castillo. Near the close of the 80-81 school year the school principal ultimately learned that other fund raising activities had been conducted for which substantial sums of money had been received, which had been unapproved fund raising activities. The generated proceeds were received and unaccounted for by the Respondent. The car wash took place on or about September 27, 1980. Mr. Wycoff issued to Miss Castillo one hundred tickets with a prestamped price of $1.50 on each ticket for sale of car washes. The car wash was a success and generated approximately $900 in gross proceeds Two hundred dollars of that (apparently checks) was turned over to Mr. Wycoff, the balance in cash was retained by the Respondent. The Respondent admitted receiving perhaps $200 to $300 within a few days after this event. The Respondent explained ;to Miss Castillo and the other students involved in the car wash activity, that the monies were going to be held by him for the benefit of the Cagerettes and the basketball team in a special account at a bank near his home. On October 4, 1980, a car wash was held by the Cagerettes with the help of the Respondent. Mr. Wycoff was not requested to approve this endeavor, nor were the funds raised therefrom ever accounted for to Mr. Wycoff or any other employee or official of the school. Approximately $256 was generated and the proceeds were placed in the Respondent's custody at his request. The Respondent admitted that with regard to this fund raising effort he received approximately $247. On approximately October 11, 1980, at the instance of the Respondent and without prior knowledge or approval from Mr. Wycoff, the Cagerettes and basketball players held a donut sale. The total proceeds of that sale approximated the sum of $900. Cynthia Castillo took $594 of that sum to pay the vendor of the donuts and the balance, in the approximate sum of $311, was turned over to the Respondent. The Respondent admitted that he received approximately $300 from that fund raising activity. A second donut sale was held a short time later, also not approved by Mr. Wycoff or any personnel in his office. Approximately $368 were generated from that venture which was initially given to Coach Joyner. The record in this proceeding does not reflect what became of that $368, but it was not included in the sum ultimately the subject of criminal proceedings against the Respondent. In the fall of 1980, the Respondent suggested and initiated a procedure whereby members of the Cagerettes would pay monthly dues. This was a practice that was followed with the dues set in their approximate amount of $2 per member per month. These dues were collected for approximately one month and the monies were turned over to the Respondent in the amount of between $30 and $40. The Respondent never accounted for this money. The Respondent also initiated a procedure whereby the members of the Cagerettes would take up donations from individual girls for "penny week." These donations were taken up in the form of pennies on Monday; nickels on Tuesday; dimes on Wednesday; quarters on Thursday; and dollars on Friday. This activity grossed approximately $43 which was turned over to the Respondent and never accounted for. The initiation of this program on his own by the Respondent without approval of any one in authority was in direct conflict with rules promulgated by the school. Prescribed receipt books were to have been obtained from Mr. Wycoff and used so as to avoid any accounting for the money. This was not done. The Respondent also conducted another fund raising project whereby he solicited donations from students of $1 each for the purchase of athletic socks. At least one student made such a donation, but no socks were purchased. Mr. Wycoff established that no such collection project came to his knowledge and that the athletic department purchases and provides socks for its junior varsity teams at no cost to its members, thus the alleged need for donations to purchase athletic socks was false. During the course of the the 1980-81 school year, both the Respondent and his fellow coach and colleague, Mr. Joyner, made several attempts to have a banquet in honor of the basketball team and Cagerettes. Because of the lack of financing, the banquet never came to fruition. This was because certain funds raised by the above-mentioned fund raising projects during the year were unaccounted for by the Respondent, thus the banquet was severely under-financed. Additionally, several students paid to Mr. Miller at least $10 per banquet ticket for anticipated attendance of themselves and their respective guests. When the banquet was finally cancelled, the Respondent did not return their ticket purchase money. Mr. Lopez established that he was a student at that time and a member of the varsity basketball team. He purchased three tickets at $10 each, payable in cash, and was never refunded when the banquet was cancelled. JoAnn Oropesa paid the Respondent cash for banquet tickets, but was never refunded her money. She made demand on the Respondent for her money and the Respondent informed her that he would make a refund by check in the mail at the end of the school year. He failed to do so. During the school year the Cagerettes and the basketball team agreed with Coach Joyner to have a skating party at a neighboring commercial skating rink. In order to fund this event, the students involved agreed to sell tickets at the price of $3 per ticket. Mr. Wycoff was not advised of this money raising effort either and never received any money for an accounting, therefor, from either Respondent or Coach Joyner. JoAnn Oropesa sold all ten tickets assigned to her at $3 per ticket. The Respondent acknowledged receipt of the monies from that fund raising activity, representing that the money would be used for the banquet in lieu of the skating event which was cancelled, Ultimately, these monies were never returned to JoAnn Oropesa or other students purchasing tickets. Manuel Martinez purchased tickets for the skating party and never had a refund, being merely told by the Respondent to "wait." The same student, Manuel Martinez, established that the Respondent solicited members of his class on more than one occasion to make contributions to a touring gospel singing group of which he was a member and that in consideration for this donation a student could receive an "A" for a test or make-up work. The Respondent also offered that "detentions" or "make-up requirements" could be taken off a student's record, for any of the classes in which the student was enrolled with the Respondent, in return for such donations. The testimony of Manuel Martinez was corroborated by Raphael Lopez, another student of the Respondent's, who established that the Respondent solicited students for contributions to his gospel group in return for enhancement of their grades. Marilyn Munne observed the Respondent soliciting students for contributions to his gospel group in consideration for which he would have a detention "dropped off" which would automatically result in a better grade. The Respondent ultimately proved unable to account for the proceeds of the money generated by the various fund raising projects outlined above and caused resulting concern to the various witnesses testifying on behalf of the Petitioners. Miss Castillo estimated that at least $1,700 had been placed in the Respondent's custody, exclusive of the $368 which she had given to Coach Joyner and which was apparently not accounted for either. Even by the Respondent's own admission he received at least between $900 and $1,100 from these fund raising projects that school year. The testimony of Miss Castillo and other witnesses establishes that the Respondent represented that those monies were to held in a special account for the benefit of the Cagerettes and the basketball team. The Respondent by his own admission acknowledged that he told Miss Castillo that he would "possibly" place the monies in such an account. The Respondent did not have a bank account and did not customarily maintain one. He testified that he maintained a "strong box" used as a depository within his own home. The Respondent testified that he placed the subject money in a green plastic zippered bag (Respondent's Exhibit A) up until the time it was supposedly removed by persons unknown who, according to the Respondent, stole his car on or about February 8, 1981. The Respondent testified that he was about to go spend the night with a friend and put the subject zippered plastic bag or case into his car, went back into the house to get some more belongings and the car was stolen while he was inside. The car was not recovered until some days later and the money was gone, although the plastic bag remained in or returned to the Respondent's possession and was made Exhibit A in this proceeding. The Respondent did not demonstrate that any efforts were made to replace the money prior to his being prosecuted for its disappearance. He did not, for instance, establish that he made any effort to file a claim against his automobile insurance carrier in order to see that the students were recompensed. Ultimately, the State Attorney's Office for the Eleventh Judicial Circuit in and for Dade County, Florida, filed a one count felony Information charging the Respondent with grand theft. The victim in that case was alleged to be the Petitioner's chief witness, Miss Cynthia Castillo. The Respondent, in that criminal proceeding, never went to trial, offering instead to enter into an agreement with the State Attorney to go into the "pre-trial intervention program" which is apparently a sort of probationary status coupled with a court enforced reimbursement of at least $1,700 to the Dade County School Board. The entire scenario described above concerning the fund raising efforts, diversion of the funds generated by them and the Respondent's ultimate refusal or at least inability to account for the whereabouts of those funds and his ultimate criminal prosecution for diversions of the funds became a matter of knowledge of a number of students and parents at the school as well as Mr. Wycoff, Desmond Patrick Gray and other members of the Dade County School Board's administrative staff. It should be noted that although no conviction has been entered against the Respondent in the criminal proceedings referred to above, it has been established without question that he took the cash portions of the funds generated by the various above-described fund raising efforts into his possession, failed to properly account for them, failed to place them in a bank account and failed to deliver them over to Mr. Wycoff or other responsible authorities. He exhibited adequate knowledge of whom he should have delivered the funds to because he only retained the cash portions of the monies generated by each fund raising effort, turning over the non-fungible checks to those entitled to them.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore RECOMMENDED: That with regard to case No. 81-2115, the petition of the School Board of Dade County against Ronald Miller, the Respondent, Ronald Miller, be dismissed from his employment with the School Board of Dade County and forfeit all back pay. It is, further RECOMMENDED: With regard to case No. 82-1234, the petition of the Education Practices Commission, Department of Education, Ralph D. Turlington, Commissioner against Ronald Miller, that Ronald Miller have his Florida teaching certificate No. 464113 permanently revoked. DONE and ENTERED this 22nd day of December, 1982 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1982. COPIES FURNISHED: Michael J. Neimand, Esquire Attorney for School Board 3050 Biscayne Boulevard, Suite 300 Miami, Florida 33137 Craig Wilson, Esquire Attorney for Education Practices Commission 315 West Third Street West Palm Beach, Florida 33401 Sarah Lea Tobocman, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Dr. Leonard M. Britton, Superintendent Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Donald L. Griesheimer, Executive Director Department of Education Education Practices Commission The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER (SCHOOL BOARD) ================================================================= SCHOOL BOARD OF DADE COUNTY SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 81-2115 RONALD MILLER, Respondent. /
