The Issue Whether the Respondent engaged in sexual misconduct with and S.L. when they were students at a district high school, and should be terminated for violation of Volusia County School Board Policies.
Findings Of Fact The Petitioner is the School Board of Volusia County. The Petitioner is charged with the operation of the public schools in Volusia County to including directing, controlling, and disciplining teachers employed to teach in those schools. The Petitioner has entered into contractual agreements concerning the discipline of its teachers. The instant case arises from Petitioner's execution of its duties to direct, control and discipline a teacher whom it had employed. The Respondent is Reuben Mordecai, Jr., who was employed as a classroom teacher and athletic coach at Mainland High School by the School Board of Volusia County. The Respondent had been employed as a classroom teacher and athletic coach for girls' basketball and track teams since 1989. On or about September 6, 2000, L.G., a female student at Mainland High School, alleged that the Respondent spoke to her in a sexually explicit and improper manner. On or about September 7, 2000, L.G. further alleged that the Respondent had touched her in a sexually inappropriate manner. These allegations were reported to the Board's Department of Professional Standards and to the Daytona Beach Police Department. Pursuant to policy, the Board limited its interviews of the alleged victim and delayed its investigation of the incident pending resolution of any potential criminal charges. While awaiting further investigation, the Board initially reassigned the Respondent to a non-instructional position in Facilities Maintenance Department. He was in this position from September 11, 2000, until the Board transferred him to the Educational Development Center in August 2001. After the police had finished their investigation, the Board conducted an investigation into the allegations. Based upon its investigation, the Board suspended the Respondent without pay and initiated termination proceedings against him. While the case was pending, the Board became aware of allegations made by S.L., a former student of the Respondent, who also alleged that he had made improper sexual comments to her and had improperly touched her. The charges against the Respondent were amended to include these allegations. S.L. and L.G. knew one another and had a friendly relationship with one another both in and out of school. The essence of S.L.'s allegation was that, while she was a student at Mainland in 1998, the Respondent let her use his coaching office in the morning to make telephone calls to her boy friend who was not in school; that during these calls, the Respondent was present on more than one occasion. The Respondent talked to her about having sex with his wife, talked about sexual matters with her, and on one occasion kissed her neck and fondled her buttocks and thighs. S.L. testified that she said nothing to the Respondent about his conduct and left for first period class. Thereafter, she stopped going to his office. S.L. testified that she reported this to Susan Lewis, a teacher at Mainland, but did not identify herself as the victim. She also testified that she reported the Respondent's actions to Walter Brunson and Rose Rowland, the assistant principal. Mr. Brunson was called to testify, but not asked if he recalled S.L.'s mentioning this to him. Ms. Rowland was asked if she recalled S.L. having reported this incident to her. She did not remember S.L. telling her about an incident involving inappropriate touching or speech by the Respondent. The Respondent denies having touched, kissed, or spoken to S.L. in an inappropriate fashion. He did not remember her being in his class, although he accepted that school records reflected that she was enrolled in one of his classes. I do not find the testimony of S.L. credible. L.G. testified that she had been a member of the girls' track team and the following year had been an assistant manager for the football program. She stated that she and the Respondent had made bets about various things, the outcomes of meets, individual performances, etc. The loser had to buy the other a soda or snack. They also discussed various matters, including her relationships and school. She stated that at some point, their discussions included sexual content. She stated that he had observed her in track shorts and commented on the imprint of her vagina. With regard to the allegations of improper touching, she stated that they had commenced a discussion about her boy friend who was bothering her. During this discussion, he discussed having had sex with his ex-wife. This alleged encounter between L.G. and the Respondent moved from the bench outside the gym, to the Respondent's classroom, where L.G. was going to wait for her ride to pick her up and the Respondent was going to grade papers. While in the classroom, L.G. testified that she was playing with the computer and a discussion occurred which led to a bet about the definition of oral sex. She stated that she wrote her answer on a piece of paper and gave it to the Respondent, who said it was wrong. Because she lost the bet, he wanted her to pull her pants down and show him her vagina. She testified that she said okay, and pulled down her shorts. L.G. testified that he asked her to sit on the front of his desk and spread her legs, which she did. When he touched her vagina, she jumped down, pulled up her shorts and left. L.G. did not explain why she abruptly ended the encounter when she had freely engaged in all of the previous conduct when refusing earlier would have been much easier both physically and emotionally. She testified that she did not initially report the incident because she was scared; however, her fear did not keep her from participating in the acts leading up to the touching. L.G. testified that she continued to go to school, but people asked her if she was okay. She assumed something about her manner was different. The Respondent asked her in the auditorium if she was okay, and she said she was. She stated she went and sat by herself, and Mr. Brunson came and asked her if she was okay. He asked her about rumors that were circulating in the school that the Respondent had said inappropriate things to her. L.G. denied having spoken to anyone about the alleged events prior to Mr. Brunson's speaking to her. See Page 82 of the Transcript. No one could have overheard L.G. and the Respondent. It is highly doubtful that the Respondent told anyone about the alleged events. L.G. says that she did not talk to anyone about the incident until several weeks after it occurred when she told her boy friend, R.M., about it. See page 94 of the Transcript. This contradicts her testimony on Page 82. The Respondent denies having made the statements attributed to him or touching L.G. I do not find the testimony of L.G. credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That no action be taken against the Respondent. DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 2002. COPIES FURNISHED: Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Thomas Gonzalez, Esquire Thompson, Sizemore & Gonzalez 501 East Kennedy Boulevard, Suite 1400 Post Office Box 639 Tampa, Florida 33602 William E. Hall, Superintendent Volusia County Schools Post Office Box 2118 Deland, Florida 32721-2118 Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes (2006), and if so, what remedy should be ordered?
Findings Of Fact Petitioner is a female formerly employed by the School District. From February 2006 to April 18, 2007, she was employed as a paraprofessional in the special education unit at Flagler Palm Coast High School. Petitioner is an "aggrieved person" within the meaning of Section 760.02(6) and (10), Florida Statutes, in that Petitioner is female and filed a complaint of gender discrimination and retaliation with the Commission. Respondent is an "employer" within the meaning of Section 760.02(7), Florida Statutes. From the inception of her employment and until March 13, 2007, Ms. Price was assigned as a paraprofessional (parapro) in Mr. Robert Rinker's classroom. Ms. Price had not been in the work force for several years before taking the job at Flagler Palm Coast High School and was taking classes at night to obtain her teaching degree. Mr. Rinker teaches in what was described as a self- contained classroom for students who are classified as emotionally handicapped in the exceptional education program. At Flagler Palm Coast High School, at least some of the students in the program would attend classes in the 300 building of the campus, and would have fewer classes and teachers compared to a traditional schedule. However, students would not necessarily be limited to one classroom all day. They could, for example, have classes with other special education teachers in the 300 building. Parapros are evaluated by the assistant principal. While teachers with whom the parapro worked might be asked to provide input for evaluations, the teachers are not considered to be their supervisors. Ms. Price was in the classroom with Mr. Rinker during first and second periods, between classes, and during lunch. During third and fourth period, Mr. Rinker supervised students in the gym while Ms. Price remained in the classroom with students who did not go to the gym. Stan Hall also teaches special education in the 300 building of Flagler Palm Coast High School. During Ms. Price’s employment, he was assisted by a parapro named Kathy Picano. Ms. Picano sometimes visited Ms. Price in Mr. Rinker’s classroom. She is significantly younger than both Ms. Price and Mr. Rinker. Mr. Rinker is a jovial man and a veteran teacher. He coaches soccer and has coached basketball. He is well liked by his peers and by the students he teaches. Mr. Rinker often tells jokes and stories, and sometimes his jokes are “off color” or of a sexual nature. The jokes and stories are told to both male and female colleagues and not in the presence of students. No other staff member had ever told Mr. Rinker that his jokes were offensive and no one had ever complained to supervisory personnel that they were offended by Mr. Rinker’s behavior. Mr. Rinker sometimes used the phrase, “a good lovin’ is the universal cure.” He testified that he had heard this phrase since his childhood from his older relatives, and simply meant that when someone is having a bad day, a hug or other encouragement helps make things better. The remark could be addressed to students and staff alike. He did not mean anything sexual by the phrase, and others hearing the phrase did not interpret it as a sexual remark. Mr. Rinker’s testimony is credited. Ms. Price, however, was offended by Mr. Rinker’s jokes. She testified that nearly every conversation with Mr. Rinker became focused on sex. According to Ms. Price, the first week she worked with Mr. Rinker, they were discussing mailboxes in the classroom, and he stated, “let’s talk about the box you are sitting on.” She understood that he was referring to her vagina. Ms. Price stated that she was shocked by this statement, but did not say so because it was her first week on the job. Mr. Rinker does not remember ever making such a statement. Whether or not this incident actually happened, it occurred over a year prior to Ms. Price's complaint to either the School District or the Commission. Also that first week, Ms. Price mentioned in the classroom that she had a headache, and in response Mr. Rinker rubbed her shoulders or neck. Ms. Price was offended but did not tell Mr. Rinker his touch was unwelcome. Ms. Price claims that while things were not too bad the first semester she worked with Mr. Rinker, eventually it got to the point where she was unable to have a conversation with Mr. Rinker without it focusing on sex. She claimed that he sometimes purposefully rubbed up against her in the classroom.1/ In order to avoid talking to him or being physically close to him, she moved her desk to another part of the room. While she claimed the situation was intolerable, she did not report Mr. Rinker’s behavior to any supervisor and did not tell him she was offended by his conduct. Kathy Picano and Ms. Price sometimes spent time together in Mr. Rinker’s classroom. Mr. Rinker sometimes told jokes in Ms. Picano's presence and sometimes “invaded her personal space.” He acknowledged that he might have patted her on the back in passing as part of a greeting, but Ms. Picano described the touch as no different from what she might have received from her grandmother. Although Ms. Picano did not particularly care for Mr. Rinker’s jokes, she attributed them to being “just his personality.” She was not offended by Mr. Rinker’s behavior and, before being questioned with respect to Ms. Price's complaint in this case, never complained about it to him or anyone else in authority at the school. She acknowledged hearing Mr. Rinker make the “good lovin” comment, but found it endearing, as opposed to harassing. Ms. Price, however, was deeply offended by what she viewed as Mr. Rinker’s behavior toward Ms. Picano. The things with which she took offense did not stop with Mr. Rinker’s jokes or the attention she perceived that he gave to Ms. Picano. She did not think that Mr. Rinker or Mr. Hall did an adequate job of teaching, and was upset that Mr. Hall’s students were allowed, on occasion, to come to Mr. Rinker’s classroom to finish assignments because they were disruptive. She did not appreciate the way Mr. Peacock, the assistant principal, performed his job and believed there was an unwritten code where coaches and athletes did not have to follow the same rules as others on campus. Perhaps most of all, she was offended because students in Mr. Rinker’s classroom talked about sex too much and she did not believe that he did enough to stop it. In her view, this was exacerbated when Mr. Hall’s students were allowed to come over and finish work. Further, she believed that the students were using the computers in the classroom to access inappropriate videos and music that were offensive. Computers were in the classroom for students to complete assignments and to do research for school projects. When they were finished with their work, students sometimes played games on the computers and checked sports sites. Sites such as “myspace,” however, were blocked in accordance with school policy. While Ms. Price claimed the students were using the computers for inappropriate purposes, she admitted that she could not see what was on the computer screens from where she sat in the classroom. The testimony of the students did not corroborate her claim. All stated computers were used for school work and when school work was finished, to play games as stated above. Only one student indicated that he watched music videos. All the others denied doing so. There is no question that the students in Mr. Rinker’s class sometimes talked about sex and used profanity in the classroom.2/ One of the classes was a health class. The students were teenagers, many of whom had significant emotional problems with little or no support at home. Some of their individual education plans addressed the problem of too much use of profanity, with a goal of reducing its use in the classroom setting. Staff who testified all stated that trying to eliminate the use of profanity entirely was probably not a realistic goal, but modifying behavior to reduce it was. Their testimony is credited. Ms. Price was not the only one who complained about students talking about sex in the classroom. Barbara Ryan was another parapro who sometimes worked in Mr. Rinker’s classroom. She agreed that the students sometimes talked about sex and remembered a particular incident where she thought the discussion was particularly explicit and she said something to Mr. Rinker. He told the students involved to “knock it off.” In December 2006, an anonymous call came in to Ms. Myra Middleton at the District office complaining about inappropriate language used by students in the 300 building. Ms. Middleton referred the person to Mr. Peacock in accordance with School District policy. She spoke to Mr. Peacock, who said he would take care of it. After the phone call, Mr. Peacock went to each of the classrooms in the 300 building and spoke to the students about the inappropriateness of using profanity and talking about sex in the classroom. There was no evidence, however, that the anonymous call was placed because of conduct occurring in Mr. Rinker's classroom. The talk by students did not necessarily stop after Mr. Peacock spoke to the students. However, the more credible evidence is that these conversations did not involve the entire class, but rather small groups of students. Several students testified they never heard talk about sex in the classroom. The conversations that did occur took place while other conversations were also taking place. When Mr. Rinker heard the conversations, he told students to stop. There is no credible evidence that Mr. Rinker heard each conversation that Ms. Price heard or that he deliberately chose not to address the students’ behavior. Nor is there any evidence that the students’ discussions regarding sex were in any way directed toward her. Mr. Rinker was not particularly computer literate. As a consequence, Ms. Price entered all of the students' grades in the computer. She had access to Mr. Rinker’s password and would print out his e-mail. In early March, 2007, Mr. Rinker received an e-mail from Mr. Peacock’s secretary directing that he see Mr. Peacock regarding his evaluation. Ms. Price did not believe that Mr. Peacock intended to complete the required observation for Mr. Rinker's evaluation, and this offended her. Ms. Price answered the e-mail as if she were Mr. Rinker, noting that no observation had yet taken place. This conduct violated the written standards applicable to parapros. Mr. Peacock discovered that Ms. Price, and not Mr. Rinker, had responded to his secretary's e-mail. On March 9, 2007, Mr. Peacock called Ms. Price into his office and told her that it was improper for her to send e-mails under Mr. Rinker’s name. During the meeting, Ms. Price explained that she was inputting grades, attendance and all other computer data. Mr. Peacock advised that additional training would be made available for Mr. Rinker, but that she was not to perform his duties. Ms. Price was under the impression that she was receiving a reprimand. She also felt that Mr. Rinker, who was also counseled by Mr. Peacock, did not defend her as vigorously as he should, and that he was the one who should be in trouble. In fact, Mr. Rinker told Mr. Peacock that Ms. Price had his permission to use his password for the computer and that she was very helpful. Ms. Price’s reaction to this incident was well out of proportion to the incident itself. Moreover, she did not appear to recognize that what she did in signing Mr. Rinker’s name to the e-mail was wrong. She was crying, both after the meeting and into the next week. The meeting with Mr. Peacock took place on a Friday. On Monday, Ms. Price was on a previously-scheduled day off. On Tuesday, she was still upset to the point of tears, and went to see Sue Marier, the ESE Department head. Although she was told repeatedly, both by Ms. Marier and by Mr. Peacock, that she was not being formally reprimanded for the incident, she continued to believe she was being treated unfairly. She told Mr. Rinker, Ms. Marier and Mr. Peacock that if she was going down, then so was Mr. Rinker. The following day, March 14, 2007, Ms. Price went to the principal, Nancy Willis, and complained that Mr. Rinker had been sexually harassing her since the beginning of her employment. Ms. Willis advised Ms. Price to put her complaint in writing, which she did. The complaint was forwarded immediately to the district office for investigation. During the investigation, Mr. Rinker was suspended with pay. Mrs. Willis also asked Ms. Price if she wanted to be moved to a different classroom, and Ms. Price indicated she did not want to be around Mr. Rinker. Mrs. Willis went to Sue Marier, the ESE Department Head, and asked where there was a need for a parapro so that Ms. Price could be transferred. At the time of the request, Ms. Marier did not know that Ms. Price had filed the complaint regarding sexual harassment and thought Ms. Price was still upset over the computer e-mail incident. She told Mrs. Willis that the greatest need was in the class for autistic children, and Ms. Price was transferred to that class. A decision had been made to add more staff, including another teacher, for that area, but positions had not yet been advertised. Parapros do not generally have the right to choose their assignments. They are placed in the classroom with the greatest need. At the time of Ms. Price's transfer, the autistic classroom was the classroom with the greatest need. This transfer did not result in a change in pay or status. There were significantly fewer students in the autistic class than in Mr. Rinker's class, and at least one of the students had a one-on-one aide in the classroom. While there was a slight change in schedule, it was not significant, and she remained a parapro at the same rate of pay. Both Sue Marier and Nancy Willis went by at different times to check on Ms. Price in her new placement. The more credible evidence indicates that Ms. Price did not complain about being in this classroom. The School District has two policies that deal with sexual harassment: Policy number 662, entitled Prohibition of Sexual Harassment - Employees, and Policy number 217, entitled Prohibiting Discrimination, Including Sexual and Other Forms of Harassment. It is unclear why the School District has both at the same time. The definitions regarding sexual harassment in both policies are similar, with Policy number 217 being slightly more detailed. The complaint procedure outlined in Policy number 217 is clearly more detailed, and it cannot be said that it was followed to the letter in this case. However, Policy number 217 was amended after the investigation took place in this case. No testimony was presented to show whether the more detailed procedures presently listed in Policy number 217 were in place at the time of the investigation. Further, the documents related to the investigation reference Policy number 662, as opposed to Policy number 217. It is found that the investigation was conducted in accordance with Policy number 662, and that to do so was appropriate. Ms. Price’s complaint of sexual harassment was investigated by April Dixon and Harriet Holiday. Over the course of the next several days, both Mr. Rinker and Ms. Price were interviewed (separately) as well as several other staff members. Those staff members included Sue Marier, Kathy Picano, Donna Dopp, Stan Hall, Pat Barile (Sue Marier's assistant), Mr. Tietema (another teacher), and Barbara Ryan. The investigation conducted was reasonable, given the allegations by Ms. Price. Ms. Price's written complaint stated that Mr. Rinker made inappropriate sexual comments; that he rubbed up against her on numerous occasions; that Mr. Rinker allowed the students to talk in the classroom using sexually explicit language and had made no effort to stop it; and that he had made inappropriate sexual comments to Ms. Picano. Policy number 662 provides in pertinent part: Sexual harassment consists of unwelcome sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when: submission to such conduct is made, either explicitly or implicitly, a term or condition of employment (or of an individual's education). submission to or rejection of such conduct is used as the basis for an employment or employment decisions affecting that individual; or such conduct substantially interferes with an employee's work performance, or creates an intimidating, hostile or offensive work environment. Sexual harassment, as defined above, may include but is not limited to the following: verbal harassment or abuse; pressure for sexual activity; repeated remarks to a person with sexual or demeaning implications; unwelcome or inappropriate touching; suggesting or demanding sexual involvement accompanied by implied or explicit threats concerning one's employment. * * * Procedures. -- Any employee who alleges sexual harassment by any staff member must report the incident directly to the building principal or the employee's immediate supervisor. Alternatively, the employee may make the report to the Assistant Superintendent of Instructional Accountability. Filing a complaint or otherwise reporting sexual harassment will not affect the individual's status, future employment or work assignments. The right of confidentiality, both of the complaint and of the accused will be respected, consistent with the Board's legal obligations, and with the necessity to investigate allegations of misconduct and take corrective action when this conduct has occurred. In determining whether alleged conduct constitutes sexual harassment, the totality of circumstances, the nature of the conduct, and the context in which the alleged conduct occurred will be investigated. The Superintendent or designee has the responsibility of investigating and resolving complaints of sexual harassment. A substantiated charge against a Board employee shall subject such employee to disciplinary action, including but not limited to warning, suspension or termination, subject to applicable procedural requirements. After investigation of Ms. Price's complaints, April Dixon discussed her findings with Mr. Delbrugge, the School District Superintendent. She also turned over to him all of the transcripts of taped interviews and her conclusions regarding the investigation. She concluded, and he agreed, that the investigation showed Mr. Rinker told inappropriate jokes in the workplace but that in all other respects Ms. Price's complaints were not substantiated. The investigation also revealed that Ms. Price also used profanity and occasionally told sexually- related jokes in the workplace. The Superintendent decided that the appropriate penalty (in addition to the suspension with pay already imposed) was to reprimand Mr. Rinker with a letter in his file; to require him to receive additional training on sexual harassment; to warn him that further complaints would result in termination; and to place him on probation for the remainder of the school year. This discipline was consistent with the School District's collective bargaining agreement concerning discipline of instructional staff. Mr. Rinker was informed of this result March 19, 2007, and completed the sexual harassment training as required. Ms. Price was notified informally of the results of the investigation that same day. She received official notification by letter dated May 3, 2007. Ms. Price was very dissatisfied with the results of the investigation and the action taken by the School District. She felt that Mr. Rinker should be fired. It is clear, after hearing, that nothing less then Mr. Rinker's termination would appease her. Ms. Price was also unhappy with her new placement. She did not like being in the classroom with the autistic students and felt they were dangerous. She felt that she should have been allowed to remain in her original classroom and Mr. Rinker should have been removed. After less than three weeks, she tendered her resignation. This three-week period included one week off for Spring Break and some personal leave days taken due to Ms. Price's husband having a stroke. Her resignation is dated April 18, 2007, but her last day working in the classroom was approximately April 6, 2007. Ms. Price's resignation was voluntary. While there was some belief that she left because of her husband's stroke, Ms. Price disputes that assertion and insists that it was because of the conditions in the new classroom to which she was assigned. Her resignation letter, however, references neither reason. It states: Dear Ms. Willis: It is with sincere regret that I am writing this letter of resignation as an ESE Para Professional for Flagler Palm Coast High School. Please accept this as such. I do apologize for the short notice. I would also like to take this opportunity to express to you my appreciation of your handling of my complaint. You are the only one who has validated me as a person and as a worthy employee. I only had a brief encounter with you but it was enough for me to know that working directly under you would have been a pleasure as well as a great learning experience as I respect your leadership abilities. I recognize that this is a trying situation for all involved and that you have done your very best to rectify the matter under the circumstances. It is important for me to let you know that whatever happens in the future in regards to my claim, this is no way a reflection on you. I truly hope that you can appreciate my position and the importance of making positive changes for the future. Based upon the evidence presented, it is found that Ms. Price resigned for a variety of reasons, including her husband's stroke and her unhappiness with the new placement. However, her dissatisfaction with the handling of the complaint regarding Mr. Rinker and his continued employment was at least a part of her decision. Ms. Price was not subjected to an adverse employment action as a result of her complaint. To the contrary, school officials transferred her to another classroom at her request. The conditions in the new classroom setting were not onerous.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Florida Human Relations Commission dismissing Petitioner’s complaint in its entirety. DONE AND ENTERED this 8th day of August, 2008, 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 8th day of August, 2008.
The Issue The issues in this case are whether Respondent violated subsections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j), Florida Statutes1/, and Florida Administrative Code Rules 6B- 1.006(3)(a),(e),(h) and (5)(a), and if so, what discipline should be imposed.
Findings Of Fact Background Respondent holds Florida Educator’s Certificate 940141, covering the area of Middle Grades Integrated Curriculum, which was valid through June 30, 2013. At all times pertinent to the allegations in the Amended Administrative Complaint in this case, Respondent was employed as a Mathematics Teacher at Citrus High School (“CHS”) in the Citrus County School District ("District"). Respondent worked as a teacher at CHS from approximately 2005 until his resignation in 2009. The allegations in the Amended Administrative Complaint revolve around Respondent's relationship with Jillian Messer ("Ms. Messer”), who graduated from CHS in June 2009. Respondent was Ms. Messer’s math teacher in her freshman year, but did not teach her in any subsequent years. Ms. Messer turned 18 years old on April 17, 2009, approximately six weeks prior to her graduation. Beginning in March 2009, Respondent, who has custody of his two young sons, needed an occasional babysitter to accommodate his out-of-town football coaching duties. He sought a recommendation from a co-worker, Shannon Justice ("Ms. Justice"), a guidance clerk at CHS at the time, about a babysitter he might use. Ms. Justice, who used Ms. Messer as a babysitter for her daughter, checked with Ms. Messer to see if she would be amenable to sitting for Respondent’s children from time to time. Ms. Messer informed Ms. Justice that Respondent could contact her to set up sitting arrangements. Between March, 2009 and May, 2009, Ms. Messer babysat Respondent’s two boys on approximately five occasions. Ms. Messer continued to provide babysitting services to Ms. Justice during the spring of 2009 as well. Ms. Messer’s last day of testing as a CHS senior was on Friday, May 29, 2009, and her last day of classes was June 1, 2009. However, notwithstanding the completion of exams and classes, Ms. Messer remained a CHS student until she received her diploma from the District superintendent of schools and was declared a graduate on the evening of June 2, 2009. Genesis of the Complaint Tammy Everhart ("Ms. Everhart") was a guidance office colleague of Ms. Justice’s during the 2008-2009 school year. The two women were cordial in the workplace, but were not close friends. Ms. Justice became wary of Ms. Everhart during the 2008-2009 school year because she often found her too interested in the personal lives of her colleagues. In May, 2009, a week before the CHS graduation ceremony, Ms. Justice allegedly told Ms. Everhart that Respondent and Ms. Messer were “seeing each other” and “dating outside the county.” According to Ms. Everhart, Ms. Justice also told her that the relationship between Respondent and Ms. Messer was "O.K." because Ms. Messer was 18 years old and “she (Ms. Messer) planned on remaining a virgin.” Ms. Everhart asked Ms. Justice to report this information to the school administration. There is no indication that Ms. Justice did so. About two weeks later, Ms. Everhart told her husband about her conversation with Ms. Justice regarding Respondent and Ms. Messer. Ms. Everhart’s husband is a District school administrator and was aware that any inappropriate relationship between a teacher and a student must be reported to a school district administrator. On the following school day, Ms. Everhart reported her concerns to Assistant Principal Linda Connors, who then reported it to the school principal, Leigh Ann Bradshaw. Principal Bradshaw contacted the District office and an investigation was then initiated by the Superintendent. At hearing, Ms. Justice denied having spoken to Ms. Everhart about Respondent’s dating or planning to date Ms. Messer. Ms. Justice and Respondent had spoken at times during the spring of 2009 about his dating relationship with a woman from the Clearwater area, and it is possible Ms. Everhart overheard some parts of those conversations and mistakenly assumed it was Ms. Messer whom Respondent was dating away from Inverness. The District's Investigation At a preliminary interview conducted in the early afternoon of June 17, 2009, Respondent was questioned by the District’s Director of Human Resources, David Roland, and Policy Compliance Officer, Teresa Royal. The interview concerned whether or not Respondent was involved in a romantic relationship with Ms. Messer, and whether he had communicated with others about such a relationship. There was no record of the precise questions asked during the interview, or of Respondent’s precise answers. During this interview, Respondent told the investigators that he had spoken with Ms. Messer five or six times, and that those conversations related to Ms. Messer babysitting his children. During the course of this interview Respondent acknowledged that Ms. Justice had sent him some pictures of her daughter's birthday party, and that Ms. Messer may have been in one of the pictures. He added that the pictures were of kids in the pool and other group pictures. Toward the end of the June 17th interview, Respondent confirmed the existence of e-mails between him and Ms. Justice that included references to the possibility of Respondent developing a dating relationship with Ms. Messer after she graduated. Respondent was not presented or confronted with those e-mails during the June 17th meeting. Although there is some evidence that Respondent did not initially acknowledge the existence of the e-mails when asked about them, it does not appear that he attempted to hide the existence of the e-mails between him and Ms. Justice. During the initial interview of June 17, 2009, and again in written form during a second interview held later that same afternoon, Mr. Roland and/or Ms. Royal cautioned Respondent against communicating with others about the subject matter of the investigation; however, he was not prohibited from speaking with Ms. Messer or Ms. Justice about unrelated matters. The "Notice of Investigation" memorandum Respondent signed during the second interview that afternoon specifically prohibits only discussions “regarding the matter under investigation.” Ms. Royal also interviewed Ms. Messer on June 17, 2009. During that interview Ms. Messer denied that there was an inappropriate relationship with Respondent. The Pool Party and Photograph of Messer On Sunday, May 31, 2009, Ms. Justice invited 45-50 people to her home for a pool party to celebrate her daughter’s birthday. Respondent, his children, several other children, Ms. Messer, and many adult friends and CHS work colleagues attended this afternoon party. Ms. Messer was invited both because Ms. Justice’s daughter adored her babysitter, and to assist Ms. Justice before and after the party. Ms. Messer arrived at, and left, the party alone. Most of the guests wore swimsuits during the pool party and Ms. Justice took pictures of children, including Respondent’s sons, and some of the adult guests, including Ms. Messer, who was wearing a bikini. On June 2, 2009, Ms. Justice forwarded several party pictures, mostly of his sons, to Respondent’s school e-mail address as attachments to an e-mail with the subject line “Pictures from Party.” One of these photographs was of Ms. Messer in the bikini she wore during the pool party. Although Ms. Messer is clad in a bikini, the photograph itself is unremarkable, and portrays a young female appropriately attired for a pool party. Other children are visible in the background of the photo. The E-Mails between Respondent and Justice Between June 1, 2009, and June 5, 2009, Respondent and Ms. Justice exchanged a series of e-mails that included subject matter related to the possibility that he and Ms. Messer might consider starting a dating relationship in the future. In an e- mail dated June 2, 2009, Ms. Justice specifically noted that Respondent and Ms. Messer had not yet had enough time to spend together to have discussed the possibility of future dating: Sent= Tues. 6/2/09 @ 1:00pm To: Randall Worley From: Shannon Justice Ok. I am back you sound so negative about yourself. I know that we are always so hard on ourselves but you are not destined for singlehood you will find someone someday and don't think JM is out of the question you haven't ever had enough time to be with her or even discuss dating. Two days later, on June 4, 2009, a series of e-mails between Respondent and Ms. Justice indicate that Respondent and Ms. Messer had recently discussed the possibility of a future dating relationship. This is the first time Respondent mentioned to Ms. Justice having spoken to Ms. Messer at all about dating, and the first time Respondent and Ms. Messer discussed the possibility of dating in the future. The full text of those June 4, 2009, e-mails follows: Sent = Thurs. 6/4/09 @ 8:44 am To = Shannon Justice From = Randall Worley So yeah I have been talking to JM lately. She is not sure what parents would say. * * * Sent = Thurs. 6/4/09 @ 8:48 am To = Randall Worley From = Shannon Justice Have you been texting or talking. So she is definitely interested??? I don’t think her parents would actually mind I think maybe you all should date a while then find out where that leads before talking about parents. That is just from experience. We dated almost 4 months before my parents ever knew. Then they never met Kevin’s parents till our rehearsal dinner. * * * Sent = Thurs. 6/4/09 @ 8:55 am To = Shannon Justice From = Randall Worley As far as she goes, yes she is interested. But I don’t think she wants to not tell them. It would be hard for us to date without them knowing wouldn’t it? And funny story, I apparently had her mom in my car graduation night and didn’t know it. Well yesterday her mom was talking to the family about how this nice sweet guy was her driver and that I was pretty cute. So she was like that’s coach Worley. That’s funny. And we have been doing both texting and talking. * * * Sent = Thurs. 6/4/09 @ 9:26 am To = Randall Worley From = Shannon Justice As far as JM my opinion is go for it. You guys have similar thing in common and plenty to talk about with regards to her parents you can play it off. It isn’t that hard you guys can really do it if you want. That is funny about her mom thinking you were cute buy (but?) cuteness only goes so far right??? * * * Sent = Thurs. 6/4/09 @ 9:32 am To = Shannon Justice From = Randall Worley Ain’t that the truth. And yes we never have enough to talk about. We are always talking and laughing and all that. We have fun together. I talked to my mom and uncle about it last night. They were totally cool with it too. I think JM just need some reassurance about it. That where maybe you come into play right. * * * Sent = Thurs. 6/4/09 @ 9:43 am To = Randall Worley From = Shannon Justice Of course I have always talked good about you to her. I will keep it up. I think she may babysit sometime next week she is suppose to call me tonight about watching sissy next week. I will help the most I can so do you still have her on your mind all the time? * * * Sent = Thurs. 6/4/09 @ 9:46 am To = Shannon Justice From = Randall Worley As a matter of fact I do. It is crazy. It has been 2 years since I have been with anyone and even the few girls that I have dated I didn’t think about like this. I don’t know if this is good or not?? * * * Sent = Thurs. 6/4/09 @ 10:44 am To = Randall Worley From = Shannon Justice Well maybe she is special to you and you may have feelings for her that you didn’t know you did. It may be a really great thing for the both of you. * * * Sent = Thurs. 6/4/09 @ 10:51 am To = Shannon Justice From = Randall Worley Seriously. I can’t get her out of my head. I don’t think that I have really felt like this in a very very very very long time. It is scary because of the feeling itself but also because of the circumstance. I don’t really know if I should feel this way? * * * Sent = Thurs. 6/4/09 @ 11:49 am To = Randall Worley From = Shannon Justice You are crazy for her. That is good. * * * Sent = Thurs. 6/4/09 @ 2:26 pm To = Shannon Justice From = Randall Worley No kidding. This is soooooooo not good. I don’t like this feeling at all. * * * Sent = Thurs. 6/4/09 @ 2:29 pm To = Randall Worley From = Shannon Justice Have you talked to her today? * * * Sent = Thurs. 6/4/09 @ 2:43 pm To = Shannon Justice From = Randall Worley Yes I have. We should probably talk when you get a chance. So call me sometime.When you leaving work? Telephone Records of Calls between Respondent and Messer Telephone records received in evidence (over the hearsay objection of Respondent)2/ indicate that there were 89 telephonic communications between Respondent and Ms. Messer between March 3, 2009 and June 18, 2009. The records also reflect that phone conversations did take place between Respondent and Ms. Messer on June 17, 2009. However, there is no evidence as to the subject matter of those communications, nor credible evidence that they spoke about anything related to the investigation. Another interview with Respondent was conducted by Ms. Royal on July 8, 2009. At that time Respondent again acknowledged having received the e-mailed photograph of Ms. Messer in a bikini. Publicity Regarding the Investigation The only area newspaper article written about the allegations against Respondent appeared on August 19, 2009, in the Citrus County Chronicle. The impetus for the article appears to be the filing of the formal complaint against Respondent, and his subsequent resignation. The article did not name Ms. Messer as an involved party, but included her anonymous statement to the effect that nothing unprofessional happened between her and Respondent, and quoted District officials to the effect that there was no evidence of sexual harassment or of Respondent expressing his feelings to the student. At hearing, Superintendent Himmel testified about the generic impact of negative teacher articles upon some in the community. On cross- examination, Ms. Himmel did not rule out re-hiring Respondent as a teacher if he is cleared of wrongdoing in this matter. Lack of Direct Evidence of a Relationship During the District’s interviews with him, to the extent Respondent’s recollection of the number, duration, and subject matter of every phone conversation he had with Ms. Messer between March and June 2009, was limited or inaccurate, such limitations reasonably appear to be the result of the passage of time, and not purposeful deception. There is no evidence that Respondent and Ms. Messer ever discussed dating, or any inappropriate subject, during any telephone, text, or in-person communications between them while she was a student. Although Respondent and Ms. Messer spoke on the phone from time to time about babysitting concerns and logistics, and apparently on other occasions about Ms. Messer’s college aspirations, scholarship opportunities, college selection, and related matters, there is no direct evidence of what they specifically spoke about. At hearing, no witness testified to having personal knowledge of such conversations, and both Respondent and Ms. Messer denied to District officials that they ever engaged in any discussions about dating or about any inappropriate matters prior to her June 2, 2009, graduation date. Although Ms. Messer and Respondent occasionally saw each other outside the school setting through babysitting- related interactions, the record lacks any credible evidence that they ever dated or engaged in any inappropriate physical contact. Further, Respondent, Ms. Messer, and Shannon Justice, all have specifically and consistently denied that there was any physical, romantic, dating, or sexual relationship between Respondent and Ms. Messer at any time. Although the telephone records introduced by Petitioner establish that Respondent and Ms. Messer spoke frequently, there is insufficient competent substantial evidence to establish that the subject matter of the conversations was inappropriate, or that the two were involved in a prohibited teacher/student relationship prior to Ms. Messer's graduation on June 2, 2009.3/ By letter dated July 28, 2009, Respondent was informed of his suspension from employment with the District, and that his termination would be recommended to the school board. Respondent resigned his teaching position with the District effective August 11, 2009.
The Issue At issue is whether there is just cause to terminate Respondent's employment contract.
Findings Of Fact Scallan has been employed by the School Board since November 1976. He began his career as an assistant to the Director of the Internal Funds Department. Over the years the department evolved into what is now the Department of Internal Auditing. Scallan served for over two decades as the Director of Internal Auditing, a position to which he was promoted about four years after starting with the School Board. Scallan's position is one of utmost trust, responsibility and power. He is one of only three of Petitioner's 5000 employees who report directly to the elected School Board. The vast majority of Petitioner's employees report to and are evaluated by individuals who, instead, are accountable to fellow staff members. Scallan, on the other hand, is accountable to the School Board through an audit committee which is comprised entirely of volunteers. At all times material to this case, Scallan supervised six employees including two internal auditors, a departmental secretary, an inventory clerk and two part-time university students known as co-op students. As Director of Internal Auditing, Scallan was employed under a contract for a 12-month term commencing July 1, 2003, and concluding June 30, 2004. The contract is subject to all laws, rules, regulations, are policies governing Petitioner and its employees. The contract specifically provided that the School Board may suspend or remove the employee for cause as provided by law. At all times material to this case, Scallan knew or should have known of his responsibility under the School Board's ethics policy and relevant state rules to refrain from offensive sexual innuendo in the workplace. In addition, as a supervisor, Scallan was obliged to apprise and train his staff annually with regard to the ethics policy, and other School Board policies. Scallan did not take this training responsibility seriously. Instead, he regarded it as "the school district's way of making sure they've legally complied with some requirements." Scallan limited his enforcement activity to collecting employees' signatures annually on a form in which employees acknowledge awareness of district policies then in place. Scallan also failed to take seriously his responsibility to refrain from offensive sexual innuendo in the workplace. On September 5, 2003 one of Scallan's employees filed a formal complaint concerning Scallan's use of offensive sexual innuendo in the workplace. Following an internal investigation, Scallan was suspended with pay. The School Board thereafter decided to terminate his employment, effective November 10, 2003. At hearing, the School Board proved by a preponderance of evidence that Scallan engaged in offensive sexual innuendo in the workplace on at least eleven occasions in the presence of at least seven employees, as follows: Tiffany Barton: At the time of the hearing, Tiffany Barton (Barton), a graduate of California State University with a degree in business administration, was employed by the School Board as an accountant. She was hired in 2002 to work as an internal auditor, with Scallan as her direct supervisor. February 14, 2003 (Valentine’s Day) fell on a Friday. Various employees made small talk throughout the day about their holiday plans. Barton inquired of Scallan how he and his wife celebrated Valentine’s Day. Scallan responded by stating that [she] gives him a “blow-job,” and left immediately thereafter. Scallan flatly denied making this comment, but his denial is not credited. Barton was shocked and embarrassed, and brooded about the comment over the weekend. The following Monday, Barton reported the exchange to a co-worker, Jeanie Pilgram (Pilgram), expressing her embarrassment and concern. Weeks later, Scallan overheard Barton and a co-worker, Scott Woody, discussing the publicity surrounding the musical group Dixie Chicks and their semi-nude appearance on the cover of a national magazine. The word "buxom" was used to describe one of the singers. Scallan interjected himself in the conversation, commenting to the effect that "if you look up the word ‘buxom’ in the dictionary you will see Tiffany’s picture." Barton reasonably viewed the "buxom" comment to be an escalation of his Valentine's Day vulgarity in that Scallan had now personalized the physical appearance in a sexual context of a celebrity with a reference to Barton's body. Barton reasonably believed that such an analogy was inappropriate to the employer- employee relationship. Barton expressed her offense to Scallan, but Scallan persisted, insisting his remark was a compliment. Barton "[tried] to kind of give him a subtle hint like this is off limits. My boss should not be talking about my body." The subtlety was lost on Scallan. On the evening of a conference in Jacksonville, Scallan advised Barton that "whatever would happen in Jacksonville stays in Jacksonville." Barton reasonably interpreted this comment as encouragement to "get wild, have some fun, do whatever in your off hours while you're away from home, whatever happens there, nobody is going to come back and talk about it," including, presumably Scallan himself, who was also scheduled to attend the conference. April 23, 2004, was Barton's wedding anniversary. Her co-workers, including Scallan, were aware of the occasion and that Barton had arranged a baby-sitter, dinner reservations, and inquired of her colleagues regarding a beach upon which they could take an after dinner walk. The following day, Scallan asked of Barton, Did you get lucky?” In addition to directing inappropriate comments toward Barton, Scallan directed unwanted attention toward her. For example, co-op student Kelly Chamberlin (Chamberlin) was disturbed--reasonably so--by Scallan's references to Barton in a high pitched voice saying, "oh Tiffany, oh Tiffany." Chamberlin felt this was "just not right." In late August 2003, Barton was preparing to transfer from Scallan's department to her current position, where she works for Linda Lewis (Lewis), a former friend and employee of Scallan's about whom more will be said below. Again, Barton was subjected to sexual innuendo in violation of School Board policy. Specifically, Scallan remarked on Barton's ’s “great cleavage" and further commented that she was an "attractive person," adding that he liked working with attractive people. Scallan further stated that he was sure Lewis had selected Barton for Barton's analytical skills. So far as Barton is aware, the comments set forth in paragraph 24 were not heard by third parties. Yet, the following morning, Scallan, in the presence of other members of his department, stated that "while lying in bed the night before" thinking about what he had said about [Barton's] cleavage, he had determined that he should apologize. He went on to state, as he had to Barton privately, that he liked working with attractive people; that she [Barton] was attractive; and that she was very analytical which is undoubtedly why Lewis wanted her for her department. Later that week, Scallan encountered Barton in a break room lunching with a colleague. He approached, put his hand on her shoulder, and again made comments about Barton being missed, her analytical skills, and why she had been hired by Lewis. Barton interrupted, hoping to head off a third round of comments about her attractiveness. On August 27, 2003, Barton confronted Scallan in his office explaining how upset she had been because of his comments that had occurred not only that week but during her previous months of employment. Scallan acknowledged the impropriety of his comments, stating that he sometimes likes to say things for "shock value." Barton thereafter spoke with district officials about filing a formal complaint. Barton was encouraged to, and did, take the Labor Day weekend to consider whether she wanted to proceed on a complaint. Following discussion with her husband, she decided to do so. Linda Lewis: At the time of the hearing, Lewis was director of payroll and benefits accounting. Beginning in 1990, she served for ten years in internal auditing, reporting to Scallan. From 1990 through the birth of her first child in 1996, Scallan and his wife were close, social friends with Lewis and her husband. Over the course of their friendship, Lewis wearied of her boss' inability to maintain boundaries in the workplace. When her first child was born, she took advantage of this event to end her social relationship with her boss. Scallan, however, continued to make comments to Lewis or in her presence regarding the sexual activities of other people, as well as comments regarding Lewis’ physical appearance and the appearance of others. Around the time of President Clinton's impeachment and trial in the United State Senate, Lewis brought a dress to the office to loan to a co-worker. Scallan asked Lewis if it were her "Monica Lewinsky dress." Susan Reed: Susan Reed (Reed) has served as Scallan's secretary for six years and worked for the district for 16 years. Her demeanor under oath significantly undermined, if not entirely discredited, Scallan's efforts to characterize Barton, Lewis, and others as a willing audience for his sexual innuendos. In particular, Reed was present for the incident in which Scallan described Barton as buxom and was aware of its upsetting effect upon Barton. She also heard the "Monica Lewinsky" comment, and at least two references to the cleavage of co-workers, including Lewis'. On occasion, Reed attempted to warn Scallan that his comments could be construed as sexual harassment, but for the most part, she kept silent because she reasonably believed that she had no power to change her boss' propensity to engage in offensive sexual innuendo. Elizabeth Cole: In August 2003, Elizabeth Cole (Cole), a student at the University of West Florida, commenced employment as a co-op student. She remains in a similar position today. As a new employee, Cole was required to obtain an ID badge. Scallan arranged to take her by car to the building where the IDs were made. In the course of doing so, Scallan made gratuitous references to the woman who makes the IDs, noting her appearance in general and more specifically her "boob job." Cole was not uncomfortable, and observed that the woman was provocatively dressed. She regarded Scallan's comments as inappropriate and "odd," coming from a man [her] "father's age." In her words, ". . . that's my supervisor that I'm riding in a car [with] to get my ID badge, only being there a week, it seemed inappropriate to me." Debbie Fussell: From 1997-2002, Debbie Fussell was employed in Scallan's department as an internal auditor. Fussell heard Scallan make the "Monica Lewinsky" comment, as well as frequent comments about clothes worn by women in the building. Scallan remarked in Fussell's presence upon women whose skirts were so short that if one were to follow them up the stairs it would be possible to look up their skirts. Scallan also made what he believed to be jokes about Fussell’s having an affair with a School Board member. Fussell neither invited nor appreciated the foregoing comments, but because Scallan was her direct supervisor, she did not risk his ill-will by specifically telling him to stop. Instead, she found, "It was just easier to laugh it off." By way of defense, Scallan offered testimony from witnesses who said he had not been inappropriate towards them, such as principals whose schools were scheduled for routine audit. One such witness volunteered that she had witnessed Scallan being inappropriate towards another woman. The strongest support for the School Board's case came from Scallan's own testimony. Although he denies the "blow-job" comment, he confirmed significant details provided by Petitioner’s witnesses. Taken together, they discredit Scallan's portrayal of himself as a victim, lulled into the belief that his conduct was not offensive because his subordinates did not complain. For example, referring to Barton, he noted, ". . . I've never had somebody sit in my office that upset before over something I said to them. . . . I kept saying I am so sorry that I've hurt your feelings this way. It was not my intent." Scallan also corroborated Cole's account of the ID incident, characterizing his behavior toward the co-op student as benign and helpful. In Scallan's account of the event, ". . . I don't want [Cole] to be offended when you see her, . . . she's rather large breasted. I think she's had a boob job. I don't want you to be shocked when you see her." Scallan's admitted fixation on appearances--particularly the appearance of female co-workers--enhanced the credibility of Petitioner's witnesses and underscored the reasonableness of the School Board's requirement that sexual innuendo be prohibited in the workplace. Apart from Scallan's self-serving opinion, there is no evidence that any of Scallan's employees who witnessed or were the subject of his sexual innuendo were willing participants. Although not every subordinate was upset by every sexually inappropriate comment Scallan made, the record as a whole fully supports the School Board's position that Scallan's subordinates kept silent because they reasonably believed that he was in a position to retaliate against those who objected to his sexual innuendo.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Scallan's employment contract. DONE AND ENTERED this 30th day of March, 2004, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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, 2004. COPIES FURNISHED: Debra Dawn Cooper 1008 West Garden Street Pensacola, Florida 32501 Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32501 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Room 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent committed any of the violations alleged in the Amended Administrative Complaint dated March 24, 2014, and, if so, what is the appropriate disciplinary penalty?
Findings Of Fact The Parties Petitioner, as Commissioner of Education for the State of Florida, is responsible for the investigation and prosecution of complaints against individuals who hold a Florida Educational Certificate when they are appropriately alleged to have committed a violation as provided in section 1012.795, Florida Statutes, and related rules. See § 1012.796, Fla. Stat. Respondent, Shadrick Fields, a male and, at the time of the events pertinent to this case, a middle school teacher employed by the Broward County School District (the District), holds Florida Educator’s Certificate 977090. Valid through June 30, 2017, the certificate covers the areas of English for Speakers of Other Languages (ESOL), Social Science, and Exceptional Student Education. Respondent was employed as a coach and Social Science teacher at Pompano Beach Middle School during the school years 2007-2010. In the 2009-2010 school year, Respondent was also employed as an assistant coach (but not as a teacher) at Coconut Creek High School. Pompano Beach Middle School and Coconut Creek High School are within and part of the District. On or about April 26, 2010, Respondent resigned his teaching position in lieu of termination of his position. The District accepted the resignation and placed Respondent’s identification in its records under “non-hire” status. The personnel action was taken because of allegations of an inappropriate relationship between Respondent and a female student. An Inappropriate Relationship Develops J.D. is a female. Born in 1992, she attended Pompano Beach Middle School in sixth, seventh, and eighth grades. She met Respondent at Pompano Beach Middle School although he was not her teacher or her coach. The events that led to Respondent’s resignation occurred principally in the 2009-2010 school year when J.D. was 17 years of age (her 18th birthday was in March 2010) and a student at Coconut Creek High School. The events had their origin, however, in 2006 when J.D. was a middle school child. J.D. met Respondent as a seventh grader when Respondent was “doing security [for the school] at the time.” Hr’g Tr. 81. Later, J.D. had contact with Respondent in Respondent’s capacity as coach of the middle school football team. On the last day of J.D.’s eighth grade school year (in 2006), Respondent gave J.D. a letter written from him to her. The letter was not produced at the hearing. Respondent asked for it back, and J.D. returned it to him. When asked about the letter at the hearing, the following colloquy took place between and counsel for Petitioner: I have to go in detail about the letter? Q. Well . . . just tell us in general, what was the nature of the letter? A. He liked me. I liked him. Hr’g Tr. 83. J.D. did not see or communicate with Respondent over the summer between her eighth and ninth grade. J.D. resumed contact with Respondent during her freshman year at Coconut Creek High School where she was a student and he was one of the coaches for the wrestling team. Respondent was not J.D.’s coach nor was he one of her teachers; he continued to teach at Pompano Beach Middle School. Nonetheless, they talked on the phone. On Valentine’s Day, Respondent gave J.D. a card. The card opens with the statement, “Falling in love with you was something I hadn’t expected but being in love with you is something I wouldn’t stop, even if I tried.” Pet’r’s Ex. 6. It closes with the statements, “I already have my Valentine’s Day Gift and it’s you! I love you.” Id. J.D. claimed at the hearing that she and Respondent engaged in sexual relations once during her freshman year at Coconut Creek. She said they took place in Respondent’s truck, an arrangement they agreed to both by speaking about it and writing about it. The letters related to their rendezvous in the truck were not produced at the hearing because J.D. disposed of them in a trash receptacle. J.D. claimed that she engaged in sexual intercourse with Respondent only one other time: during her senior year, again in Respondent’s truck. The time that elapsed between the two sexual events, according to J.D., was due to an agreement between Respondent and J.D.: they agreed to cease further sexual involvement until she graduated from high school (albeit, as J.D. testified, the agreement failed in February of her senior year). During the time between the two incidents of sexual relations to which J.D. testified, J.D. and Respondent frequently communicated through writings, cards, and letters. When Respondent wrote to J.D. he delivered the communications through one of two methods: he handed them to her directly or he placed them in an open tube affixed to the wall of a hallway outside the wrestling locker room. When the latter method was followed, Respondent would send a text to J.D. to alert her to the presence of a letter in the tube. The purpose of using the tube was to prevent suspicion by others should Respondent be observed handing written communication to J.D. The letters produced at the hearing that J.D. received are emotionally intimate. The third of the four letters that make up Petitioner’s Exhibit 7 is highly charged and sexually graphic. It refers, for example, in detail to love-making in which Respondent and J.D. had engaged. Respondent’s letters refer to himself as “King” and are signed “M.N.U.A.I.A.,” which stands for “Me and You Against It All.” See Pet’r’s Ex. 7. During J.D.’s senior year in high school, J.D. and Respondent had increased opportunities to interact on school days. J.D. played on a school flag football team and became the assistant manager of the wrestling team for which Respondent was the coach. Family members picked J.D. up after flag football practice or when she stayed after school in her capacity as the wrestling team assistant manager. But Respondent also provided her transportation home in his truck. He gave J.D. a ride home after these extra-curricular events whenever she asked. The question was asked at the hearing, “Generally, who gave you a ride home?” J.D. testified, “Mr. Fields.” Hr’g Tr. 98. Respondent also gave J.D. cards and gifts, including a Teddy Bear that was delivered with a card. The card ends with “I’m your Teddy Bear baby, M.N.U.A.I.A. I Love You.” The card makes reference to the silence of Teddy Bears and that “they will never breath [sic] a word of secrets you may tell.” Pet’r’s Ex. 8. In December and January of the 2009-2010 school year (J.D.’s senior year), Respondent had significant contact with J.D. by cell phone. Pet’r’s Ex. 9. For the month of December 2009, phone calls between J.D.’s cell phone and Respondent’s cell phone averaged more than one per day. Following more than 40 phone calls in January of 2010, the phone contact continued into February. In the middle of the month of February 2010, Respondent handed a Valentine card to J.D. (He did not place it in the tube because “[i]t wouldn’t fit in there.”). Hr’g Tr. 96. The card states, “You know that I would give anything to be in your arms, touching your face, staring into your eyes and tasting your lips. I can’t but I can depend on our love to see me through.” The card addresses J.D. as “Lil Solja” and is signed: Happy Valentine’s Day #1 M.N.U.A.I.A. Love & “Sincerely Yours”, Solja Pet’r’s Ex. 9. Over the late 2009 and early 2010 time period, some of the many phone calls between J.D. and Respondent were for extended periods of time or were at odd hours. One set of calls was both. On February 19, 2010, a call was placed from Respondent’s cell phone to J.D.’s cell phone that is shown by phone records to have lasted for 186 minutes (until 2:50 in the morning of February 20, 2010). The same records show that one minute later, at 2:51 a.m., February 20, 2010, a phone call was placed from J.D.’s cell phone to Respondent’s cell phone. This second “middle of the night” phone call lasted another 76 minutes. The two calls total more than four hours. The lengthy “middle of the night” phone calls in mid-February of 2010 occurred roughly one week before events that precipitated the discovery of J.D.’s relationship with Respondent. The events took place on February 26 and 27, 2010, the weekend before J.D.’s 18th birthday. Discovered February 26, 2010, was a Friday. J.D. worked that evening at Steinmart as a merchandiser. She had worked at Steinmart her entire senior year with a schedule of roughly 20 hours per week. The following are questions and answers from the transcript of the hearing about what occurred the evening of February 26, 2010, when J.D. was at work: Q. Did Mr. Fields come to your work that day? A. Yes. Q. Tell us what happened. A. I went to work, took a break right before the store closed, around eight-something. I had been talking to him throughout the day. He came to my job. We had sex. I got off work and went home. * * * Q. . . . Mr. Fields came to your work, correct? A. Came to my job on my break. Q. And how long of a break did you have? A. Thirty minutes. Q. Thirty minutes. And what did you do on that break? A. I got in the truck with him, we talked, we had sex and I went back to work. Q. When you say you had sex, you had sexual intercourse? A. Yes. Q. And this occurred in Mr. Fields’ truck? A. Yes. Q. Where at in the truck? A. In the back seat. Hr’g Tr. 101. When asked by counsel for Petitioner how she felt about having sex with Respondent in his truck, she testified as if it were nothing unusual: “I really didn’t feel no way.” Hr’g Tr. 102. When asked immediately after, “You felt what?” J.D. reiterated her testimony, “I really didn’t feel any type of way, you know.” Id. During the interlude in the truck, J.D. and Respondent developed plans for the next night, Saturday, February 27. J.D. did not have to work that Saturday, but she “planned to lie to [her] mom” and tell her she did so she could, in her words, “spend the time with him before my birthday.” Hr’g Tr. 103. Hewing to the plan, J.D. told her mother that she was needed at Steinmart on Saturday to help her manager with inventory. J.D.’s mother, accordingly, drove her to work and dropped her off in the middle of the day. Later in the day, J.D.’s mother returned to Steinmart to purchase a shirt for her husband using a family discount by virtue of J.D.’s employment. She asked for J.D. in the store because J.D. had to sign a form to make the discount effective. When it turned out that J.D. was not at work and had not been at work, J.D.’s mother became extremely concerned. She called J.D. and texted her. When the calls and texts to J.D. went unanswered she enlisted other family members to assist in contacting and locating J.D. She lodged a missing person’s report with local law enforcement, and she began her own investigation. J.D.’s cell phone was under her mother’s account. When her mother checked the phone log she saw a number “that had been calling back and forth.” Hr’g Tr. 40. The phone number was Respondent’s: 954-691-6468. J.D.’s mother did not recognize the phone number, but discovered later that it belonged to Respondent. When asked about a voice message she left on Respondent’s phone, J.D.’s mother testified, “I don’t want to say under oath what I said but I was upset once I realized whose phone it was.” Hr’g Tr. 41. After testifying that the pattern and consistency of the phone calls between her daughter and an older male made her distraught, she was asked to explain by counsel. She answered, “Because I just felt like that communication shouldn’t have been going on, as many times as I’d seen it in the call log.” Id. Between being transported to her work place and the frantic activity of her mother, J.D. had talked to Respondent on the phone. He picked her up at Steinmart and drove her across the county to a movie theater in the western part of the county about 35 minutes away by car. After watching a movie, “The Crazies,” the two had something to eat at “TGI Friday’s,” hearing transcript 105, a restaurant in the same plaza as the movie theater. J.D. noticed that she had received phone calls from her mother, but she was “scared,” id., to call her back. While the two were still inside the restaurant, Respondent noticed that he had received telephone calls from J.D.’s mother as well. J.D. told Respondent not to return the call, and he did not. Respondent drove J.D. back to Steinmart and dropped her off at roughly 9 p.m., the time J.D. should have been getting off work had she worked that day. Respondent did not return J.D.’s mother’s call before he left J.D. at Steinmart. J.D.’s brother picked her up at Steinmart and drove J.D. home where she was met by Deputy Matthews, who had responded on behalf of local law enforcement to the missing person’s report. Deputy Matthews’ report indicated that J.D. was questioned about sexual activity with Respondent and that she denied sexual activity. Text Messages On Sunday (February 28, 2010), Respondent texted J.D.: Does she still want to talk to me? I’ll take da day off in effort to make things right by sitting down with her. A million more apologizes from da heart. Pet’r’s Ex. 5, at P010/011 [marked in hand-writing as “83”]. On March 1, 2010, the next Monday, Respondent sent text messages to J.D. At 3:17 in the morning, his text reads, I hope I haven’t tarnished or messed your life first and everyone else that looks up to me. I’ve let so many down . . . mainly you. I pray for ur fams forgiveness. Pet’r’s Ex. 5, P0087/011 [marked in hand-writing as “81”]. Another text follows at 3:45 in the morning: I never lied to you. Everything I said I meant from the heart but I should have never told you. Every day forward free is a blessing & will be cherished. Id. Later in the day, at 3:36 in the afternoon, Respondent texted “I’m going to turn myself in. Its all in your hands, my life.” Pet’r’s Ex. 5, P0097/011 [marked in hand-writing as “82”]. Over several days, J.D. and her mother engaged in a number of emotion-laden conversations. J.D.’s mother reached the point of “yelling” and “crying.” Hr’g Tr. 56. At some point in the midst of the emotional interchanges between J.D. and her mother, J.D.’s mother told her that she intended to take J.D. to a gynecologist for an examination for sexual activity. J.D. did not want her mother to know that she was not a virgin. But she was not concerned for herself alone. She did not want to tell anyone that she had engaged in sexual activity with Respondent because she wanted to protect him. The gynecological examination of J.D. revealed that she had been sexually active. Despite misgivings both for herself and because of the potential impact to Respondent, J.D. told her mother she had engaged in sex with Respondent. J.D.’s mother’s impression was that J.D. had not been sexually active even though she had a boyfriend (who was not Respondent). When J.D. revealed the sexual nature of her relationship with Respondent after the examination, J.D.’s mother called local law enforcement to report it. As a result of the call, a case was opened, and it was assigned to Deputy Julie Bower of the Broward County’s Sheriff’s Office of Sex Crimes. Deputy Bower questioned J.D. and reviewed the phone records, as well as the cards and letters that have been admitted into evidence in this proceeding. Deputy Bower confirmed that J.D. was 17 years’ old, a minor, when Respondent took her to the movies and that Respondent was over the age of 24 at the time. Their ages led Deputy Bower to conduct an investigation into whether Respondent had committed the crime of “Unlawful Sex with Certain Minors.” March 5 Statement to the Sex Crimes Unit On March 5, 2010, Officer Bower took a statement from J.D. In the statement J.D. admitted that she and Respondent had engaged in sexual activity on February 26, 2010. As the interview for the statement progressed, Deputy Bower took J.D. through the history of the relationship. J.D. stated that Respondent seemed to take an interest in her more than the other girls at school (Pet’r’s Ex. 2, p. 4 of 24). She also related that she received the first letter from him at the end of the eighth grade, but that she was not interested in him until her senior year in high school when Respondent started writing her and giving her gifts: “clothes, shoes, . . . cards, letters” id., page 7 of 24, and a bracelet of white gold. In the meantime, during her ninth, tenth, and eleventh grades, J.D. claimed in the statement that their relationship was “nothing . . . just a hi and bye.” Pet’r’s Ex. 2, p. 6 of 24. She related that in December of 2009, however, her relationship with Respondent started changing after “he made the move” (Id., p. 8 of 24), at which time she decided she wanted to start dating. They discussed having sex, and Respondent told J.D. that he loved her. J.D. stated to Deputy Bower that she was a virgin until the encounter with Respondent in his truck on her break from work on Friday, February 26, 2010, at which time she claimed they engaged in sexual intercourse. Deputy Bower was unable to verify J.D.’s claim of sexual intercourse with Respondent through any source other than J.D.’s statement. Nonetheless, Respondent was prosecuted criminally. Acquittal Respondent was charged with the crime of Unlawful Sexual Activity. He was tried by jury in the circuit court in and for Broward County and was found not guilty. See Respondent’s Ex. 1, Circuit Court Disposition Order in and for Broward County, Florida, rendered October 31, 2011, and an attached “Felony Order of Acquittal.” The Administrative Complaint and the Amended Administrative Complaint An Administrative Complaint seeking appropriate disciplinary sanction of Respondent’s educator’s certificate was issued by Dr. Tony Bennett, as Commissioner of Education, on July 8, 2013, 20 months or so after the acquittal. The complaint contains three counts of statutory violations and two of rule violations all based on facts alleged in a section entitled “Material Allegations.” The gist of the material allegations are contained in the section’s first sentence, “During the 2009/2010 school year, Respondent engaged in an inappropriate relationship with J.D., a 17-year-old, female student.” Administrative Complaint. The statutory violations are of section 1012.795(1)(d), Florida Statutes, for “gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education;” section 1012.795(1)(g), Florida Statutes, for “personal conduct which seriously reduced his effectiveness as employee of the school board;” and, of section 1012.795(1)(j), Florida Statutes, for violation of “the Principles of Conduct for the Education Profession prescribed by the State Board of Education rules.” Administrative Complaint, p. 2 of 3. The rule violations are of Florida Administrative Code Rule 6A-10.081(3)(a), “in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety,” and of Florida Administrative Code Rule 6A-10.081(3)(e), “in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement.” On March 24, 2014, Petitioner executed an Amended Administrative Complaint deemed filed as of that date by an Order Granting Leave to Amend. The amended complaint adds two new paragraphs to the material allegations. The new paragraphs expand the time frame for the basis of the statutory and rule violations outside the 2009-2010 school year to prior years back to 2006. The second of the two paragraphs of material allegations alleges: In subsequent years [post-2006], including 2010, Respondent wrote type [sic] letters . . . to J.D., along with cards and music CD’s. Some of the letters contained sexually graphic language . . . Amended Administrative Complaint, para. 3 and 4. The amended complaints also add two new rule violations, one of Florida Administrative Code Rule 6A- 10.081(3)(f) that Respondent intentionally violated or denied a student’s legal rights; and, the second of Florida Administrative Code Rule 6A-10.081(3)(h) that Respondent exploited a relationship with a student for personal gain or advantage. Amended Administrative Complaint, Counts 6 and 7. Respondent’s Defense to the Factual Allegations The following statement appears in the Joint Prehearing Stipulation filed by the parties: “Respondent admitted his text messages and phone calls to J.D. but denied any sexual activity or involvement with the notes and letters.” In addition to Respondent’s testimony under oath that he did not engage in sexual activity with J.D., he points to a number of facts that support his argument for why J.D.’s testimony that it occurred should not be credited: a. her denials to law enforcement the night of February 27, 2014; b. her denials to her mother at first; c. her claim to her mother that she had sex with Respondent only after the pressure of emotional conversations and the gynecological examination that showed her to have been sexually active; d. the inconsistency between her statement under oath to Deputy Bower that the first sexual encounter with Respondent was in her senior year and the statement under oath that her first sexual encounter with Respondent was when she was in the ninth grade; and e. the testimony of Dwanaill Sutton. Mr. Sutton was a year behind J.D. in high school and a member of the wrestling team. He met J.D. when he was in the ninth grade through his best friend at the time, another male member of the wrestling team. The coaches of the wrestling team were “Coach Carradine and Shadrick Fields [Respondent].” Hr’g Tr. 279. Respondent also coached Mr. Sutton on the football team, again as an assistant coach. Eventually, Mr. Sutton and J.D. became “best friends.” Id. They remained so into Mr. Sutton’s junior year (J.D.’s senior year). They do not see each other much anymore but they communicate “[v]ia social media.” Hr’g Tr. 280. Mr. Sutton has no ill feeling about J.D.’s allegations against Respondent. While J.D. and Mr. Sutton were still under the status “best friends,” Mr. Sutton was interviewed at school one day before lunch by a detective who asked him questions about J.D. and Respondent. At lunch, Mr. Sutton asked J.D. what she knew about the detective. J.D. replied that she had given Mr. Sutton’s name to the detective. Mr. Sutton followed up by asking J.D. “what was going on with her and Coach Fields because those were the only two names that the detective mentioned.” Hr’g Tr. 284. J.D. replied “‘nothing happened.’” Id. When asked by counsel if Mr. Sutton asked J.D. “did you guys do something?” id., Mr. Sutton replied that J.D. said “‘We didn’t do anything.’” Hr’g Tr. 285. With regard to the written communication J.D. claims to have received from Respondent, he argues J.D.’s testimony should not be credited because: Respondent denies sending any such items [and did so under oath]. [citation omitted] Respondent testified that he does not write in the fashion the card and letters were written and that it seems as if someone with less than a college education prepared them. [citation omitted] He denies giving J.D. any cards, stuffed bear or bracelet. [citation omitted] Petitioner failed to produce any evidence to support the conclusion that the handwriting on the various cards and letters was that of Respondent. No handwriting expert testimony was adduced and no lay testimony was presented that the writings were that of Respondent. Respondent’s Proposed Recommended Order, p. 6 of 11, para. 16. Respondent claims that the purpose of his relationship with J.D., and the many phone calls and communications with her, was to lift her spirits in the face of personal problems at home, particularly with her step-father and not being able to live with her biological father, and ensuing academic problems and problems at school. But he admits the relationship was inappropriate: [A]s far as lifting her spirits . . . [w]hat I should have did is had a female teacher or mentor be that person for her. I shouldn’t have been there like that. That was inappropriate for me to be there. Hr’g Tr. 228.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s educator’s certificate be permanently revoked and that he be barred from re-application. DONE AND ENTERED this 5th day of December, 2014, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 5th day of December, 2014. COPIES FURNISHED: Johnny L. McCray, Jr., Esquire Law Office of Johnny L. McCray, Jr., P.A. 400 East Atlantic Boulevard Pompano Beach, Florida 33060 (eServed) Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast Thirteenth Street, Suite E Fort Lauderdale, Florida 33316 (eServed) Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Lois S. Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Respondent, Michael B. Smith (Smith), has been continuously employed as a teacher by Petitioner, School Board of Dade County (School Board) since 1977. During the 1985-86 school year, Smith was employed under a continuing contract as a work experience teacher at Miami Norland Senior High School. The Assault and Loan Among the students in Smith's second period work experience class was Colleen Ann Dougherty (Colleen); a 15 year old female and 10th grade student. Colleen had been a student of Smith's since September 1985, and they enjoyed a good student- teacher relationship until the events which gave rise to these proceedings. 1/ On February 10, 1986, Smith asked Colleen to remain after class. Once the other students had left the classroom, and Colleen and he were alone, Smith engaged Colleen in a brief conversation concerning the progress of her outside employment. Gauging the conversation at an end, Colleen picked up her purse and book bag preparatory to moving to her next class, but was distracted when Smith asked her what was in her purse. As Colleen looked into her purse, which was hanging from her right shoulder, Smith placed his left hand on her right hip and his right hand on her left shoulder. When Colleen looked up, Smith pulled her toward him, and kissed her on the lips. Smith's conduct was uninvited and unexpected; Colleen, disconcerted, left the classroom. On February 11, 1986, Smith was covering Colleen's first period class for her regular teacher. After the class had started, Smith asked Colleen into the hall and, exhibiting his divorce papers and a sense of urgency, asked to borrow $50.00 by the end of third period. Colleen informed Smith that she did not know if she could get the money by then since she would need to go to her boy friend's house for the bank book. Thereupon, Smith gave Colleen a pass to visit her friend Jessica to see about transportation. After arranging for transportation with Jessica, Colleen returned to Smith, who was still standing in the hall outside the classroom, and informed him that Jessica and she could get the money. At this time, Smith told Colleen that he liked her and suggested that they meet at school one night so he could repay the money. When Colleen expressed a lack of understanding concerning Smith's comments, he told her to look down and said, "even standing next to you excites me." On looking down, Colleen observed that Smith had an erection. Colleen quickly changed the subject and left with Jessica to get the requested $50.00 from the bank, which she later gave to Smith. Colleen was troubled by what had transpired and was afraid that if she reported the incident the administration would not credit her statements over those of a teacher. However, on Wednesday, February 12, 1986, Colleen told her boss what had transpired between Smith and her, and on the evening of February 12, 1986, she informed her grandmother. On February 13, 1986 Colleen, together with her boss and grandmother, informed the principal of Miami Norland Senior High School concerning the events of February 10-11, 1986. Smith was subsequently suspended from his teaching position, and this administrative proceeding duly followed. In choosing to credit Colleen's recollection of the events of February 10-11, 1986, as opposed to Smith's, I am not unmindful of minor discrepancies in the proof. However, the candor and demeanor of Colleen, coupled with the corroborating proof, compels the conclusion that Smith did commit, without invitation or provocation, the acts set forth in paragraphs 3-5, supra. Smith's conduct was inconsistent with the standards of public conscience and good morals, and was sufficiently notorious to bring himself and his profession into public disgrace or disrespect. Due to the notoriety of his conduct, Smith's service in the community, as well as his effectiveness in the school system, has been severely impaired. The Excessive Absences The proof establishes that Smith was absent from his employment on 26 days during the 1985-86 school year. Five of those days, and possibly six, were for personal reasons, rather than illness. While teachers are generally allowed only 4 personal days each school year, the School Board offered no evidence to rebut the proof that the additional 1-2 days were authorized by Smith's supervisor, or that all time off was duly approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the School Board enter a Final Order sustaining the suspension of Respondent, Michael B. Smith, from his employment, and dismissing Respondent, Michael B. Smith, from his employment with the School Board. DONE AND ENTERED this 21st day of November, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 21st day of November, 1986.
The Issue At issue is whether the Respondent committed the offenses set forth in the Amended Administrative Complaint dated October 25, 2000, and if so, what disciplinary action should be taken.
Findings Of Fact At all times material to this case, Battles was employed as a physical education teacher and head football coach at Gardens. He was popular with students and enjoyed a good relationship with his principal. Battles' first full year as head coach began with the 1997-98 school year. At that time Battles was 33 and was an experienced teacher, having taught in Florida schools for a decade. In the spring of 1998, a 14-year-old ninth grader at Gardens, Stephanie Carbone (Carbone), developed an infatuation with Battles. She confided her crush to one of her classmates and girlfriends, Barbara Borucki (Borucki), who promptly communicated the information to Battles. Very shortly after that conversation, Battles commenced a sexual relationship with Carbone. Their initial sexual contact consisted of kissing and fondling. The relationship continued for under two months. During that time, Battles and Carbone had sexual encounters two or three times a week. Right around the time the relationship began, Carbone volunteered to be a student manager for the football team. Taking advantage of Carbone's fixation on him, Battles facilitated an improper relationship with her by allowing her to volunteer, and assigning her to duties which would involve being alone with him in areas of the school gym which he was able to lock and render inaccessible to third parties. Battles and Carbone engaged in sexual activity in the coach's office, the equipment room, and the shower area of the gym. Their relationship and their encounters, which were clearly and convincingly described at the final hearing by Carbone, are best described as pathetic. The relationship consisted of kissing, groping, fondling, giving and receiving oral sex, digital penetration, or some combination thereof, for periods of short duration during or after the school day, two or three times per week. On one occasion, the two unsuccessfully attempted intercourse. Carbone's memory with respect to minor details of the relationship was imperfect, but not inconsistent with what would be expected of a witness testifying truthfully from memory as to emotionally charged events which occurred three years ago. The undersigned fully credits the testimony of Carbone as to the existence of the relationship, and the nature and frequency of the sexual contact between her and Battles. The undersigned carefully observed Carbone's demeanor under oath. In her direct testimony and on cross-examination, she was unflinching. There is no evidence that she committed perjury for the purpose of harming Battles, or due to a mental illness, nor for any other reason. Carbone was candid and unsparing of herself as she described how she had thought she was in love with Battles, and how she had initially been the aggressor and invited his attentions. When the relationship eventually became known to school authorities, Carbone at first denied its existence, in order to protect Battles. Before, during, and after the relationship began, Battles was well liked by Carbone and by her friends. There is no evidence that Carbone nor any of her friends desired to "set him up." There is no evidence that Carbone has any financial stake in proving the existence of the relationship. Nor is there any plausible explanation of why she would perjure herself in order to injure Battles. Although at some point in the relationship, Carbone came to be uncomfortable, knowing that sex with a teacher was wrong, her testimony clearly and convincingly establishes that she would have kept up her end of the relationship for at least some additional period of time, had she not first been confronted by school authorities. The confrontation came about six to eight weeks into the relationship. Battles was a married man, and at the start of the relationship had instructed Carbone to keep whatever happened between them a secret. Carbone disobeyed that instruction from the start. Instead, she shared their "secret" with one friend at a time. By May 4, 1998, Gardens Principal Paul Houlihan (Houlihan) had heard a rumor that there was an improper relationship between Battles and Carbone. Coincidentally, on that same day, Carbone's mother brought her or Carbone to Houlihan's office. Mrs. Carbone was upset because she had found her daughter off campus in a van with other students. During that meeting, Houlihan asked Carbone about the rumors that she was involved with a teacher. Initially, Carbone denied involvement with Battles by name, even though Houlihan had not mentioned the name of any particular teacher. Houlihan and Carbone's mother did not credit Stephanie's denial, in part because of her demeanor as she denied the allegation, and in part because Stephanie was the first to use Battles' name. The following day, Houlihan confronted Battles. Battles did not deny the existence of a relationship. Instead, he expressed two thoughts: fear that his wife would leave him on learning of the allegations; and concern for what impact the allegations would have on the football team. Carbone's story is corroborated in some aspects by the testimony of fellow students who had opportunities to observe how Carbone's "volunteer work" for the football team provided cover for her relationship with Battles. For example, classmate Josh Knight (Knight) would on occasion accompany Carbone to the gym and wait with her outside until the football team left, usually to go to the weight room, at which time Battles would wave her in and close and lock the doors behind them. The undersigned carefully observed the demeanor of Knight and each of the other students who testified regarding their observations of Battles and Carbone, as well as about things Carbone had told them about the relationship. Based upon the demeanor of the student witnesses under oath; how they handled themselves during cross-examination; their lack of a financial stake in the outcome; the fact that they had no difficulties with Battles as a teacher and otherwise lacked any apparent motive to harm him; and the lack of any other plausible motive to commit perjury, the undersigned credits the testimony of Carbone's friends as substantially accurate accounts of what Carbone told them contemporaneously during the time she was involved with Battles, as well as their observations of some exchanges between Battles and Carbone which they believe were appropriate to a boyfriend-girlfriend relationship, rather than one of student and teacher. Cross-examination of Carbone and each of Petitioner's other witnesses established that various witnesses had given testimony which Battles contends is in conflict with testimony they had provided on previous occasions. Such alleged conflicting testimony is set forth in Paragraphs 7-19 of Battles' Proposed Recommended Order. Battles contends that allegedly conflicting testimony between witnesses, or in some cases between details testified to by the same witness at different times, effectively discredits the testimony and renders DOE unable to establish its case by clear and convincing evidence. The undersigned has painstakingly reviewed the testimony which Battles argues to be conflicting or impeaching, and deems the conflicts, to the extent any were actually established, to be irrelevant. To take one example, Carbone once testified that Borucki had walked her to Battles' office on the day of her first intimate encounter with Battles. On another occasion, she testified that Knight had walked her to the office that day. Whether she misspoke, or was mistaken, or whether someone else or nobody else had walked her to the office, is insignificant in the context of the entire record. The record as a whole reveals that Carbone was close to and had frequent contact with both Borucki and Knight, and spoke with as well as hung around with both of them often. The discrepancy in her testimony on this point may reflect a confused memory. Or it may have been a misspeak. Or she might have misunderstood the question. The factual resolution of this and other "discrepancies" raised by Battles does not affect the substantive factual issue in this case. In January 2000, Battles was tried, but not convicted, on criminal charges arising out of his alleged relationship with Carbone. Battles testified in the criminal case, and submitted a copy of his testimony as evidence in these proceedings. He was not obligated to testify in these proceedings, and elected not to. No inference for or against him was drawn by reason of this decision. In his criminal court testimony, Battles admitted that Borucki, whom he described as his "good friend" had made him aware that Carbone "liked" him. He claimed that he did not take this information seriously at the time, and promptly forgot about it, and denied the existence of any improper relationship with Carbone. In the course of his criminal trial testimony, Battles admitted that Carbone was accurate in her description of his underwear. He attributed her knowledge to the fact that he bends over a lot and anyone standing nearby would be able to see his underwear when he does. Battles' explanation for why Carbone can describe his underwear is rejected as not credible. A 33-year-old gym teacher would reasonably be expected to be able to conceal his underwear from his students. Given Battles' obvious, overwhelming motive to deny, as he did, the existence of any improper relationship with Carbone, the undersigned concludes that the transcript of Battles' trial testimony, when considered with the other evidence presented by Battles, is insufficient to refute the clear, consistent, and convincing testimony of Carbone as to the existence, nature, and duration of an improper sexual relationship between them. By letter dated May 18, 1998, Houlihan informed Battles that his teaching contract would not be renewed for the 1998-1999 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent Clifford L. Battles is guilty of the violations alleged in Counts 1, 3, 4, 5, and 6 of Amended Administrative Complaint; dismissing Count 2 of the Amended Administrative Complaint; and permanently revoking Battles' teaching certificate. DONE AND ENTERED this 19th day of October, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 19th day of October, 2001. COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316 Mark Wilensky, Esquire Dubiner & Wilensky, P.A. 515 North Flagler Drive, Suite 325 West Palm Beach, Florida 33401 Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street Room 224-E Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street Suite 224-E Tallahassee, Florida 32399-0400
The Issue Whether the Respondent's Florida teaching certificate should be suspended or revoked based upon the allegations of the Petitioner's Administrative Complaint dated February 20, 1987?
Findings Of Fact It is undisputed that the Respondent holds Florida teaching certificate 497382. The Respondent has been a school teacher since the 1982-1983 school year. During the 1983-1984 and 1984-1985 school years the Respondent was employed as a teacher by the Volusia County School District (hereinafter referred to as the "School District"). During the 1984-1985 school year the Respondent was employed as a physical education teacher and the track coach at Silver Sands Junior High School (hereinafter referred to as "Silver Sands"), in the School District. Kim Romano was a minor female student in the eighth grade at Silver Sands during the 1984-1985 school year. Ms. Romano served as one of three managers of the Silver Sands track team coached by the Respondent. At some point during the 1984-1985 school year the Respondent became romantically attracted to Ms. Romano. The Respondent realized that he should not get involved with Ms. Romano and, therefore, he sought counsel from a former college professor, Mr. Don Dungee. Mr. Dungee advised the Respondent to handle the situation himself. On the evening of March 20, 1985, the Silver Sands track team participated in a track meet at Ormond Junior High School. Following the conclusion of the track meet the team, the Respondent and the track team managers had to wait for a bus to transport them back to Silver Sands. The bus was late. One of the track team members asked where the telephone was so that he could call his mother and inform her that he would be late. The Respondent asked if anyone knew where the telephone was and Ms. Romano indicated that she did. The Respondent asked Ms. Romano to show him and the track team member who wanted to use the telephone where the telephone was located. Ms. Romano, the Respondent and the track team member walked to the telephone which was located out of sight of where the team was waiting for the bus. While the track team member used the phone, the Respondent and Ms. Romano began to walk back to where the team was waiting. On the way back the Respondent and Ms. Romano kissed. The Respondent willingly participated in the kiss, which was a "french" kiss, based upon the following findings of fact: At the time of the kiss the Respondent was six feet, five inches tall and weighed approximately 230 pounds. Ms. Romano was approximately five feet, two inches tall and weighed approximately 115 pounds. Ms. Romano could not have forced the Respondent to participate in a "french" type kiss. On the way to the telephone, Ms. Romano appeared to be "fine." When Ms. Romano returned following the kiss she was "crying", "hysterical" and "jumping." Ms. Romano walked around the field in this state until the bus left and cried on the bus ride back to Silver Sands. After the bus picked up the track team and managers and had returned to Silver Sands, the Respondent said that "he didn't know how he got involved with Kim", that "he shouldn't be on the face of the earth" and that "he needed a drink." On April 8, 1985, the Respondent was interviewed by Willie D. Brennon, Principal of Silver Sands. William A. Walden, Assistant Principal at Silver Sands was present at the meeting. The Respondent admitted that a "french" style kiss took place between Ms. Romano and himself on March 20, 1985. The Respondent also indicated that Ms. Romano had initiated the kiss. On April 10, 1985, the Respondent met with Duane Busse. At that time Mr. Busse was the Employee Relations Officer of the School District. The Respondent again admitted that he had participated in a "french" type kiss with Ms. Romano on March 20, 1985, that he lacked judgment in allowing it to happen and offered to resign. The Respondent also indicated that his feelings for Ms. Romano were genuine and sincere and that she reminded him of a former girl friend. The same night that the kiss took place, March 20, 1985, the Respondent telephoned Mr. Dungee and told him that Ms. Romano had kissed him and that he had held her off when it happened. Mr. Dungee again advised the Respondent to handle the situation himself. The incident was reported to Mr. Walden by Marnie Hazen, on April 8, 1985. Ms. Hazen was a friend of Ms. Romano. Ms. Hazen was on the track team and a student at Silver Sands. Following the kissing incident, the Respondent wrote a two-page note which was given to Ms. Romano. The note was romantic in nature. The note written by the Respondent was written by the Respondent on his own behalf based upon the following findings of fact: The Respondent admitted to Mr. Busse that he wrote the note to Ms. Romano on April 10, 1985. The complimentary closing of the note reads: Take care and Smile CLY The Respondent was unable to explain the significance of this closing and indicated that it did not mean anything. The Respondent maintained during the final hearing that he had written the note on behalf of Reginald Taylor, one of the managers of the track team. Mr. Taylor was supposed to rewrite the note in his own handwriting and give it to Ms. Romano according to the Respondent. This testimony is rejected as contrary to the weight of the evidence. It is reasonable to infer that the letters "CLY" were intended to represent "Coach Loves You" or "Chester Loves You" or words of similar meaning. The note took two days for the Respondent to write. It defies logic and common sense that the Respondent would spend two days writing a note on behalf of one of his students. The Respondent offered to resign when confronted by Mr. Brennon in order to avoid harm to Silver Sands. His offer was not accepted. The Respondent's position as a teacher was not terminated by the School District following the incidents. Instead, the Respondent was transferred to another work location for the remaining weeks of the 1984-1985 school year and his annual contract with the School District was not renewed following the conclusion of the 1984-1985 school year. The evidence failed to prove that any other kissing incidents occurred or that the Respondent gave Ms. Romano any gifts, including a necklace. The Respondent's conduct with Ms. Romano constitutes personal conduct which seriously reduced the Respondent's effectiveness as an employee of the School District. The Respondent's conduct with Ms. Romano reduced his effectiveness as an employee with the School District. The School District's ability to trust the Respondent with minor female students was substantially diminished as a result of his conduct. In light of the incidents, students under the Respondent's control and supervision would be "at risk." Ms. Romano was served a subpoena compelling her attendance at the final hearing. Ms. Romano failed to appear, however.
Recommendation Based upon the foregoing Findings of Fact and Conclusions Of Law, it is RECOMMENDED that the Respondent's Florida teaching certificate be suspended for a period of three years. DONE and ENTERED this 5th day of August, 1987, in Tallahassee, Florida. LARRY SARTIN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1987. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2-3. 3 4. 4(a) 6. (b) 7. (c) 8. (d) 9. (e) 10. (f) 10-11. 5 11. 5(a) 11a. 11b. 11c. 11d and 16. 11e. 20. The second sentence is not a finding of fact. The last sentence is accepted only to the extent that Ms. Romano's statements corroborate evidence that a kiss occurred and that a note was written by the Respondent to Ms. Romano. Irrelevant or cumulative. Irrelevant. 6 14. 6(a) 15. 15a. The weight of the evidence did not prove that the Respondent wrote more than one note. 15b. 15c. 7 17. 8 19. 9 18. The Respondent's Proposed Findings of Fact 1 1. 2 2-3. 3 2. 4 Not supported by the weight of the evidence. 5 4. 6 The weight of the evidence did not prove that Ms. Romano was "trying to go beyond the teacher-student relationship he had established." See 5. 7 Not supported by the weight of the evidence. 8 6. 9 8. 10-12 Not supported by the weight of the evidence. 13 12. 14 13. 15-16 11d. Irrelevant. 11e and 15a. The date of this meeting was April 10, 1985 and not April 11, 1985. 15a. The Respondent did not tell Mr. Busse that he had written the note for Reginald Taylor. Not supported by the weight of the evidence. Mr. Taylor approached Mr. Busse on his own and told Mr. Busse that the note had been written for him sometime after April 10, 1985. Not supported by the weight of the evidence. 22 17. 23 20. 24 Hereby accepted. 25-26 Not supported by the weight of the evidence. 27-28 18. 29-33 Not supported by the weight of the evidence. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Ronald G. Meyer, Esquire Meyer, Brooks and Cooper, P.A. 911 East Park Avenue Post Office Box 1547 Tallahassee, Florida 32302 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32999 Sydney McKenzie, General Counsel Department of Education Knott Building Tallahassee, Florida 32399
The Issue Whether Elizabeth Stuglik ("Respondent" or "Stuglik") committed the violations alleged in the Amended Administrative Complaint dated August 9, 2010, and, if so, whether such violations are just cause for any discipline against her license.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Stuglik holds Florida Educator’s Certificate No. 1052905, covering the area of Foreign Language Spanish, which is valid through June 30, 2012. She graduated from college in May of 2007 with a Bachelor's of Science in secondary Spanish education from Indiana University. At all times material to this proceeding, Stuglik was employed as a Foreign Languages Spanish teacher at H.L. Watkins Middle School (Watkins) in the Palm Beach County School District. (School District). Her employment at Watkins was for the 2007-2008 and 2008-2009 school years. Stuglik started her teaching career during the 2007- 2008 year. Respondent taught seventh and eighth-grade Spanish. Her classroom was located in the chorus room in a stand-alone building apart from the main school building, across the courtyard area connected to the cafeteria. Stuglik's chorus room was adjacent to Heath Miller's ("Miller") classroom. He was the band teacher. An office divided the two classrooms, which both teachers shared. The shared office had two doors, and each was for entrance into the two classrooms. Each door had the capacity to be locked from the classroom side. The classroom doors could be opened from the office side, even though the classroom doors were locked from the classroom side. Miller and Stuglik saw each other on a daily basis. Stuglik felt that Miller started out their relationship by approaching her as a mentor, offering to assist her with anything she needed including discipline of the students. In the second or third week of school during August 2007, Miller told Stuglik that it was too bad she was married because it would be fun if they could get together. Stuglik failed to respond to the comment. She thought it was his way of being polite and giving her a compliment. Miller made other inappropriate unprofessional related comments to Stuglik afterwards and she never told him the comments were personally offensive or to stop. Miller also tried to grab Stuglik's buttocks quite of few times. The first time was in the shared office. Miller told Stuglik that he and his wife had an open marriage, and that his wife allowed him to have multiple sexual partners. As Respondent admitted in her deposition, Respondent had sex with Miller either three or four times at Watkins. Each time Miller took Stuglik by the hand without protest, took her to the storage room, undressed her by unfastening the top portion of her pants, lowered her pants and then she would cooperate with him by having providing sexual intercourse. Each sexual liaison Stuglik had with Miller was consensual.1 Neither Stuglik nor Miller used protection such as a condom, during sexual intercourse. Stuglik admitted that she wasn't concerned about getting pregnant because she was on birth control. The first sexual encounter took place one morning in September 2007. Miller went in Respondent's classroom before school while she was sitting at her desk, grabbed her hand, and led her "not in a hard manner" without protest to the storage room. Respondent also failed to resist when Miller undid her pants by undoing the buttons, took off her pants with her underwear, and she stepped out of her pants. Respondent, who was naked from the waist down, mounted Miller, who was sitting in a chair with his penis exposed, for the sexual act and hugged him as he instructed during sex intercourse.2 Respondent's response to Miller's actions while they engaged in sex were, "I'm married; I don't believe in this." And, "That's you; that's not me; I'm married; I don't do that." She never told him to stop what he was doing.3 Stuglik put on her clothes after sex with Miller and returned to her class and taught that day. Miller never threatened Stuglik or physically tried to harm or force her to have the sexual liaisons. At no time, did Stuglik refuse, fight, yell, or pull away forcefully during the encounters. Stuglik paused during a sexual liason but never said no or attempted to stop it. Stuglik also testified to a second sexual encounter with Miller. She admitted that several weeks later Miller got to school early again, grabbed Stuglik's hand, and led her back to the storage room where the two of them had sex again without any conversation. Respondent testified that she didn't say anything because she didn't know what was going to happen. At least a third sexual encounter occurred between Stuglik and Miller at either the end of October or the beginning of November. After the 2007 Thanksgiving break, Stuglik did not have sex with Miller again. Respondent never reported any of the sexual encounters with Miller to anyone until April 27, 2009. During the summer of 2008,, Respondent's husband divorced her. During Stuglik's 2008-2009 school year, Respondent taught sixth, seventh, and eighth-grade Spanish. She moved to a different classroom, the general music classroom, in the same music building. Stuglik was provided a key to the classroom that provided a lock for the door, which prevented anybody from entering the classroom without her allowing the individual inside. The principal informed Stuglik that Miller had asked for a key to her room, stating that he needed access to the storage room. The principal provided the option to Stuglik as to whether she provided Miller the key to Stuglik's classroom. Studlik requested that the principal provide Miller a key, which allowed Miller access to her classroom. Several times during the 2008-2009 school year, while Stuglik was working at her desk, Miller approached Respondent, sat on the desk in front of her, and put her hand on his penis. Each time he placed her hand there, he would say, "Let's do it again." During her second year teaching at Watkins, Stuglik volunteered to help with Miller's band activities on weekends and during the evenings, including going on field trips every couple of months or so. Respondent's social relationship continued with Miller and his wife. Stuglik had a discussion with Miller's wife regarding children. Miller's wife informed Respondent that she badly wanted to have a baby. Stuglik also initiated contact with Miller during the 2008-2009 school year and requested concert tickets from him after she heard he could get discounted tickets to see a show. Stuglik obtained the tickets by getting them from Miller's wife. Stuglik took her boyfriend to the concert for Valentines Day. She and her boyfriend sat next to Miller and his wife at the concert. Stuglik attended the Waterway Cafe, a restaurant bar, and socialized with a group of teachers including Miller and his wife. She went there several times. Stuglik had K.H. and T.B. in her second period class and, A.P. in her sixth-period class during the 2008-2009 school year. Miller would ask that K.H., the drum major, and T.B. come to his classroom from out of Stuglik's class. She would allow the female students to leave during her class core time and go with Miller. Other teachers also allowed Miller to remove female students from their classrooms during class and take them to his class. Approximately at the beginning of April 2009, Miller informed Respondent and several other teachers at lunch that there was a rumor that he was involved sexually with students. Respondent was shocked to hear the rumor and did not believe Miller would harm students. On or about April 16, 2009, district officials started an investigation into allegations that Miller had an inappropriate sexual relationship with a female student during the 2008-2009 school year. On Friday, April 17, 2009, K.H. came to Respondent's class crying and upset. Respondent had her step outside and wait while she took attendance. When Stuglik went in the hall to check on K.H., she was gone. When K.H. returned to Respondent's class, she didn't stay long before a person from the main office removed her. Stuglik never talked to K.H. about the crying incident. Friday was also the day Miller was removed from the school for allegedly having sex with female students. Stuglik was in Miller's classroom where he was about to update her on the rumor when the police arrived to remove him from the school. After Miller was removed from the school, he called Stulik on her cell phone at least one time at 4:16 p.m. on Friday; two times on Saturday at 10:11 a.m. and 3:53 p.m.; and one time on Sunday at 6:47 p.m. asking for information regarding the investigation. On April 21, 2009, during the investigative process, Respondent gave a sworn statement to the school detective, Vincent Mintus ("Mintus"), where he asked her, "did she date Miller" and "was she romantically involved with him." Stuglik responded no to both questions.4 Stuglik did not disclose that she had a sexual relationship with Miller during the interview. Subsequently, during the investigation, Mintus discovered that from September through November of 2007, Stuglik engaged in sex with Miller on the school campus during school hours. Stuglik admitted in her deposition that she didn't initially tell the investigator she provided about the sexual relationship with Miller because "I didn't want anybody to know." On April 27, 2009, Respondent provided a second sworn statement to Mintus where she was told by him that she was a victim, and she agreed. The Mintus interview included the following questions and answers: Q. And did it involve sexual intercourse? A. Yes. Q. Okay. Was it here at school? A. Yes. Q. Yes? Um . . . are you . . .when did that occur? Now let me ask you . . .you are a victim in that. A. Yes. Q. Do you understand that? A. Uh-huh (yes) Q. That was against your will? A. Yes. *** Q. Okay, you understand you are a victim? A. Yes. Q. Okay. Um . . . and your . . . our explanation to me is that it was absolutely non-consensual. A. Yes. Q. So you were a victim of sexual battery. A. It's . . . don't know what the terminology is, but . . . Q. Okay, um . . . okay. It was non- consensual though, right? A. Correct. After the interview, Mintus contacted the Victim's Advocate of Palm Beach County for Stuglik and started a criminal investigation into her rape allegations. Stuglik went to see the Victim's Advocate after Mintus called them. The rape investigation required a third interview of Stuglik. Respondent only agreed to provide the statement with the assurance that Miller would not be criminally prosecuted for her allegations. On July 29, 2009, Almarie Thompson ("Thompson"), a Victim's Advocate for Victim Services, and an attorney went with Stuglik to her third interview with Mintus. During that sworn interview, Mintus asked Studlik if she were taken advantage of [by Miller]. She answered, "A little bit, yeah." Thompson referred Stuglik to Norma Asencia ("Asencia"), a licensed mental health provider with Palm County Victim Services. Asencia had an intake visit with Stuglik on December 14, 2009. Asencia did not diagnose Stuglik but determined that she had common symptoms of a rape victim and structured her remaining four sessions to deal with the symptoms.5 The last session was on March 3, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner finding Stuglik did not violate Subsection 1012.795(1)(b), 1012.795(1)(g), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)9a), 6B-1.006(4)(b), and 6B-1.006(5)(m); finding that Stuglik did violate Subsections 1012.795(1)(d), 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(5)(a), and suspending her educator's certificate for one year followed by probation for one year. DONE AND ENTERED this 30th day of November, 2010, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 November, 2010.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint?
Findings Of Fact Respondent holds teaching certificate number 394824, which was issued on July 1, 1982, and is valid until June 30, 1992. At all times relevant, Respondent was an employee of the Duval County School Board. Respondent is an English teacher and also a coach for baseball, basketball and football teams. During the 1986-1987 school year, Respondent taught English at Jeb Stuart Junior High School. While at Jeb Stuart, Respondent befriended Ms. Westerman, a ninth grade student. The friendship resulted in Respondent and Ms. Westerman talking and exchanging handwritten notes often. The notes Respondent wrote to Ms. Westerman during this period appear to be a little too personal for a student-teacher relationship, but cannot be said to constitute inappropriate behavior. When the 1986-87 school year ended, the relationship was interrupted by the summer break. Respondent thought he would not see Ms. Westerman again, since she would be going to a different school, Forrest Senior High School, for the 1987-88 school year. Respondent, however, also transferred to Forrest Senior High School because he wanted to coach high school sports teams and an opportunity to do so presented itself. At the beginning of the 1987-88 school year, Respondent and Ms. Westerman reestablished their relationship and started talking and exchanging notes. Beginning in September, Respondent's notes to Ms. Westerman became more personal, containing statements such as: . . . do you love and appreciate me. . . you're the mayonnaise on my cheeseburger.! * * * I like to talk to you. My only problem is that I want to talk to you the way a man talks to a woman (nothing nasty) and I can't because of this student- teacher relationship. Petitioners Exhibit 1, pages 25 and 26. While at Jeb Stuart, Respondent had given Ms. Westerman a metal bookmarker. During the period from approximately early October 1987 to December 16, 1987, Respondent gave Ms. Westerman the following items: 1 pink Panasonic cassette player 1 vase containing sixteen roses stuffed bear in karate suit tee shirts (1 blue and 1 white w/Minnie Mouse design) 1 picture - fish 3 cassette tapes 1 Chinese Scent fan small straw basket bags of scented potpourri 1 football jersey #55 small bottle of scented Rose liquid pictures of Mr. Tackett 1 blue plastic sun visor with "Moi Gata" written on it Also, Respondent would occasionally give or loan Ms. Westerman lunch money and money to buy sodas after school. Sometime in October, Respondent realized that he was getting "feelings" for Ms. Westerman and that the relationship was becoming more than a teacher-student relationship. Respondent also became jealous of Ms. Westerman's male friends. Ms. Westerman became concerned about the tone of some of Respondent's notes and statements. In November 1987, Respondent and Ms. Westerman decided it would be best to end the relationship and attempted to do so. However, the attempt was unsuccessful and Respondent and Ms. Westerman resumed exchanging notes and talking. On December 15, 1987, Ms. Westerman's sixteenth birthday, Respondent gave her a note containing written instructions. The instructions directed Ms. Westerman to go to the Burger King near the school and ask for the manager. Upon doing so, the manager gave Ms. Westerman the vase containing sixteen roses. Ms. Westerman was accompanied by a friend and was embarrassed to receive the roses under such circumstances. Respondent also gave Ms. Westerman the cassette player for her birthday. Respondent told Ms. Westerman to bring a black bag to school and leave it with him. When Ms. Westerman received the bag back, the cassette player was in it. The bag was needed to hide the cassette player, since it was against school rules to have a cassette player at the school. On December 16, 1987, Ms. Westerman's mother discovered the notes and gifts. On the following day, Ms. Westerman's mother went to the school and met with the assistant principal regarding the notes and gifts. After this meeting, the school began the investigation which led to this hearing. The investigation was supposed to be confidential. However, when school began in 1988, after the Christmas break, it became known around the school that Mr. Tackett was being investigated and that Ms. Westerman was part of the investigation. Ms. Westerman was harassed by students who liked Mr. Tackett and believed Mr. Tackett's problems were Ms. Westerman's fault. After her mother discovered the letters, Ms. Westerman began having nightmares, developed sleeping and eating problems and her grades deteriorated. These problems disappeared with time, but resumed as the time for this hearing drew near and Ms. Westerman received a subpoena to appear at the hearing. Respondent never made oral, written or physical advances of a sexual nature toward Ms. Westerman. Respondent has given gifts and lunch money to other students. However, he has never given 19 gifts to another student. In those instances where gifts to students were substantial, e.g., a radio or a television set, the gifts were rewards for good school work and not outright gifts as in Ms. Westerman's case. Respondent is an excellent teacher who takes a great interest in his students and is able to inspire them to want to do better in school. On several occasions, Respondent has been directly responsible for bad or mediocre students being able to better their academic performance. In September 1987, Respondent was 42 years old. At the hearing, Respondent was not willing to recognize that what he had done was improper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered placing Respondent on probation for two years during which Respondent's teaching activities are supervised and he receives counselling regarding what a proper teacher-student relationship should be. DONE and ENTERED this 16th day of February, 1989, in Tallahassee, Leon County, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1989. APPENDIX CASE NO. 88-2990 Rulings on Petitioner's proposed findings of fact with exception of some proposed facts which are subordinate to facts found, the proposed findings of fact contained in paragraphs 1-25 are accepted. Paragraphs 26-30 are rejected as recitations of testimony. Rulings on Respondent's proposed findings of fact 1-10. Accepted. True for face-to-face conversations, but Respondent encouraged the relationship through his notes where he asked Ms. Westerman to respond and write back. Accepted. Accepted. Rejected as recitation of testimony. 15-19. Subordinate to facts found. 20-22. Rejected as irrelevant. 23. Accepted. COPIES FURNISHED: Lane Burnett, Esquire 331 East Union Street Jacksonville, Florida 32202 Al Millar, Esquire 2721 Park Street Jacksonville, Florida 32205 Karen B Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol, PL08 Tallahassee, Florida 32399-0400
