The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(3)(a) and 6A-10.081(5)(d), as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke, suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2016). Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2016). Respondent holds Florida Educator's Certificate 829054, covering the areas of Education, Leadership, Physical Education, Social Science, and Exceptional Student Education, which is valid through June 30, 2018. At all times pertinent hereto, Respondent was employed as an Exceptional Student Education Teacher at Holly Hill School in the Volusia County School District. Holly Hill School is a combined K-8 school. During the time in question, Respondent shared a small office with Ms. Pollok and Mr. Edwards. The office was formerly a teachers’ lounge/lunchroom. It still had a counter, sink, and refrigerator, and had bathrooms that continued to be used on occasion by other teachers. Each of the three teachers who shared the office had their own desk. The office also included two smaller tables at which the teachers could provide service to their ESE students when necessary. At the start of the 2013-2014 school year, Ms. Pollok knew Mr. Edwards, who had been in the ESE program, but did not know Respondent. The incidents described herein occurred between the start of the 2013-2014 school year on August 13, 2013, through late November, 2013, when Respondent was removed from the classroom. Racial Comments Over the period of time in question, Respondent made numerous statements of a racial nature. While on hall duty between classes, Respondent would occasionally call African-American children “Bebe’s kids.” The reference was to an animated television show in which “Bebe’s kids” were unruly and ill-mannered African-American children. Mr. Edwards understood the comment to be derogatory, and noted that the children hearing the comment would occasionally react, even to the point of commenting that they did not want to be referred to as such. Respondent’s statements were also heard by Ms. Burnam-Hoyt, who likewise understood the term to be derogatory, and observed that the children at the receiving end of the comment looked shocked. She advised Respondent that he should not call them that name. Ms. Pollok testified that Respondent routinely called children “nappy” during hall duty when students transition from one period to the next. The comments were directed to middle school students, whose reactions were perceived by her as being ones of humiliation or embarrassment.1/ Mr. Edwards testified that he heard Respondent refer to African-American children as “nappy,” though not with the frequency with which he called them “Bebe’s kids.” Respondent testified that he only called one child “nappy” at the request of the child, an ESE student -- though not one of his students -- who wanted to be called “napster” or “nappy.” There was no competent, substantial evidence to support that claim. No other teacher substantiated such a request, and Mr. Edwards and Ms. Burnam-Hoyt testified credibly that the term was used more broadly. In any event, as stated by Ms. Fisher, there would be no reason to address any student by that type of obviously inappropriate term, even if requested. Mr. Edwards perceived Respondent’s comments as inappropriate, and they made him uncomfortable. He believed, rightfully, that the comments made Ms. Pollok uncomfortable as well. There was no evidence that any student’s learning ability or mental health was actually adversely affected by Respondent’s racially-demeaning statements. Nonetheless, under the circumstances described herein, Petitioner proved that Respondent failed to make reasonable effort to protect students at Holly Hill School from humiliation and embarrassment, conditions reasonably understood to be harmful to their learning environment and their mental health. Sexual Comments Over the period of time in question, Respondent repeatedly made statements of a sexual nature. On occasion, when Ms. Pollok arrived to work in less than a cheerful mood, Respondent would state to the effect of “What's the matter, Pollo[]k, why are you grumpy? Am I going to have to go downstairs and talk to your husband about how to wake you up properly?” The first time he made the comment, he accompanied it with hip thrusts and grunts, i.e., sounds that people make when they're having sex, thus accentuating the sexual nature of the comment. The first time Respondent made the statement, Ms. Pollok felt awkward, left the office, and went to her husband’s classroom (he was also a teacher at Holly Hill School) where she stayed until the school day started. When he continued to make such statements on a more regular basis, it made her uncomfortable. Mr. Edwards heard Respondent make the statement to Ms. Pollok on one or two occasions. Respondent denied having ever made the comments, attributing them to Mr. Anderson, who laughingly took credit. Regardless of whether Mr. Anderson may have also made comparable statements, the testimony of Ms. Pollok and Mr. Edwards that Respondent made the statements at issue is more credible, and is accepted. Ms. Burnam-Hoyt, who enjoys a well-known and long-term relationship with her wife, would occasionally visit the office. On one occasion, while in the presence of Mr. Edwards, Respondent told Ms. Burnam-Hoyt that she looked nice that day and said “I wish you would switch teams.” Though she gave an off-hand reply, Ms. Burnam-Hoyt did not discuss her sexuality, especially in the workplace, and was offended by the comment. On several other occasions, when Ms. Burnam-Hoyt was not in the room, Respondent commented in the presence of both Ms. Pollok and Mr. Edwards that he wished “she didn’t bat for the other team.” On one occasion, when Ms. Pollok had returned from ESE training and asked Respondent about his day, he replied that “it was pretty boring until your old boss, what's her name, Mandy [Elzy], bent over and showed me her boobs.” Respondent commented, with regard to Anna Garces, that “she was spicy and he'd like to make her his consuela.” When Donna Mounts, a P.E. instructor, would come to the office, Respondent’s favorite phrase was that he “would like to mount Coach Mounts.” Respondent did not make the statement directly to Ms. Mounts, but he made it in the office on a routine basis. Respondent commented regarding Marcie Lockamy, an African-American assistant principal, that “I don’t normally do black ladies, but she’s pretty hot . . . I’d get at that.” Respondent’s denial that he made the statement, or that he even knew who Ms. Lockamy was, was not convincing. Respondent’s comments were repetitive, and he would make some statement every day. Ms. Pollok and Mr. Edwards told Respondent that he should “tone it down.” In particular, Mr. Edwards testified credibly that he advised Respondent “at different points” that his comments about women were not appropriate, not only because of his own view of the matter, but because he believed them to be disturbing to Ms. Pollok. The requests and recommendations had no identifiable effect. Mr. Anderson’s testimony in this case, apparently designed to exonerate Respondent and transfer responsibility for many of the statements to himself, was not persuasive, and in several instances, conflicted with the more credible testimony of other witnesses.2/ Respondent’s general defense to his sexual comments was that he was just “joking around,” that they occurred when he and the target of his comments “were talking and laughing and having a good time in between classes,” that they were a “jovial gesture,” and the like. He denied that they were perceived as offensive by any the persons within earshot, a statement denied by the persons exposed to his comments. Individually, Respondent’s comments could be categorized as puerile. Collectively, and over time, they rose to the degree that they created a hostile, abusive, offensive, and oppressive environment in the small office that constituted the workplace for the three teachers. Threatening Comments The Administrative Complaint alleges that, over the period of time in question, Respondent made “threatening comments to or around [Ms. Pollok].” As to comments regarding Respondent’s prior work- history as a police officer, Mr. Edwards testified credibly that they were nothing more than “experiences that people have or wanted to share.” Mr. Edwards did not take those statements as threatening. When Respondent discovered that he was being investigated by Holly Hill School, he was understandably upset. He made some comments that expressed his frustration. However, Mr. Edwards testified that Respondent did not threaten him or Ms. Pollok. Respondent admitted to being upset and frustrated, but denied either expressing, or having the intent to harm anyone. The comments, under the circumstances, were not so out of line as to objectively constitute a threat to one’s safety or welfare. Under the circumstances described herein, Petitioner did not prove that Respondent’s allegedly threatening statements created a hostile, intimidating, abusive, offensive, or oppressive environment in violation of rule 6A-10.081(5)(d). Holly Hill School’s Response Ms. Pollok complained of Respondent’s behavior to various administrators at Holly Hill School, including Mr. Strother, and went so far as to request a reassignment of her duties so as to avoid Respondent. On November 1, 2013, Mr. Strother spoke with Respondent. The conversation was “short and brief,” and non-specific, with Mr. Strother generally advising Respondent to “be cognizant of conversations you're having and what you're saying around other people.” On or about November 4, 2013, Ms. Pollok renewed her complaint to Mr. Strother about Respondent’s comments about “the ladies,” and their looks and sexual preferences. Mr. Strother could tell that the comments made Ms. Pollok uncomfortable. Mr. Edwards had also spoken to Mr. Strother regarding Respondent’s comments. As a result of those complaints, Mr. Strother sent out an email directing all teachers to have “professional conversations,” and to lead “by example with appropriate conversation.” Though the email was not specific, included other topics, and was sent to a number of Holly Hill School employees, it nonetheless should have placed Respondent on notice to heed not only Mr. Strother’s earlier advice, but also the earlier admonitions from Mr. Edwards and Ms. Pollok to “tone it down.” It did not have the intended effect. On November 20, 2013, Ms. Pollok reported Respondent’s unabated comments about women and those made towards students to Ms. Fisher. Ms. Pollok was upset and crying during their discussion. Ms. Fisher then spoke with Mr. Strother to confirm Ms. Pollok’s earlier complaints. Ms. Fisher reported the allegations to the school district, and on November 21, 2013, an investigation of Respondent’s conduct was initiated. The investigation delved into the sexually-inappropriate comments, and extended into areas that are not the subject of this proceeding, for which Respondent received a reprimand. As to the comments directed to students, which were determined to be violative of principles of professional conduct and school board policy for failing to protect students or exposing them to excessive embarrassment or disparagement, Respondent was suspended without pay for five days, and transferred from Holly Hill School.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rules 6A-10.081(3)(a) and 6A-10.081(5)(d). It is further recommended that the Education Practices Commission impose a suspension of the Respondent's educator certificate for a period of one year, and a probationary period of one year upon his return to teaching in any public or private school in Florida on such reasonable terms and conditions as the Educational Practices Commission determines are necessary to prevent recurrences of the conduct proven in this case. DONE AND ENTERED this 23rd day of January, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 23rd day of January, 2017.
Findings Of Fact During the 1985-86 school year Respondent Gregory Hunter Stephens was a student in the tenth grade at Miami Sunset Senior High School. On April 18, 1986, during the lunch period Respondent drove into the faculty parking lot in his Corvette with the police following closely behind. It was determined that during his lunch break Respondent had been driving his Corvette in a nearby condominium development threatening residents and throwing beer cans on the lawns. The residents had summoned the police. An Assistant Principal held a conference with Respondent's father whose response was that the police should have better things to do than to bother his son for drinking beer and driving around during his lunch break. Respondent was given a three-day suspension. On May 22, 1986, Respondent got into a fight in class, a Group III violation of the Code of Student Conduct. A conference was held with Respondent's father, and Respondent was given a ten-day suspension. Although other informal discussions were held with Respondent's father during that school year, by the end of the third grading period Respondent's grades were one "C," one "D," and 4 "Fs." His absences from his classes during the third grading period alone ranged between 2 and 13. He received only a "3" for his effort in each and every class. During the 1985-86 school year, Respondent was absent 95 days out of the 180-day school year. On March 3, 1987, an Assistant Principal observed Respondent leaving the campus during Respondent's second-period class. He stopped Respondent and gave him a warning. A few minutes later he caught Respondent again attempting to leave. Respondent's mother was contacted, and Respondent was given a "work detail detention." On April 2, 1987, a fight broke out off campus between a group of Latin students and a group of Anglo students. On the following day Respondent admitted to an Assistant Principal that he was one of the participants. All of the students involved (including Respondent) were suspended for three days for that Group III Code violation. On October 19, 1987, Respondent was nearly involved in a collision in the parking lot. Respondent got out of his car and started pushing the other driver. A fight ensued. Respondent's parents were contacted, and he was given a ten-day suspension. By the time of the October 19th incident, Respondent had already been absent 6 days that school year. Further, although the Assistant Principal had two conferences with Respondent's father during the month of October, Respondent was receiving one "C," one "D," and five "Fs" in his classes. A Child Study Team was convened, and a meeting was held on November 3, 1987. Respondent and his parents refused to attend. The Team recommended that Respondent be transferred to Douglas MacArthur Senior High School-South, based upon the October 19, 1987, incident, his failing grades during the most-recent two years, and Respondent's chronic aggressive behavior which constituted a threat to the welfare of the other students. It was determined that Respondent required assistance a normal school could not provide and that a structured environment would be more appropriate since the educators at Miami Sunset Senior High School had unsuccessfully attempted to modify Respondent's behavior by conferences between Respondent and a counselor, meetings between Respondent's parents and assistant principals, indoor suspensions, outdoor suspensions, and work detail suspensions
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Gregory Hunter Stephens to the opportunity school program at Douglas MacArthur Senior High School-South until such time as his performance reveals that he can be returned to the regular school program. DONE and RECOMMENDED this 29th day of March, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1988. COPIES FURNISHED: JOSEPH A. FERNANDEZ, SUPERINTENDENT SCHOOL BOARD OF DADE COUNTY 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132 FRANK R. HARDER, ESQUIRE 175 FONTAINEBLEAU BOULEVARD SUITE 2A-3 MIAMI, FLORIDA 33172 LANA STEPHENS 15490 S.W. 85TH LANE MIAMI, FLORIDA 33183 MADELYN P. SCHERE, ESQUIRE ASSISTANT BOARD ATTORNEY DADE COUNTY PUBLIC SCHOOLS 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132 PHYLLIS O. DOUGLAS, ESQUIRE ASSISTANT BOARD ATTORNEY DADE COUNTY PUBLIC SCHOOLS 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132
The Issue Whether Patrick M. Hill, Respondent, is guilty of immorality and misconduct in office as more specifically alleged in letters of April 6, 1990 and May 18, 1990.
Findings Of Fact At all times relevant hereto, Patrick M. Hill held a professional services contract with the Polk County School Board as a remediation teacher at Lakeland High School. He also served as wrestling coach and cross country coach at Lakeland High School. During the spring break of the 1989-90 school year, Respondent told some students they could earn some extra money if they helped him paint his house. Erik Greatens, an 18 1/2 year old senior, agreed to help, and he, with a 25 year old man, John, and Respondent, worked all day painting. Around noon that day when all were hot and thirsty, Respondent told them there was beer in his refrigerator. Both Erik and John accepted the offer. Erik had one beer. When they stopped painting around 5 p.m., Respondent told them he would order pizza if they wanted to return later. Erik accepted and went home to shower and change clothes. He returned around 6:30 p.m. and shared pizza with Respondent. Erik testified that he had only the one beer that day at Respondent's home and that his father permitted him to drink an occasional glass of wine at home. He did not drink beer or any other alcoholic beverage while at Respondent's home that evening. Around 8:30 p.m., Erik left Respondent's residence and went to the Publix parking lot to meet some friends. At the parking lot that evening with his friends, Erik consumed 11 or 12 cans of beer before driving the four or five blocks to his home. When he arrived, his mother was up and considered her son was inebriated and that he had received the beer at Respondent's home. At the time, Erik told her he had only the one beer at Respondent's home, but, from his condition, the mother was sure he had drunk more than one beer. The following day, Mrs. Greatens called the Superintendent's office to complain about Respondent providing Erik with beer. Based upon that complaint, Respondent was suspended from his position as teacher at Lakeland High School. The professional Practices Council of the State Department of Education was notified of the charge so they could institute an investigation to determine if Respondent's state certificate should be disciplined. To date, no charges have been brought by the Department of Education. Subsequently, Petitioner learned that Respondent had pleaded guilty in New Jersey to a charge of contributing to the delinquency of a minor in 1973. A copy of this court record was admitted into evidence as Exhibit 3. In 1973, Respondent was a tenured teacher in the school district of the Township of Pemberton, Burlington County, New Jersey. Charges were preferred against Respondent by the Board of Education, and an administrative hearing was held to determine if the charges and circumstances surrounding the charges warranted dismissal of Respondent from his position as a tenured teacher. Following that hearing, the hearing examiner submitted a report recommending the charge and evidence insufficient to warrant a dismissal or reduction in salary. The Commissioner of Education adopted the finding and recommendation of the hearing examiner. In the instant proceedings, Respondent testified to the facts regarding the 1973 incident. That testimony is essentially the same as found by the hearing examiner in 1973 reported in Exhibit 4 as follows: The testimony offered by the Superintendent of Schools and respondent's building principal was that respondent is a good teacher, as evidenced by his past evaluations, and his record has been unblemished since his employ- ment by the Board. This matter has been brought to the attention of the Commissioner solely because of an incident which occurred on March 8, 1972, and that incident alone is the basis for the Board's action. On the evening of March 8, 1972, respondent was returning to his home after working late at his school on some extra curricular project. The record shows that Respondent was very active in the school community, and that he coached sports activities, served on the executive board of the local P.T.A., and served as President of the Pemberton Township Police Athletic League, in addition to his regular teaching duties. Respondent testified that it was a rainy night. On his way home, he picked up a hitchhiker who told him that he had a job in north Jersey and was on his way to visit his father in the Tuckerton area (approxi- mately thirty miles away). Because of the late hour and the poor weather conditions, Respondent offered the hitchhiker a place to spend the night in his home and told him he would drop him off at the inter- section of Routes #9 and #37 the next morning on his way to school. The hitchhiker accepted the offer and spent the night in respondent's home. Respondent testified that he also offered the use of his telephone so the hitchhiker could call his father, but that he refused saying that he was not expected anyway. He testified fur- ther that nothing untoward happened that night and that he dropped the hitchhiker off at the named intersection the follow- ing morning on his way to school. Respon- dent did not know that the hitchhiker was a minor; neither his appearance, nor his conversation about holding a job in north Jersey, nor having a drink and avoiding the police, lead (sic.)Respondent to conclude that the hitchhiker was a minor. (Tr. 19-22) None of this testimony is refuted by the Board, nor were any witnesses pre- sented by the Board to give any other version about what allegedly occurred on the evening of March 8, 1972. The Board, however, grounds its action against Respondent on his subsequent arrest by the police and his later indictment by the Grand Jury of Ocean County. A change of plea to that indictment reads in pertinent part as follows: (P-1) The State moved under Rule 3:74 to amend the third count of the indictment to read `did contribute to the delinquency of a minor by permitting him to remain overnight without parental consent'. The Court so ordered. Patrick Hill sworn. (sic.) As a result of plea bargaining, the Defendant retracted his former plea of Not Guilty and entered a plea of Guilty to the amended third (3rd) count of [the Indictment). * * * In the hearing examiner's judgment, it would be wrong to speculate why Patrick Hill made the plea (P-1) rather than pursue some other defense of the original charges made against him. He testified that he made the change of plea because he did allow the youth to stay in his home overnight. Suffice it to say that he was represented by counsel and the record must now speak for itself. Respondent entered a plea of guilty (P-1) which the Commissioner must con- sider in making his determination. N.J.S.A. 2A:96-4 reads as follows: A parent, legal guardian or person having the legal custody or control of a child, who by any continued negligence or willful act, encourages, causes or con- tributes to the child's delinquency, or any other person who by any wilful act encourages, causes or contributes to a child's delinquency, is guilty of a misdemeanor. The hearing examiner found that the unrefuted testimony of respondent, and the absence of any proof of conduct unbecoming a teacher by the Board, leads to the conclusion that the only fact before the Commissioner is that respondent knowingly permitted a minor to remain in his home overnight without the consent of the minor's parents. Respondent testified without contradiction that he was told by his attorney that the conviction would be expunged and he could forget it. Accordingly, Respondent concluded, albeit erroneously, that he never would need to reveal this record. Respondent moved to Florida and was employed as a junior high school teacher at St. Joseph's School, Lakeland, Florida, from 1979 to 1986 when he was employed by the Polk County School Board to teach at Lakeland High School. While at St. Joseph's, Respondent continued his extracurricular activities similar to those in New Jersey coaching children in wrestling and track, and he was involved in national and statewide wrestling programs for children. When he started teaching at Lakeland High School, Respondent continued his coaching activities and his work with children. He has been involved with helping troubled adolescents at the Polk Correctional Institute, served on the Governor's Council on Health, Physical Education and sports, was awarded man of the year honors for the AAU Wrestling Division, took a group of young wrestlers to Germany two years ago (1988) in a cultural exchange program and coordinated a return visit of German youth wrestlers to Florida in 1989. Respondent has excellent rapport with his students and with the student's parents. The letters admitted into evidence in Exhibit 5 extolling the virtues of Respondent as a teacher, coach and individual are not the pro forma, perfunctory letters of recommendation usually presented, but clearly indicate heartfelt esteem, appreciation and admiration. Respondent has had no prior disciplinary actions brought against him while teaching in Florida schools.
Recommendation Considering the reputation of Respondent, his rapport with students and peers, the time he has devoted to developing children into responsible adults and the conclusions that the acts complained of do not constitute immorality but are minor infractions coming under the definition of misconduct in office, it is recommended that Patrick M. Hill be found guilty of misconduct in office and suspended without pay for four months. RECOMMENDED this 20th day of August, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Post Office Box 391 Bartow, FL 33830 Arthur C. Fulmer, Esquire Post Office Box 2958 Lakeland, FL 33806 John A. Stewart Superintendent of Schools Post Office Box 391 Bartow, FL 33830 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400
The Issue The issue is whether Respondent engaged in an unlawful employment practice by subjecting Petitioner to gender discrimination and retaliation in violation of the Florida Civil Rights Act.
Findings Of Fact Southgate is a student housing and dining facility located in Tallahassee, Florida, near the campuses of Florida State University, Florida A&M University, and Tallahassee Community College. On September 16, 2004, Southgate hired Petitioner Devon Rozier as a dishwasher in the cafeteria dish room. The cafeteria is open seven days a week and currently employs approximately 34 employees, some part-time and some full-time. Petitioner had just turned 16 years old when Ken Mills hired him based upon a long-standing relationship with Petitioner's father, who had worked at Southgate for many years and was an exemplary employee. Petitioner worked as a part-time employee on the night shift, 3:30 p.m. until 8:00 p.m., for a total of 20-25 hours per week. Petitioner later received a promotion out of the dish room to the grill, and also worked other positions such as attendant and greeter. Petitioner also worked in various positions to assist as needed, as did other employees in the cafeteria. At the beginning of his employment, Petitioner exhibited good performance. As time progressed, Petitioner's performance began to decline, and he openly disrespected management. Various disciplinary techniques were employed by his supervisors in efforts to improve his performance, but the improvements always proved to be short-lived. On April 30, 2009, Petitioner and his supervisor, Rasheik Campbell, had an altercation, and Petitioner left the facility. Mr. Campbell warned Petitioner before he left the facility that such action would constitute job abandonment. Despite Mr. Campbell's warning, Petitioner left the facility. Mr. Campbell took the position that Petitioner abandoned his employment with Southgate. Petitioner was no longer placed on the schedule. On May 4, 2009, Southgate sent Petitioner a letter confirming his resignation. As months passed, Petitioner made attempts to regain his position with Southgate by calling his supervisors Mr. Campbell and Mr. Jason McClung. When his attempts were met with resistance by his supervisors, Petitioner bypassed them and went directly to Ken Mills, Southgate's General Manager and Petitioner's former supervisor. Petitioner presented his case to Mr. Mills in July and August 2009, regarding his desire to return to work. Mr. Mills had previously intervened on Petitioner's behalf, out of respect for Petitioner's father, to help him keep his job when difficulties with management had arisen. This time, Mr. Mills instructed Petitioner that Mr. McClung and Mr. Campbell were his direct supervisors and that they had ultimate responsibility regarding his desired return to work at Southgate. In August 2009, at the request of Mr. Mills, once again doing a favor for Petitioner based upon the long-standing work history of Petitioner's father at Southgate, Mr. Mills, Mr. McClung, and Mr. Campbell met with Petitioner and his mother, Jennifer Rozier. At the meeting, they discussed Petitioner's request to return to work at Southgate. During the meeting, Mr. McClung and Mr. Campbell did not feel that Petitioner exhibited any improvement in his behavior and respect for authority. As a result, Mr. McClung and Mr. Campbell chose not to re-hire Petitioner. Petitioner claims the following conduct he witnessed while working at Southgate was discriminatory: a) females were allowed to sit down at tables and eat while on the clock; b) females were allowed to use the computer while on the clock; and c) Petitioner was required to perform the females' work when they failed to show up or wanted to leave early. Petitioner further claims that his firing was retaliatory based upon one complaint he made to Mr. Campbell in February 2009 about having to perform the tasks of others who failed to come to work. Other employees, including Jodece Yant, Petitioner's girlfriend, and Darnell Rozier, Petitioner's own brother, testified that both males and females could be seen eating or using the computer while on the clock, and all were told to perform others' tasks when they failed to come to work or left early. Petitioner conceded that on occasion he engaged in the same behaviors he alleges to be discriminatory. Petitioner obtained a full-time job at Hobbit American Grill on January 21, 2010, and, as of the date of the hearing, continued to work there. His rate of pay at Hobbit American Grill is currently $7.25 per hour, and he testified he is better off there than at his former employer, Southgate. Petitioner is currently earning the same hourly wage ($7.25) as he was earning when employed at Southgate. Southgate had policies and procedures in force that prohibited, among other things, discrimination on the basis of gender or any other protected characteristics. Southgate's policies and procedures also prohibited retaliation. Petitioner received a copy of the employee handbook, which contained Southgate's anti-discrimination policies and was aware that Southgate had such policies in place.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of November, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 10th day of September, 2010. COPIES FURNISHED: Desiree C. Hill-Henderson, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 Micah Knight, Esquire 123 North Seventh Avenue Durant, Oklahoma 74701 Devon A. Rozier 7361 Fieldcrest Drive Tallahassee, Florida 32305 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Introduction At all times relevant hereto, respondent, Michael A. Graham, was a middle school teacher at West Miami Junior High School (WMJHS) in Miami, Florida. He is under a continuing contract as a teacher for petitioner, School Board of Dade County (Board). He has been an employee in the school system since 1975 and a full-time teacher since 1981. Graham holds bachelor and master degrees from the University of Miami and is currently taking course work at Florida International University towards a second master's degree. On January 12, 1988 the Board voted to suspend Graham without pay for thirty days effective January 20, 1988 for "just cause and misconduct in office." On July 1, 1988 the Board issued a Notice of Charges containing six counts of alleged misconduct. 1/ The charging document alleged that respondent failed to disclose on his job application dated September 24, 1981 that he had been previously arrested on numerous occasions, (b) intentionally exposed a student, I.M., to unnecessary embarrassment, (c) intentionally exposed a student, V.E., to unnecessary embarrassment or disparagement, (d) intentionally committed a battery on U.C., a student, (e) continually and intentionally refused to discontinue uttering profane and/or vulgar language in his classroom during school years 1985-86, 1986-87 and 1987-88, and (f) continually and intentionally refused to discontinue excessive tardiness and excessive absences during the same school years. These charges will be taken up separately below. Filing A False Application (Counts I and II) During the course of his employment with the Board, Graham has filled out various applications and other informational forms. Relevant to this proceeding is an application for an instructional position filed with the Board on September 24, 1981. The application asked the following question: Have you ever been convicted of anything other than minor traffic violations? Graham responded in the negative. Sometime after Graham filed the above application, the Board had an occasion to run a background check on him. Among other things, the Board uncovered the fact that Graham had been arrested on February 29, 1976 for resisting an officer without violence to his person and disorderly conduct, both misdemeanors. The first charge was nolle prossed while Graham was found guilty of the second charge and received a suspended sentence. Certified copies of these records have been introduced into evidence as petitioner's exhibit 10. Although petitioner did not introduce into evidence certified copies of other arrests, there was testimony, without objection, that Graham had been arrested for the following charges: 12/17/71 - public drunkenness 6/05/74 - theft 5/14/76 - worthless checks 4/08/77 - "warrant arrests" 5/18/77 - worthless checks 9/11/79 - worthless checks 9/17/81 - aggravated battery 11/05/82 - worthless checks 2/21/86 - worthless checks During a conference with a school administrator on August 21, 1987, Graham acknowledged that, with the exception of the May 14, 1976 arrest which he did not remember, and the April 8, 1977 matter which he stated involved a voluntary return on his part to the State of Indiana, all other arrests occurred. However, there is no evidence that Graham was convicted of any of these charges, and his testimony that all charges were later dropped was not contradicted. At hearing Graham explained that he thought the question concerning prior arrests on the employment application meant whether his civil rights had ever been taken away. Since they had not, he stated he believed his negative answer was appropriate. Exposing Students to Embarrassment or Disparagement (Counts III and IV) It is alleged that in school year 1986-87, respondent exposed I.M., a seventh grade female student, to "unnecessary embarrassment or disparagement." The student did not appear at hearing but gave post-hearing deposition testimony. As clarified at hearing, this charge stems from alleged off-color remarks about I.M.'s clothing made by Graham to I.M. in front of the class. I.M. was a student in Graham's history class in school year 1986-87. While in class on May 11, 1987, I.M. left her desk to go to the restroom. She was wearing tight fitting pants. When she returned, Graham remarked in a loud voice, and in front of the class, that her pants were so tight he "could see her crack and count the hairs." Graham also made her perform a "fabric test" to ascertain whether she could pinch the cloth on the pants without pinching her skin. If I.M. pinched both skin and cloth, this confirmed that the pants were too tight. After Graham made his comments and required I.M. to take the "fabric test," I.M. became embarrassed, felt "cheap," began crying and left the room. She reported the incident to her counselor and prepared a written statement which is attached to her deposition. Also, she described the incident to a school investigator the same day, giving essentially the same version of events described above. This account is deemed to be more accurate and credible than a slightly different version of events given by I.M. by deposition some fifteen months later. Graham recalled the incident differently. According to his recollection, when I.M. returned from the bathroom to the classroom, he told her she had "inappropriate clothing," and if she disputed this, she would be given a hall pass to visit the principal. If the principal approved the pants, she could wear them to school. Otherwise, Graham told her not to wear them to his class in the future. Graham contended also that he said "Your clothing is too tight around the hips and crotch" and denied using the words "hairs" or "crack." He conceded he may have asked her to perform a "fabric test." However, this version of events is not deemed to be credible and is hereby discredited. Student V.E. is a fundamentalist Christian who was in Graham's American History class for the first three days of school year 1987-88. On the first or second day of class Graham gave a class assignment requiring the students to use the Bible as a historical reference but to explain the story without the (i ideas of miracles and deity. V.E. understood this to mean that she was to "take all miracles" out of the story and to "not have God in it." During class that day, V.E. asked a question about a Bible parable being discussed by Graham and, after she gave the biblical version of what happened, Graham asked her if she believed in magic. V.E. felt "bad" and "intimidated" by Graham's question. When she went home that evening, V.E. told her mother about the class assignment. The mother was upset and prepared a letter for Graham and the assistant principal questioning the subject matter of the assignment. V.E. was told by her mother to hand carry a copy of the letter to Graham the next day. Before she could do this, the assistant principal told Graham that V.E.`s mother had sent a letter. When she entered the classroom the next day, V.E. was asked by Graham if she had a letter for him. After being handed the letter, Graham asked V.E. why she told her mother about the assignment and added "I'm pissed." This episode took place in front of the entire classroom. This caused V.E. to be very "upset" and "embarrassed." She immediately transferred out of Graham's class. Graham countered that there was no "homework assignment" per se and that he was merely seeking to obtain "critical thinking" from his students. According to Graham, his discussion was consistent with the approved curriculum and was intended to have the students reconcile biblical stories with other theories of evolution of men. Graham believed that V.E. had misunderstood the discussion as being an attack on religion when in fact it was not. He added that, of all the students, only V.E. reached that erroneous conclusion. He conceded that he "may have" used the words "I'm pissed" but contended that he was justified in questioning her in front of the entire classroom because students frequently hurried off to other classes once the end-of-period bell rang. Battering Urbano (Count IV) In school year 1986-87, Urbano was a fifteen year old male student. He has since departed the state. It is alleged that Graham committed battery on Urbano. According to Graham, who gave the only eyewitness account of the entire fray, Urbano was still a student when the incident occurred but was in the process of withdrawing from school and moving to California. Urbano had been in several classes taught by Graham and had a history of disruptive conduct. Urbano returned to the campus one day to speak with a girlfriend who was in Graham's classroom. Urbano entered the classroom during a change in classes. Not wanting a confrontation, Graham requested the girl to ask Urbano to leave. When she did this, Urbano began cursing Graham and slowly backed into the hallway outside of Graham's classroom. As Graham attempted to close his door, Urbano blocked the door and pushed Graham who responded by pushing Urbano out of the doorway. Urbano then threw a four pound textbook into Graham's chest. After Graham asked Urbano to follow him to the principal's office, Urbano drew back his fist to strike Graham. At that point, and in self-defense, Graham struck Urbano with a blow to the side of his face. In retaliation, Urbano threw a karate kick into Graham's left knee. Graham followed by administering a second blow to Urbano's face. A female physical education teacher then approached the melee, grabbed Urbano on the shoulder and escorted him to the principal's office. According to Graham, Urbano was immediately suspended from school. This was not contradicted. There is no evidence that Graham was criminally charged with battery or disciplined by the school for the incident. Using Profane and Vulgar Language in Class (Count V) It is charged that in school years 1985-86, 1986-87 and 1987-88 Graham was given direct orders to discontinue "uttering profane and/or vulgar language while in the performance of assigned duties as a classroom teacher," and that respondent "continually and intentionally refused to discontinue" doing so. The allegations stem from disciplinary action taken in the fall of 1985. On October 17, 1985 respondent participated in a conference for the record with WMJHS principal Kavenaugh for using "very salty language" in the classroom. Neither Kavenaugh or Graham could recall what words were actually used by Graham. As noted in finding of fact 11, Graham used the words "I'm pissed" while talking to student V.E. in September, 1987. About the same time, he recited a "parable" in V.E.'s class which went generally as follows: A large flock of birds immigrated south one winter but one bird's wings froze, and it fell to the ground. A horse came along and deposited cow shit on the bird. Although the cow shit did not smell good, it kept the bird warm. A cat then came upon the fallen bird, wiped the cow shit off of its wings and ate it. The moral: not everyone who shits on you is your enemy, and not everyone who does you a favor is your friend. Graham acknowledged reciting the above story in class but claimed he used the word "chip" instead of "shit." However, V.E. stated she heard the word "shit," and this version of the events is accepted as being more credible. Principal Kavenaugh gave some vague testimony about other incidents of vulgarity but could not give specifics as to when this occurred or what was said. Other than the order to quit using "very salty language" in October 1985, there is no evidence of any other orders given to Graham by a principal or administrative officer directing him to refrain from using vulgarity or profanity. Excessive Tardiness and Absences (Count VI) The notice of charges alleges that in school years 1985-86, 1986-87 and 1987-88 Graham was "given direct orders to discontinue his excessive tardiness and/or excessive absences," and that he "continually and intentionally refused to discontinue" doing so. Assistant principal Sotolongo authored memoranda to respondent on May 27, 1986 and March 25, 1987 regarding class absences. The first concerned respondent sitting in the teacher's lounge ten minutes after class had started on May 23, 1986. For this infraction, Graham received a reprimand. The assistant principal stated that Graham was "periodically" absent from class but could not recall the number of times this occurred or the dates of such absences. The second memorandum was prompted by Graham being absent from school during the afternoon of March 24, 1987. Graham's explanation of having to see a doctor for a workers' compensation injury was not accepted as being satisfactory. Principal Kavenaugh authored a memorandum on May 6, 1986 concerning punctual attendance by Graham. The memorandum was prepared after Graham had been late to school at least ten times between January 10, 1986 and May 5, 1986. Respondent promised to make an "extra effort" to comply with attendance requirements. There is no evidence that, after the May 6, 1986 memorandum, Graham was late for school or that he refused to comply with attendance requirements. Miscellaneous Graham was told by principal Kavenaugh on one occasion "to be courteous and free of sarcasm" while teaching his students. This order was memorialized in a memorandum dated June 19, 1987. There is no evidence he disobeyed this order. On November 10, 1987 Graham was placed on prescription for one item of performance. This meant he had to correct a deficiency in professional performance and responsibilities. The prescription was prompted primarily by the V.E. incident and the parable given in the history class, both occurring in September, 1987. There is no evidence that Graham did not fulfill the terms of the prescription. According to Dr. D. Patrick Gray, who was accepted as an expert in professional ethics, performance appraisal and professional or personnel management, Graham violated the teachers' code of ethics by intentionally exposing a student to unnecessary embarrassment or disparagement, unreasonably denying a student access to a diverse point of view, and failing to keep the confidence of personally identifiable information concerning a student. He opined further that, given respondent's conduct as described in the Notice of Charges, Graham's effectiveness as a teacher had been seriously impaired.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of those charges in Counts I and II and a portion of Count III. All others should be dismissed. Respondent should also be suspended without pay for thirty days as proposed by the agency in its suspension notice effective January 20, 1988. DONE AND ORDERED this 19th day of September, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1988.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner, Marc D. Baldwin, formerly held a Florida Teaching Certificate, No. 393803, and was employed as a Public school teacher during the 1979-1980 school year at Fort Myers High School in the Lee County School District until his resignation on March 31, 1980. During the 1979-1980 school year, Petitioner engaged in sexual relations with one or more female students of Fort Myers High School. During the 1979-1980 school year, Respondent took a female student off the campus of Fort Myers High School, a "closed campus," during school hours and went to the apartment of a former student where marijuana was smoked in his presence. During the 1979-1980 school year, Petitioner allowed and signed excuses for a female student to cut class and come to class tardy, which contributed to the student's grade being lowered by the instructor. During the 1979-1980 school year, Petitioner smoked marijuana and provided and drank alcoholic beverages with students at his apartment on one or more occasions. Upon being confronted with this information by employees of the Lee County School Board, Petitioner resigned his position. On January 23, 1981, an Administrative Complaint was filed by Education Commissioner Ralph D. Turlington, seeking to suspend or revoke Petitioner's Teaching Certificate based upon the conduct described hereinabove. Although Petitioner was served with the Administrative Complaint, he did not respond. On June 1, 1981, the Education Practices Commission entered a Final Order "permanently revoking" Petitioner's Florida Teaching Certificate based upon the facts set forth hereinabove. The Education Practices Commission concluded that such conduct constituted acts of gross immorality, moral turpitude, and conduct which seriously reduced Petitioner's effectiveness as an employee of the School board. Ralph D. Turlington v. Marc D. Baldwin, Case No. 81-033-RT (June 1, 1981). No appeal was taken from this Final Order. On or about March 31, 1983, Petitioner applied to the Florida Department of Education for issuance of a teaching certificate. The Department of Education denied Petitioner's application and notified him of the denial through a "Notice of Reasons" dated October 12, 1983. Petitioner has competently and capably performed the duties assigned to him as a school teacher at Cardinal Gibbons High School, a private school, since approximately August 1980. There have been no reports or complaints of improper or unethical conduct by Petitioner during his tenure at this private school. The Petitioner has been ranked by his superiors in the top 5 percent-10 percent of all English teachers and has been characterized as a "great teacher." Since his difficulties in Fort Myers, the Petitioner has moved to Ft. Lauderdale, married and maintains a stable lifestyle. The Petitioner has taken responsibility for his past and has consciously set out to change the direction of his life.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Education Practices Commission denying the Petitioner's application for a Florida Teaching Certificate. DONE and ENTERED this 19th day of June, 1984, in Tallahassee, Florida. SHARYN L. SMITH 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 19th day of June, 1984. COPIES FURNISHED: J. David Holder, Esquire 128 Salem Court Post Office Box 1694 Tallahassee, Florida 32301 James Curran, Esquire 901 Federal Highway Suite 203 Fort Lauderdale, Florida 33316 Donald L. Greisheimer Executive Director Education Practices Commission Room 125 Knott Building Tallahassee, Florida 32301
