The Issue The issue for consideration in this matter is whether Respondent should be suspended without pay for five days from employment with the School Board because of the matters alleged in the charging letter issued herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for the provision of public instruction from pre-kindergarten through secondary and adult education in Polk County, Florida, and operated Haines City High School in Haines City. Respondent had been employed at HCHS for eight years and in the last two years prior to the incidents in issue, taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. In January, 1994, Respondent was administered a verbal reprimand as a result of reports that she has been consuming alcohol in the presence of her students at an out of town conference. A part of the basis for that reprimand was her reported comments to students to the effect that her predecessor as DCT instructor had advised her not to let Black students into the program because they caused trouble. These comments by Respondent were communicated to Black students who were upset by them. At some point during the 1993-1994 school year, Respondent reportedly overheard a student, Alisha Tanner, (now, Forsythe), in a discussion with another student regarding her breakup with her boyfriend. Respondent is alleged to have stated to Ms. Tanner that, "...if you have a vibrator, you won't need a boyfriend." Both Ms. Tanner and another female student who allegedly heard the statement, claim to have been shocked and embarrassed by hearing a teacher make such a statement, and a third student, Delana Muncy, indicated Ms. Tanner was crying as a result of the comment made to her. Evidence was also presented to indicate that about the same time, Respondent was overheard by several other students to have asked a male student, Jonathan Bradley, if he masturbated. Respondent does not deny using the term, "vibrator" to the female student. Her version of the conversation is somewhat different than those of the students, however. Respondent admits that she overheard the two girls discussing one's breakup with her boyfriend and that she joined the conversation. She, however, indicates that she did so to remind them of the dangers of reckless sexual behavior and suggested that the young lady find other ways, including the use of a vibrator, to satisfy her sexual needs. Respondent denies, however, the use of the word "masturbate" to Bradley. Only two of the students in or near the conversation recall Respondent making such a comment. Notwithstanding these comments were alleged to have been made during the early or middle part of the school year, no mention of them was made by any of the students to Respondent, her immediate supervisor, parents, school administration, or Board personnel until late in the school year, just shortly before graduation. At that time, a group of the students allegedly involved met for lunch at Pizza Hut off campus and in the course of their conversation, Respondent's alleged indiscretions surfaced. Prior to leaving campus, some of these students who now testify against Respondent passed a list of complaints against her around and, though denied, there is at least some indication the students were trying to get Respondent fired. Some of the students refused to sign the list. It was only several months after the inappropriate comments were allegedly made that the first official complaint was made. Other information presented at hearing indicates that during the school year several of the students involved in the reporting of this incident became dissatisfied with Respondent's conduct of her class. Respondent was alleged by students to have used such words in class as "shit", "hell", and "pissed off", and is reported to have commented, on a hot day, "I've got sweat running down between my breasts and the crack of my ass." No specific incident was presented to explain or elaborate on this. In addition, Respondent allowed a class discussion on marketing to inappropriately discuss the sale of condoms as a demonstrative example. In this case, she allowed any student who was offended by the discussion to leave the room, but this was not a satisfactory solution, as the students' excusal served only to focus unwelcome attention on the excused students. More specifically, Respondent was alleged to have become upset with student Bradley because, contra to the instructions she had given him about picking up the DCT jerseys from the printer, he disobeyed her instructions and picked them up without her permission. Respondent chastised Bradley for this. It is entirely possible the allegations against Respondent are the result of her disciplining of Mr. Bradley, thereby antagonizing him and his clique. Another allegation made against the Respondent by the Principal is her reported permission to several of her students to grade, average and record student grades, which allowed them access to her grade book. The HCHS teacher handbook, of which Respondent had previously been given a copy, specifically prohibits teachers from making grade books available to students and proscribes allowing students to record grades. Both the principal, Mr. Partain, and the Board's Director of Employee Relations indicated, without specific examples being provided, that Respondent's sexually inappropriate comments and her failure to abide by Board rules have impaired her effectiveness as a teacher in the school system. In general, her misconduct diminished her stature as a role model for her students, and her failure to obey Board rules compromised her ability to enforce discipline, but not to the degree that her effectiveness as a teacher was destroyed. Prior to the initiation of this action, the only disciplinary action taken against Respondent since she started working for the Board in 1988 was the verbal warning, (reduced to a letter), in January, 1994 regarding the drinking in front of students at conference and the untoward reference to Blacks. Other than that, her personnel record, commencing with the teacher evaluation done during the 1988-1989 school year, reflects positive comments and no criticism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova be reprimanded for improperly allowing students to grade the papers of other students, to average grades, and to have access to her grade book. RECOMMENDED this 6th day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 6th day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-4483 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. & 4. Accepted and incorporated herein. First two sentences accepted. Conclusions as to misconduct rejected. Accepted that a comment was made by Respondent to a student which included a reference to a vibrator. Exact wording as alleged not proven. Not proven. Accepted that condoms were discussed, but it is not established that the suggestion to use condoms as an example came from Respondent or that she agreed to the discussion other than reluctantly. In any event, this discussion was not listed as a basis for discipline. Not proven and not a listed basis for discipline. & 11. Accepted and incorporated herein. 12. Accepted as a restatement of the witnesses' testimony. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. Accepted and incorporated herein with the exception of the last sentence which is not proven. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. First two sentences accepted. Third sentence a non proven conclusion. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U.S. 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
The Issue The issue presented for decision in this case is whether Petitioner, St. Petersburg College, should dismiss Respondent from his employment and terminate his continuing contract.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent is an instructor in humanities at the College's Clearwater campus. Respondent has been an instructor at the College since 1996. He began as an adjunct professor and has been a full-time instructor since 1998. Respondent works under a continuing contract of employment, which is tantamount to a tenured position, entitling the instructor to maintain his position from year-to-year unless terminated by mutual consent, by the instructor’s resignation, or by the suspension or removal of the instructor for cause pursuant to the statutes and rules of the State Board of Education. Prior to the incidents giving rise to this proceeding, Respondent had never been subject to disciplinary proceedings during his employment with the College. At Respondent's July 2004 annual evaluation meeting, Provost Stan Vittetoe and Program Director Anne Cooper expressed concerns about Respondent's failure to keep office hours and the fact that he did not show up for a class he was scheduled to teach. Respondent attributed these problems to his ongoing divorce proceedings. Dr. Vittetoe lectured Respondent on the importance of not allowing "life issues" to affect his work, but did not otherwise discipline Respondent. In the fall semester of 2003, Respondent taught three humanities courses: Humanities I, Humanities II, and East/West Synthesis. Humanities I and II consist of a chronological study of Western civilization. East/West Synthesis focuses on non- Western cultures, such as those of India, China, Japan, Africa, and the Middle East. Pamela Socorro has been a student at the College since 2002. She enrolled in Respondent's East/West Synthesis class in August 2003. The class was scheduled to meet twice a week, on Monday and Wednesday evenings, for the length of the fall semester. Each class period lasted one hour and 45 minutes. Respondent also played keyboards for a local jazz and rhythm and blues band called Bus Stop. Respondent was not a regular member of the band, but sat in for the band when its regular keyboardist was unavailable. Bus Stop played at nightclubs and bars in the Tampa Bay area. In his humanities classes, Respondent would announce the dates of his engagements with Bus Stop and invite the students to come out and hear the band. In response to one such general invitation in late October 2003, Ms. Socorro and a group of friends went to a bar called the Rare Olive in Ybor City to see Respondent perform with Bus Stop. The Rare Olive did not admit persons under 21 years of age. Ms. Socorro was 19 years old at the time, and her friends were also under 21. Respondent intervened with management, asking if Ms. Socorro could come into the bar provided she did not drink alcoholic beverages. Ms. Socorro was allowed to come into the bar, though at least one of her friends, Rian Salmun, was not admitted. During a break from playing, Respondent spoke with Ms. Socorro for five-to-ten minutes. This was their first one- to-one conversation. During this conversation, Respondent asked Ms. Socorro her age. She told Respondent that she was 19 years old, and he told her that he was 33 years old. In November 2003, Ms. Socorro and Respondent had a conversation on the College campus during which Respondent mentioned that Bus Stop would be playing at the Rare Olive in St. Petersburg on November 21, 2003. Because Respondent was sitting in with the band on short notice, he did not have an opportunity to announce this performance to his humanities classes. On November 21, 2003, Ms. Socorro went to the Rare Olive in St. Petersburg with her mother, her aunt, and a group of friends. Ms. Socorro used a friend's identification card to obtain admittance to the bar. Respondent joined Ms. Socorro and her party during a break. Respondent asked Ms. Socorro if she wanted a drink, and she told him that she liked "fruity drinks" and shots. Respondent walked to the bar and came back with two shots. They downed the shots together.2 After about an hour at the Rare Olive, Ms. Socorro's mother wanted to leave. Respondent did not want Ms. Socorro to leave and asked what she would be doing later, after she took her mother home. Respondent gave Ms. Socorro his cellular telephone number, and she said she would call him later. She entered the number into her mother's cellular telephone directory. Ms. Socorro and her group left the bar. Once outside, Ms. Socorro realized that she had neglected to save Respondent's phone number into her mother's cell phone directory. Maria Albornoz, one of Ms. Socorro's friends, went back into the bar and obtained Respondent's cell phone number again for Ms. Socorro. Ms. Socorro did not call Respondent later on the night of November 21, 2003. She did call him on the afternoon of November 22, 2003, and left a message on his cellular telephone. Respondent returned the call that evening. From this point forward, Respondent's and Ms. Socorro's versions of that evening's events differ in several particulars. According to Ms. Socorro, Respondent asked her if she would like to attend the Fall Dance Concert at the College with him that evening. Respondent testified that he had mentioned the concert in class that week, and asked Ms. Socorro whether she was planning to attend, but did not ask her to go with him. Ms. Socorro testified that they arranged on the telephone to meet outside the theater, met as planned, went in together, and sat together in the back row of the theater. Respondent testified that they happened to arrive at the same time and that they sat together in the back of the theater because the recital had already started when they entered. Ms. Socorro testified that, after the recital, she and Respondent arranged to meet at the Marble Slab, a local ice cream shop. Respondent testified that he mentioned that he was going for ice cream but that he did not ask Ms. Socorro to join him. Before proceeding to the ice cream shop, Respondent spoke to several performers of his acquaintance, while Ms. Socorro went across the street from the College to the residence of her friend, Mr. Salmun, and spoke with him for a few minutes. At the hearing, Mr. Salmun testified that Ms. Socorro told him she was meeting Respondent for ice cream at the Marble Slab. Ms. Socorro recalled walking past Respondent's car in the Marble Slab's parking lot and seeing two child car seats in the back. At the time, she was unaware that Respondent was involved in divorce proceedings or that he was the father of twin three-year-old daughters. Respondent was already seated at a table in the Marble Slab when Ms. Socorro entered. Neither Respondent nor Ms. Socorro ordered ice cream. They sat at the table and talked about their families, their astrological signs, Pilates and dance teachers they had in common, yoga, and Latin dance. They eventually felt self- conscious about sitting at the table in the ice cream shop without making a purchase, and they continued their conversation outside the Marble Slab. Ms. Socorro testified that Respondent told her that she was a good student and was doing very well in his class. He asked Ms. Socorro not to "announce" that she had seen him play at the Rare Olive or had gone with him to the dance recital, "because he could get in trouble." He told her that he should not see her again while she was in his class, but he did not tell her that he was forbidden to see her. Respondent urged Ms. Socorro to complete her class assignments and exams as quickly as possible, the implication being that they could begin dating once she had completed the class and received a final grade. Despite his cautionary statements, Respondent also discussed going out to a Latin club with Ms. Socorro so that she could help him with his dance technique. Respondent testified that he was surprised to see Ms. Socorro arrive at the Marble Slab, especially given that she did not order ice cream. He stated that this was the first clear signal that Ms. Socorro might have a romantic interest in him. Respondent recalled that Ms. Socorro asked him to go out with her to a dance club, but that he told her that was "out of bounds." However, he also told Ms. Socorro that he was interested in pursuing a relationship once she was out of his class. To the extent that Respondent's and Ms. Socorro's versions of events on November 22, 2003, differ, Ms. Socorro's version is credited. Even in his own version of events, Respondent agreed that he returned Ms. Socorro's telephone call. He denied asking Ms. Socorro to go with him to the dance recital. However, Respondent admitted telling Ms. Socorro that he was going to the recital and asking Ms. Socorro if she was going. Similarly, Respondent denied asking Ms. Socorro to go with him to the Marble Slab, but there could be little other reason for him to tell her that he was going there. Finally, Respondent admits that he made it clear to Ms. Socorro that he was very much interested in pursuing a relationship with her, as soon as the formality of having her as a student in his class could be dispensed with. On the evening of November 29, 2003, Ms. Socorro attended a performance of the play "Miss Saigon" at Ruth Eckerd Hall in Clearwater. When she came home after the play, she learned that Respondent had telephoned her. She returned the call the next day, while shopping in Orlando with her mother. Ms. Socorro talked to Respondent about "Miss Saigon," because the play was related to the East/West Synthesis course Respondent was teaching. They discussed the Thanksgiving break, then made plans to see the movie "Gothika" that evening at the AMC Woodlands 20 theater complex in Oldsmar. Respondent and Ms. Socorro attended a late showing of "Gothika," then sat and talked in the theater's parking lot until approximately 5:30 a.m. Respondent testified that this was his first "real talk" with Ms. Socorro and that they began to get to know each other at this time. They also shared their first kiss, described by both principals as a "French kiss." Ms. Socorro was scheduled to report to her job as a nanny at 5:45 a.m. on December 1, 2003. She went straight to work from the movie theater parking lot, but arrived late to her job. Because she was unable to change clothes before work, she ended up reporting to Respondent's class that evening wearing the same clothes she had worn on their date the night before. When she arrived at class, Ms. Socorro noted that Respondent was also wearing the same clothes he had worn the previous evening. While Respondent agreed that he went with Ms. Socorro to see the movie "Gothika," and accepted her version of what happened that night after the movie, Respondent contended that this date occurred on December 9, 2003, the day after he gave out the final grades for Ms. Socorro's East/West Synthesis class. Respondent contended that he did not speak with or see Ms. Socorro on November 30, 2003. He denied any recollection of seeing Ms. Socorro in his class wearing the same clothes she had worn on their date. Ms. Socorro testified that she did go to the movies again with Respondent on December 10, 2003, but that they saw "The Last Samurai." Respondent denied ever having seen "The Last Samurai." Ms. Socorro's version of the chronology of these events is more credible and is accepted. Ms. Socorro's recollection of the events of November 30, 2003, was precise in its detail, belying Respondent's contention that she was somehow confused or mistaken as to when they saw "Gothika" together. On December 8, 2003, Ms. Socorro took her last exam in Respondent's class. The exam was a multiple choice "fill in the bubble" test that Respondent machine graded that evening while the students waited. Respondent was able to tell Ms. Socorro that she had made an "A" in his class before she left his classroom on December 8th. However, Respondent did not officially post the grades for his class until December 16, 2003. The semester officially ended on December 19, 2003. Prior to the end of the fall semester, Ms. Socorro told Respondent that her friends Ms. Albornoz and Mr. Salmun knew that she and Respondent were dating. Ms. Socorro testified that Respondent told her that she should tell Ms. Albornoz and Mr. Salmun not to speak to anyone about their relationship. Ms. Socorro and Mr. Salmun were best friends. They saw or spoke to each other every day, and they prepared their schedules for spring semester together before the end of fall semester. Mr. Salmun told Ms. Socorro that he intended to take a class from Respondent, because he needed one more humanities course and Respondent's class fit into his schedule. Ms. Socorro explained to Mr. Salmun that she had discussed this matter with Respondent, who had told her that they could not socialize with any friends of Ms. Socorro's who were taking classes from Respondent. Mr. Salmun nonetheless signed up for the class, though he dropped it for a humanities class taught by another instructor prior to the close of the fall semester. Ms. Socorro told another friend, Teona Gogoladze, that she should not enroll in Respondent's class for the spring semester, due to Respondent's concerns about his relationship with Ms. Socorro becoming widely known. Ms. Gogoladze registered for Respondent's class anyway, because it fit her schedule better than any other humanities class, and she had done well in a previous class taught by Respondent. Ms. Gogoladze told Ms. Socorro that it would not be "the end of the world" if she had to avoid seeing Ms. Socorro with Respondent for one semester. As it happened, Respondent and Ms. Socorro did socialize with Ms. Gogoladze once during the spring semester, attending a party at her house for the airing of the last episode of the television show "Friends." During the Christmas break between fall and spring semesters, Respondent and Ms. Socorro went out to clubs at least twice. On December 19, 2003, they went with a group of College students to an "end of semester" party at Terra, a Latin club in Ybor City. The next weekend, they went to 10 Beach Drive, a piano bar in St. Petersburg. The couple spoke on the telephone on Christmas Day, exchanged Christmas gifts, and spent New Year's Eve together. Respondent introduced Ms. Socorro to his sister and his father. Respondent and Ms. Socorro continued to see each other during the spring semester of 2004. Ms. Socorro had registered for classes, but withdrew from the College for the semester in order to visit her sick father in Venezuela. Ms. Socorro testified that, although Respondent did not press her to withdraw from the College, their relationship improved when she was not in school because Respondent felt less stress about students seeing him on his dates with Ms. Socorro. Ms. Socorro testified that Respondent "constantly" bought her alcoholic beverages during their relationship, though he knew she had not reached the legal drinking age. Ms. Socorro went to the bars at which Respondent was playing with Bus Stop. Respondent would "hang out" with Ms. Socorro during breaks and buy her drinks. At a bar called J.B.'s in Sarasota, Respondent used his credit card to open a tab for a group of people, including Ms. Socorro. At the end of the evening, Respondent was startled at the amount of the bill. Everyone in the group except Ms. Socorro reimbursed Respondent for their drinks. Ms. Socorro did not register for classes at the College for the 2004 summer semester. She cited her relationship with Respondent as her main reason for staying out of school: I knew that when I went back to school, I knew it was going to be a little difficult, because when we would go out to anywhere around town, restaurants, Gary knew everyone. His students were everywhere. He felt uncomfortable. He always asked if the person knew me. So, I knew it was going to be difficult. * * * At that point, by the summer, we were a couple and we had been together for months. I knew it was going to be stressful again and I was working at-- I believe I was beginning to work at a bank and the bank, if I was there long enough, was going to pay for school. And I decided that, putting all these things together, that I would not go in the summer, either. Respondent taught classes during the 2004 summer semester. Margaret Gunn was a student enrolled in one of his classes. Once while Ms. Gunn was in his office, Respondent asked her to come out to a bar to hear his band play. Ms. Gunn declined the offer. Respondent asked her again in September 2004, and Ms. Gunn again declined. Ms. Gunn testified that Respondent's requests made her somewhat uncomfortable, but that she nonetheless maintained a cordial relationship with him. During the annual fall semester orientation in 2004, College president Dr. Carl Kuttler spoke about sexual harassment during a faculty and staff meeting attended by Respondent. Dr. Kuttler stressed that relationships between instructors and students were not allowed if the instructor could in any way affect the student's grade, academic progress, or academic environment. Ms. Socorro described Respondent's reaction to Dr. Kuttler's presentation: He was upset and that was the first time I heard the name "Dr. Kuttler." I remember him saying that they had emphasized the subject of teacher and student relationships. And it was kind of like, "you see, I told you" kind of thing. He said that now he needed to be very, very careful. He was actually concerned, because me and Rian [Salmun] were having problems in our friendship and he was concerned that now Rian was going to be upset and he might say something to people out of spite. He was just-- he was scared. He was paranoid. He told me about a teacher that was fired. And he said, you know, they don't even know if he did it, they just think he did it and he was fired or he left or something happened and he was just scared. Ms. Socorro, who was planning to return to the College in fall 2004, offered to take her classes at a different campus, or at Hillsborough Community College in Tampa, to assuage Respondent's fears. Despite the offer, she eventually registered to take classes at the College's Clearwater campus. Ms. Socorro also asked Respondent why their being seen together remained a concern, given that she was no longer his student. Ms. Socorro stated, "And he kept saying that it just looked bad, it just looked bad that I was his student at the school, because people would wonder how we met. It would be too much of a coincidence that we met, where we met or how." Respondent and Ms. Socorro agreed to give a false story to anyone curious about how they met. Ms. Socorro testified: He would ask me, please, just tell people that you met me at the bar or we would come up with kind of like a script of what I was going to say to [Respondent's] friends. It was usually I met Gary while he was playing out [with the band]. That's what I told everybody. * * * I was protecting him from anyone at all finding out. I don't know if-- I don't know. I don't know if he felt bad himself about it and he just didn't want people to know. He said people don’t-- he would say people don't know our relationship, they don't know us, they don't know how we are, and it doesn't look good that you're so young, it doesn't look good that I was your teacher and people perceive things differently, so let's not let them do that. Throughout their relationship, Respondent stressed to Ms. Socorro that she should not befriend students enrolled in his classes. Respondent testified that he did so not out of fear for his job but because he wanted to keep his professional and personal life as separate as possible. More credibly, Ms. Socorro testified that Respondent told her that he was "risking everything" to continue his relationship with Ms. Socorro. During the 2004 fall semester, Ms. Socorro met and befriended Ms. Gunn, who had taken a class from Respondent during the summer semester and was taking a second class from Respondent in the fall. When they discussed their classes and teachers, Ms. Socorro pretended she did not know Respondent. Respondent became concerned that Ms. Socorro was seeing too much of Ms. Gunn, because he was afraid Ms. Gunn might "put things together." Respondent asked Ms. Socorro to stay away from Ms. Gunn. Ms. Gunn testified that it took only a few weeks for her to determine that Respondent was the "boyfriend" that Ms. Socorro described in their conversations. Respondent told Ms. Socorro that she should just go to her classes, sit through the lectures, then get in her car and leave the campus. Respondent demanded that Ms. Socorro decide between her relationship with him and the life of a "typical student," because he was "risking too much" to have Ms. Socorro jeopardize it by "hanging out" at school. Ms. Socorro testified that "things got really bad" between Respondent and her during the 2004 fall semester, due to their conflicts concerning Ms. Gunn and the pressure of hiding their relationship. They had "a lot of fights," some so bad that they would decide to "take breaks from each other" for as long as one week. Ms. Socorro recalled three such "breaks" before their final breakup in late November and early December 2004. On November 30, 2004, Respondent and Ms. Socorro went to the AMC Woodlands 20 movie complex to see a movie, but never made it past the parking lot because an argument commenced. Ms. Gunn had told Ms. Socorro that Respondent had quizzed her regarding her whereabouts on certain evenings, with the idea of ascertaining whether Ms. Socorro had lied to him when she promised to stop seeing Ms. Gunn. Ms. Socorro confronted Respondent about his questioning of Ms. Gunn. Respondent called her a "compulsive liar" and said that he was "torn" about their relationship and needed time to decide what to do. Ms. Socorro described this fight as "sad" and "horrible." Respondent testified that, despite her promise not to see Ms. Gunn during the fall semester, Ms. Socorro had surreptitiously gone over to Ms. Gunn's house on at least one occasion of which he was aware. He agreed that the confrontation over Ms. Gunn occurred on November 30, though he placed it at a Ruby Tuesday's restaurant.3 Respondent assured Ms. Socorro that they would talk things over the next day, but testified that he also made it clear to her that the romantic relationship was over. On December 1, 2004, Ms. Socorro repeatedly phoned Respondent, who did not answer her calls.4 She sent several e- mail messages to which Respondent did not respond. Respondent was staying at his father's house because relatives were visiting from out of town. That evening, Ms. Socorro went to Respondent's father's house. Respondent did not want a confrontation with Ms. Socorro because his children were with him. He promised to speak with her the next day. On the morning of December 2, 2004, Ms. Socorro drove over to Respondent's house. She had concluded that her relationship with Respondent was over, and she wanted to retrieve some possessions that she kept at his house. Respondent was not at home, but Ms. Socorro knew that the lock was broken on Respondent's sliding glass back door, and she let herself in the house.5 While looking for some of her jewelry on Respondent's bedroom dresser, Ms. Socorro found a letter from and photographs of one of Respondent's former girlfriends, a former College student named Marianna Csongova. She read the letter, and concluded that Respondent was having a relationship with Ms. Csongova at the same time he was dating Ms. Socorro. Ms. Socorro recalled having seen an e-mail exchange between Respondent and Ms. Csongova earlier in 2004. Respondent had explained away this e-mail, but Ms. Socorro now wondered if there were more e-mails between Respondent and Ms. Csongova. She went into Respondent's computer room and checked his e- mails. She found "tons and tons" of e-mails from Ms. Csongova, and responses from Respondent.6 Ms. Socorro continued searching Respondent's e-mail and found correspondence between Respondent and several other female students at the College. She printed "tons" of the e- mails. Respondent's printer ran out of paper before all of the e-mails printed. Ms. Socorro began forwarding the e-mails to her own e-mail account, but then got worried that Respondent would come home and catch her. She turned off Respondent's computer and left the house, taking a half-inch thick stack of printed e-mails with her. Respondent had spent the night at his father's house. He woke up on the morning of December 2, 2004, and drove to his own house to shower and dress for work. He noticed that the sliding glass door had been opened. He went to check his e-mail and noticed that the printer was out of paper. Respondent surmised that Ms. Socorro had been in his house and on his computer. As he had promised Ms. Socorro the previous evening, Respondent phoned Ms. Socorro and arranged for her to come over to his house early in the afternoon to discuss their relationship. Ms. Socorro had a doctor's appointment that afternoon to which Respondent had planned to accompany her. During their phone conversation, Respondent told Ms. Socorro that he would not accompany her to the appointment because he was driving to Orlando to see his brother, who was down from Atlanta on business. Ms. Socorro arrived at Respondent's house at approximately 12:30 p.m. She went in and they sat down to talk. They talked for nearly an hour about Ms. Gunn and the other issues between them. They did not discuss Ms. Socorro's having gone into Respondent's house that morning and printing his e- mails. Ms. Socorro testified that they both "pretended" not to know what she had done. At about 1:15 p.m., Respondent reminded Ms. Socorro of her doctor's appointment at 1:30 p.m. Respondent was also anxious to begin his trip to Orlando. Ms. Socorro again asked Respondent to accompany her to her doctor's appointment, but Respondent again declined. Ms. Socorro told Respondent that she still wanted things to work out. Respondent said that he did not think it would work, but agreed to talk with her again. Respondent walked Ms. Socorro out of his house and to her car. Respondent was the first to reach Ms. Socorro's car. He looked inside. Ms. Socorro then recalled that she had placed the stack of e-mails on the back seat of her car and that they were plainly visible from outside. Respondent asked Ms. Socorro to unlock the car so that he could retrieve a CD that he claimed to have left in her car. Ms. Socorro used her keyless entry device to open the front door. Before Ms. Socorro could get in the car, Respondent reached in and opened the back door. He grabbed the stack of e- mails. Ms. Socorro threw herself onto Respondent's back, and they struggled over the e-mails on the back seat of the car. The papers were falling to the ground outside the car.7 Ms. Socorro pressed the "panic" button on her keyless entry device, setting off the car's alarm system. Respondent took the keys from her, stopped the alarm, and threw the keys outside the car. They continued to struggle inside the car, until Respondent managed to get out of the car. Neighbors were beginning to notice the struggle. Respondent told Ms. Socorro to calm down, that they both needed to act normal. They stopped fighting and picked up the e-mails. Respondent asked Ms. Socorro to go back into the house and talk about matters.8 They walked to the front door. Respondent opened the door, slipped part way into the house, then tossed his stack of e-mails into the house, with the apparent attempt to deny entry to Ms. Socorro. She ran inside the house before Respondent could close the door. They began yelling at each other again. Respondent demanded to know what Ms. Socorro intended to do with the e- mails and threatened to kill her if she tried to "do anything to destroy everything I've worked for all of my life." Respondent tried to force Ms. Socorro out of the house. He pushed her against the wall near the front door and hurt her arm. As Ms. Socorro held on to the jamb of the open front door, Respondent hit her in the chest with his head and shoulder, shoving her off the front porch and into a bush below.9 Respondent took advantage of Ms. Socorro's fall to lock his front door from the outside. Ms. Socorro became hysterical. She began to laugh, unnerving Respondent, who tried to calm her down. As Ms. Socorro quieted, they discussed the e- mails. Respondent explained that he stayed in touch with Ms. Csongova because he needed to keep his options open. She asked him about the e-mails to the other girls. Respondent replied that the College would not care if he "flirted" with a couple of his students. Ms. Socorro asked Respondent why he went to such lengths to keep their relationship a secret, if the College didn't care. According to Ms. Socorro, the exchange proceeded as follows: He said, why do you want to do this? You're going to hurt my kids. . . . He said, you have to understand that I'm 34 years old. I'm not a child like you. You have your whole life ahead of you and I need to find a role model. I need to find a good woman for my kids to marry. And I knew that you and I were rocky and I had to do this and I was leading more than one life, more than one relationship and if I had to do it, I did it for my kids, that they need a mother. He said, I can't be alone when I'm 44. I remember telling him that he was sick. I said that you're just sick. That's sick. He said, do you want me to tell you the truth. He said, from the moment you told me that you had an eating disorder, I knew that you and I weren't going to work. And I kept yelling at him, if it was that long ago, why didn't you stop the relationship, because you have known that forever. He said, I thought you would change, but you never did. Ms. Socorro got into her car and started to drive away. Believing that Ms. Socorro was in no condition to drive, Respondent tried to talk her into waiting while he called her mother or some other person to come over and help her. Ms. Socorro declined any assistance from Respondent. She told him that she was hurt and needed to get to the hospital. She drove away. From her car, Ms. Socorro phoned her doctor's office, because she had missed her appointment. The doctor's receptionist was so alarmed that she stayed on the phone with Ms. Socorro until she reached her mother's office. Ms. Socorro's mother, Patricia Mills, drove Ms. Socorro to the emergency room of Morton Plant Hospital in Clearwater, where she was treated for scrapes, an injured wrist, and a slightly cracked rib. Due to the injured rib, Ms. Socorro had to take time off from her job as a waitress at Applebee's. She also wore a splint on her wrist for a time. The emergency room staff at Morton Plant Hospital notified the Pinellas County Sheriff's Office, which dispatched deputies to interview Ms. Socorro while she was still at the hospital. The Sheriff's deputies also interviewed Respondent. No arrests were made and no charges were filed in the matter. The Sheriff's Office reported the incident to the College. Ms. Mills phoned the College's security office to inform the College of the altercation between Respondent and Ms. Socorro. The security office passed the complaint to Clearwater campus Provost Dr. Stan Vittetoe. The College's standard procedure is to lock the computer of any instructor who is the subject of a complaint. Dr. Vittetoe locked Respondent's computer. On December 3, 2004, Dr. Vittetoe and Dr. Cooper met with Respondent to inform him that Ms. Socorro had lodged a complaint against him and to provide Respondent with an opportunity to give his side of the story. Respondent told them that during the physical confrontation with Ms. Socorro, he was merely trying to protect himself. He showed them a scratch on his cheek and stated that he had been trying to retrieve some papers that belonged to him. Respondent admitted that he had been involved in a romantic relationship with Ms. Socorro. This initial meeting with Dr. Vittetoe and Dr. Cooper lasted only about 15 minutes, because Respondent had a class to teach. Also on December 3, 2004, Dr. Vittetoe met with Ms. Socorro and her mother. Ms. Socorro told Dr. Vittetoe that she began dating Respondent during the fall semester of 2003, when she was a student in his class. She told Dr. Vittetoe that she and Respondent often discussed the need to hide their relationship, because of its impropriety. She told Dr. Vittetoe that Respondent often bought alcoholic drinks for her when they went out to bars. Ms. Socorro admitted that she had printed e- mails from Respondent's computer and that it was Respondent's seeing those e-mails that triggered their physical altercation. Dr. Vittetoe requested a formal written statement detailing the facts of her relationship with Respondent. Ms. Socorro furnished a written statement to the College on December 8, 2004. On December 7, 2004, Dr. Vittetoe and Dr. Cooper met with Respondent again. At the outset of the meeting, Dr. Vittetoe made clear the gravity of the situation, letting Respondent know that his job was in jeopardy. Dr. Vittetoe questioned Respondent about his involvement with female College students other than Ms. Socorro. Respondent admitted that he had been involved with Ms. Csongova. Dr. Cooper, as Respondent's immediate supervisor, expressed concern at what appeared to be a pattern of romantic involvement with students.10 Dr. Cooper noted that Respondent was not following college procedures and appeared to view the female student population as potential candidates for relationships. Dr. Cooper recounted the meeting as follows: I raised questions with him in regards to his ability to maintain his professional boundaries and expressed great concern over the fact that he didn't seem to recognize that, in his position as an instructor, he had a position of authority and power and could easily use that to influence students' decisions. I remember that he said that, well, they weren't students in my class at the time that he had become involved with them. My concern was that if you say to a young, impressionable individual, well, I don't date students if they're in my class, well, then what you're saying is, well, just get out of my class and then we can have a relationship. And I tried to express that concern over the fact that he was not maintaining his professional boundaries. And then he shared that, well, he didn't want students to dislike him and, you know, he didn't know how to respond when a student came on to him. Dr. Cooper attempted to explain that the student/teacher relationship should not be a matter of "liking" or "disliking," but a matter of respect based on the teacher's knowledge of his subject matter and ability to foster the student's quest for knowledge in the teacher's field of expertise. Dr. Cooper was extremely concerned that Respondent seemed unable to understand or respect basic professional boundaries established between students and teachers. Dr. Cooper was also concerned that Respondent issued invitations to students to come watch his band play in bars that served alcoholic beverages, when most of those students were underage. She did not agree with Respondent's contention that a band playing in an Ybor City bar constituted a "cultural event." She suggested that, if Respondent wanted to share his music with his classes, then he should have the band come to the class and play. During the meeting, Respondent attempted to defend his relationship with Ms. Socorro, first by denying that it commenced prior to the end of the 2003 fall semester, then by pointing out how careful he had been to instruct Ms. Socorro not to discuss their relationship with other students and not to make friends with students on the Clearwater campus. At the conclusion of this meeting, both Dr. Vittetoe and Dr. Cooper concluded that Respondent had breached College rules and could not be trusted with the safety of College students. Dr. Vittetoe gave Respondent the option of resigning before completion of the investigation and a possible recommendation for termination. Respondent declined the offer of resignation. On December 14, 2004, Ms. Socorro met with associate provost Maria Edmonds. Because she was also an Hispanic female, Ms. Edmonds believed that Ms. Socorro might be more comfortable discussing the issues with her than she had been with Dr. Vittetoe. After the meeting, Ms. Edmonds drafted a memorandum summarizing her conversation with Ms. Socorro, the substance of which was consistent with the findings of fact above. Ms. Socorro executed a sworn affidavit attesting to the accuracy of Ms. Edmonds' memorandum, which was forwarded to Dr. Vittetoe. Dr. Vittetoe investigated Respondent's relationships with Socorro and other female College students. Associate Provost Jeff Davis interviewed students at the Clearwater campus to determine their knowledge of Respondent's relationships with various female College students. The investigation disclosed that Respondent had been involved with College students other than Ms. Socorro and Ms. Csongova. Respondent admitted to a relationship with Harmony Holt, who had been a student in his class during the 1999 fall semester. However, Respondent's romantic relationship with Ms. Holt did not commence until 2002, after she had graduated. Respondent admitted to a relationship with Kimberly Kimball. Ms. Kimball was in Respondent's class twice, first in the 2004 spring semester, then in the 2004 summer session. The summer session ended in July 2004, then Respondent dated her for a short time in September 2004, during one of his periodic breakups with Ms. Socorro. Respondent testified that he stopped dating Ms. Kimball because he was not over Ms. Socorro. Respondent admitted to a "friendly, casual" dating relationship with his former student Kelly McGill in 2003. Respondent testified that, although there was a mutual attraction, no sexual relationship occurred with Ms. McGill. On December 13, 2004, Respondent submitted to Dr. Vittetoe his written statement concerning his relationship with Ms. Socorro. This document is a remarkable mixture of rationalization, self-pitying emotional immaturity, and self- centered moral obtuseness.11 Respondent commences with an irrelevant narrative of his divorce proceedings. He next describes his first contacts with Ms. Socorro. Respondent states that there was a "decision to meet and get to know each other on a more personal level." Though he "can't remember exactly how or when it happened," he is absolutely certain that it occurred after the conclusion of the 2003 fall semester. Respondent notes that he stopped dating other women after he had sexual intercourse with Ms. Socorro, on "about the 5th date." Respondent writes that he was concerned about the age difference, but that such differences are the norm in Ms. Socorro's Latin American culture. Respondent states, "Ultimately I was able to handle it because she seemed mature for her age." Respondent devotes a long passage to a discussion of Ms. Socorro's bulimia, notable for its emphasis on the impact her disease was having on its real victim, Respondent: "She could tell the bulimia was putting a strain on me to know what she was doing to herself everyday and that it was hurting me." Respondent writes that he accompanied Ms. Socorro to a therapist whose name he could not recall. This therapist, whom Ms. Socorro never saw again, apparently introduced the concept of "borderline personality disorder" to Respondent. The therapist also commended Respondent on how well he was dealing with Ms. Socorro. Respondent now realized that the borderline personality disorder was responsible for Ms. Socorro's "pathological lying," the fact that she could not hold a job, and the fact that she spent all her money on "binge foods and/or shopping." Respondent described the impetus for the final breakup as follows: The relationship problems came to a head this past month when she continued to socialize in the student population instead of with friends outside the school which was a boundary we set in the relationship and it made it uncomfortable for us to go out. I was too worried someone would see the two of us together. Eventually she met someone in a class that was in one of my classes and I asked her not to pursue the friendship until after the class was over so that there would be no possible problems. She continued to pursue a close relationship with the woman and lied about it on at least a couple of occasions. I wanted to look beyond it and even began to question why I asked her to do it and felt guilty that I might be negatively affecting her college experience and knew it needed to end quickly. Once again I was being manipulated and didn't realize it. I also was having difficulty because although this would only be an issue until she graduated in May of '05, I still felt it was something she knew was important to me but she didn't see it and just ignored it and lied to me about it. I couldn't see being in a relationship where a set boundary was ignored. Respondent concludes by alleging that Ms. Socorro "is retaliating against me for ending our eleven month long relationship and this retaliation is a form of sexual harassment." From the beginning to the end of the relationship, Respondent claims he was victimized, manipulated, and finally smeared by Ms. Socorro. Respondent claimed his only failing was being too nice for his own good. On December 16, 2004, Dr. Vittetoe issued a memorandum to Dr. Kuttler, the College president, stating as follows, in relevant part: The evidence, which we have received to date, causes us to have great and immediate concerns for our female students' safety and freedom from sexual harassment and inappropriate relationships. We have evidence that he has been assisting under age students with unlawful drinking, which is a serious violation of the law. With the evidence presented thus far, I have no choice but to recommend his suspension, effective immediately. Because of the above matters, I further recommend he not be allowed to come on campus or have any contact or conversations with students. Any retaliation by Mr. Rodriguez should be a separate cause for disciplinary action. I further recommend his dismissal be presented to the Board of Trustees. On December 17, 2004, Dr. Kuttler issued a memorandum adopting Dr. Vittetoe's recommendations. Respondent was suspended with pay, effective immediately. Dr. Kuttler anticipated that he would petition the College's Board of Trustees for the suspension without pay and dismissal of Respondent at the Board's next meeting, on January 18, 2005. Dr. Kuttler filed the Petition for Dismissal on January 12, 2005. By Order dated January 18, 2005, the Board of Trustees voted to suspend Respondent without pay and to forward the matter to the Division of Administrative Hearings, should Respondent request a hearing. Through counsel, Respondent filed an Answer on January 20, 2005, asserting his right to a hearing. As noted above, the matter was forwarded to the Division of Administrative Hearings on January 24, 2005. Based upon the findings of fact set forth above, the College has demonstrated by a preponderance of the evidence that Respondent did aid and abet at least one student under the age of 21, Ms. Socorro, in the unlawful drinking of alcoholic beverages. Based upon the findings of fact set forth above, the College has demonstrated by a preponderance of the evidence that Respondent did improperly use his position and abuse his power to encourage and induce female students to come to a nightclub in an attempt to establish a personal relationship, by giving female students inappropriate attention, which Respondent knew could lead to romantic and/or sexual relationships. The evidence established that Respondent would make blanket invitations to his entire class, male and female. However, Respondent would also select individual females, such as Ms. Socorro and Ms. Gunn, for personal invitations. The evidence established that Respondent knew, or should have known, that he was using his position as an instructor to manipulate impressionable young female students into attending his performances, whereby he hoped to impress them sufficiently to make them susceptible to his romantic overtures. As Dr. Cooper said to Respondent at one of their meetings, "[I]t seems like what's more important is for you to organize a set of groupies to follow your band," than to maintain the proper professional relationship with students. Based upon the findings of fact set forth above, the College has demonstrated by a preponderance of the evidence that Respondent did cause a female student, Ms. Socorro, with whom he had a romantic and sexual relationship, to stop her academic progress by inducing her not to continue her schooling at this College, adversely affecting the student's academic progress for Respondent's sole benefit. The evidence did not establish that Respondent made a direct demand that Ms. Socorro quit school. By her own testimony, Ms. Socorro did not attend classes during the 2004 spring semester because she wanted to visit her father in Venezuela. However, she also testified that her relationship with Respondent was much improved when she was not in school, because Respondent felt less pressure about students seeing him on dates with her. Ms. Socorro also testified that her relationship with Respondent was her main reason for not enrolling during the 2004 summer session. Respondent testified that he encouraged Ms. Socorro to complete her education, but only on his terms: that she stay on the campus only long enough to attend classes and that she socialize with none of her classmates. The unreasonable pressure placed on her by Respondent was unquestionably the cause of Ms. Socorro's decision not to attend classes for at least one semester during their relationship. Based upon the findings of fact set forth above, the College has demonstrated by a preponderance of the evidence that Respondent did have a sexual and/or romantic relationship with a female student, Ms. Socorro, during a time when the student was enrolled in Respondent's class or when Respondent was in a position to determine the student's grade or otherwise affect the student's academic progress or environment. The weight of the evidence leads to the finding that the romantic relationship between Ms. Socorro and Respondent commenced prior to the end of the 2003 fall semester, when Ms. Socorro was a student in Respondent's class. By the time the semester ended, Respondent and Ms. Socorro had attended a dance recital and a movie together. Their romantic relationship was well underway while Ms. Socorro was still a student in Respondent's class. Even if Respondent's testimony were fully credited, the couple went on their first "date" (not counting the dance recital and the Rare Olive meeting) on the night after Ms. Socorro took her final exam in his class. This fact, coupled with Respondent's admission that on November 22, 2003, the night of the dance recital, he told Ms. Socorro that he was very interested in pursuing a relationship with her, indicates that the romantic relationship between Respondent and Ms. Socorro did not blossom suddenly after she completed Respondent's class. Respondent's rationalization appears to be that it was perfectly acceptable for him to use his classes as a dating service, planning romantic relationships with his female students while they were in his class, so long as the actual dating did not begin until the semester ended. The College naturally and reasonably disagreed with Respondent's reading of the applicable rule, discussed in the conclusions of law below. Based upon the findings of fact set forth above, the College has not demonstrated by a preponderance of the evidence that Respondent committed an assault and battery upon Ms. Socorro. While their testimony about the events of December 2, 2004, differed in many particulars, both Ms. Socorro and Respondent agreed that she initiated the physical confrontation by jumping on Respondent's back as he attempted to get the e-mails out of the back seat of her car. It could be reasonably contended that matters then cooled off and that the second physical altercation at the front door of the house was initiated by Respondent and did constitute assault and battery. In any event, the facts of the situation were ambiguous enough that the Pinellas County Sheriff's Office did not charge either party after completing its investigation. Though Respondent's conduct during the events of December 2, 2004, was an embarrassment to himself and the College, the specific allegation of assault and battery was not proven by a preponderance of the evidence. Based upon the findings of fact set forth above, the College has not demonstrated that Respondent made untruthful or deceitful statements to College representatives during the investigation. At worst, Respondent appeared to suffer convenient lapses during which his memory became "fuzzy" or "foggy" when the thrust of his testimony varied from that of other witnesses. The evidence established that Respondent was deceitful to the various women in his life, but failed to establish that he said anything to College officials that he did not believe was true. The College's allegation that Respondent was married while some of the alleged misconduct occurred was technically proven but should have no bearing on the discipline imposed. Respondent had been separated from his wife for well over a year at the time he met Ms. Socorro and was in the process of finalizing his divorce and custody arrangements. For all the good reasons Respondent had to avoid a romantic relationship with Ms. Socorro, remaining faithful to his wife was not one of them.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Board enter a final order dismissing Respondent from any and all employment by the Board and/or the College and canceling his contract status retroactive to January 12, 2005. DONE AND ENTERED this 8th day of February, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 February, 2006.
The Issue Whether disciplinary action should be taken against Respondent's educators certificate.
Findings Of Fact In the 2000-2001 school year, Respondent, Elizabeth Weisman, held a Florida Teaching Certificate No. 475382. The certificate covered the areas of elementary education and mathematics and was valid through June 30, 2005. When the events herein occurred, Respondent was employed as a dropout prevention teacher at Second Chance School in Tallahassee, Florida. The school is part of the Leon County School District. There is no evidence that Respondent has been disciplined by Petitioner on any prior occasion since she began teaching in Leon County in October 1980. Second Chance School is a school for children with disciplinary problems and who have a history of being extremely disruptive and cannot be handled in a regular school setting. Ms. Weisman was in a difficult position when she started teaching at Second Chance School. She was assigned to teach outside her field and was replacing a teacher who was not as strict a disciplinarian or as demanding of performance as Ms. Weisman. In general, her students did not react well to the increase in discipline and expectations of performance and likely caused increased referrals to the principal's office. Both Ms. Weisman and the students had to adjust to each other On April 6, 2001, J.M. entered Respondent's classroom. Respondent asked him to leave her classroom. He was not supposed to be in the classroom because he had been referred to the principal's office the day before for discipline. J.M. attempted to comply with Respondent's request, but a number of students entering the room blocked him from leaving. Respondent made a shooing motion with her hands to J.M. and raised her foot to indicate for J.M. to leave the room. The gestures were done in a playful manner and were intended as such. While Ms. Weisman's foot was raised, she accidentally brushed or pushed J.M.'s buttocks with her foot. J.M. could feel the push. However, it did not cause him to lose his balance or cause any harm to him whatsoever. The evidence did not demonstrate that J.M. was unduly embarrassed or otherwise affected academically by the incident. Indeed, the incident gave J.M. a good story to tell to others at school. The evidence did not demonstrate that the push was inappropriate or violated any state rules or statutes governing teachers. There was no evidence that Ms. Weisman was less effective as a teacher due to this incident. W.F. testified that on two occasions he witnessed Respondent state to the class that they were "acting like jackasses." J.F.'s testimony was vague and inconsistent. Specifically, W.F. testified that on the first occasion, Respondent stated to the class that they were "acting like jackasses" after class members refused to return to their seats during an altercation between two students occurring outside the classroom. The classroom students were generally cheering the fight on. With respect to the second instance, W.F. testified that Respondent made the statement after W.F. and several of his classmates tricked Respondent into placing her hand on a pencil sharpener covered with glue. W.F. conceded the description was an accurate description of the behavior of the students at the time. At no time did Respondent call an individual student an improper name. Although W.F. testified he was embarrassed by Ms. Weisman, W.F.'s testimony is not persuasive on this point. Nor is it realistic to conclude any significant embarrassment given the bold nature of W.F.'s behavior which preceded these comments. W.F. also testified on direct examination that he witnessed Respondent call the class "a bunch of rat bastards." Again W.F.'s testimony was vague and inconsistent. During cross-examination, however, W.F. testified that the remark was made to a specific female student during a verbal altercation between the student and Respondent. However, Respondent denies ever using or knowing the term "rat bastard." Given Respondent's demeanor, the inconsistency, and the unreliability of the other evidence, Respondent's testimony is the more credible. There was no credible evidence that any student was ever affected in any way by these incidences. No evidence of any change in grades or reduced test scores was introduced at the hearing. An increase in disciplinary referrals was noted by the principal, but that increase was not shown to be tied to these incidences. The increase, if any, was more likely to be due to the fact that she was a new teacher, teaching out of field, who was more strict with her students and demanded more from them. Moreover, statistics supporting this perceived increase in disciplinary referrals was not offered at the hearing. Indeed, later testing showed Ms. Weisman's students improved their test scores. However, the testing was for a different year and class. It was not clear that the same students were being tested. The improvement does show that Ms. Weisman is an effective teacher.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 23d day of December, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 23d day of December, 2002. COPIES FURNISHED: Matthew K. Foster, Esquire Edward T. Bauer, Esquire Brooks, Leboef, Bennett & Foster, P.A. 863 East Park Avenue Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 John O. Williams, Esquire Williams & Holz, P.A. 211 East Virginia Street The Cambridge Centre Tallahassee, Florida 32301 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400
Findings Of Fact Respondent, Jean-Baptiste Guerrier (Guerrier), holds Florida Teaching Certificate No. 59692 covering the area of English which is valid through June 30, 1995. Guerrier was employed as a teacher at Miami Edison Middle School during the 1992-93 school year. On September 20, 1993, the following disciplinary action was taken by the Dade County School System against Guerrier for conduct unbecoming a school employee: Directives were issued to Respondent to refrain from making inappropriate remarks. Respondent was issued a letter of reprimand. Respondent was placed on prescription. Respondent received an unacceptable rating for Category VII and an overall summary rating of unacceptable on his 1992-93 TADS Annual Evaluation. On November 29, 1994, the Commissioner of Education issued an Administrative Complaint against Guerrier alleging that he made inappropriate comments of a sexual nature to three eighth grade female students during the 1992-1993 school year. Based on the evidence presented Guerrier did not make such comments. The Administrative Complaint alleged that Guerrier engaged in inappropriate behavior of a sexual nature with two eighth female students during the 1992-1993 school year. Based on the evidence presented Guerrier did not engage in such behavior. A teacher at Miami Edison Middle School observed Guerrier putting his arm around female students during the changing of classes. He did not identify the students. During these occasions, Guerrier's back was turned towards the teacher. The teacher characterized Guerrier as a gregarious teacher. During the 1992-1993 school year, Guerrier had three female cousins who were attending Miami Edison Middle School. Guerrier would put his arm around his cousins' shoulders when he would see them at school. Guerrier did not put his arm around any other female students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint against Jean-Baptiste Guerrier be DISMISSED. DONE AND ENTERED this 24th day of July, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 24th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-649 Neither Petitioner nor Respondent filed proposed findings of fact. COPIES FURNISHED: Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald G. Stowers, Esquire Department of Education Suite 1701, the Capitol Tallahassee, Florida 32399-0400 William Du Fresne, Esquire 2929 Southwest 3rd Avenue, Suite One Miami, Florida 33129 Kathleen M. Richards, Administrator Professional Practices Services 352 Fla. Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact This matter concerns an incident which took place at Brownsville Junior High School on August 16, 1984, during the last week of the summer school session. The incident involved a female victim and several male students. It is undisputed that a sexual assault on a female student did take place. The only question involved here is what part, if any, the respondent played in this incident. The sexual assault was initiated by another male student, John Felder. Essentially, Felder pulled the victim, Nettie Thomas, into room 101 at the school. That room contained a television set which also served as a computer monitor. After the victim was pulled into room 101, various attempts were made to remove her clothing and she was fondled and touched by several male students. At one point during the victim's struggles, she was forced down on the teacher's desk and was held on top of the desk by her arms. While on the desk, she was assaulted by a male student who laid on top of her and made motions which simulated the motions made during sexual intercourse. At times, someone held his hand over her mouth so that she could not cry out for help. Additionally, during the time the incident occurred the lights in the room were turned on and off on more than one occasion. The assault was stopped when the assistant principal walked up the hall to investigate the noises which were reported to be coming from room 101. The students involved in the assault fled the room. The assistant principal, Freddie Robinson, observed and identified five boys fleeing room 101. Specifically, he identified Darrien Byrd, John Felder, Anthony Dowdell, Richard Daniels, and Vernon Clark. The victim, Nettie Thomas, identified these same five, either in written or verbal statements made during the investigation of this incident. Nettie Thomas identified Anthony Dowdell as the student who turned the lights on and off. She also identified Dowdell as having touched her on the buttocks. Dowdell acknowledged that he was in room 101 when the sexual assault took place and that he had been in the room before the female victim was pulled into the room. Dowdell was in the room in violation of rules and he had no valid purpose for being in the room. He was watching TV when he should have been in class. However, Dowdell denied ever touching the victim in anyway or at anytime during the incident. He did acknowledge turning the lights on one time, but denied other involvement with the lights. In resolving this apparent conflict between the testimony of the victim and the testimony of Dowdell, substantial weight is given to the written statement of the victim which was made shortly after the incident. The written report specifically names Dowdell by name as having turned the lights on and off. It also indicates that "All the boys was holding me so that I could not move and they tried to take my belt off and zip down my pants." In light of this written statement and having judged the demeanor of the various witnesses, it is found that Dowdell did turn the lights on and off during the assault and did touch the victim during the sexual assault. Dowdell did not make any attempt to assist or rescue the victim during the assault nor did he leave the room to seek any assistance for her. Dowdell had a previous record of misconduct at Brownsville Junior High School prior to this incident. He was involved in two incidents of excessive talking and one fight.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Anthony Dowdell to the McArthur Senior High School North. DONE and ENTERED this 11th day April, 1985, in Tallahassee, Florida. DIANE K. KIESLING 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 11th day of April, 1985. COPIES FURNISHED: MITCHELL A. HORWICH, ESQUIRE EDUCATION ADVOCACY PROJECT LEGAL SERVICES OF GREATER MIAMI, INC. NORTHSIDE SHOPPING CENTER 1459 WEST PLAZA, SUITE 210 7900 N. W. 27TH AVENUE MIAMI, FLORIDA 33147-4796 FRANK R. HARDER, ESQUIRE ASSISTANT SCHOOL BOARD ATTORNEY TWIN OAKS BUILDING, SUITE 100 2780 GALLOWAY ROAD MIAMI FLORIDA 33165 MS. MAEVA HIPPS SCHOOL BOARD CLERK SCHOOL BOARD OF DADE COUNTY 1450 N. E. SECOND AVENUE SUITE 301 MIAMI, FLORIDA 33132 DR. LEONARD BRITTON SUPERINTENDENT OF SCHOOLS DADE COUNTY PUBLIC SCHOOLS 1410 N. E. SECOND AVENUE MIAMI, FLORIDA 33132
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent holds Florida Teaching Certificate 237129, covering the areas of social studies and work experience coordinator. At all times material hereto, the Respondent was employed as a social studies instructor at Columbia High School in the Columbia County School District. Respondent has been a school teacher since January, 1967 and has taught school in the Columbia County School District since 1968, excluding two (2) years for military service. Respondent has a good record as a teacher in the Columbia County School District and has never been accused of any professional misconduct in the past. Adrianne Lewis (Lewis) was a sixteen (16) year old student at Columbia High School in the first semester of the 1985/86 school year and became acquainted with the Respondent when she was a student in his third and sixth period classes. Lewis did not start in Respondent's sixth period class until two (2) weeks after the beginning of school in August, 1985 and was required to make up work missed during the first two (2) weeks. Respondent has a consistent policy with regard to make-up work which requires all students to make up work either before or after school and not during class. During the first six (6) weeks of school, Lewis made up several tests that she had missed both before and after becoming a student of Respondent. The complaining witness, Adrianne Lewis, testified that on two (2) separate occasions, most probably in September, 1985, the first time during a school pep rally and the second time while she was taking a make-up test after school, the Respondent, among other things, kissed her on the mouth and neck, fondled her breasts, rubbed and fondled her derriere, attempted to put a balloon under her shirt and asked why she was afraid of him and sex. However, the more credible evidence is that: (a) On September 13, 1985, Lewis went to Respondent's classroom during a school pep rally to take a make-up test, arriving around 2:50 p.m. She was given a copy of the test by Respondent and took the test in Respondent's classroom; (b) After Lewis turned in the test, Respondent spent approximately ten (10) minutes with Lewis discussing a problem she was having; (c) During the time Lewis was in the Respondent's classroom and office, Ken Stark was in an adjoining classroom with connecting windows which had only a portion of the view blocked; (d) Later in September, 1985, Lewis stayed after school to take another make-up test, arriving around 3:30 p.m. She was given a copy of the test by Respondent and took the test in Respondent's classroom; (e) During the time Lewis was in Respondent's office turning in the test, Respondent's elder son, John D. Evans, III was present and observed no misconduct on Respondent's part in regard to Lewis and; (f) Respondent, at no time during these two (2) occasions or any other occasion, improperly touched Lewis or engaged in any misconduct with respect to Lewis. During the second six (6) weeks of school, Lewis began missing class regularly. Due to a School Board policy concerning unexcused absences, Respondent consulted with Tom Grubb, Guidance Counselor, and was instructed to contact Lewis' parents. Respondent was unable to contact Lewis' parents or her grandmother, with whom she lived, but did contact her aunt, Denise Lewis. Respondent informed Denise Lewis of Lewis' absences and the need for Lewis to makeup her work or risk failing. Respondent's conversation with Denise Lewis occurred during the week of October 28, 1985 and about one (1) week later Denise Lewis conveyed the message to Lewis. Lewis did not mention the alleged improper touching by Respondent to Denise Lewis at this time but did say that Respondent did not like her and was going to fail her anyway. When Denise Lewis informed Lewis' grandmother of her absences, Lewis became upset because her grandmother had not previously known about Lewis' absences. On or about October 31, 1985, Lewis reported to Sergeant James Rutledge that she had been improperly touched and fondled by a teacher but did not disclose the teacher's name. During the week of November 6, 1985, Lewis again reported to Sergeant Rutledge that she had been improperly touched by a teacher but did not disclose the teacher's name. Rutledge went with Lewis and her girlfriend to the dean's office and notified the dean that Lewis was outside and needed to talk to him. On or about November 6, 1985, Lewis became upset with Respondent about calling her aunt and angrily told him not to call her aunt again. Lewis told Respondent that she was going to inform the administration of his alleged misconduct. Thereafter, the matter was reported and investigated by the administrator. As a result of the alleged misconduct, the Respondent was arrested and charged with battery. Subsequent to the arrest, the State Attorney for the Third Judicial Circuit of Florida filed a No Information and the cause was dismissed. There was no evidence to prove that Respondent's conduct had reduced his effectiveness as a teacher. There was no evidence that Respondent had exploited the teacher/student relationship with the minor female student for his own personal gain, exposing her to harm and unnecessary embarrassment. There was no evidence that Respondent had: (a) accepted or offered any gratuity, gift, or favor to, or from, anyone; (b) used institutional privileges for personal gain or advantage; (c) intentionally exposed a student to unnecessary embarrassment or disparagement or; (d) failed to make reasonable effort to protect student from conditions harmful to learning or to health or to safety.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Commission enter a final order dismissing the Amended Administrative Complaint. Respectfully submitted and entered this 15th day of May, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 15th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3994 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner: 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Rejected as immaterial and irrelevant. 4. Adopted in Finding of Fact 5. 5. Adopted in Finding of Fact 9 but clarified. Rejected that portion of the finding of fact concerning Lewis requesting Respondent to sign, and Respondent signing, a balloon as immaterial and irrelevant. The balance of the finding of fact is rejected as not being supported by substantial competent evidence in the record. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 12. The fact that Lewis skipped classes is adopted in Finding of Fact 10 but the balance of the finding is rejected as not being supported by substantial competent evidence in the record. The fact that Lewis took a second test before December, 1985, is adopted in Finding of Fact 9 but the balance of the finding is rejected as not being supported by substantial competent evidence in the record. 11.-12. Rejected as not supported by substantial competent evidence in the record. The fact that Lewis reported the alleged incidents is adopted in Finding of Fact 15 but the balance of the finding is rejected as not being supported by substantial competent evidence in the record. The fact that Lewis told the Respondent that she had reported the alleged sexual contact to the administration is adopted in Finding of Fact 14 but the balance of the finding is rejected as not being supported by substantial competent evidence in the record. The first sentence is rejected as immaterial and irrelevant. The second sentence is rejected as not being supported by substantial competent evidence in the record. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 16. The fact that a No Information was filed and the case dismissed is adopted in Finding of Fact 16 but that the State Attorney dismissed because the contact was consensual is rejected as hearsay that does not supplement or explain any other evidence in the record. 19-21. Rejected as not supported by substantial competent evidence in the record. In these findings, the Petitioner relies mainly on the testimony of Lewis, testimony which I did not find credible. Rulings on Proposed Findings of Fact Submitted by the Respondent: Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. 7.-15. Adopted in Finding of Fact 9. 16.-19. Adopted in Finding of Fact 10. 20.-23. Adopted in Findings of Fact 11, 12, 13 and 14, respectively. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 15. Rejected as not supported by substantial competent evidence in the record. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Karen Barr Wilde Executive Director Education Practice Commission Room 418, Knott Building Tallahassee, Florida 32399 Carolyn Thompson LeBoeuf, Esquire Brooks, LeBoeuf and LeBoeuf 863 East Park Avenue Tallahassee, Florida 32301 Thomas W. Brooks Meyer, Brooks, and Cooper, P.A. 911 East Park Avenue Tallahassee, Florida 32302
The Issue The issue in this case is whether the Education Practices Commission should revoke or otherwise discipline the Respondent’s educator certificate for allegedly making disparaging or embarrassing comments to and about students in his classroom, including calling them idiots or dumb.
Findings Of Fact The Respondent has a bachelor’s degree in astrophysics and a master’s degree in physics from the University of Central Florida. He has worked for Disney World’s education programs and at the Orlando Science Center. When he decided to go into teaching, he got a temporary certificate in February 2013. He started teaching at East River High School in Orange County in April 2013, as an end-of-the-year replacement. When he completed his master’s degree, the certificate was made permanent, and he holds Florida Educator Certificate 1191412 in the area of physics, valid through June 30, 2019. He was hired as a full- time science teacher at East River in the fall of 2013. In September 2013, a student complained that the Respondent insulted the school band and some of its members. The Respondent wrote a letter in response to the charge in which he denied any knowledge of what he might have said to insult any student or disparage any extracurricular activity of any student and absolutely denied any intent to insult or disparage the band or any band member. He also made an impassioned statement of his deep concern for his students and of the many ways in which he had been supporting the extracurricular activities of his students. The only other evidence on the subject was in the form of hearsay statements written by students who did not testify. Some of the students wrote that they never heard the alleged insults and disparagements. The evidence was insufficient to support a finding that there were any insults or disparagements. The September 2013 band complaint was found by the school administration to be unconfirmed. Nonetheless, the Respondent was given a letter of guidance, also called a directive to: exercise good judgment when engaging in discussions with students; use positive, encouraging comments to motivate and inspire students; take appropriate measures in discussions with students, so as not to expose a student to unnecessary embarrassment or disparagement; and protect all students from conditions harmful to learning and mental and/or physical harm. A letter of guidance or directive is not disciplinary in nature. In January 2014, a female student complained that the Respondent made her feel uncomfortable by standing close to her and by staring at her chest. The only evidence on the subject was in the form of hearsay statements written by students who did not testify. The evidence was insufficient to support a finding of fact in this case. Nonetheless, the January 2014 complaint was found by the school administration to be confirmed, and the Respondent was given another letter of guidance or directive to: consider in advance how to respond to various situations involving students and always maintain respectful distance so as not to invade personal space of individual students; and exercise care and professional judgment when engaging with students so that others would not perceive or misinterpret his behavior as inappropriate. No other incidents came to the attention of the school’s administration until May 27, 2014. Meanwhile, the Respondent’s performance as a teacher for 2013/2014 was evaluated by the school’s administration to be highly effective. On May 27, 2014, a student named Tanner Hearn complained to the school’s administration that the Respondent had been unfair, mistreated him, made negative comments about him, and called him names. The Tanner Hearn complaint was triggered by events beginning at the end of April or early May of 2014. Tanner wanted to raise a grade he got on one of his assignments. His mother, who is a teacher, suggested that Tanner ask the Respondent if he could redo the assignment. The Respondent refused because the assignment was 2-3 weeks late. After the refusal, Tanner told his mother that the Respondent had allowed other students to redo assignments to raise their grades. Tanner’s mother advised Tanner to ask again. The Respondent again refused. After the second refusal, now believing the Respondent was treating her son unfairly, Tanner’s mother advised him to e-mail the Respondent, which he did three times. Each communication with the Respondent was more demanding than the last. Finally, Tanner’s mother e-mailed the Respondent to support her son and strongly suggested that the Respondent let Tanner redo the assignment rather than make them set up a parent- teacher meeting with guidance and the school’s administration. The Respondent defended himself and refused to budge. The Respondent testified that his policy on redoing assignments evolved during the school year. Earlier in the year, he allowed student assignments to be reopened after the due date. Later, he settled on a policy that requests to redo an assignment had to be made before the due date. He testified that Tanner knew the policy and acknowledged it during a discussion they had earlier in the school year when Tanner was considering dropping physics. In late May 2014, when Tanner and his friends were at his house discussing the Respondent’s perceived unfairness towards him, the discussion turned to negative comments and name- calling by the Respondent directed towards Tanner previously during the school year. Tanner’s mother overheard the discussion. She thought the negative comments and name-calling were inappropriate and evidence of the Respondent’s unfairness towards her son. Mrs. Hearn called East River’s assistant principal, whom she knew personally, to complain and demand that something be done. This triggered an investigation by the school. As part of the investigation, the school’s administration interviewed numerous students to see if they ever heard the Respondent call any student derogatory names or embarrass or disparage them. Some students answered in the affirmative and reported what they remembered hearing. Others answered in the negative. Rachel Johnson, one of the students who reported hearing the Respondent call Tanner names, also stated that the Respondent embarrassed her by insulting her religion in the course of a discussion about a film he showed in class. The school’s administration investigated this new charge as well. Several students gave statements saying no improper commentary occurred. No other student statements corroborated the new charge. In her statement to the school’s administration, Rachel Johnson also complained that the Respondent gave exams early, contrary to school policy. No other student statements or testimony supported this charge. The school concluded its investigations in late August 2014. The school’s administration found that the Tanner Hearn and Rachel Johnson charges were confirmed by the investigation. The Respondent was given another letter of guidance or directive, this time accompanied by a reprimand, for failure to follow the approved exam schedule, improper use of video, and negative comments made to students. The Respondent testified that he disputed the reprimand and it was withdrawn, but there was no other evidence that it was withdrawn. In December 2014, Rachel Johnson gave another statement, which included a charge that the Respondent called her a dumb blonde and a stereotypical female. No witness statements corroborated this charge. Rachel Johnson testified in support of the charge. There was no other testimony or evidence in support of the charge. Only a few of the students who gave written statements testified at the hearing. Several testified that on occasion the Respondent would call certain students names like idiot, jackass, and stupid. They testified that the Respondent seemed to do this mostly to the three football players in the class, especially Tanner Hearn. There also was testimony that the Respondent would sometimes ask for a volunteer to answer a question but say something like, “anyone but Tanner since he won’t know the answer.” The context of these kinds of comments by the Respondent was not clear from the evidence. Probably, some were made out of anger or frustration after Tanner disrupted the class or acted out. Some were made jokingly as part of banter back and forth. The impact of these kinds of comments by the Respondent on Tanner and the other students also was not clear from the evidence. No student complained about them at the time they were made. Often, Tanner would appear to shrug them off and say something like, “ha, ha, very funny.” Tanner testified that, however he may have responded at the time, he was affected by the comments, and they made him less likely to participate in class. Some of the students testified that the comments were not made in a joking manner and that they were embarrassed for Tanner and sometimes said to him something like, “I can’t believe he said that to you.” Rachel Johnson testified in support of her anti- religion and dumb blonde charges. There was no other testimony in support of those charges. The Respondent denied them. After the investigations began in May 2014, Tanner’s demeanor and attitude towards school changed markedly. Before the investigations, he was a good if not a model student. He had a positive and enthusiastic attitude about school earlier in the year, especially during football season. During the investigations, he seemed to some to be quieter and less enthusiastic. In his mother’s words, the controversy of the investigations put a damper on the last few weeks of the school year. The precise reason for Tanner’s change of attitude towards school during the investigations is not clear. He and his mother agreed that he was not confrontational, and he did not want his mother to complain to the school. In addition, Tanner soon found himself the subject of another investigation. When the Respondent started hearing rumors that Tanner was telling other students he was going to get the Respondent fired, the Respondent told the school’s administration and asked for an investigation. Tanner testified that he asked the school’s administration what he should do at that point that he was advised to stop talking about the investigations. These developments may have been factors in Tanner’s change of demeanor at the end of the school year. The Respondent testified that he was not guilty of any of the charges. East River’s assistant principal testified that the Respondent admitted to her during the investigation that he called Tanner Hearn an “idjiout” (a variation of the word idiot). The Respondent testified that he did not remember making that admission. The evidence was clear and convincing that the Respondent called Tanner and other students names like idiot, jackass, or stupid on occasion during the course of the 2013/2014 school year. Sometimes this was done out of anger or frustration after Tanner disrupted the class or acted out. Sometimes the words were spoken loud enough to be overheard. Sometimes, it was done in a joking manner, as part of banter back and forth. The evidence was not clear and convincing that the Respondent reasonably knew or should have known that the student involved would be embarrassed or humiliated. None of the other charges against the Respondent were proven by clear and convincing evidence. The Respondent continued teaching at East River during the 2014/2015 school year. The school’s administration evaluated the Respondent’s performance as a teacher for the 2014/2015 school year to be effective. The Respondent did not return to teaching after the 2014/2015 school year because the investigations and their outcomes took a toll on him and he felt burnt out on teaching.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 15th day of December, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 15th day of December, 2016. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Melissa C. Mihok, Esquire Melissa C. Mihok, P.A. Suite 445 201 East Pine Street Orlando, Florida 32801 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, 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)
The Issue The issue in this case is whether the School Board of Pinellas County (Petitioner) should suspend Christopher Lucibello (Respondent) from his position as a chemistry teacher at Gibbs High School for a period of three days, without pay, based upon actions he is alleged to have taken to cause three students to leave the school building after classes concluded on October 27, 1989.
Findings Of Fact Respondent is a teacher holding a teaching certificate issued by the State of Florida, and who, at all times material hereto, has been employed by the Petitioner under continuing contract as a chemistry teacher at Gibbs High School. At Gibbs High School, classes conclude at 2:30 p.m., and students then proceed to their lockers, pick up jackets and books, and leave the building. Student lockers are located in the hallway, outside of classrooms. On occasion, students remain after school to make up work, or take tests which they missed, and teachers generally remain after 2:30 p.m. to straighten up, grade papers, and prepare for the next day's classes. On Friday, October 27, 1989, classes concluded at 2:30 p.m., as normal, and Respondent remained in his chemistry classroom cleaning and straightening up the lab. At approximately 2:45 p.m., Respondent was disturbed by loud student laughter and talking in the hallway outside of his classroom. He stepped into the hallway and asked three female students, whom he did not know, to be quiet and to leave the building. One of the students told another student to go ahead and get her algebra book because Respondent could not make them leave until they got their books. There is no rule or policy at Gibbs High School requiring students to leave campus at any particular time after classes are over. When the three students did not immediately leave the building as he had asked, Respondent stated that he had something that would make them leave, and proceeded back into his lab where he obtained a bottle of butyric acid. He then approached the three students in the hallway holding the open bottle of butyric acid while blowing and fanning its fumes in the students' direction. Respondent got to within four to five feet of the students, and then followed them a distance of about five to six feet, blowing and fanning the fumes in their direction, until they left the building at approximately 3:00 p.m. The students did not know what chemical Respondent had exposed them to. Butyric acid is a volatile acid with a sickening odor, similar to vomit, that spreads rapidly. A safety data sheet for this chemical indicates that it is a strong irritant to body tissue and a stench agent, and warns to avoid contact or exposure to skin and body tissue. Respondent is familiar with this safety data sheet for butyric acid. Two of the students began to feel dizzy and to develop headaches immediately after exposure to the butyric acid, and the third student experienced nausea and skin irritation. These reactions are consistent with exposure to butyric acid fumes. None of the students sought medical attention as a result of the incident. The three students immediately went to the principal's office and reported the incident. The assistant principal noted that they were very upset and excited. Respondent does not dispute that he blew and fanned fumes of butyric acid in the direction of three female students as a means of getting them to leave the building after classes had concluded on October 27, 1989. However, he testified that this action presented no danger to the students. He uses butyric acid in his chemistry class, and exposes students to its fumes during class as a means of demonstrating how organic acids smell. None of his students has ever gotten sick as a result of such exposure. The particular bottle involved in this incident is over 18 years old, and has been diluted over the years with the addition of water. Respondent has no idea how strong the concentration of butyric acid is in the bottle he used. During an investigation of this incidents Respondent admitted to Petitioner's representatives that he was "burned out" and had simply gotten angry at these students. Petitioner seeks to suspend Respondent for three days, without pay, as a result of this incident. Although Respondent and another teacher testified that there had been a recent problem with noise in the hallway outside Respondent's classroom in the afternoon after classes concluded for the day, and they had warned students about making too much noise in the hallway after classes, no reports of this problem had been made to the principal. Administrators were present in the school at the time of this incident, but Respondent did not attempt to contact them for assistance in dealing with this noise problem. Several means exist at Gibbs High School by which teachers can contact the administration for help, including a panic button, telephone and intercom. Students involved in this incident testified that it has given them a negative impression of Respondent as a teacher. Parents and guardians of these students complained to the school administration about this incident, and testified that they consider Respondent's action to be irresponsible. Parental concern was expressed about Respondent's ability to control himself. The principal of Gibbs High School, John Demps, testified that he considered Respondent's action in this incident to be unprofessional and harmful to the school's relationship with these students, their parents and the community. According to the expert testimony of Steven Crosby, Respondent's behavior diminishes his effectiveness as a teacher because it creates a poor image of instructors at the school, and causes concerns among parents for the welfare of their children. Respondent has been employed by the Pinellas County school system for 18 years. During the month of June 1983, Respondent received a written reprimand following an incident in which he became upset in class, and struck a yard stick on a desk, breaking it and causing it to fly in the direction of student, resulting in injury to that student. Previous to this written reprimand, Respondent had been orally warned by his principal on several occasions to control his temper and refrain from yelling at students, or otherwise embarrassing them.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order suspending Respondent for two days, without pay. DONE AND ENTERED this 19th day of June, 1990 in Tallahassee, Florida. DONALD D. CONN 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 19th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-0515 Rulings on Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding 1. 3-4. Adopted in Finding 11. 5. Adopted in Findings 2, 3. 6-10. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 5. Adopted in Finding 8. 14-15 Adopted in Finding 6. Adopted in Finding 5. Adopted in Finding 9. Rejected as not based on competent substantial evidence. Adopted in Finding 8. Adopted in Finding 6. Adopted in Finding 10. Rejected as immaterial hearsay. Adopted in Finding 7. Adopted in Finding 8. 25-32. Adopted in Finding 10, but otherwise Rejected as unnecessary. Adopted in Finding 9. Rejected as unnecessary. Rulings on Respondent's Proposed Findings of Fact: Adopted in Findings 1, 11. Adopted in Finding 8. Adopted in Finding 9, but otherwise Rejected as unnecessary and immaterial. Adopted in Findings 3, 4, but otherwise Rejected as unnecessary and immaterial. Adopted and Rejected, in part, in Findings 6, 7. Adopted in Findings 5, 8, but otherwise Rejected as immaterial. Adopted in Finding 3. Adopted and Rejected, in part, in Finding 10, and otherwise as not based on competent substantial evidence. COPIES FURNISHED: Bruce P. Taylor, Esquire P. O. Box 4688 Clearwater, FL 34618 Mark F. Kelly, Esquire P. O. Box 75638 Tampa, FL 33657-0638 Dr. Scott N. Rose Superintendent P. O. Box 4688 Clearwater, FL 34618 =================================================================
