The Issue Whether Respondent committed the offenses set forth in Administrative Complaint and, if so, what penalties should be imposed?
Findings Of Fact Respondent holds Florida Education Certificate No. 670247 and has been employed in the Bay County School system for 10 years. At all times material to this proceeding, Respondent was employed as a teacher at A.D. Harris High School, an alternative school for students who have problems in main stream high schools in the Bay County School District. Respondent has received satisfactory evaluations with no areas requiring improvement during his eight-year tenure at the High School. M.M., a female student at A.D. Harris High School from eighth grade through twelfth grade, graduated from the high school in June of 1998. During her eleventh-grade year (school year 1996-1997), M.M. was in Respondent's first period media production class and also in his homeroom class. M.M. made good grades in the class and was not a disciplinary problem. Anita Goodman is the principal of A.D. Harris High School. Students frequently discuss their personal problems with teachers and Goodman has encouraged relationships of trust between students and teachers. She cautions teachers, however, to be careful in the course of such activity, particularly with regard to male teachers providing counsel to female students on a one-to-one basis since often any resulting accusations become a credibility issue of student versus teacher. Notwithstanding Goodman's advice, Respondent became the confidant of M.M. during the course of the school year. When M.M., who is white, initiated a discussion with Respondent concerning the difficulties of her relationships with the black boys she was dating, Respondent told her to try dating white boys since she was having trouble with the black male students. Some time later, allegations were made by M.M., to the effect that Respondent spoke with her on two occasions and made denigrating comments about her associations with black males. These allegations by M.M., surfaced weeks after the alleged occurrences and after referral of M.M.'s boyfriend, J.W., to the office by Respondent for fighting (a fact corroborated even by M.M.). Based upon her demeanor, M.M.'s testimony is not otherwise credited. Conversely, Respondent is the father of two adopted children of Korean lineage who socialize with black and white teenagers. Students of both races are jointly entertained in Respondent's home. Respondent has no history of using racially derogatory terms in school or at home.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 19th day of May, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 2000. COPIES FURNISHED: H. B. Stivers, Esquire Law Offices of Levine & Stivers 245 East Virginia Street Tallahassee, Florida 32301 J. David Holder, Esquire Post Office Box 489 Defuniak Springs, Florida 32435 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, whether those offenses constitute just cause to terminate his employment with Petitioner.
Findings Of Fact The School Board employed Respondent as a BIA during portions of the 1999-2000 and the 2000-2001 school years. Respondent is not a member of a collective bargaining unit, and the terms of his employment are not subject to the provisions of a collective bargaining agreement. At all times pertinent to this proceeding Respondent was an educational support employee within the meaning of Section 231.3605(1)(a), Florida Statutes. 1/ Respondent attended the School Board's new employee orientation on October 12, 1999. As part of the orientation, a film was presented and a discussion held on the issue of sexual harassment in the workplace. The School Board's sexual harassment policy and its import were discussed at the orientation session. The School Board's Policy 3.19 deals in part with sexual harassment on the job. The policy includes a definition of sexual harassment, prohibits employees from engaging in sexual harassment, and provides that employees found to have engaged in sexual harassment would be disciplined and could lose his or her job. The School Board's Policy 3.19 provides, in pertinent part, as follows: Sexual harassment is strictly prohibited. Sexual harassment has been defined as "unwelcome" sexual advances, requests for sexual favors, and other verbal, written conduct of a sexual nature when: * * * c. Such conduct has the purpose or effect of unreasonably interfering with the individual's work performance, or creating an intimidating, hostile, or offensive working environment. Examples of sexual harassment may include but are not limited to the following: Gestures, letters, notes, invitations, comments, slurs, jokes, or epithets that are suggestive, derogatory, or obscene. * * * d. Continuing to express sexual interest after being informed that the interest is unwelcome. At all times pertinent to this proceeding Respondent was aware of the School Board's policy prohibiting sexual harassment. Respondent's first job assignment as a BIA was at Indian Ridge Center School (Indian Ridge) in the fall of the school year 1999-2000. At Indian Ridge, Respondent worked with teachers to diffuse crises resulting from student misbehavior and worked with students to improve their social skills. Shortly after arriving at the school, Respondent made lewd comments of a sexual nature to Kathy Petrillo, a middle school teacher. He made comments about her body and asked her to go out with and have sex with him. Ms. Petrillo repeatedly told Respondent that she was not interested in him. Despite her efforts to rebuff Respondent, he continued to make inappropriate comments and gestures with sexual overtones to Ms. Petrillo. Ms. Petrillo complained to William Basil, the Assistant Principal of Indian Ridge, about Respondent's inappropriate interaction with her and with other female members of the school staff. During the fall of 1999, Respondent also made inappropriate comments and gestures with sexual overtones to Marlow Belkin, a female teacher at Indian Ridge. Ms. Belkin told Respondent that she had a boyfriend and was not interested in him, but he persisted with inappropriate and unwelcome comments. Respondent's conduct made Ms. Belkin feel very uncomfortable. Ms. Belkin was informed by students that Respondent had a "crush" on her. When she passed Respondent in the hallway, he stared at her. Ms. Belkin complained to Mr. Basil about Respondent's conduct. Ms. Belkin made it clear to Mr. Basil and to Respondent that she wanted no involvement with Respondent. After her complaint to Mr. Basil, Respondent's inappropriate conduct towards her stopped for a while. However, on Valentine's Day, in February of 2000, Respondent sent to Ms. Belkin a vase of carnations. Ms. Belkin refused the flowers after she learned that Respondent had sent them and wrote Respondent a letter, with a copy to Mr. Basil, advising Respondent she wanted no further personal advances from him. While there were no further personal advances from Respondent, he would leer at Ms. Belkin whenever he saw her. Derrilyn Cerbone-Kreling, a female physical education teacher at Indian Ridge, met Respondent for the first time when he began working at her school. Shortly after his arrival, Respondent asked Ms. Cerbone-Kreling if she would like to kiss him, touch him, feel his biceps, and have sex with him. Additionally, when Respondent went to the school's gym to interact with the kids, Respondent displayed his body, lifted up his shirt, and asked Ms. Cerbone-Kreling to be physical with him. Respondent's behavior was consistent towards Ms. Cerbone- Kreling throughout the fall of 1999. Ms. Cerbone-Kreling complained to Mr. Basil about Respondent's conduct. In response to complaints about Respondent's conduct, Mr. Basil advised Respondent in November 1999 that he had to be professional while working at all times and that he must stop making passes towards female co-workers. Mr. Basil received another complaint concerning Respondent's conduct towards female employees in December of 1999. Mr. Basil spoke to Respondent about the allegations and advised him the situation needed to be taken very seriously. He also gave Respondent a written memorandum dated December 21, 1999. In the memorandum, Mr. Basil advised Respondent of the most recent allegations of sexual harassment and also referenced the earlier conversation they had in November concerning the same issue. Mr. Basil specifically referenced the new employee orientation attended by Respondent and the need to maintain a safe and nondiscriminatory working environment. Respondent acknowledged receipt of the memorandum, but provided no other response. On or about May 4, 2000, a professional standards investigation was initiated concerning Respondent, based in part on allegations he had made inappropriate comments towards female employees at Indian Ridge earlier in the school year. Raymond T. Miller, a personnel compliance administrator with professional standards, conducted an investigation of the allegations. On May 18, 2000, Respondent was placed on administrative leave with pay and assigned to his home. After Mr. Miller completed his investigation, a committee of senior administrators reviewed the record of the investigation, including written statements from various witnesses. The committee determined that probable cause existed to sustain the allegations and recommended to the School Board that Respondent's employment be suspended for ten days without pay. The School Board rejected the recommendation as being too lenient. The committee ultimately recommended a 15-day suspension, which the School Board accepted. Respondent served the 15-day suspension, beginning in September 2000, without filing a grievance or any other appeal. Subsequent to serving the 15-day suspension, Respondent was transferred to Seminole Trails Elementary School (Seminole Trails). He began working there as a BIA in October 2000. Shortly after arriving at Seminole Trails, Respondent met Tabitha Lindor, a female School Board employee who worked as a Creole Language Facilitator. Respondent, who had not previously met Ms. Lindor, approached her in the teachers' dining room and made inappropriate comments and gestures about her body. Ms. Lindor was offended by Respondent's comments and gestures and immediately complained to the Assistant Principal and Principal. Respondent's inappropriate comments and gestures towards Ms. Lindor constituted sexual harassment. Madeline Vega also worked at Seminole Trails in October of 2000. She was employed as an attendance clerk, and met Respondent soon after he was transferred there. Respondent made passes at Ms. Vega including asking her to go out with him. Respondent made inappropriate comments about her body and made inappropriate gestures to her. Ms. Vega did not welcome or encourage Respondent's comments and gestures, and she repeatedly told Respondent she would not go out with him. Despite those rebuffs, Respondent's inappropriate conduct towards Ms. Vega continued. Respondent's inappropriate comments and gestures towards Ms. Vega constituted sexual harassment. Following an investigation and recommendation from the management committee that reviewed the investigative report, Superintendent Benjamin Marlin recommended to the School Board at its meeting of December 6, 2000, that Respondent's employment be suspended and terminated, subject to Respondent's right to request a formal administrative hearing. Superintendent Marlin, on behalf of the School Board, filed the Administrative Complaint that underpins this proceeding on December 22, 2000. The School Board's Policy 3.27 pertains to the procedures to be followed in the suspension and dismissal of employees. Those procedures were followed in this proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's employment. DONE AND ENTERED this 12th day of September, 2001, in Tallahassee, Leon County, Florida. _ CLAUDE B. ARRINGTON 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 12th day of September, 2001.
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)
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
The Issue The issue in this case is whether a high-school assistant principal made inappropriate remarks to two female students on campus during school hours, and then later harassed one of them, thereby entitling the district school board to suspend the administrator for 30 workdays without pay.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Anthony C. Brooks ("Brooks") had been employed as either a teacher or administrator in the Miami-Dade County Public School System for approximately 23 years. At all times relevant to this case, Brooks was an assistant principal at Miami Jackson Senior High School, where his primary responsibility was discipline. The operative contract of employment between Brooks and the School Board required Brooks to "observe and enforce faithfully the state and federal laws, rules, regulations, and School Board Rules insofar as such laws, rules, regulations, and policies are applicable to the position of employment." Pursuant to the contract, Brooks agreed "to become familiar and comply with state and federal laws, rules, regulations and policies of the School Board and of the Department of Education for which [he] w[ould] be held accountable and subject to[.]" The agreement entitled the School Board to suspend or dismiss Brooks for just cause including "the failure to fulfill the obligations under this Contract." The Alleged Inappropriate Remarks The School Board alleges that on February 12, 2004, Brooks told M. D., a female student, that she should consider becoming a model, and that he would take pictures of her at the beach. The School Board alleges further that, the same day, Brooks separately encouraged another female student, F. J., to think about modeling. The evidence presented at hearing failed persuasively to substantiate these charges. The findings that follow in this section, based on evidence that is in substantial conflict, depict the likeliest scenario derivable from the instant record,1 though the undersigned's confidence in the accuracy of some aspects of this historical narrative is relatively limited.2 On the morning of February 12, 2004, a security monitor called Brooks to a classroom where some students were creating a disturbance. Upon his arrival, the teacher pointed out to Brooks the four students who had been causing problems. Brooks asked them to step outside. One of the four was M. D. Brooks told the students, in effect, to straighten up. In the course of lecturing the students, Brooks said to M. D., "You could be a model or something like that." Brooks was not attempting to proposition M. D. His remark was intended to boost her self-esteem and encourage M. D. to set higher standards of personal behavior for herself. Later that day, Brooks ran into M. D. outside the cafeteria. M. D. was talking to a security monitor, and Brooks overheard her say, "Mr. Brooks said I could be a model." The security monitor loudly and rudely scoffed at that idea. Thereafter, Brooks took M. D. aside, to the doorway of the SCSI (indoor suspension) room, and warned her not to discuss her personal business with everyone. Sometime later (perhaps the same day), Brooks was walking in the cafeteria, and F. J., a friend of M. D.'s, stepped on his foot. F. J. continued on her way without pausing and sat down at a table outside the SCSI room. Brooks walked over to her and invited an apology. F. J. declined. Brooks informed her that he would "model" good manners for her and proceeded to deliver an apology. Then, he left. Soon M. D. and F. J. reported to their cheerleading coach that Brooks had expressed interest in taking them to the beach for a photo shoot. The coach passed this allegation along to the administration, which in turn called the school police and the State Attorney's Office. The prosecutor declined to press criminal charges against Brooks; the Office of Professional Standards ("OPS") requested a personnel investigation. Detective Pedro Valdes conducted the investigation. He interviewed M. D., F. J., Brooks, and Trust Counselor Patricia Manson (who disclaimed personal knowledge of the events in dispute). The detective evidently did not believe (or at least gave little weight to) Brooks's denial of wrongdoing, for he determined that the students' statements were sufficiently credible to support the conclusion that Brooks had violated a School Board rule prohibiting improper employee/student relationships. The detective's report announcing that this charge had been "substantiated" was released in July 2004. Having effectively been found guilty by the detective, Brooks was summoned to a conference-for-record ("CFR"), which was held on August 11, 2004. There, Brooks was given an opportunity to deny the charge (but not to confront M. D. and J., whose statements comprised the "evidence" against him). He failed to persuade the administrators that the detective had reached the wrong conclusion. The administrators issued several directives to Brooks, including the following: Refrain from contacting anyone involved in this investigation at any time. Refrain from inappropriate contact and/or comments with students. The Alleged Harassment On August 25, 2004, F. J. came to school dressed inappropriately, in a short skirt and tank top. At the beginning of second or third period, a security monitor named Frantzy Pojo noticed that F. J. was in violation of the dress code and attempted to remove her from class. The teacher refused to let F. J. leave with the security monitor. Faced with the teacher's obstructiveness, Mr. Pojo called Brooks, the assistant principal in charge of discipline whose portfolio included dress code enforcement. Mr. Brooks came to the classroom and spoke with the teacher. He asked that the teacher instruct F. J. to put on a jacket to cover up. The teacher——and F. J.——complied. The very next day, Mr. Pojo spotted F. J. and saw that she was, once again, not dressed appropriately. Mr. Pojo called Brooks to handle the situation. Brooks found F. J. in the library and agreed that she was in violation of the dress code. He observed that two or three other girls were also dressed inappropriately. Mr. Pojo and Brooks escorted these girls to the SCSI room and left them there. Brooks instructed the teacher-in-charge not to suspend the students but rather to let them call their parents and request that appropriate clothes be brought to school. F. J. called her mother and complained that Brooks was harassing her. F. J.'s mother became angry and arranged to meet with the principal, Deborah Love, that afternoon. When F. J., her mother, and Ms. Love met as scheduled, F. J. accused Brooks of having followed her to classes and singled her out unfairly for discipline in connection with the dress code violations. At Ms. Love's request, F. J. submitted written statements concerning the events of August 25 and August 26, 2004.3 Ms. Love believed F. J. and apparently had heard enough. Without investigating F. J.'s allegations or even asking Brooks to respond to them, Ms. Love prepared a memorandum, dated August 27, 2004, in which she charged Brooks with insubordination. Specifically, Ms. Love alleged that Brooks had violated the directive, given at the recent CFR, to refrain from contacting anyone involved in the investigation stemming from the allegation that Brooks had made inappropriate remarks to M. D. and F. J. On or about August 27, 2004, Ms. Love ordered Brooks not to return to campus but instead to report to an alternate worksite pending further action on the charges against him. At its regular meeting on December 15, 2004, the School Board voted to accept the recommendation of OPS that Brooks be suspended without pay for 30 workdays. Ultimate Factual Determinations Brooks's conduct was not shown to have been outside the bounds of accepted standards of right and wrong. He is therefore not guilty of immorality, as that offense is defined in Florida Administrative Code Rule 6B-4.009(2). Brooks did not fail to make a reasonable protective effort to guard either M. D. or F. J. against a harmful condition; had he neglected such duty, Brooks could have been disciplined for misconduct in office. Brooks did not intentionally expose either M. D. or F. J. to unnecessary embarrassment or disparagement; had he done so, Brooks could have been disciplined for misconduct in office. Brooks did not harass or discriminate against M. D. or F. J. on the basis of any improper consideration, such as race, color, or religion; had he done so, Brooks could have been disciplined for misconduct in office. Brooks did not exploit a relationship with either M. D. or F. J. for personal gain or advantage; had he done so, Brooks could have been disciplined for misconduct in office. Brooks did not constantly or continually refuse intentionally to obey a direct and reasonable order, which willful defiance, had he shown it, would have constituted "gross insubordination" under Florida Administrative Code Rule 6B- 4.009(4). Brooks did not violate School Board Rule 6Gx13-4A- 1.21, which prohibits unseemly conduct and abusive or profane language. Brooks did not violate School Board Rule 6Gx13-4-1.09, which prohibits unacceptable relationships and/or communications with students. Accordingly, it is determined that Brooks is not guilty of the charges that the School Board has brought against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (a) rescinding its previous decision to suspend Brooks without pay and (b) awarding Brooks back salary, plus benefits, that accrued during the suspension period of 30 workdays, together with interest thereon at the statutory rate. DONE AND ENTERED this 17th day of October, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2005.
The Issue Did the Respondent inappropriately touch students while employed by the Taylor County School Board? Did the Taylor County School Board follow a program of progressive discipline in this case? Was the Respondent grossly insubordinate by continuing to touch students after being warned to cease such conduct? Was the Taylor County School Board justified in suspending the Respondent without pay pending the outcome of an administrative hearing?
Findings Of Fact The Respondent, Jeff Silvers, was employed by the Taylor County School Board (the Board) as a science teacher at the Taylor County Middle School (the school). He had been an employee of the Board for several years. The Board was party to a contractual agreement with the Taylor County Education Association, FTP-NEA. On or about September 14, 1995, the Petitioner became aware that two female students had complained about Silvers rubbing their shoulders, touching their hair, and making an off color remark to them. The matter was brought to the attention of the Dean of Students at Taylor County Middle School, Reginald Wentworth, who reviewed the facts and counseled Silvers to refrain from touching his students. On or about September 15, 1995, four additional students complained that Silvers occasionally touched them which made them feel uncomfortable. As a result of these complaints, an investigation was undertaken of Silvers’ conduct and the statements of his students were taken. Their statements were reviewed at the Board level, and Paul Dyal, Principal of Taylor County Middle School was directed to counsel Silvers and advise him to alter his teaching style and not to touch students. Dyal advised Silver in writing to be careful of his comments to students and keep them professional.1 Silvers received an informal verbal and an informal written reprimand which was maintained in his personnel file. Thereafter, a mother of one of the girls who had originally complained about Silvers began to complain to the administration at the school and district about Silvers’ conduct with regard to the original incident. As a result of pressure put on the district by this parent, the matter was reinvestigated and the formal statements of the students originally involved were taken again. In addition, other students complained of Silvers touching them. Many of these students were called to testify at hearing, and their statements were introduced into evidence. None of these students described touching which was sexually explicit or overtly inappropriate because of the parts of the body which were touched. The touching described was “inappropriate” given the age of the young female students, and Silvers was properly directed to refrain from touching the students in this manner; however, the touching was not of a nature to establish “immoral” behavior. With the exception of two children, Maria V. and Michelle W., none of the children could fix the date of that Silvers touched them. It was not established that Silvers touched any of the other students after he was directed not to touch them. The incident involving Maria was typical of the reports of touchings reported by the students other than Amber M. and April E. The Respondent touched Maria on the shoulder while at her desk on December 1, 1996, answering a question she had. She reported that she did not feel uncomfortable because of Silvers’ touching her and would not have considered it except of the controversy over Silvers then being reported in the paper. Because of the diary entry she made, she could place the date of the incident. The other incident involved the Respondent touching Michelle on the leg while he plugged a pencil sharpener during class. Michelle was seated on a stool, with her feet on the upper rungs of the stool, and her knees and legs roughly parallel with her hips. The electrical outlet was between her knees on the upper part of the lab bench at which she was sitting. The Respondent, who was standing beside her, unplugged the sharpener into the outlet and accidentally touch her leg. Michelle thought nothing about it, was not concerned about it, and did not complain about it. This well documented occurrence was accidental and was not contrary to the directions which Silvers had received. The testimony of the two students who originally complained about Silver is discounted. In part, this is because their allegations continued to change during the investigation; however, the testimony of April at hearing was not credible. The testimony of Amber was not supportive of April regarding Silvers’ comments. Amber’s descriptions of Silvers’ conduct in the classroom was more detailed and differed from the testimony of the other students regarding Silvers’ behavior. Her descriptions of classroom touchings were of rubbing and lifting bra straps which would have been wholly inappropriate; however, she and April were the only students who offered such statements and testimony and it came late in the investigative process, casting doubts upon its credibility given the atmosphere which prevailed after the letter to the editor from April’s mother. In sum, the testimony of Ellison and Mauldin was sufficient to base the informal actions of the Board; however, their later testimony lacks the credibility to sustain the Board’s suspension and termination of Silver. The letter-writing campaign by April’s mother resulted in an atmosphere in which the young women in Silvers’ classes were overly suspicious of his every move. In addition, the administration re-investigated the matter and obtained the statements of additional girls that Silver had touched them. In response to leading questions, their statements indicated these were recent touchings; however, under oath and on cross examination they were unable to fix accurately the dates of the incidents of touching. On February 7, 1996, the Respondent was advised he would be suspended with pay pending an administrative hearing before the Board scheduled for February 13, 1996. The letter of suspension which is considered the original charging document, advised that he was charged with gross insubordination and immorality as the result of touching students in a inappropriate manner and continuing to do so after being directed not to touch students. Subsequent to Silvers’ requesting a hearing before the Division of Administrative Hearings, the Petitioner suspended the Respondent without pay on February 22, 1996.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Board enter an order dismissing the charges against the Respondent, and reinstate the Respondent to his former position with back pay DONE and ENTERED this 12th day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1997.
The Issue The issue in this case is whether a veteran teacher should be dismissed for having drawn and displayed a kitchen knife while quieting a noisy class.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. As of the final hearing, Respondent Lynn Deering ("Deering") had been a teacher for about 34 years. She holds a certificate to teach in Florida. During the 2004-05 school year, Deering was employed as a science teacher at Marjory Stoneman Douglas High School, which is a public school in Broward County. For reasons that will soon be apparent, it is pertinent to note that Deering contracted polio at a young age and as an adult has suffered from post-polio syndrome. As a result of these illnesses, Deering's upper-body is weak, the range of motion of her upper extremities is limited, and she has little grip strength in her right hand, which is dominant. Since 1985, Deering has been confined to a wheelchair.1 The incident giving rise to this case occurred on March 2, 2005. When the bell rang that day to start Deering's sixth period anatomy and physiology class, the students were excited and talkative. As was her practice, Deering raised her hand to signal that she was ready to begin teaching; this gesture usually quieted the class. This time, however, the students continued to talk, and the classroom was noisy——too noisy for Deering to be heard. So Deering, who was sitting (in her wheelchair) in front of a demonstration table located at the head of the classroom, hitched up her right shoulder, reached back behind her body, and grabbed a utensil from the top of the table. She then used the utensil to tap on a glass beaker——which was filled with water and flowers——to get the students' attention. The "utensil" in question happened to be a knife. It was a chef's knife,2 bearing the Chefmate™ brand on its blade. Measured from butt to point, the knife was approximately 10 and one-half inches long. From heel to point, the blade was roughly five and three-quarters inches in length; it was no wider than about three-quarters of an inch from edge to spine. The knife was in Deering's classroom at the time because she had been using it to slice flowers and potatoes for demonstrations in her biology class.3 Upon hearing the distinctive "tap, tap, tap" of blade on beaker, most of the students stopped talking. Some in the back of the room, however, perhaps being out of earshot, continued to converse. Two were especially oblivious. Presently, Deering wheeled over to their lab table, still holding the knife in her right hand, between her thumb and fingers. When she reached the students' table, Deering turned the knife over in her hand, so that the point was down and the edge faced away from the students (toward Deering herself). Deering leaned over the table, in front of the where the two students were sitting, raised the knife an inch or two above a couple of sheets of paper that were lying on the tabletop, and, loosening her grip, let gravity pull the knife down between her fingers.4 Driven by the knife's own weight, the point punched through the papers, leaving small slits in them, and scratched the surface of the tabletop. Now gripping the knife's handle more tightly (for had she let go the knife would have fallen), Deering said, "Hello!"——which she pronounced "Heh-LOW!"——"Do I have your attention?" She did. The students stopped talking. Some were startled or frightened; others were amused or nonplussed. None, however, reacted as one might when facing a genuine threat of harm, e.g. by screaming or fleeing. As she returned to the front of the classroom, Deering joked, "Don't mess with a postmenopausal woman . . . with a knife!" This was meant to be humorous and was not uttered in a threatening tone of voice. Following this incident, Deering taught her lesson as usual, and the class unfolded in routine fashion. Her use of the knife, in other words, produced no discernible immediate fallout. At least a few students, however, were sufficiently upset by Deering's conduct to report the matter to the administration, and they did.5 The students' report not only set in motion an internal investigation, but also prompted the administration to call the police. Somehow, as well, the incident rapidly made its way into the local news. At least one local TV station aired a brief, 35-second story on the incident, which was short on facts, long on sensationalism, and notably unbalanced, in that Deering's side was not shown. The undersigned cannot comment on the contents or accuracy of other media reports, for they are not in evidence. In due course, the Broward County Sheriff's Office commenced an investigation that brought forth a criminal charge against Deering, who found herself accused of having improperly exhibited a dangerous weapon. The crime of improper exhibition, which is a misdemeanor, is defined in Section 790.10, Florida Statutes, as follows: If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self- defense, the person so offending shall be guilty of a misdemeanor of the first degree[.] Deering ultimately pleaded no contest to the criminal charge and was sentenced by the county court to three months' probation and a $30 fine. Meantime, the School Board decided that Deering should be fired, voting at its regular meeting on August 2, 2005, to accept the superintendent's recommendation that she be suspended without pay pending termination of employment. Following her suspension, Deering accepted a teaching position at the Upper Room Christian Academy, where she was working as a science and math teacher at the time of the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (a) rescinding its previous decision to suspend Deering without pay pending dismissal and (b) awarding Deering the back salary, plus benefits, that accrued during the administrative proceedings, together with interest thereon at the statutory rate. DONE AND ENTERED this 31st day of July, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 31st day of July, 2006.
The Issue The issue for consideration in this matter is whether Respondent should be dismissed from employment with the Polk County School Board because of the matters alleged in the letter of intent prepared by the Superintendent of Schools.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for providing public primary, secondary and adult education in Polk County, Florida, and operated Haines City High School, (HCHS), in Haines City. Respondent had been employed at HCHS for eight years, and in the last two years prior to the incidents herein taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. DCT students are allowed to leave campus before the end of the school day to work at jobs in the local area. However, Respondent allowed some students to leave school during the morning hours for the purpose of getting breakfast and, coincidentally, to bring items back to school for her to eat. There is also allegation that Respondent would solicit students to run personal errands for her during school hours but would not give them a pass to allow them to lawfully leave the campus. Allegedly, she advised them that they were on their own and she would deny responsibility or knowledge if they were caught. Taken together, the evidence establishes that Respondent did allow students to leave class on personal business and did not give them passes to be off campus. It also appears that she solicited them to pick up items for her while they were away, but not that she solicited students to leave class to run errands off campus for her. Even so, her actions are in violation of the Board policy regarding student absence from campus, a policy about which Respondent had been briefed. In addition, some time during the Autumn of 1994, Respondent overheard a student on the school's football team, Bradford Parton, discussing with his girlfriend the fact he was having cramps. Respondent advised him he should take potassium and on at least one occasion, during a class session, gave Parton a pill which, she said, would give him energy and take away his cramps. She believed the pill was the functional equivalent of one banana. Respondent was aware that it was a violation of Board policy for anyone other than the school nurse to administer any form of pill or medication to a student. When the Principal learned that Respondent had given Parton the pill, he directed an investigation into the matter. On November 17, 1994, after he had heard that Respondent was making comments in class to the effect that the students were getting her in trouble with the administration, the Principal gave her verbal instructions not to discuss these matters with the students and to limit her conversations with them to matters related to class work. His comment to her included, "Just teach the class. Just don't bring yourself down to their level." The following day, on November 18, 1994, after receiving word that Respondent had again spoken to Parton after he had warned her not to do so, the Principal reduced his prior comments to writing and again instructed her not to discuss the matter with any students, warning her that he considered her doing so a matter of insubordination which, if repeated, would result in severe disciplinary action. There is some indication Respondent, in early December, 1994, advised several students after the warning she was going to have them removed from her class She subsequently advised the school's guidance counselor that several of the students involved should be removed from her class because they appeared to be "unhappy" in it. The students denied being unhappy in class and urgently resisted being removed because they needed the credit to graduate. Respondent's comments to the students constituted insubordination, and her action in urging removal of the students was considered by the administration to be an attempt at retaliation against them because of their allegations made against her. There is also indication that while the investigation into the allegations against her was under way, Respondent spoke with Ms. Denmark, another teacher, who was in the room when Respondent gave the pill to Mr. Parton, in an effort to get her to change her statement. School Board officials consider Respondent's blatant violation of school rules and policies by allowing students to leave campus without a pass and by improperly administering a pill to a student combine to severely impair her effectiveness as a teacher. Under the circumstances established here, this appears to be the case. Prior to the initiation of this action, Respondent had received a verbal warning regarding drinking in front of students at a conference and regarding making untoward comments about Blacks. Her personnel record, commencing with the teacher evaluation of her performance in the 1988-1989 school year, reflects positive comments and no substantial criticism. However, in July, 1994, the Superintendent advised Respondent of his intention to suspend her without pay for five days for making improper comments of a sexual nature toward students and for allowing students to grade papers, to average grades and to have access to her grade book. Respondent requested hearing on this proposed action. That hearing was held consolidated with the instant hearing and no final action has been taken by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova's, suspension without pay pending hearing be sustained and that she be dismissed from employment as a teacher with the Polk County School Board because of misconduct in office and gross insubordination as described herein. RECOMMENDED this 3rd 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 3rd day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-2599 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. - 4. Accepted and incorporated herein. - 9. Accepted and incorporated herein. Accepted in so far as Respondent allowed students to leave campus and periodically suggested those who did run errands for her. - 13. Accepted and incorporated herein. 14. Accepted and incorporated herein. FOR THE RESPONDENT: & 2. Accepted and incorporated herein with the understanding that the term, "no further details regarding the allegations were provided" refers to the charging letter, and that Respondent was provided with specific allegations of misconduct prior to hearing. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 8. Accepted and incorporated herein. First sentence accepted and incorporated herein. Second sentence rejected. See Partain's December 2, 1994 letter to Chapman. Accepted and incorporated herein. 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. Highway 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 issues in this case concern an administrative complaint brought by the Petitioner against Respondent under authority set forth in Chapter 231, Florida Statutes, and Chapter 6B, Florida Administrative Code. In the course of that complaint, Respondent is accused of making derogatory racial remarks directed to black students in his class, denying privileges to students within his class based upon race, and the exclusion of a black student from a position in extracurricular activities. He is also accused of physically striking a student on the leg with a stick and grabbing that student and restraining the student against the student's will.
Findings Of Fact At all times relevant to the inquiry Respondent, a white male, was licensed by the State of Florida, Department of Education as a teacher. The teaching certificate issued for that purpose is number 447593. That certificate covers the subject area of math. During the relevant period under examination by the administrative complaint Respondent was employed as a mathematics teacher and a soccer coach at J.E.B. Stuart Junior High School in Duval County, Florida. While teaching one of his math classes in the school year 1988-1989, he made certain remarks which were racial in nature and demeaning to black students in his class. Tekina Watson, a class member in this junior high class, who is black, recalls the Respondent saying something to the effect that, "Black people should stay in their place and stop trying to be white like us." This made her feel uncomfortable or as she describes it made her feel like "dirt." She also heard the Respondent use the term "niggers." Tekina Watson complained about the racial remarks and withdrew from Respondent's math class as a result of those comments. Respondent in the face of those events told Tekina Watson that she should not come out for soccer anymore to serve in her capacity as manager for the boys soccer team. As a result, notwithstanding the attempts of other adults in the school to encourage her to rejoin the team as manager she resigned her position. Shawnae Latrice Worthy was also a student in the math class in which Tekina Watson was a student Ms. Worthy is black. Her recollection of Respondent's remark was to the effect that, "you need to start acting like black and stop trying to be like us", taken to mean that black people should act like black people and not attempt to act like white people. This upset Ms. Worthy. As a consequence of his remarks she was removed from his class as a student. Ronald Alexander Dubois was also a student in the mathematics class previously described. He remembers the Respondent saying something to the effect that, "blacks should act like blacks." Mr. Dubois is black. After the remark he was withdrawn from the math class. The impression this remark left on him was that he simply wanted to get out of the class and avoid any racism. Mr. Dubois also testified about concerns he had that a white female student in the class was allowed to be able to either sharpen a pencil or throw a piece of paper in the trash can and when Tekina Watson attempted to do so she was not allowed that opportunity. It is unclear from the record whether there was justification to allow the unnamed white female to sharpen a pencil or throw a piece of paper in the trash can and deny that opportunity to Tekina Watson. The three students who have been identified by name gave statements to school officials concerning the racial remarks by the Respondent. In January, 1989, while serving as a soccer coach, Respondent became upset with Thomas Earl Cravey, II, concerning Mr. Cravey's effort on the soccer field. In response to what Respondent considered to be inadequate attention to responsibilities as a player, Respondent told Mr. Cravey that he should stop "playing around." Respondent then went to a tree and cut a small branch and took that branch and switched Cravey on the legs leaving two marks. Respondent then escorted the student to the sidelines off the soccer field and in the course of these events grabbed the student by the ear. Words were exchanged between the Respondent and Mr. Cravey, none of which would justify the physical actions that have been described and are attributable to Respondent in dealing with Mr. Cravey. This exchange was seen by another soccer coach James Albert Calise. Based upon this circumstance the incident was investigated by the school and upset Mr. Cravey and his mother. When Respondent took the stand he tried to explain the statements that he had made in his classroom which are recalled by Tekina Watson, Shawnae Latrice Worthy and Ronald Alexander Dubois. It went something to the effect that he was trying to explain to the black students that they should be encouraged by their differences, be proud of those differences and at the same time have respect for themselves and be proud of themselves in that they could be outstanding in mathematics no matter what differences they might have. This explanation that Respondent attempted is not accepted as excusing his remarks, which remarks as reported have derogatory racial overtones. Likewise the attempt to explain away the incident related to the soccer player Thomas Earl Cravey, II, is not accepted. To the extent that this was an effort at providing discipline to Mr. Cravey it was inappropriate discipline. John Emory Trawick who was the principal at J.E.B. Stuart Junior High during the time of the incidents that have been described testified at hearing. On the topic of whether the racial remarks and the conduct directed to the soccer player would constitute actions which cause the Respondent to lose his effectiveness as an employee of the Duval County School Board, Mr. Trawick said that the type of statements made in the presence of students if they continued would cause loss of effectiveness as would any future striking of a student. He stopped short in his opinion of indicating that the Respondent had lost his effectiveness because of the incidents. The proof on balance does not show that the Respondent because of these incidents has lost effectiveness as a teacher. This takes into account the fact that 5 to 7 students withdrew from his mathematics class as a result of the racial remarks.
Recommendation Based upon the consideration of the facts of fact made and the conclusions of law reached, it is recommended that a Final Order be entered which suspends the Respondent's teaching certificate for a period of 60 days. RECOMMENDED this 31st day of January, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 31st day of January, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3939 Petitioner's Facts The proposed facts of the Petitioner are discussed as follows: Paragraphs 1-7 are subordinate to the facts found with the exception of the reference to the idea that Respondent had referred to black students as "jerks". This is heresay information which may not be used for fact finding. See Section 120.58, Florida Statutes. Paragraph 8 is contrary to facts found. Paragraph 9 suggestion that parents requested that students be taken out of the Respondent's mathematics class is rejected. Again, for reasons that those suggested facts are hearsay and may not be used for fact finding. See Section 120.58(1), Florida Statutes. In this connection, the students desire to leave the class based upon the remarks of Respondent are not sufficient standing alone to say that the Respondent has lost his effectiveness. Paragraphs 10-13 are subordinate to facts found. Paragraph 14's suggestion that the Respondent was removed as a soccer coach is true, but is not necessary to the resolution of this dispute. Paragraph 15 is not necessary to the resolution of this dispute. Paragraphs 16 and 17 are contrary to the testimony of Mr. Trawick and are rejected. Paragraph 18 is contrary to the testimony of the Respondent, in that he did not acknowledge whether his swings at the student Mr. Cravey contacted the legs of that student. Nonetheless, it is found as a fact that he did strike the student. Paragraph 19 is an accurate depiction of the testimony but is not necessary to the resolution of the dispute. COPIES FURNISHED: Rex D. Ware, Esquire Huey, Guilday, Kuersteiner and Tucker, P.A. 215 South Monroe Street, Suite 510 Post Office Box 1794 Tallahassee, FL 32302 John F. Shuler 1253 Ribault River Drive Jacksonville, FL 32233 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
