The Issue The issue in this case is whether there is just cause for a ten-day suspension of Paula Prudente's employment with the Palm Beach County School Board.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Palm Beach County Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Prudente started her employment with Petitioner in 1978. She was employed pursuant to a professional services contract. Respondent is currently a reading teacher at John I. Leonard Community High School. Terry Costa ("Principal Costa" or "Costa") is the principal at John I. Leonard and has been since 2005. She serves as Prudente's supervisor. During Prudente's employment, Costa received complaints regarding Respondent's email use. Teachers complained to Costa that Respondent did not use the email system according to the School District guidelines. On or about September 27, 2007, Costa gave Prudente a directive to refrain from communicating with the chair of the Reading Department in a negative manner through email and to direct concerns to Assistant Principal Howard or Costa.1 Prudente failed to adhere to the directive. Consequently, Costa issued Prudente a verbal reprimand with written notation for failure to follow administrative directives regarding the proper use of email on January 8, 2008. The January 8, 2008, verbal reprimand with written notation for failure to follow the administrative directive regarding the proper use of email during the school day stated: Specifically, you were given directives on September 27, 2007, to refrain from communicating with the chair person of the Reading Department via email, in a negative manner, regarding Reading Department concerns. You were further directed to email any and all department concerns to Terry Costa or Diane Howard. You are directed to cease such conduct immediately. Further, you are to desist from engaging in the same or similar conduct in the future. Failure to do so will result in further disciplinary action up to and including a recommendation for termination. Prudente signed the verbal reprimand on January 9, 2008. On October 1, 2008, Respondent emailed the faculty using "1361" without prior approval.2 Prudente's actions were contrary to the February 6, 2007, prior directive Principal Costa had given her to get permission before sending school-wide emails. On October 8, 2008, a Pre-Disciplinary Meeting was held. During the meeting, Principal Costa reminded Prudente that she had been directed not to email the faculty without going through Administration. Respondent's January 8, 2008, verbal reprimand for improper emails during the school day was discussed. At hearing, Prudente admitted that she had been told not to email the faculty by "1361" without going through administration, but she emailed anyway because the CTA Office had called her to help get teachers to vote. She said, "I know, I wasn't suppose to email the whole faculty, but it was for voting, contract voting I remember." Prudente was reprimanded on October 14, 2008, for violating the directive by Principal Costa. The written reprimand, which Prudente signed, stated: You failed to follow the administrative directive by continuing to use the school district email in a negative manner. You continued to email the faculty using the 1361 mail without an administrator's permission. You are directed to cease such conduct immediately. Further, you are to desist from engaging in the same or similar conduct in the future. Failure to do so will be considered gross insubordination and will result in further disciplinary action, up to and including a recommendation for termination. On November 4, 2008, Respondent sent some co-workers emails with cartoons depicting President-elect Barack Obama in a negative fashion. The politically charged emails offended several of the recipient staff members, who reported the offensive emails to Principal Costa. Retha Palmer, a math teacher, was one of the recipients of the November 4, 2008, email. She was offended by the content of the email. She responded to the email by saying, "I was wondering why would you send this to me? I thought we were friends. Are you confused? These cartoons seem to be very insulting to me, especially when I have a much different belief of Senator Obama. . . . If you can't or won't stop then maybe you should simply seek other environments for this type of harassment." Principal Costa provided the information about Prudente's email use to the Director of Employee Relations. Subsequently, District Police Officer Ezra Dilbert ("Dilbert") was assigned to investigate the allegations against the Respondent. Numerous other emails unrelated to work that Prudente sent were discovered but the School Board's Petition fails to include adequate charges of all the emails. Dilbert's report concluded that Prudente violated the School Board's policies regarding Employee Use of Technology and Political Activities on School Board Property. The matter ultimately was brought to the attention of the School Superintendent, who by letter advised Respondent that a determination had been made that there was "sufficient evidence to warrant [her] suspension without pay," and that he therefore would recommend such to the School Board. The School Board followed the School Superintendent's recommendation, and Prudente timely requested an appeal of the disciplinary action.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Petitioner enter a final order rescinding the ten-day suspension with back pay. DONE AND ENTERED this 24th day of January, 2011, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day January, 2011.
The Issue Whether Petitioner had just cause to suspend Respondent without pay pending disposition of felony criminal charges.
Findings Of Fact The stipulations of the parties in the pre-hearing stipulation, the testimony presented, and the evidence received at the final hearing support the following Findings of Fact: Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Escambia County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. The School Board has the statutory responsibility to prescribe qualifications for positions of employment and for the suspension and dismissal of employees subject to the requirements of chapter 1012. At all times relevant to this proceeding, Respondent is a noninstructional support employee, who has been employed as a Custodial Worker I by the School Board since October 13, 2014. Mr. Warren worked 40 hours a week at Pine Forest High School. Mr. Warren’s position with the School Board is annual, rather than based on the academic school year calendar. During the regular school year, students are required to be on campus from 8:30 a.m. to 3:30 p.m. After the school day, there are students who remain at the school for various activities with clubs and organizations. While students are present, custodial workers complete their duties and work assignments throughout the school. On a regular school day students may be present at the school for clubs and organizations until as late as 9:00 p.m. Respondent works the 2:00 p.m. to 10:30 p.m. shift and would be present when students are present. The background regarding Respondent’s arrest arises from a dispute where it was alleged that he forged a quitclaim deed, transferring property from his uncle to himself. On May 9, 2017, Respondent was arrested. Thereafter, an information was filed against Respondent by the State Attorney’s Office alleging that he knowingly obtained or endeavored to obtain certain property of another valued at $20,000.00 or more, but less than $100,000.00, in violation of section 812.014(1)(a) and (1)(b), and (2)(b)1., a second degree felony. At the time of the final hearing, Respondent’s criminal case was pending final disposition. On May 18, 2017, Superintendent of the School Board, Malcolm Thomas, provided written notice to Respondent that he was suspended “with pay effective immediately . . . pending the outcome of an arrest for §812.014.2b1 [sic], F.S., a disqualifying offense.” The Superintendent’s letter did not provide authority for the Superintendent’s action. The Superintendent also cited no authority for his position that the alleged offense was a “disqualifying offense.” Also, on May 18, 2017, the Superintendent notified Respondent of his intent to recommend to the School Board that Mr. Warren be placed on suspension without pay beginning June 21, 2017. In his request to the School Board, the Superintendent stated that his recommendation was “based on conduct as more specifically identified in the notice letter to the employee.” Similar to the notice regarding the intended recommendation, the Superintendent cited no authority for his recommendation, nor his position that the alleged offense was a “disqualifying offense.” By letter dated June 21, 2017, Dr. Scott advised Respondent that the School Board voted to accept the Superintendent’s recommendation placing him on suspension without pay, effective June 21, 2017. As cause for Mr. Warren’s suspension without pay, Dr. Scott’s letter stated that it is “based on conduct as more specifically identified in the [Superintendent’s] notice letter to the employee.” Dr. Scott’s letter did not use the term “disqualifying offense,” nor did it cite any authority for the School Board’s action. Respondent had no history of disciplinary action during his employment by the School Board. In addition, Ms. Touchstone testified that Respondent “has been a good employee for us.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Escambia County School Board, issue a final order affirming suspension without pay of Respondent’s employment, pending disposition of his criminal charges. DONE AND ENTERED this 22nd day of December, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 22nd day of December, 2017. COPIES FURNISHED: Joseph L. Hammons, Esquire The Hammons Law Firm, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 (eServed) Mark S. Levine, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Ronald G. Stowers, Esquire Levine and Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Malcolm Thomas, Superintendent Escambia County School District 75 North Pace Boulevard Pensacola, Florida 32505 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether just cause exists for Petitioner, Broward County School Board (“BCSB”), to suspend Respondent, Karleef Jamel Kebreau (“Respondent”), from his employment as a teacher for ten days without pay.
Findings Of Fact The Parties BCSB is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. Respondent was employed by BCSB as a math teacher at Miramar. Respondent has taught for BCSB for 17 years. Respondent is working pursuant to a professional services contract. Respondent’s Prior Discipline and Summary Memoranda On or about December 14, 2011, Respondent received a Letter of Reprimand from BCSB and was required to attend Equal Employment Opportunity (“EEO”) Overview Training for inappropriate conduct concerning his violation of both the Code of Ethics and Principles of Professional Conduct of the Education Profession. Respondent received this Letter of Reprimand because of an investigation into inappropriate conduct regarding allegations that he repeatedly approached students to take modeling photos of them in their bikinis. The investigation also concerned allegations that Respondent was watching movies with female students in his classroom after school hours. On or about November 28, 2012, Respondent received a Summary Memo addressing the following concerns: his failure to attend mandatory proctor training; his failure to pick up interim reports; his failure to follow proper procedures; his failure to notify a student that he had her iPod; his intentional use of embarrassing and disparaging remarks to a student by calling her a “shone” (slang for prostitute) in class; and his lack of professional judgment and integrity. On or about May 14, 2015, Respondent received a Summary Memo addressing the following concerns: his use of embarrassing and disparaging remarks to a student and his lack of professional judgment and integrity. He received this Summary Memo after an email from a concerned parent was received by Miramar administration concerning Respondent’s behavior. The email referred to Respondent participating in making a list of the prettiest to the ugliest girl in his class and calling a student stupid. Respondent denies that he created the list, but admits that he knew about the list, that he should have addressed the issue to end it, and further that he commented on it. Allegations Giving Rise to the Suspension On October 11, 2018, Miramar Principal Maria D. Formoso (“Formoso”) received an email from someone who identified himself as “Captain Alex.” Captain Alex wrote that his girlfriend was a student at Miramar, and that he was in fear for her safety while she was in Respondent’s class. Attached to his email, Captain Alex provided copies of cell phone text messages between him and his girlfriend describing how Respondent had approached her and began hugging and touching her hair. Captain Alex’s email also indicated that this was happening to other female students at Miramar. Formoso advised John Murray, Assistant Principal (“AP Murray”), who helped identify Captain Alex’s girlfriend as C.G. C.G., who was in 12th grade during the 2018-2019 school year, advised Formoso, that on October 11, 2018, she was “face-timing” with her boyfriend on her cell phone, prior to the start of class, and as she entered Respondent’s classroom, Respondent walked up to her and gave her a full-frontal hug. As Respondent was hugging her, he was also manipulating her hair on the back of her head without her consent. C.G. stated that Respondent regularly gave her unwanted hugs and that the hugs made her feel uncomfortable. He also gave her compliments, played with her hair, and rubbed her shoulders. According to C.G., since the beginning of the school year (i.e., 2018-2019), she has received several unwanted hugs from Respondent prior to entering his classroom. C.G. stated that the hugs would last 30 seconds and that Respondent would play with her hair as well as rub her shoulders. During one of the hugging incidents, Respondent whispered into her ear “[y]ou give thick a whole other meaning.” Statements from Other Students After obtaining C.G.’s statement, Formoso interviewed and obtained statements from other female students identified by C.G. to have also received unsolicited hugs from Respondent. Those students were identified as S.N., N.O., and D.J. After obtaining these additional statements, Formoso contacted the BCSB Special Investigative Unit (“SIU”) to initiate an investigation. Detective Bernard Canellas of SIU arrived at Miramar to conduct an investigation concerning Respondent’s conduct. As part of the investigation, he obtained several handwritten statements and conducted recorded interviews under penalty of perjury. After the investigation was completed, Respondent was given a copy of the report of the investigation and was advised that BCSB will move forward to bring the investigative findings to the Professional Standards Committee. Detective Canellas obtained a written statement and sworn recorded statement of S.N. S.N. also provided testimony at a deposition, which the parties agreed to submit in lieu of an appearance at the final hearing. According to S.N., who was an 11th grade student during the 2018-2019 school year, Respondent was her math teacher during her freshman year. S.N. testified during her deposition that during her first encounter with Respondent, he approached her and gave her an unwanted hug as she entered his classroom. On one occasion during her freshman year, as Respondent proceeded to hug her, he whispered in her ear “[h]ow would you feel if I told you I wanted to be your boyfriend.” S.N. said the statement made her feel weird and creeped out. S.N. stated that Respondent continued to give her unwanted hugs over the next three years, but he never made any more statements to her while hugging her. S.N. testified at her deposition that she has been approached and teased by her girlfriends about the hugs she received from Respondent. S.N. also testified that one day while Respondent was hugging her, his hand brushed against her breast as he pulled away. When this happened, she told Respondent, “I don’t want you hugging me anymore.” Respondent neither responded to her nor did he try to hug her again. D.J. provided a written statement and sworn recorded statement to SIU. She also provided deposition testimony, which the parties agreed to submit in lieu of an appearance at the final hearing. D.J. was a student in Respondent’s class during the 2017-2018 school year. D.J. stated that Respondent asks for hugs from the female students. She testified that one day when he asked her for a hug, D.J. told him no. Respondent admitted in his deposition testimony that D.J. told him not to hug her. Thereafter, D.J. testified that Respondent negatively affected her grades. D.J. also testified that Respondent has hugged her more than 30 times. In September 2019, two more students, L.M. and T.K., came forward to AP Murray with similar allegations against Respondent. These students came forward when AP Murray was handing out letters to students in Respondent’s class to obtain their contact information in the event they were witnesses for the instant matter. Their allegations were included in the Amended Complaint. L.M. was a student in Respondent’s geometry class. She provided a written statement to AP Murray and testified at a deposition which the parties agreed to be used in lieu of her appearance at the final hearing. She testified that Respondent was too “touchy” and personal with students. Respondent would flirt with female students and make them uncomfortable. She also testified Respondent would hug the female students as they walked into class and call them “cutie” or “sweetie.” L.M. found Respondent’s behavior annoying and disappointing. T.K. also testified that one day during the 2018-2019 school year, when she was in his class, Respondent called her up to his desk and asked her about her dating status. T.K. responded that she was single. Respondent told her that there were male students in the class eyeing her. T.K. responded that she was not interested in guys her age. Respondent then asked T.K. if she liked guys in their fifties or his age. This made T.K. feel uncomfortable. T.K. also testified that, on another occasion in his class, he talked about his grey sweat pants. Respondent told the class that a woman he had been dating told him that she did not want him wearing grey sweat pants, but he did not know why. Respondent stated that all the girls at the mall were staring at him in his grey sweat pants. Respondent said that when he looked in the mirror, his “junk” looked huge. When he said this to the class, he pointed at his pelvic area. T.K. alleges that it is disturbing that a teacher feels comfortable enough to tell the students in his class, who range in age from 14 to 18, this story. Respondent’s Response to the Allegations S.M. gave a sworn recorded statement to SIU. She also provided deposition testimony, which the parties agreed to submit in lieu of an appearance at the final hearing. S.M., who was a 12th grade student in the 2018-2019 school year, was also never a student of Respondent’s, but she started getting unwanted hugs from Respondent at the beginning of her junior year. S.M. would receive unwanted hugs from Respondent while in the hallway. S.M. testified during her deposition that Respondent would call her “[m]y Haitian Queen” and that the hugs made her feel uncomfortable. S.M. also testified that one day while Respondent was hugging her, his hand brushed against her breast as he pulled away. When this happened, she told Respondent, “I don’t want you hugging me anymore.” Respondent did not respond to her, nor did he try to hug her again. Respondent admits that he would stand in the doorway to the classroom and give students, including females, hugs as they entered. Respondent claims this is consistent with the behavior of other teachers at Miramar. When asked not to hug a particular student, Respondent immediately stopped. Respondent denies making inappropriate or flirtatious comments to students, touching their hair, or propositioning any female student. Respondent specifically denied ever hugging C.G. in an inappropriate manner or touching her hair. He first became aware of the allegation when notified by the School Board’s investigator. Respondent further denied complimenting C.G. inappropriately, or ever rubbing her shoulders. At the time of the allegation, C.G. was failing Respondent’s class and transferred to a different class soon after. Respondent noted that student D.J. also failed his class and transferred to another class. Respondent offered and filed the deposition transcript of K.S., which the parties agreed to be used in lieu of testimony at the final hearing. K.S. testified that she was in Respondent’s class in 9th grade and that she was now in the 12th grade. She testified that Respondent hugs everyone, including her, in either a full-frontal hug or side hug at the entry way of the classroom if Respondent was holding the door. She witnessed Respondent hug T.M. The Amended Administrative Complaint makes reference to similar allegations allegedly made by students N.O, S.M., B.S., T.M., and T.K. However, they did not testify in this matter and the only evidence presented related to them is uncorroborated hearsay.1 Respondent testified he no longer hugs his students since these allegations arose. Some students have tried to hug him and were confused when Respondent declined. He now shakes their hand or gives them a “dab.” BCSB Response to the Investigation Based on the SIU investigation, the Professional Standards Committee found probable cause to recommend a one-day suspension without pay and EEO sensitivity training for Respondent. This was later changed to a ten-day suspension without pay by BCSB, which was also adopted on July 10, 2019. Formoso testified that BCSB increased the one-day suspension to a ten- day suspension because Respondent’s conduct amounted to sexual harassment. BCSB provided all notice and process that was due as it pertains to the investigation and procedural requirements from the time the investigation was commenced through BCSB’s adoption of the 1 Although the statements of these students contain descriptions of Respondent providing unwanted hugs and making inappropriate flirtatious comments to other female students, they were not relied upon for the decision of this Recommended Order. The deposition testimony of the other students was credible and enough to prove the allegations against Respondent in the Amended Complaint. Superintendent’s recommendation for a ten-day suspension in relation to this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a Final Order upholding Respondent’s suspension for ten days without pay. DONE AND ENTERED this 15th day of March, 2021, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 2021. COPIES FURNISHED: Denise Marie Heekin, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert W. Runcie, Superintendent Broward County Public Schools 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 Melissa C. Mihok, Esquire Melissa C. Mihok, P.A. 201 East Pine Street, Suite 445 Orlando, Florida 32801 Elizabeth W. Neiberger, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Miami-Dade County School Board ("MDCSB") had just cause to suspend and recommend the termination of Respondent, Carla McCray's ("McCray" or "Respondent"), employment for the reasons set forth in the agency action letter dated December 20, 2018.
Findings Of Fact MDCSB is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this case, McCray was employed by MDCSB as a school security monitor at MSHS, a public school in Miami-Dade County, Florida, and served in that capacity since 1998. Respondent's employment with MDCSB is governed by Florida law, MDCSB's policies, and the collective bargaining agreement ("CBA") between MDCSB and the United Teachers of Dade Union. As a school security monitor, McCray's duties included assisting students, assisting with student/staff altercations, protecting the school from intruders, and to generally protect the safety of everyone in the school. The proposed discipline is based upon McCray's repeated refusal to submit for a fitness-for-duty evaluation after repeated instructions to do so. Facts Giving Rise to the Fitness-for-Duty Evaluation Request In March 2018, the Office of Professional Standards ("OPS") for Miami-Dade County Public School ("MDCPS") received a call from Marian Lambeth, the Chief of the Professional Practices Commission of the Florida Department of Education. She advised OPS that McCray sent the Commission correspondence entitled "Criminal Misconduct Complaints and Willful Violations," which was 322 pages. The lengthy, repetitious, and disjointed correspondence describes a variety of alleged "cyber internet crimes," including inter cyber-bullying, cyber- harassment, and cyber-stalking. The voluminous "complaint" lists alleged infractions dating back for at least ten years. This bizarre document caused OPS and District Director Carmen Molina to be concerned for McCray's well-being and essentially put McCray on the District's "radar." McCray previously made similarly odd computer-related complaints in December 2016 to Assistant Principal Dwight Arscott. She told him people were taking control of computers she was using and logging her out of District computers. Mr. Arscott contacted the MSHS Information Technology Services ("ITS") department and also school police. McCray's complaint was investigated and found to be without any merit. McCray again made similar complaints to Mr. Arscott in January 2017, and this time he referred her to school police because, in McCray's opinion, ITS had not done a sufficient job of investigating the matter. Again, no problem was discovered regarding McCray's district-issued computers or accounts. At the start of the 2018-2019 school year, McCray expressed to Mr. Arscott that she did not feel safe using school email systems and requested that he contact her through her personal Yahoo email address. She expressed that she did not want to use the District email because she was being cyber-bullied and harassed and did not feel safe using it. As a result she was experiencing "distress." McCray memorialized her concerns in emails she sent to Mr. Arscott and other MSHS administrators beginning in August 2018. In one such email, Respondent stated that she was experiencing "overwhelming of emotional, psychological and spiritual distressed." She also stated, "I wasn't feeling in the best of wellness, for the same aforementioned reasons." She also requested a meeting with Mr. Arscott after her "wellness recovery." Mr. Arscott accommodated Respondent and gave her some time off. At the meeting she requested a personnel investigation, and Mr. Arscott explained to her that that process did not apply to her computer-related complaints. The emails from McCray caused Mr. Arscott to worry about Respondent's well-being. Additionally Mr. Arscott was concerned that a security monitor was making these complaints, because security monitors are responsible for protecting the school and alerting administration to potential security issues. MSHS is charged with educating and supervising over 3,000 students. Security monitors are relied upon to be the administration's "eyes and ears" at the school. MSHS Principal Benny Valdes shared the same concerns regarding McCray's communications because her self-described "emotional distress" could affect the safety of everyone at the school, including the students, staff, and McCray. On September 20, 2018, at 6:59 p.m., McCray sent yet another email to Mr. Arscott complaining of harassment, bullying, stalking, discrimination, safety violations, and security violations. She also claimed to be experiencing medical difficulties, including abrupt panic attacks, breathing problems, chest pain, and having to depart work early to immediately seek medical attention. The verbiage of the email is jumbled, disjointed, and nonsensical. Mr. Arscott was concerned, particularly by the alleged "safety concerns," because they were not detailed in the email. When he attempted to speak with McCray about her allegations, she provided no details. Mr. Arscott knew McCray left school a couple times to see doctors and his concerns were growing. In her September 20, 2018, email, McCray copied numerous other public officials and entities having nothing to do with MDCPS, including the Miami-Dade State Attorney, the FBI, Governor Rick Scott, and Senators Marco Rubio and Bill Nelson. On September 21, 2018, at 9:49 p.m., a similar email was sent to Mr. Arscott once again and a similar list of public officials was copied by McCray. In this email McCray requested copies of the documentation pertaining to her computer complaints. Apparently the ones she had been previously provided by Mr. Arscott were not "visually sufficient" for her. On September 24, 2018, at 5:39 a.m., McCray sent another similar email to Mr. Arscott and, once again, copied a seemingly random list of public officials. Then again on September 26, 2018, at 5:40 a.m., McCray sent another similar email to Mr. Arscott, as well as various public officials. Mr. Arscott estimated that there were 30 or more of these repetitious and bizarre emails sent by McCray between September 20 and 26, 2018. At or about the same time one morning, McCray also texted Mr. Arscott with her concerns 46 times between approximately 5:00 a.m. and 6:00 a.m. Trying to address all of McCray's repetitive requests, sent virtually at all hours of the day and night, took Mr. Arscott away from his other duties at the school. As a result of these communications and their concerns for both Respondent and the school, both Mr. Arscott and Mr. Valdes supported the decision to send Respondent for a fitness-for-duty evaluation. Mr. Valdes also stated that he would not be comfortable with Respondent returning to MSHS. The Fitness-for-Duty Process School Board Policy 4161--Fitness for Duty, applies to noninstructional personnel, which includes security monitors. The fitness policy refers to the applicable CBA. Article XXI(F) of the CBA dictates that at the request of administration, an employee can be sent for a psychological or psychiatric examination or test upon a written statement of the need for such an examination. District Director Carmen Molina testified that the District was first alerted of concerns for McCray's well-being when Marian Lambeth called and provided OPS with a copy of McCray's 322-page complaint in March 2018. These concerns were amplified when McCray began sending emails to MSHS administration describing various forms of distress she was experiencing. Much like Mr. Arscott and Mr. Valdes, Ms. Molina was concerned that a security monitor was making these complaints and allegations. Understanding the role of security monitors at a school, she too supported sending McCray for a fitness-for-duty evaluation. As a result of the administration's well-founded concerns, on September 27, 2018, a Conference for the Record ("CFR") was held with McCray and two union representatives concerning sending McCray for a fitness-for-duty evaluation. When McCray arrived for the CFR, Ms. Molina handed her an envelope that contained a written description of why she was being sent for a fitness evaluation. Ms. Molina explained to her both in writing and verbally that she was being sent for the evaluation because of her repeated complaints about cyber- bullying and her claims of emotional, psychological, and spiritual distress. The reasons for the evaluation were also memorialized in the CFR summary Ms. Molina drafted and presented to McCray. At the CFR, McCray wanted the meeting postponed for lack of union representation, yet this claim had no basis because two union representatives were present. McCray asked Ms. Molina what the basis for the fitness determination was and Ms. Molina advised her that it was because of the frequency and the content of the emails she was repeatedly sending. Ms. Molina even presented her with an email dated September 26, 2018, and asked McCray if she sent it. McCray replied that "it looked familiar." During the CFR, Ms. Molina directed McCray to go to the fitness-for-duty evaluation and provided her with a list of clinical evaluators from which to choose three. McCray refused to sign this referral document, as well as the written basis for the fitness determination. It was explained to her that going to the fitness-for-duty evaluation was a condition of her continued employment and that if she refused, it would be considered insubordination. McCray was given until September 28, 2018, to call Ms. Molina with her selected evaluators, but she never made the call. After this meeting, McCray was placed on "alternate assignment" and remained at home with full pay. When McCray did not call Ms. Molina as directed to schedule the fitness evaluation, another CFR was scheduled for October 4, 2018. Ms. Molina testified that McCray was given more than two day's notice for this second CFR and emailed the notice to her preferred Yahoo email account. McCray did not attend this CFR. However, the written summary of this CFR, which once again contained written directives to schedule the fitness-for-duty appointment, was sent to McCray. McCray failed to select her choices of evaluators for the second time and, as a result, a third CFR was held on October 15, 2018. Despite her refusal to participate in the fitness process, McCray continued to send a barrage of bizarre emails. McCray attended this CFR and was once again directed by Ms. Molina to go for a fitness evaluation. This was the third time McCray received these directives in writing and the second time Ms. Molina gave them verbally. During this CFR, McCray was once again presented with a list of doctors to choose from and she again refused to sign it. McCray was also advised that her continued refusal to go for the fitness evaluation was gross insubordination. McCray repeatedly said, "I heard you" when Ms. Molina spoke to her. In early November 2018, there was a fourth CFR held with McCray that she attended and was once again given a chance to participate in the fitness process. Again, she refused. On November 29, 2018, McCray was given a fifth and final opportunity to participate in the fitness-for-duty process at her meeting prior to board action. It was explained to her by Ms. Molina, Ms. Molina's supervisor, Dr. Jimmie Brown, and then Associate Superintendent Joyce Castro that she would have to go for the fitness evaluation or be terminated. McCray still refused to go. McCray was also presented with an entire copy of her disciplinary file by Ms. Molina. On December 18, 2018, McCray was emailed and sent via certified mail a letter that informed her that her termination was going to be recommended at the December 19, 2018, MDCSB meeting. On December 20, 2018, McCray was emailed and sent via certified mail a letter that informed her that MDCSB had taken action to terminate her employment. McCray's Arguments McCray argues that termination is inappropriate because she did not receive sufficient advanced notice of the first CFR, as required by the CBA, and she was not given a valid reason for the need for the fitness-for-duty evaluation. McCray also argues that MDCSB's failure to provide a Notice of Specific Charges prior to her termination deprived her of due process. Notice of the First CFR Article XXI, Section 1, A(3) of the CBA governing the terms of McCray's employment provides that, "Employees shall be given two days' notice and a statement of the reason for the conference, except in cases deemed to be an emergency." MDCSB alleges that the September 27, 2018, CFR was an emergency justifying the lack of advance notice. McCray contends that there was no emergency because MDCSB became concerned about McCray's mental health after receiving her 322-page complaint letter in March 2018. Although the March 2018 complaint raised concerns regarding McCray's well-being and mental stability, it was her ongoing and ever-increasing barrage of bizarre, and often incomprehensible, emails to numerous individuals in which she expressed concerns about her own safety and stability that escalated the situation to an emergency. Despite the lack of advanced notice, McCray had two union representatives present at this first meeting to assist her with the process. Accordingly, MDCSB was justified in calling the initial emergency CFR without two days' advance notice. Reason for the Evaluation Request Contrary to McCray's assertion that she was asked to submit to a psychological evaluation based solely upon "too many emails," MDCSB repeatedly explained verbally and in writing to McCray that it needed the evaluation based on the volume and content of those emails. In the emails, McCray complained of unspecified harassment, bullying, stalking, discrimination, unspecified safety violations, and security violations that she claimed were causing her abrupt panic attacks, breathing problems, chest pain, and causing her to seek medical assistance. At each CFR and in the CFR summaries, McCray was advised that MDCSB wanted her to participate in a fitness-for- duty examination because of her own complaints of school-related "emotional, psychological, and spiritual" distress. Notice of Specific Charges McCray points out that she was not provided with a Notice of Specific Charges until February 18, 2019, only 11 days prior to the final hearing and approximately two months after MDCSB's termination recommendation. Due process required that McCray be provided notice and an opportunity to be heard prior to suspension or termination and the right to a post-termination evidentiary hearing. Prior to termination, McCray was given five notices of CFRs and at least three CFR summaries explaining the need for her to participate in a fitness-for-duty evaluation, and that failure to do so was a violation of MDCSB policy and insubordination. McCray was also notified on December 18, 2018, by email and in writing, that MDCSB intended to recommend her suspension without pay and dismissal for just cause, "including but not limited to: gross insubordination; and violation of School Board Policies 4161, Fitness for Duty, 4210, Standards of Ethical conduct, and 4210, Code of Ethics." Despite being provided multiple opportunities prior to termination to explain her basis for fearing for her safety and refusal to attend a fitness-for–duty evaluation, McCray refused to do so. After the MDCSB meeting on December 19, 2018, at which McCray was recommended for suspension without pay and dismissal, she was provided notification of the action by letter dated December 20, 2018, which mirrored the basis for discipline contained in the December 18, 2018, letter. This notification also provided her with notice of how to contest the proposed action. MDCSB policies do not specify a time frame within which a Notice of Specific Charges must be issued for non- instructional employees. At no time prior to the issuance of the Notice of Specific Charges did McCray request any further explanation. There is no record of any pre-hearing discovery request by McCray regarding the specific factual or legal basis for the termination. It should be noted that the Notice of Specific Charges identifies violations of MDCSB Policy 4161— "Fitness for Duty" and "Gross Insubordination"--the same reasons for proposed discipline identified prior to the MDCSB action of December 19, 2018. McCray was provided a full evidentiary hearing at the final hearing of this matter. McCray received all pre and post-termination due process to which she was entitled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding Carla McCray guilty of misconduct in office and gross insubordination and upholding her termination from employment. DONE AND ENTERED this 3rd day of June, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 3rd day of June, 2019. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Catherine A. Riggins, Esquire 18520 Northwest 67th Avenue, Suite 105 Miami, Florida 33015 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast 2nd Avenue, Suite 912 Miami, Florida 33132-1308 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue presented in this cause is whether Respondent should be suspended from her employment for twenty days for conduct unbecoming a school board employee, misconduct in office, and gross insubordination.
Findings Of Fact Respondent is a veteran teacher of approximately 34 years. She has been employed as a teacher by the School Board of Dade County, Florida, for 28 years pursuant to a continuing contract. In 1984, she was voted "Teacher of the Year" at the school where she then taught. In October, 1984, she was reassigned to teach at Coconut Grove Elementary School pursuant to a hardship transfer to facilitate her caring for her ill daughter. She continued to teach at Coconut Grove Elementary School through the time of the final hearing in this cause. She is a dedicated and competent teacher and has consistently received satisfactory ratings on her annual evaluations. She tutors children without charge in her home after school hours. She loves children and loves teaching them. She has a reputation for utilizing effective disciplinary techniques. Joe Carbia is the principal at Coconut Grove Elementary School and was the principal at the time that Respondent obtained her hardship transfer to that school. Since her transfer, Respondent and Carbia have disagreed with each other a number of times. It is apparent that they do not respect each other and have not been supportive of each other since shortly after her transfer to Coconut Grove Elementary School. Between October, 1984, and the 1988-89 school year, Respondent also had disagreements with other teachers and temporarily with one parent of a student. Each time someone complained, Carbia decided that Respondent was wrong. No competent evidence was offered by Petitioner as to what occurred on any of these occasions, and Carbia's testimony that he held conferences with Respondent and issued directives to her is not supported by documentary evidence. Rather, Respondent's acceptable evaluations each year, the lack of documentary evidence, and Petitioner's reliance on hearsay evidence indicate that none of the disagreements, whatever they were, were considered major. During December of 1988, several holiday activities were conducted involving students from Coconut Grove Elementary School. Respondent requested permission from Carbia for her class to put on a holiday play, and permission was given to her. Carbia did not attend the play that was put on by Respondent's students, and none of the other teachers at the school came to see their performance. By early February, 1989, Respondent had visited Carbia's supervisor and had requested him to write a letter of apology to her students for not attending their holiday play. Her students later wrote letters to several persons in the upper level of administration for the Dade County Public Schools, including the Superintendent, asking why no one had attended their play. In mid-February, Carbia visited Respondent's classroom, and one of the students asked him why he had not come to their play. He explained that he had another commitment that evening. Although Carbia concluded that Respondent had instigated her student's question and their letter writing, no evidence was presented to show that it was Respondent's idea and not the idea of her students. The overall evidence clearly shows that Respondent stood up for her students when she felt they had been treated unfairly. No one answered or acknowledged the letters from the children. No more letters were written after Respondent was ordered to stop them. By the end of the 1988-89 school year, Respondent had voiced her complaints about Carbia's methods and her perception of his mistreatment of her and of black teachers and students at Coconut Grove Elementary School to several other teachers and to the P.T.A. President. She had also voiced her complaints about Carbia at a union meeting, a forum believed to be confidential. On July 3, 1989, Carbia forwarded a collection of letters from people reporting to him the things that Respondent was saying about him to the Office of Professional Standards of the Dade County Public Schools along with his request that that office direct Respondent to submit to a medical fitness determination. The letters, submitted to him in June, were from the counselor at the school, one parent, the P.T.A. president, and the other sixth- grade teacher. None of those persons testified at the final hearing in this cause, and those documents remain hearsay. As a result of Carbia's request, Joyce Annunziata, supervisor in the Office of Professional Standards, conducted a conference for the record with Respondent on August 11, 1989, to address Respondent's fitness to return to classroom duties, interpersonal relations with site personnel and community members, and Respondent's future employment status with the Dade County Public Schools. In that conference, Respondent was advised that future incidents of unprofessional demeanor with staff or parents would be considered insubordination. Carbia's request that Respondent be directed to submit to a medical fitness determination was denied. During the 1989-90 school year, Respondent taught the sixth grade. In October, 1989, Carbia assigned the responsibility for the school's United Way Campaign to teacher Deborah Piha, a fifth-grade teacher. The prior year Respondent had been in charge of the United Way Campaign and believed that the United Way Campaign was a sixth-grade project. After Respondent learned that Piha would be in charge, she encountered Piha on her way to the cafeteria. Respondent complained to Piha that Carbia had taken the responsibility away from Respondent and her sixth- grade students and voiced her anger toward Carbia for doing so. Although Piha understood that Respondent was not angry at her, Piha does not like "confrontations" and did not like the fact that Respondent "invaded her space." Piha told Carbia what Respondent had said about him. Carbia requested Piha to write a report about Respondent's conduct, and she did so. Word that Piha had written a negative report regarding Respondent spread quickly. A few moments after Piha left Carbia's office, she encountered Respondent who already had heard about the letter. Piha told Respondent that she was very sorry that she had written the letter and had not meant to hurt Respondent. Piha was clearly upset and told Respondent and the teacher who was with Respondent, "It's my job." Piha asked Respondent for help with the United Way campaign, and Respondent agreed. She offered Piha her materials from the prior year and offered to assist her in any way that she could. Although Carbia asked Piha subsequently to write a second letter, Piha declined. She also later declined Respondent's offers of assistance on the United Way campaign and would not use the materials that Respondent gave her even though she had asked Respondent to assist her. Patricia Perez-Benitoa is a beginning teacher. The 1989-90 school year was her second year of teaching. As an art teacher, she was shared by Coconut Grove Elementary School and another school. She came to Respondent's class on Tuesdays. On Tuesday, November 7, 1989, she told Respondent that she was experiencing difficulty in maintaining discipline. Respondent was aware of that fact since Respondent's students had been complaining to Respondent about Perez- Benitoa. Respondent's students did not like Perez-Benitoa since she called them stupid, immature, dumb, foolish, and silly. Although she followed the school's assertive discipline program, they believed she was unfair in administering discipline and clearly favored certain students. On November 7 when Perez-Benitoa told Respondent she was having difficulty, Respondent agreed to help her. They both stood at the front of the class, and Respondent explained to the students that she was supporting Perez- Benitoa 100%. Perez- Benitoa, with Respondent's support, explained to the class that student misbehavior would be dealt with in a consistent manner. Specifically, she made an "agreement" with Respondent and with the class that if a student misbehaved, then the student would suffer the consequences. Further, all students would be treated equally when they were punished. Torrey and Joseph were students in Respondent's class. After Torrey's mother complained to Perez-Benitoa about calling her son "stupid" during art class, Perez-Benitoa told Torrey during class that he was stupid and so was his mother. During the 1989-90 school year, Torrey was sent to the office by Perez- Benitoa and suspended from school six different times, although he was not sent to the office to be suspended by any other teacher during that school year. On Tuesday, November 14, 1989, Perez-Benitoa came to Respondent's classroom to teach art, and Respondent left the classroom since that would be her planning period. When she returned to the classroom at the end of the art class, she saw that Perez-Benitoa had put Torrey's name and Joseph's name on the board. Torrey was not in the classroom, but Joseph was. Perez-Benitoa told Respondent that she had sent Torrey to the office, and Respondent asked her why she had not sent Joseph to the office since both names were on the board and both names had the same number next to them representing the level of offenses. The two teachers conferred with each other quietly in the front of the classroom. Perez-Benitoa explained that she had sent Torrey to the office for using profanity in class. Respondent asked Perez-Benitoa why she had not sent Joseph to the office since his name was also on the board. Respondent reminded Perez-Benitoa that they had made an agreement witch the class that all students would be treated equally; she also told her that sending one student to the office and not the other was unfair. Respondent also told Perez-Benitoa that she had personally had problems with Joseph using profanity in the class and told Perez-Benitoa that Joseph liked to use the "F-ing" and the "B-ing" words. The students did not hear Respondent's conversation with Perez-Benitoa and did not hear Respondent's description of the profanity used by Joseph on previous occasions. However, a few of the students in the very front of the room only heard Respondent tell Perez-Benitoa it was not fair sending Torrey to the office, the same thing the students were telling Perez- Benitoa. The impression of the students was that Respondent was speaking nicely to Perez- Benitoa. As the two teachers conferred, the students told Respondent that Torrey had not done anything wrong to justify being sent to the office to be suspended. They told her that Joseph had used the word "ass," that Perez- Benitoa mistakenly thought Torrey had used the word, and that Joseph had told Perez-Benitoa that he had used the prohibited word and not Torrey. Joseph also told Respondent that he had used the profanity and that he had told Perez- Benitoa that he did it and not Torrey. The students remained unaware of the content of the conversation between Respondent and Perez-Benitoa. When Perez-Benitoa left the classroom, she took Joseph with her. Despite learning that Torrey had not used profanity in the classroom, Perez-Benitoa wrote a Student Case Management Referral Form regarding Torrey which resulted in Torrey being suspended from school. She did not write a Student Case Management Referral form regarding Joseph. She never told the administration that she had made a mistake regarding Torrey's misbehavior or Joseph's. When Perez-Benitoa went to the office, she told Carbia that Respondent had confronted her and scolded her in front of the class. She also told Carbia that Respondent had used profanity in front of her students. Carbia told her to write a letter regarding Respondent's unprofessional behavior. Perez- Benitoa did so, even though the statements she had made to Carbia were false. At the formal hearing in this cause, Perez-Benitoa admitted that the students did not hear Respondent use profanity, but that they "could have." She admitted that the students were not within hearing range and that there was no reason for the children to think there was any conflict between her and Respondent. She also explained that she was shocked that another teacher would share with her an experience that she had had with a student since other teachers' experiences were simply of no concern to her. She also admitted she has never heard Respondent use profanity other than when Respondent told her of Joseph's propensity for profanity. Carbia did not ask Respondent whether she had scolded Perez-Benitoa or whether she had used profanity in the classroom. He simply directed Essie Pace, the intern principal, to schedule a conference for the record with Respondent. No investigation was done regarding Perez-Benitoa's allegations between November 14 and November 19, the day before the conference for the record. At the conference for the record on November 20, 1989, Pace told Respondent that Respondent had been directed in a July, 1989, conference for the record not to approach another teacher in a negative or derogatory way and not to make derogatory statements to employees or students, and that Respondent had violated those directives. At the final hearing, no evidence was offered as to any July conference for the record. Either on November 20 or on November 21, 1989, in response to their questions, Respondent told her students that Perez-Benitoa had told the principal that Respondent used profanity to get her in trouble but that Respondent had not done so. Perez-Benitoa came to Respondent's classroom on November 21 to teach art. Respondent left the classroom when she arrived. Respondent's students were angry at Perez-Benitoa for lying to the principal about their teacher. They got out of their seats, walked around the classroom, refused to listen to her and were defiant. Perez-Benitoa contacted the office to ask someone to come and get her class under control for her. Principal Carbia was out of town, and intern principal Pace was not in the office at the moment. Perez-Benitoa took no additional steps to obtain assistance to bring her classroom under control. She simply sat down and allowed the disorder and disruption to continue, while she cried. The students' open defiance of her upset Perez-Benitoa. The students even told her that they were angry with her for lying about their teacher. When Respondent returned to her classroom, Perez-Benitoa left. She went directly to the principal's office. By the time she arrived there she was in hysterics and totally out of control. Pace had to enlist the help of another teacher to sit with Perez-Benitoa to try to calm her down, and Perez-Benitoa went home because she was unable to carry out her teaching duties for the remainder of the day due to her lack of control. Pace did not ask Respondent what had happened. She accepted Perez- Benitoa's accusations that Respondent had instigated her children to misbehave. Perez-Benitoa's statements to Pace that the children were throwing paper and erasers at her were not supported by any of the students although the students did admit later to Pace, subsequently to the School Board's investigator, and at the final hearing in this cause that they refused to listen to Perez-Benitoa and were walking around the classroom refusing to remain in their seats. Further, Perez-Benitoa's statements that she heard one student say to another, "Mrs. Bethel will be proud of us" have not been supported by any of the students during Pace's investigation, the School Board investigation, or during the final hearing in this cause. Rather, the students take the position that Respondent would never approve of them misbehaving. After speaking to Perez-Benitoa on November 21 and after calling her own supervisors, Pace went to Respondent's class and removed her from her classroom. When Pace went to Respondent's classroom, the children were not misbehaving. After Pace removed Respondent from her classroom, she interviewed several of the students one at a time. The students told her that Respondent does not use profanity, that Perez-Benitoa calls them names, that they were angry with Perez- Benitoa for lying to the principal regarding Respondent, and that Respondent did not instigate their disruptive and defiant behavior. Pace never asked the students why Respondent had told them about Perez-Benitoa accusing her of using profanity in the classroom. On February 6, 1990, a conference for the record was conducted with Respondent by the Office of Professional Standards to address the investigative report concerning improper conduct, Respondent's insubordination by not complying with a site directive, her lack of professional responsibility in dealing with staff and students, and her future employment status with the Dade County Public Schools. On March 7, 1990, the School Board of Dade County, Florida, suspended Respondent from her employment for twenty work days. Respondent enjoys a great deal of support from the community, from the parents of her students, and from her students. She is outspoken, which appears to make some people feel uncomfortable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Amended Notice of Specific Charges and in the Amendment to the Amended Notice of Specific Charges, dismissing the charges filed against her, reversing the determination that Respondent be suspended for twenty days, and awarding to Respondent back pay for those twenty days for which she has already served the suspension. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of October, 1990. LINDA M. RIGOT 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 10th day of October, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-1800 Petitioner's proposed findings of fact numbered 1 and 17-19 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Petitioner's proposed findings of fact numbered 2, 9 and 10 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 3-5, 7, and 11-16 have been rejected as not being supported by competent evidence in this cause. Petitioner's proposed findings of fact numbered 6 and 8 have been rejected as being unnecessary for determination of the issues in this cause. Respondent's first, second, third, fifth, and eighth unnumbered paragraphs have been adopted either verbatim or in substance in this Recommended Order. Respondent's fourth, sixth, and seventh unnumbered paragraphs have been rejected as not being supported by the evidence in this cause. Respondent's ninth unnumbered paragraph has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. COPIES FURNISHED: Patricia Graham Williams, Esquire 1055 Northwest 183rd Street Miami, Florida 33169 Jaime Claudio Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 Paul W. Bell, Superintendent The School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Patrick D. Gray Executive Assistant Superintendent Office of Professional Standards Dade County Public Schools 1444 Biscayne Boulevard Miami, Florida 33132 Mrs. Madelyn P. Schere Assistant School Board Attorney The School Board of Dade County, Florida Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether the Respondent should be dismissed from his employment with the Miami-Dade County School District.
Findings Of Fact Petitioner is charged by Florida law with the operation, control, management, and supervision of all public schools within the Dade County School District. At all times material to the allegations of this case, Respondent, Maurice Cherry, was employed by Petitioner as a security monitor at Thomas Jefferson Middle School (TJMS). Sergeant Buck is a seventeen-year veteran police officer employed by the Metro-Dade Police Department. During the month of November 1996, Officer Buck was deployed in an undercover assignment related to activities and complaints at several adult bookstores. These complaints alleged lewd and lascivious acts were occurring on the premises of several named bookstores. While in his undercover capacity at or near one of the adult bookstores, Officer Buck met the Respondent. During this initial conversation with the Respondent, Officer Buck noted that the Respondent wore what appeared to be a school security jacket. Because Respondent made several suggestive sexual comments and verbal advances, Officer Buck determined to investigate the Respondent further as he was concerned that Respondent might be pursuing improper sexual conduct on school property with minors. In furtherance of his investigation, Officer Buck discovered that Respondent did, in fact, provide security monitor services at TJMS. The officer went to the school property and was attempting to verify that the security monitor employed at TJMS was the individual he had previously encountered at the adult bookstore site. While not expecting to run into Respondent, Officer Buck did make contact with the suspect in the school hallway. On this occasion Respondent ushered the police officer into a locked, second-story classroom (for which Respondent had the key) and engaged in conversation of a sexual nature. During the course of this brief encounter, Respondent grabbed Officer Buck in the groin area, and, as the police sergeant interpreted it, attempted to touch the officer's penis. Officer Buck resisted the sexual advance and, after making an excuse to Respondent, left the school premises. At no time during this episode did Respondent say or indicate to Officer Buck that students or minors were involved in any sexual activities with the Respondent. After several months of reassignment on another police project, Officer Buck returned to TJMS in April 1997 to resume his investigation of the Respondent. Again, his primary focus was to assure that the security monitor was not engaged in any sexual activities with minors. In this connection, Officer Buck approached the Respondent and engaged in conversation to determine if the Respondent would divulge any information related to minors. Respondent did not. It did not appear that Respondent was interested in minors. On the other hand, Respondent again attempted to make sexual contact with Officer Buck. Although during school hours and with students present on campus, Respondent ushered the undercover officer into a locked room, asked him to show him his penis, grabbed Officer Buck in the groin area as if to attempt to remove his penis from his pants, and exposed his own penis to Officer Buck. All of this occurred within a matter of moments. Since Officer Buck had sounded a verbal signal to officers who were waiting outside, police backups were making their way to the classroom where the officer and Respondent were located. Within a short time, Respondent was in police custody and was charged with criminal offenses stemming from the lewd behavior. This event made the evening television news. It was also covered by at least one prominent Miami-area newspaper. As a result of the publicity generated by Respondent's arrest, the principal at TJMS did not want the security monitor back at her school. Parents expressed concerns regarding Respondent and his presence at the school. The allegations related to Respondent's arrest resulted in a disturbance at the school such that to permit him to return would have caused additional turmoil and disruption. Such turmoil would result in the school system being brought into further disgrace and disrespect because of the unacceptable conduct Respondent exhibited. Respondent's effectiveness as a school security monitor has been greatly diminished as a result of his conduct and the resulting criminal charges. That the case was not criminally prosecuted does not mitigate the damage done to Respondent's effectiveness because, while he was not prosecuted, the lewd acts were committed on school property during the school day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order dismissing Respondent from his employment with the school district. DONE AND ENTERED this 27th day of August, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish 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 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1998. COPIES FURNISHED: Carlos E. Mustelier, Jr., Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Frank T. Brogan Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. Roger C. Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132
The Issue The issues are whether Respondent, Flagler County School District (“School District”), subjected Petitioner to discrimination on the basis of her disability, in violation of section 760.10, Florida Statutes,1 and/or whether 1 Citations shall be to Florida Statutes (2020) unless otherwise specified. Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla. Respondent retaliated against Petitioner for the exercise of protected rights under section 760.10.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The School District is an employer as that term is defined in section 760.02(7). Ms. Lancaster, born on April 12, 1980, began working as a bookkeeper for the School District’s Transportation Department on January 13, 2011. She resigned from her position on November 7, 2019. This case is complicated by the fact that only Petitioner’s allegation of discrimination on the basis of a disability is at issue. The FCHR separately investigated Petitioner’s earlier complaint regarding sexual harassment and discrimination on the basis of sex, as well as retaliation for complaining about the harassment. The FCHR was unable to make a reasonable cause determination within the allotted 180 days. The FCHR notified Petitioner of her litigation options as to the sex discrimination/sexual harassment complaint. Petitioner allowed the 35-day window to file for a DOAH proceeding to lapse, but as of the date of this Recommended Order still has time to file a complaint in the proper court. At the hearing in this case, a great deal of testimony was provided as to the particulars of the sexual harassment claim. Petitioner presents the sexual harassment claim and disability claim as intertwined issues, arguing that her mental/emotional disability was triggered by the sexual assault and exacerbated by the School District’s response. Therefore, findings of fact on the sexual harassment claim are necessary to reach the disability claim. However, any relief to be provided to Petitioner in this proceeding is limited to her disability and retaliation claims. Ms. Lancaster’s difficulties at work commenced when she was accosted sexually by a fellow employee, Emilio Viera, in May 2018. Ms. Lancaster testified that Mr. Viera, who was about 75 years old at the time, entered her office, closed the door, and forced himself on her. He attempted to kiss her but she turned away. Mr. Viera proceeded to kiss her neck and grope her breasts and buttocks. Ms. Lancaster was stunned by the attack but eventually managed to push Mr. Viera away and leave the office. Ms. Lancaster testified that on the following day, Mr. Viera chased her down in his car as they were each driving away from work. Ms. Lancaster stated that Mr. Viera sped past her then cut her off, forcing her to slam on her brakes. She nearly t-boned Mr. Viera’s vehicle. Once Ms. Lancaster stopped her car, Mr. Viera got out of his car and pounded on the window of her car. He was attempting to give something to Ms. Lancaster, who at length managed to maneuver her car around Mr. Viera’s and get away. Ms. Lancaster told her husband what had happened with Mr. Viera but did not report these incidents to anyone at the School District at the time they happened. Ms. Lancaster reported the incident to the Flagler County Sheriff’s Office on August 14, 2019, more than a year after it happened. The Sheriff’s Office Incident Report states that Ms. Lancaster reported that, shortly after these incidents, Transportation Department employees were relocated while a mold problem in their unit was addressed. She and Mr. Viera worked at separate locations during this time. At the hearing, Ms. Lancaster was not questioned as to the reason why she and Mr. Viera were separated at work. It is undisputed that Mr. Viera left her alone during the separation. In May 2019, the employees were moved back into their home unit. Ms. Lancaster stated that Mr. Viera began coming around again. He noticed a tattoo on her back and made suggestive comments about it. He followed her into her office. Ms. Lancaster testified that at this time she reached out to Andy West, the Director of the Transportation Department. She told him that Mr. Viera was making her uncomfortable. Mr. West assured her that he would take care of the situation. Mr. West told Ms. Lancaster that Mr. Viera would be instructed to come to Mr. West if he had any business in the office and to leave Ms. Lancaster alone.2 Ms. Lancaster testified that either Mr. West did not follow through on his assurances or Mr. Viera chose to ignore Mr. West’s instruction. On July 16, 2019, Mr. Viera came into Ms. Lancaster’s office when no one else was around. Ms. Lancaster did not describe what Mr. Viera did or said while in her office, aside from winking at her, but she testified that his presence caused her to enter a “trauma state.” Ms. Lancaster testified that, after her troubles with Mr. Viera began, she had taken to carrying a pocket knife for protection. When Mr. Viera left her office on July 16, 2019, Ms. Lancaster turned the knife on herself. She cut her wrists. She then went to a coworker, Geri Drayton, and asked for help. Ms. Drayton called the police. Ms. Lancaster was involuntarily detained under the Baker Act and placed in the Palm Point Behavioral Health hospital. She was hospitalized until July 22, 2019. 2 Counsel for the School District attempted to cast doubt on Ms. Lancaster’s testimony by noting that there were no documents to support her story that she went to Mr. West for help. Counsel also pointedly asked Ms. Lancaster why she did not call Mr. West as a witness to support her testimony. However, Ms. Lancaster offered credible testimony, under oath, that she went to Mr. West, told him what was going on with Mr. Viera, and requested Mr. West’s protection. If the School District wished to dispute Ms. Lancaster’s credible testimony, it could have called Mr. West as its own witness. The School District chose not to do so. Ms. Lancaster’s testimony on this point is credited. On July 24, 2019, Ms. Lancaster’s physician, Leslie Williams, wrote the following letter, addressed “To Whom It May Concern” and sent to the School District: Mrs. Lancaster is a patient of mine who has experienced [an] acute episode of chronic condition, requiring hospitalization from 7/16/19 – 7/22/19. She is taking medication as prescribed but is not yet cleared for return to work. She will be evaluated by a specialist on 8/1/19 and further decision regarding return to work will be determine [sic]. Please excuse patient from work until cleared. The letter did not further specify Ms. Lancaster’s “chronic condition.” In response to the letter, the School District placed Ms. Lancaster on leave pursuant to the Family and Medical Leave Act. Ms. Lancaster testified that on July 25, 2019, she met with Mr. West and Ben Osypian, who at that time was the Director of Human Resources (“HR”) for the School District. The ostensible subject of the meeting was Ms. Lancaster’s return to work. Mr. Osypian advised Ms. Lancaster to fill out a complaint form about the incidents that led to her hospitalization. Ms. Lancaster submitted a School District complaint form on August 13, 2019. She wrote that her complaint was “bullying, sexual harassment, and hostile work environment” that “has led to me unable [sic] to return to work at moment [sic] and has caused severe depression.” In an email dated August 14, 2019, Mr. Osypian advised Ms. Lancaster that her complaint needed to be more specific, including the names of the persons about whom she was complaining and the dates, times, and details of what happened. Ms. Lancaster responded that she was not comfortable putting the details on paper and would provide the details at an in-person meeting with Mr. Osypian. Ms. Lancaster testified that Mr. Osypian never responded. After she did not hear back from Mr. Osypian, Ms. Lancaster met with her union representative, Lakisha Ayers-White, a vice president of the Flagler Educational Support Personnel Association (“FESPA”). On August 16, 2019, Ms. Ayers-White wrote the following letter on behalf of Ms. Lancaster to Earl Johnson, a School District administrator: I am writing to you on behalf of Mrs. Laura Lancaster, a Flagler County employee and FESPA member. On June 27, 2019, Mrs. Lancaster notified Mr. West, Director of Transportation, that a problem had developed within her worksite. The problem was that information vital to processing payroll was not being submitted to her. The established procedure was for coworkers to submit all necessary paperwork every Monday by 9:30 a.m. On July 26, 2019, Brun Hudson, President of FESPA, and myself were meeting with Mr. West regarding other issues. At the end of that meeting we asked Mr. West what action he would take to rectify the problems Mrs. Lancaster had brought to his attention. I shared copies of several emails requesting assistance to resolve the issues. Mr. West responded that he would let us know what he would do. To date, we have not heard from Mr. West what action he plans to take to rectify the situation. The hostility in the office has persisted and escalated to the point where Mrs. Lancaster was forced to take leave from work. Mrs. Lancaster is currently receiving assistance to better handle stress and trauma. Additionally, Mrs. Lancaster has sought an injunction to protect her from coworker, Emilio Viera. She had informed Mr. West of an incident that previously occurred at work involving Mr. Viera and a more recent interaction that have left Mrs. Lancaster feeling unsafe. The leadership of FESPA feels that we have given Mr. West ample time to rectify the procedural problems that are impacting Mrs. Lancaster’s ability to complete her work in a timely and efficient manner. A safe and healthy environment is essential not only to Mrs. Lancaster’s wellbeing, but also to her ability to perform her duties as an employee of Flagler County Schools. Mrs. Lancaster desires to return to work as soon as possible but cannot return if the problems she has identified persist. Mrs. Lancaster filed a complaint on August 13, 2019. She received a response from Mr. Osypian asking for more information. She is happy to comply with his request but replied to him that she would prefer to supply the details at a face-to-face meeting. I am requesting to schedule a meeting to find an appropriate resolution and return Mrs. Lancaster to work. Please contact me at your earliest convenience to schedule a date and time for us to meet and resolve these issues. Ms. Ayers-White’s letter points to a discrepancy in Ms. Lancaster’s narrative of events. In her testimony, Ms. Lancaster exclusively focused on Mr. Viera as the source of her distress at work and cause of her hospitalization. In fact, Ms. Lancaster was also experiencing some sort of conflict with other employees in the Transportation Department involving untimely submission of payroll information. Ms. Lancaster did not testify as to the specifics of this conflict, aside from an allegation that these employees were bullying her. The documentary evidence sheds no more light than that provided by Ms. Ayers-White’s letter. However, it is notable that Ms. Ayers-White’s letter attributes Ms. Lancaster’s absence from work and need for mental health counseling primarily to this payroll-related conflict, not to the incidents with Mr. Viera. Ms. Ayers-White testified that she visited Ms. Lancaster in the hospital and that Ms. Lancaster made it clear that Mr. Viera was the cause of her hospitalization. She was not questioned as to the apparent contradiction between her testimony and the August 16, 2019, letter. Ms. Lancaster testified that she had no further response from the School District before August 22, 2019, when the Circuit Court in Flagler County entered a Final Judgment of Injunction for Protection Against Stalking against Mr. Viera. The injunction prohibited Mr. Viera from coming within 500 feet of Ms. Lancaster’s residence or workplace. The injunction allowed Mr. Viera to be present outside of the work building to the extent necessary to perform his own duties as a school bus aide, but it forbade him from contact with Ms. Lancaster. Ms. Lancaster testified that she agreed to the terms of the injunction at the court hearing, which Mr. Viera also attended. It is undisputed that Mr. Viera had no further contact with Ms. Lancaster after the injunction was issued. On August 27, 2019, a meeting was convened to discuss the terms of Ms. Lancaster’s return to work. Present at the meeting were Ms. Lancaster and her husband, Julian Lancaster; Mr. Johnson; Ms. Ayers-White; School District General Counsel Kristy Gavin; and Tammy Whittaker, another School District employee. It was agreed by all present at the meeting, including Ms. Lancaster and her union representative, that the School District would move Ms. Lancaster away from the main building to the Transportation Department’s satellite location at Matanzas High School, to protect her from contact with Mr. Viera and the employees she had accused of bullying her. At the time of the meeting, Mr. Viera was out of work indefinitely for medical reasons. Both of the Lancasters testified that the tone of the meeting was that the School District had accumulated evidence sufficient to ensure Mr. Viera would not be a problem when he returned. They understood that Ms. Lancaster’s assignment to the Matanzas office would be temporary, until Mr. Viera returned to work and the School District could make a final decision as to his employment. Ms. Gavin testified that there was no discussion as to whether the assignment to Matanzas was temporary. Ms. Gavin stated that the move to Matanzas had more to do with the bullying coworkers than with Mr. Viera, who was subject to an injunction to stay away from Ms. Lancaster. Ms. Gavin testified that Ms. Lancaster said that the coworkers were yelling at her and trying to sabotage her work. The conversation was about making Ms. Lancaster feel comfortable while she and her coworkers worked through their issues. The Matanzas assignment was temporary “until [Ms. Lancaster] had a comfort level of returning to be with [her] coworkers.” Ms. Gavin testified that Ms. Lancaster was asked if she would be able to perform her job duties from the Matanzas location and what could be done to facilitate her work. Ms. Lancaster assured the group that she could do her job from Matanzas. The School District established new timelines for the submission of payroll items to Ms. Lancaster to ensure that she could do her work in a timely manner. Ms. Gavin testified that most of the discussion at the August 27 meeting was an airing of Ms. Lancaster’s concerns about her coworkers. Mr. Viera was discussed only briefly. Ms. Lancaster told the group that she had a physician’s appointment on September 3, 2019, and believed that she would be released to return to work at that time. Ms. Gavin testified that in all of her discussions with Ms. Lancaster, nothing about a disability ever came up. Ms. Gavin stated that the School District provided Ms. Lancaster with information about its Employee Assistance Program (“EAP”) and was aware that she availed herself of EAP counseling services, but was not made aware of any specific disability claimed by Ms. Lancaster. Due to an impending hurricane, Ms. Lancaster’s physician appointment was moved to September 9, 2019. On that date, Ms. Lancaster’s examining nurse practitioner, Irene Talarico, wrote that Ms. Lancaster “may return to work effective today with no restrictions.” On September 13, 2019, Mr. Viera returned to work. On September 18, 2019, Ms. Lancaster sent an email to Ms. Gavin and Mr. Johnson asking whether Mr. Viera’s return meant that her assignment to Matanzas was permanent. On October 1, 2019, Ms. Gavin responded, “No, as we discussed Mr. Viera will be reminded of the injunction that is in place and that he is not to go into the building and/or have any direct communication with you.” In connection with this email exchange, Ms. Gavin testified that she was involved in this process only because the School District was trying to fill the position of Director of HR. Mr. Osypian had left the position and the new Director, Jewel Johnson, was just coming on to the job. Ms. Gavin was attempting to transition all HR-related issues to Ms. Johnson at the time Ms. Lancaster inquired about the import of Mr. Viera’s return. About an hour after receiving Ms. Gavin’s response, Ms. Lancaster replied as follows: I am sorry I am really confused. The last discussion we had about this situation and Emilio Viera is that I would come up to [Matanzas] temporarily until he return [sic] from leave so HR could have a formal meeting with him. I am still waiting to hear what that outcome is as I have not got one. I would like to know what the district is doing in regards to Emilio Viera actions [sic] towards me that happen at work. The injunction was something I had to file to protect myself to make sure this man didn’t hurt me again not only at work but outside of work. Please let me know. Three days later, on October 4, 2019, Ms. Gavin responded, “I have spoken to HR regarding this and they should be getting back with you regarding this matter.” Ms. Gavin testified that at this time, Ms. Johnson was trying to finalize the investigation into the matter between Mr. Viera and Ms. Lancaster. On October 7, 2019, Ms. Johnson sent the following email to Ms. Lancaster: Please excuse my delayed response to your written statement. Dr. Johnson did submit those to my office for follow up on the day of the Transportation Department Meeting. I am new to the details of your case; would you by chance be able to provide me with the names of witnesses to any of the episodes outlined in your statement? Email me back or call my office with that information. I know you currently have a temporary “safety- type” plan. Once the final outcome is made I will need to speak with you about next steps and transition options. I can come to your location to make it easier if you prefer. I’ll be back in touch with that date and please let me know if there are any additional witnesses that you can provide. This email highlights a complaint Ms. Lancaster made about the School District’s response to her complaint about Mr. Viera. Ms. Johnson appeared to be starting her inquiry from scratch in October, despite the fact that the complaint was submitted on August 13 and a meeting had been convened on August 27 that gave Ms. Lancaster the impression that an investigation of Mr. Viera was underway. Ms. Lancaster also pointed to the fact that on September 19, 2019, Mr. West had contacted her and asked for a written statement. She asked him what had happened to the statement she had already submitted. Mr. West answered that he did not have a statement. Ms. Lancaster testified that on October 18, 2019, Mr. West came into her office with a big smile on his face and told her that Mr. Viera would be allowed to keep his job. She was very upset and asked for details about the investigation and how the School District came to that decision. In a letter to Ms. Lancaster dated October 19, 2019, Ms. Johnson provided the School District’s response to Ms. Lancaster’s complaint: This is in response to the formal Complaint Form you submitted on August 13, 2019 concerning: Alleged bullying. Sexual harassment allegations. Hostile work environment. The following outlines the District’s response to the issues listed above: Alleged bullying. The District has conducted several individual meetings with transportation staff members to address the issues related to bullying and/or unprofessional behavior within the office. In addition, on September 24, 2019 a group workshop to address staff concerns of professionalism (or lack thereof) as well as address standard operating procedures to perform various work assignments was held with the entire office staff. As a result, the SOPs were updated and new processes put in place to ensure that all team members have access and receive the information required to perform their job, as well as working cooperatively with one another. Electronic drop boxes were established to ensure this happens. Sexual harassment allegations. The one year old allegation of sexual harassment was investigated and while the claim for sexual harassment did not meet the definition required for a finding of sexual harassment, the alleged actions were found to be inappropriate workplace behaviors. Thus, he was issued consequences that follow progressive discipline and given verbal and written directives to cease all contact with you. Hostile work environment. It is my understanding that, while Mr. Viera remains in the employ of the School District you would prefer to be permitted to work at a different location than the main transportation office, thereby affording you the ability to know you will not come into contact with him. To this end, to maintain a healthy and safe work environment for you the Matanzas High School location may remain your worksite. Per your request information for our Employee Assistance Program (EAP) is attached. Two of the guiding principles of Flagler County Schools are trust and respect for all and a commitment to individual needs. The complaint process, and all of its components, helps to ensure that our employees have this opportunity. If you have any questions or continued concerns regarding this matter do not hesitate to contact my office. The School District’s Policy Manual Rule 662 defines “sexual harassment” as follows: Sexual harassment consists of unwelcome sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when: submission to such conduct is made, either explicitly or implicitly, a term or condition of employment (or of an individual’s education). submission to or rejection of such conduct by an individual is used as the basis for an employment or employment decisions [sic] affecting that individual; or such conduct substantially interferes with an employee’s work performance, or creates an intimidating, hostile or offensive work environment. Sexual harassment, as defined above, may include but is not limited to the following: verbal harassment or abuse; pressure for sexual activity; repeated remarks to a person with sexual or demeaning implications; unwelcome or inappropriate touching; suggesting or demanding sexual involvement accompanied by implied or explicit threats concerning one’s employment. Ms. Lancaster was astounded that the School District’s conclusion that Mr. Viera’s conduct did not meet its definition of “sexual harassment.” Mr. Viera had admitted to the acts alleged by Ms. Lancaster, his only defense being that he believed that he was responding to her “signals.” Ms. Lancaster’s confusion was compounded when she learned of the contents of the following disciplinary letter that Ms. Johnson sent to Mr. Viera on October 17, 2019: This correspondence serves as written reprimand for your inappropriate actions in the workplace. During our investigation and from your own admittance intimate actions (hugging, kissing, touching) took place in your work station with another Flagler County School employee on or about May 10, 2018. Such behavior violates School Board Rule 662(3) which defines inappropriate touching in the definition of sexual harassment. It is the expectation of the District to maintain safe, productive environments where all employees can serve the needs of our students. Any further actions of this nature may result in further disciplinary action up to and including termination. Should you have any questions or require any assistance do not hesitate to contact me or your Director, Andy West. The School District provided no explanation for the contradictory letters sent to Mr. Viera and then two days later to Ms. Lancaster, both written by the School District’s Director of HR. Ms. Lancaster questioned not just the apparent duplicity of the letters but the School District’s settling on the weak response of a reprimand for Mr. Viera’s actions. At the hearing, Ms. Gavin attempted to rationalize the School District’s actions. She first argued that the aspects of Ms. Lancaster’s complaint regarding the unwanted kissing and touching by Mr. Viera in 2018 were made outside the 60-day window provided by Policy Manual Rule 649 for complaints involving harassment or discrimination. Ms. Gavin stated that the only incidents within the allowable scope of rule 649 were Mr. Viera’s 2019 acts of commenting on Ms. Lancaster’s tattoo and entering her office prior to her cutting her wrists, hence the relatively mild disciplinary action. Ms. Gavin’s explanation is not satisfactory because it fails to explain why the reprimand letter to Mr. Viera expressly mentions the acts he committed in 2018, “hugging, kissing, touching,” and does not mention the 2019 acts. Under Ms. Gavin’s reading of rule 649, the 2018 acts should have been off limits for disciplinary action against Mr. Viera. However, they were considered and apparently formed the basis for the action taken by the School District. Second, Ms. Gavin testified that the School District’s collective bargaining agreement states that “if it goes beyond 18 months it cannot be considered as a part of the disciplinary process because it’s too old and it’s deemed they’re given a clean slate.” The “18 months” statement is related to Ms. Gavin’s insistence that the incidents of kissing and groping occurred in 2017, not 2018. Ms. Gavin based this testimony on her recollection that the mold remediation project in the Transportation Department was completed in November 2017. The Sheriff’s Office Incident Report stated that, after the kissing and groping incident, Ms. Lancaster and Mr. Viera were separated at work due to the mold problem. The Sheriff’s Office Incident Report is hearsay that was not confirmed at hearing by Ms. Lancaster’s sworn testimony. When Ms. Lancaster made her report to the Sheriff’s Office on August 14, 2019, she was less than a month removed from cutting her own wrists and being involuntarily committed under the Baker Act. She could have been mistaken as to the reason for the separation. However, the credible documentary evidence and Ms. Lancaster’s testimony all place the date of the initial incidents with Mr. Viera in May 2018. Ms. Gavin’s seizing on the detail of the mold remediation to excuse the School District’s disciplinary slap on the wrist to Mr. Viera cannot be credited. It is not only contrary to the evidence, it lacks internal logic. By Ms. Gavin’s own testimony, incidents more than 18 months old cannot be considered in the disciplinary process. However, Ms. Johnson’s disciplinary letter to Mr. Viera references only these supposedly stale incidents as grounds for the reprimand. Even on its own terms, Ms. Gavin’s argument fails. Finally, Ms. Gavin noted that, even if Ms. Lancaster had timely filed her complaint against Mr. Viera, the School District’s progressive discipline policy would in all likelihood have led to his referral for counseling and possibly a suspension without pay. She added that if the School District had recommended termination, the union would have filed a grievance protesting that the collective bargaining agreement was not being followed. This explanation is also unsatisfactory. Notwithstanding the progressive discipline policy, Policy Manual Rule 662 prohibiting sexual harassment provides that a substantiated charge against an employee may result in suspension or termination. The union may or may not have grieved the decision, and may or may not have succeeded in the grievance proceeding, but the School District had ample options under its rules to dismiss Mr. Viera. Instead, however, the School District decided that Mr. Viera’s admitted sexual assault did not merit discipline more severe than a reprimand. Ms. Gavin’s effort to hide this decision behind the cloak of progressive discipline and/or trepidation about a union grievance is not credible or worthy of merit. Having found Ms. Gavin’s explanations implausible, the undersigned is constrained to observe that the purpose of this proceeding is not to second- guess the School District’s decision as to Mr. Viera’s discipline. However, the School District’s contradictory statements in the letters to Ms. Lancaster and Mr. Viera, coupled with the mere reprimand for what Ms. Lancaster believed to merit much more severe discipline, had a demonstrable impact on Ms. Lancaster and partly led to her resignation. Thus, some discussion as to the School District’s explanation for its actions is merited. Ms. Lancaster testified that after receiving the October 19, 2019, letter from Ms. Johnson, her feelings of isolation and depression deepened. She felt herself trapped alone at the Matanzas office, separated from her colleagues in the Transportation Department. Now that Mr. Viera was back at work and still assigned to the main office, she believed her assignment to the Matanzas office would be permanent. She was unable to attend department meetings and events. The Transportation Department held a cookout to which she was not invited. Ms. Lancaster could not understand why the School District did not reassign Mr. Viera so that she could return to work with her colleagues. She felt that she was being punished for filing a complaint. Further, Ms. Lancaster felt that she was unable to adequately perform her job from the Matanzas office. She could not be in direct contact with department employees, who found it more difficult to submit their paperwork to her in a timely fashion. Ms. Lancaster was receiving documents late, which in turn caused her to turn in the payroll data late. She stated that she was getting complaints from fellow employees. Ms. Lancaster testified that it made no sense that the only “accommodation” that the School District was willing to make for her mental disability was to isolate her at Matanzas, her only other choice being to return to the place where her attacker worked and where her only protection from him was a piece of paper, i.e., the injunction. Ms. Lancaster produced a School District Official Grievance Form (“Official Grievance Form”) that she signed and dated on October 25, 2019. On the form, she stated that she wished to grieve the result of the investigation memorialized in Ms. Johnson’s letter of October 19, 2019. As to the “specific relief sought,” Ms. Lancaster wrote: Mrs. Lancaster wants to return to her office in Transportation confident that she will be safe; To be an active member of the Transportation Department, free to attend department meetings and events; 3) Desires to rectify the perception and her sense of being punished for filing the complaint. The form was signed only by Ms. Lancaster. The space provided for the signature of a School District administrator was blank. The School District denied ever receiving this Official Grievance Form. Ms. Lancaster testified that the filing of the form led to a meeting between her, Florida Education Association union representative Blanca Sotelo, and Ms. Johnson on or about November 1, 2019. Ms. Lancaster produced contemporaneous emails between her and Ms. Sotelo discussing the contents and filing of the grievance, including editorial comments by Ms. Sotelo about a draft of the form completed by Ms. Lancaster. Whether the form was never submitted to the School District or whether Ms. Johnson received and misplaced it, the School District does not deny that the November 1, 2019, meeting occurred. Subsequent to the meeting, Ms. Johnson sent the following email to Ms. Lancaster and Ms. Sotelo: Thank you for coming in today to follow up with me. Please be advised of the following: Moving forward more problem solving will be used if/when problems arise because of Ms. Lancaster’s separated workstation. In regard to the most recent situation with another employee’s phone, Ms. Lancaster’s extension will be transferred over to the MHS Transportation Center. In addition, each employee should route their calls when away from their desk for any extended period of time so that the line is covered. Cooperation will be given to Ms. Lancaster’s [sic] while participating in counseling sessions (i.e., in the event she needs to leave early or come in late). The details were not specified during our talk today but the following should continue to be followed to avoid any confusion between Ms. Lancaster and Mr. West. I understand from Mr. West that Ms. Lancaster already does the following when she needs to leave the office: Advance notice, 3-5 days, should be given to the Supervisor so that planning and coverage (if needed) can be arranged. up to 30 min window of time is allowed for this. Anything over the allotted time will require a leave form. Email notice to the Supervisor once in the office or when leaving the office for these sessions. Thank you again and don’t hesitate to contact my office if you have any other concerns. The conciliatory tone of Ms. Johnson’s email does not jibe with Ms. Lancaster’s recollection of the November 1, 2019, meeting and casts further doubt on Ms. Lancaster’s memory that Ms. Johnson was in possession of the Official Grievance Form. Ms. Lancaster testified that Ms. Johnson advised her to drop her grievance. Ms. Lancaster stated that Ms. Johnson believed it would do no good for Ms. Lancaster to pursue it any farther and told Ms. Lancaster that the School District administration would support her view. Ms. Lancaster testified that she felt “like I hit a brick wall.” She broke down in Ms. Johnson’s office. She cried and said, “I guess I give up.” Neither of the other participants at the meeting testified to confirm or contradict Ms. Lancaster’s version of the meeting. Ms. Lancaster was a generally credible witness, but the contrast between her testimony about the meeting and Ms. Johnson’s subsequent email causes the undersigned to question whether Ms. Lancaster’s subjective emotional response to events reflected the objective reality of the meeting. On November 7, 2019, Ms. Lancaster sent the following email to Ms. Johnson: Due to the emotional and mental damage that has been caused from flagler county schools [sic] for reporting a crime that was committed against me and the lack of care and concern I received from administrators thus feeling as being punished for someone else’s wrongdoing, I no longer will be able to continue my employment with the school system. On the same date, Ms. Johnson replied, “Thank you for letting me know, I’m sorry to hear that you feel this way. I will process your resignation effective the date of this email.” The facts found above demonstrate that the School District responded poorly to Ms. Lancaster’s complaints about Mr. Viera. Ms. Lancaster went to her supervisor, Andy West, for help in May 2019 after Mr. Viera recommenced his harassment of her. Mr. West took no effective action. Based on the totality of the evidence, it appears probable that Mr. West did not even bother to report the matter to anyone outside the Transportation Department. Mr. Viera continued to stalk Ms. Lancaster, leading to Ms. Lancaster cutting her wrists and being hospitalized under the Baker Act. Ms. Lancaster filed a complaint against Mr. Viera on August 13, 2019. The School District produced no evidence that Ms. Lancaster’s complaint was formally investigated. It appears that Ms. Gavin spoke to some witnesses without putting anything in writing, then handed the matter off to the new Director of HR, Ms. Johnson, who seems to have restarted the investigation from scratch, asking Ms. Lancaster on October 7, 2019, for the names of witnesses. Ms. Johnson’s investigation also resulted in no written witness statements and no written record. The result of the investigation was an inexplicable reprimand of Mr. Viera. However, as noted at the outset, this case is not about Ms. Lancaster’s complaint of sexual harassment and discrimination on the basis of sex, which was the basis for her separate sexual harassment claim. This case concerns Ms. Lancaster’s allegation that the School District discriminated against her on the basis of her mental disability. The evidence produced at the hearing does not support that allegation. The first and ultimately insuperable problem with Ms. Lancaster’s complaint is that she never made the School District, or anyone outside her family, aware of her claimed disability while she was employed there. In a letter dated September 9, 2019, Ms. Lancaster’s medical provider cleared her to return to work “with no restrictions.” Even at the hearing, Ms. Lancaster did not precisely describe her diagnosis.3 Ms. Gavin credibly testified that in her many conversations with Ms. Lancaster, the issue of a disability was never raised.4 Ms. Ayers-White—who was Ms. Lancaster’s union representative, who visited her in the hospital after she was Baker Acted, and who witnessed the injunction hearing for Mr. Viera—testified that she had no idea Ms. Lancaster was claiming a disability until she read her FCHR petition. Geri Drayton, the coworker who phoned the police after Ms. Lancaster cut her wrists, testified that she never knew about a disability and did not recall Ms. Lancaster asking for any accommodations. School District employee Tina Hutto, testifying on behalf of Ms. Lancaster, stated that she never knew about Ms. Lancaster having a disability and did not recall Ms. Lancaster ever telling her that she was having difficulty performing her job. 3 Ms. Lancaster offered a document in which she described “depression and anxiety and bipolar 1 and PTSD” that she said was diagnosed in 2017. However, this document was an email that she wrote and sent to an FCHR investigator on February 17, 2020, well after she resigned from her position. The undersigned did not admit this document because it had no bearing on the School District’s knowledge of her claimed disability during her employment. 4 It is noted that, despite rejecting Ms. Gavin’s attempts to justify the contradictions between the School District’s outcome letters to Ms. Lancaster and Mr. Viera, the undersigned found Ms. Gavin to be a generally credible fact witness. Though it did not discipline Mr. Viera to Ms. Lancaster’s satisfaction, the School District does appear to have taken seriously her trauma and the need to make her feel safe at work. Though Ms. Lancaster later bridled against it, the transfer to Matanzas was ordered with the agreement of all involved in order to ensure Ms. Lancaster’s safety, not only from Mr. Viera but from the coworkers she had accused of bullying her. The School District provided her with EAP information and arranged for her to leave work early or arrive late to get to counseling appointments. The documentary evidence established that until Ms. Lancaster obtained the injunction against Mr. Viera on August 22, 2019, the School District (with the possible exception of Mr. West) was unaware of the gravity of the situation with Mr. Viera. The School District was operating under the assumption that Ms. Lancaster’s major concern was the bullying and obstruction by other employees, and that separating Ms. Lancaster from these employees was the safest option for all concerned. Ms. Lancaster and her union representative, Ms. Ayers-White, agreed to the separation. At the hearing, Ms. Ayers-White was asked whether it made sense for Ms. Lancaster to come back to the main office. Ms. Ayers-White answered, “I thought she was fine” at Matanzas. Ms. Gavin credibly testified as to the School District’s consistent provision of accommodations for disabled employees. The School District consults with the employee’s physician, providing a job description to allow the doctor to assess the employee’s ability to perform and to recommend reasonable accommodations. Ms. Gavin noted one instance in which the School District changed the ceiling tiles in a classroom and provided a microphone to accommodate a teacher with vocal problems. There is no reason to assume that the School District would have refused to at least investigate accommodations had it known Ms. Lancaster was claiming a disability. Further, other than expressing her own concerns about her job performance, Ms. Lancaster presented no evidence that the School District was dissatisfied with her job performance or that any accommodation was necessary for her to continue performing in a satisfactory manner. Ms. Gavin testified, based on personal observation and her review of the personnel file, that Ms. Lancaster was a very good employee. Ms. Gavin could think of no reason why the School District would not renew Ms. Lancaster in her job position. Finally, it is noted that, whatever Ms. Lancaster’s subjective experience, little time had actually passed between the decision on Ms. Lancaster’s complaint and her resignation. On October 7, 2019, Ms. Johnson assured Ms. Lancaster that her current placement was temporary and that “I will speak with you about next steps and transition options” after the final decision on her complaint. The decision letter to Ms. Lancaster was dated October 19, 2019. Ms. Johnson met with Ms. Lancaster and Ms. Sotelo on November 1, 2019. At least from Ms. Johnson’s perspective, the meeting was productive, resulting in a plan to make the details of Ms. Lancaster’s job at Matanzas easier and a process for arranging her excused absences from work for counseling sessions. These findings are not meant to minimize Ms. Lancaster’s anguish and feelings of isolation and estrangement from her colleagues. The District, however, had only a vague sense of Ms. Lancaster’s degree of suffering and was actively taking steps to make her more comfortable emotionally and to make her workplace safe. The School District had no issues with her job performance. The School District was aware of her emotional trauma and was making it convenient for her to receive counseling. The School District was not aware that she was claiming to have a mental disability that required further accommodations. None of the actions undertaken by the School District was objectively retaliatory, notwithstanding Ms. Lancaster’s subjective perceptions. Ms. Lancaster offered no evidence that her separation from employment with the School District was anything other than voluntary. In summary, Petitioner offered insufficient evidence that she was discriminated against based on her disability. Petitioner also offered insufficient evidence that she was subjected to unlawful retaliation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Flagler County School District did not commit an unlawful employment practice related to the Charge of Discrimination filed in this case, and dismissing the March 28, 2021, Petition for Relief. DONE AND ENTERED this 21st day of July, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S LAWRENCE P. STEVENSON Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Laura Beth Lancaster 3207 Victory Palm Drive Edgewater, Florida 32141 Dylan J. Hall, Esquire Bush & Augspurger, P.A. 411 East Jackson Street Orlando, Florida 32801 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
The Issue An administrative complaint dated March 14, 1995, seeks termination of Karen Denbo’s annual contract of employment pursuant to Section 231.36, Florida Statutes, based on the following alleged falsifications of her Orange County Public Schools employment application: misrepresenting the reasons for separation from her last public school assignment; falsely stating her prior employment positions; and falsely identifying her immediate supervisor in her last public school assignment. The issues for disposition in this case are whether Karen Denbo committed the alleged violations and if so, whether discipline pursuant to Section 231.36, Florida Statutes, is appropriate.
Findings Of Fact From approximately 1966, until her suspension without pay by the Orange County School Board in March 1995, Karen Denbo was employed in various teaching and administrative capacities by school boards in Indiana, Georgia and Florida. She also worked on a grant project at the University of Florida, Gainesville, Florida, in 1993 and 1994. On July 6, 1994, Karen Denbo submitted an employment application to the Orange County Public Schools. Her signature appears below this printed statement on the form: I certify that all information given on this application is true and complete. I agree, if employed, to abide by all school board rules, regulations and policies, either published or in effect by usage, and all rules, regulations and laws of the State of Florida as may be required by Florida Statutes, Florida State Board of Education, and the School Board of Orange County, Florida. I understand that any misrepresentation, omission or incorrect statement of facts called for in this application is cause for a refusal to hire me or my termination if I am hired. It is understood that as a condition of employment, I must have on file an acceptable health certificate, tuberculin test and medical history form. (Petitioner’s Exhibit 1) The application includes, on the form and again on a separate work history sheet, this information regarding Karen Denbo’s employment in Brevard County: YEAR NAME/ ADDRESS OF SCHOOL GRADE OR SUBJECT NO. OF MONTHS PRINCIPAL/ SUPERVISOR REASON FOR LEAVING 86/92 Brevard Director/ 72 Jerry Budget cut Co. Public Coordinator Copeland backs Schools EEO/AA position Melbourne, Florida Guidance Counselor eliminated (Petitioner’s Exhibit 1) After an interview in August 1997, Ms. Denbo was hired by Orange County Public Schools as a counselor at Chickasaw Elementary School. Gail Pender was the principal who recommended Karen Denbo for the position. Karen Denbo’s duties included serving as a staffing coordinator for exceptional education services at the school. Sometime after it hired Karen Denbo, Orange County Public Schools learned that her employment history in Brevard County was substantially more complicated than was reflected on the small spaces provided on the application form. The whole truth would have taken pages to explain. Karen Denbo worked for the Brevard County School Board from August 6, 1986, until June 30, 1992, when her employment contract was not renewed. Her immediate supervisor for the first four years was Dr. Jerry Copeland, assistant superintendent for personnel. She worked in the district personnel office for five years with various, but similar duties: personnel specialist, administrator, EEO compliance officer, and coordinator of the Florida Educational Equity Act. Her formal position title for funding purposes was something general like “personnel specialist, administrative contract.” In the 1990-91 school year, Daniel Scheuerer was Karen Denbo’s immediate supervisor. When her position was deleted for the 1991-92 school year and the duties assigned to other district employees, Karen Denbo transferred to Challenger Elementary School as a guidance counselor in July 1991. Julia Bumgarner was principal at Challenger Elementary School and was Karen Denbo’s immediate supervisor for the 1991-92 school year. At the close of that school year Ms. Bumgarner advised Karen Denbo that she was not recommending her for reappointment for the next year because her performance was unsatisfactory. Mrs. Bumgarner provided a written evaluation to Karen Denbo, dated April 29, 1992, which stated: Due to the overall unsatisfactory performance rating as described herein, I am not recommending your reappointment for the 1992-93 school year. (Petitioner’s Exhibit 10, Bumgarner deposition) An interim evaluation dated February 19, 1992, had also been unsatisfactory and had warned that failure to show substantial improvement by May 1, 1992, would result in Karen Denbo’s not being recommended for a subsequent annual contract. Karen Denbo responded in writing to both evaluations. Included in those responses and included in her testimony at hearing was her assertion that the evaluations were part of the Brevard County School Board’s continued harassment of her in retaliation for her lawsuit against the school board and various individuals. The lawsuit to which Karen Denbo referred was initiated on August 16, 1990, with her charge of discrimination filed with the Florida Commission on Human Relations. The charge included her allegations that assistant superintendent, Jerry Copeland, sexually assaulted and harassed her. Subsequent charges of retaliation were filed, as well as follow-up lawsuits in the U.S. District Court for the Middle District of Florida. The lawsuits named as defendants the School Board of Orange County, Jerry Copeland, Superintendent Abraham L. Collinsworth, and Daniel T. Scheuerer, individually and in their official capacities. Karen Denbo filed a third charge of discrimination with the Florida Commission on Human Relations on February 11, 1993, and filed another federal lawsuit thereafter. All of the claims by Karen Denbo against the Brevard County School Board were settled with a general release dated June 30, 1993. The settlement agreement provides, in pertinent part: The Defendants will pay Plaintiff the sum of $325,000 and agree to the following conditions: 1) annual reviews for 91 and 92 will be removed from present file and placed in file to be maintained by School Board Attorney; 2) annual reviews will be prepared by last supervisor for 87, 88, 89 and 90 to reflect satisfactory performance; 3) Indiana University placement form will be filled out by Copeland and reflect satisfactory performance. (Petitioner’s Exhibit 8) In abbreviating her Brevard County work history on the Orange County Public Schools application, Karen Denbo relied, in part, on the settlement agreement. Jerry Copeland, her supervisor for four of the six years, was required to provide a satisfactory performance statement for Karen Denbo’s Indiana University placement file. She knows that he was not her “immediate supervisor” for the final two years, but the more recent two annual reviews, clouded by the pendancy of the lawsuits and Karen Denbo’s claims of retaliation, were removed from her personnel file. Karen Denbo also relied on her understanding that in both June 1991 and June 1992 her positions were eliminated for budget reasons. This understanding was bolstered by her knowledge of a newspaper article dated August 6, 1992, reporting that Karen Denbo was “one of the 88 annual-contract teachers who lost their jobs to budget cuts.” (Respondent’s Exhibit 4) The same article quoted the teachers’ union president as stating that the job cut was to make sure Karen Denbo was out of the system. By fall 1992, Karen Denbo began having negative interactions with her Chickasaw Elementary School principal, Gail Pender, in Orange County. Karen Denbo attributes the problems to Ms. Pender’s finding out that Karen Denbo was the person who had the charges against the School Board of Brevard County. In December 1994, the Orange County School Board placed Karen Denbo on relief duty with pay, pending investigation into allegations of falsifications of her application. She was suspended without pay in February 1995, and was recommended for termination on March 14, 1995. The administrative complaint by Superintendent, Dr. Donald Shaw alleges: The Respondent, Karen Denbo, at all times material to this Administrative Complaint, was employed as a guidance counselor by the School Board of Orange County, Florida. That Respondent, Karen Denbo, holds an annual contract of employment with Petitioner. That on or about July 6, 1994, Respondent, Karen Denbo, did falsify her Orange County Public Schools employment application which is just cause for termination of Respondent’s employment contract with the School Board. The falsifications are: Misrepresenting the reason for separation from her last public school assignment. Falsely stating her prior employment positions. Falsely identifying her immediate supervisor in her last public school assignment. That actions by the Respondent, Karen Denbo, constitute just cause for termination of her employment agreement with the School Board, for reasons including but not limited to gross insubordination, willful neglect of duty, misconduct, a violation of the code of ethics for professionals in the education profession in the State of Florida and a violation of the terms of her employment with the School Board of Orange County, Florida. Such grounds are sufficient to sever the contract status of Respondent and to terminate her employment with the School Board of Orange County, Florida. When Karen Denbo stated on her employment application that her position was eliminated through budget cuts, this was the truth, if not the whole truth. She had ample basis to assume that her positions for 1991-92 and 1992-93 were eliminated. For example, and in addition to the news article and statements of her union president, Karen Denbo had a copy of this February 25, 1993, letter from Howard Hickman, Director of Personnel Services, Brevard County School Board, to the superintendent of an Indiana school district who was seeking a reference: Dear Superintendent Fulk: Please find my response to your recent letter of inquiry regarding the employment history of Ms. Karen Denbo with the School Board of Brevard County, FL. Ms. Denbo began her employment with the School Board of Brevard County on 08/06/86 as a Compliance Officer/Personnel Specialist. Her primary responsibilities were to represent the school district in issues of compliance and equity. Due to budget consideration, the position of Compliance Officer, along with several other district positions, was eliminated for the 1991-92 school year. Compliance and equity issues were assigned to other district employees. Ms. Denbo transferred to Challenger Elementary School as a guidance counselor in July, 1991. Based upon staffing priorities at Challenger 7 Elementary School, Ms. Denbo was not reappointed for the 1992-93 school year. (Respondent’s Exhibit 1) In his deposition, Howard Hickman responded to questions by counsel for the Orange County School Board: By Mr. Kruppenbacher: Q. Mr. Hickman, am I correct that in School Board language, or School Boardese...the non- renewal of an annual contract teacher is not considered to be disciplinary action but is considered, to be the School Boards’ right to simply non-renew? A. That would be my understanding. (Petitioner’s Exhibit 9, p. 21, ll. 7-16) Karen Denbo’s designation of Jerry Copeland as her “principal/supervisor” was likewise a justified over- simplification. He was her supervisor for four years, and the settlement agreement super-imposed him above or replaced, the two other subordinate supervisors whose roles were clouded by the charges of retaliation. Jerry Copeland’s employment recommendation, in Karen Denbo’s possession and attached to her Orange County School Board application, is consistent with his role: July 28, 1993 EMPLOYMENT RECOMMENDATION RE: Ms. Karen K. Denbo To Whom it May Concern: Ms. Karen K. Denbo was employed on August 6, 1986 as Compliance Officer. She bravely accepted the challenge of this assignment even though her prior experience was one of school based administration and/or guidance/student services. To accept this assignment with such confidence was appropriately interpreted by this agency as being an individual who is academically competent, professionally aggressive and with a full capacity to grasp a new job which is controlled by regulations, statutes, administrative rules, board rules, labor contracts, case law, past practice, and a list of other detailed items to numerous to mention. During this time of service, Ms. Denbo has responded to more employment charges and complaints on behalf of the district in a shorter period of time than all of her predecessors combined. To date, every case has been dismissed without a finding of probable cause, settled without economic impact on the district or referred to another agency due to circumstances beyond the control of the school system. Ms. Denbo has an unusual gift for the written word. These materials contain, at times, an unbelievable degree of materials requiring hours of analytical compilation. It is, therefore, with pleasure that I offer this unequivocal employment recommendation. To find these talents in an individual in my opinion, is unique and offers a very promising opportunity for your agency. Sincerely, Jerry P. Copeland Assistant Superintendent Personnel Services (Petitioner’s Composite Exhibit 1) Finally, the descriptions of Karen Denbo’s positions in Brevard County on her application form are plainly descriptions of her functions, rather than formal position titles. She was a guidance counselor and revealed that; she also was an EEO/affirmative action compliance officer, and based on her own uncontroverted testimony and the several recommendations attached to her application, she directed the Brevard County School Board’s compliance in those areas. There is no evidence that she was one of several individuals performing the same function under a separate “director.”
Recommendation BASED on the foregoing, it is, hereby RECOMMENDED: That the School Board of Orange County issue a Final Order dismissing its charges against Karen Denbo and providing back pay from the date of her suspension without pay through the end of the 1994-95 contract year. DONE AND ORDERD this 27th day of June, 1997, in Tallahassee, Leon County, Florida. MARY CLARK 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 27th day of June, 1997. COPIES FURNISHED: Frank C. Kruppenbacher, Esquire Kruppenbacher and Associates, P.A. Post Office Box 3471 Orlando, Florida 32801-3471 James G. Brown, Esquire Brown and Green, P.A. Post Office Box 3108 Orlando, Florida 32802-3108 G. Ware Cornell, Esquire Victoria Park Centre, Suite 204 1401 East Broward Boulevard Fort Lauderdale, Florida 33301 Thomas H. Yardley, Esquire Building C2 1970 Michigan Avenue Cocoa, Florida 32922 Dr. Donald Shaw, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
