The Issue The issues in this case are whether Respondent violated section 1012.795(1)(g) and (1)(j), Florida Statutes (2017), and Florida Administrative Code Rule 6A-10.081(2)(c)4.; and, if so, what discipline should be imposed.
Findings Of Fact Based upon the demeanor and credibility of the witnesses who testified, the evidence admitted in the record at the final hearing, and the documents officially recognized, the following Findings of Fact are made: Petitioner is the agency head of the Florida Department of Education. Petitioner is responsible for investigating allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is responsible for filing an administrative complaint, and prosecuting the case in an administrative hearing pursuant to chapter 120, Florida Statutes, if the educator disputes the allegations. Respondent holds Florida Educator's Certificate 878903, covering the areas of Athletic Coaching and Physical Education, which is valid through June 30, 2025. At the time of the allegations in the Administrative Complaint, Respondent was employed as the athletic director at Evans High School (Evans) in the Orange County School District (District). Respondent was first employed by the District from 2004 to 2008, when he worked at Evans as a basketball coach and physical education teacher. He was re-employed by the District from 2014 until late in the 2017-2018 school year. He worked at Freedom High School (Freedom) as a physical education teacher and assistant athletic director through the end of the 2016-2017 school year. He then was employed at Evans as athletic director for most of the 2017-2018 school year. He resigned on April 5, 2018, pursuant to a settlement agreement with the School Board of Orange County (School Board), which is the District's governing body. Rolando Bailey was the assistant principal at Evans when Respondent was first employed there, and Mr. Bailey was the principal at Freedom when Respondent worked there through the end of the 2016-2017 school year. Mr. Bailey acknowledged "situations" during Respondent's earlier time at Evans and while at Freedom that involved "conflict" and "communications" issues with Respondent and required administrative intervention, but these problems were handled without involving the Employee Relations office (now called the Employee Standards office) to impose discipline. Mr. Bailey left Freedom to become principal at Evans beginning in the 2017-2018 school year. He thought Respondent would be a good candidate for the athletic director position at Evans, because Respondent was familiar with the community and Mr. Bailey thought he would be good at program building, which is what Mr. Bailey thought the athletic department needed. When Mr. Bailey made the move from Freedom to Evans, he brought not only Respondent with him, but also, at least 15 other administrators and teachers. This set a bit of an "us against them" tone between the existing faculty and staff at Evans and the Freedom transplants. Respondent and Mr. Bailey had a close working relationship. The perception among Evans personnel, based on observed interactions between Respondent and Mr. Bailey, was that they were also close personal friends. At the hearing, Mr. Bailey and Respondent both denied being close personal friends, but they were alumni of the same college, members of the same fraternity, and would frequently meet after regular school working hours. Mr. Bailey acknowledged these frequent meetings, although he said that they were work-related: "The role itself gave us the opportunity to talk outside of hours." (Tr. 200-01). These meetings did nothing to dispel the perception among Evans personnel that Mr. Bailey and Respondent were close personal friends. Evans presented challenges for Mr. Bailey as incoming principal. The school had not been performing well academically, with a "D" rating by the state, and he was intent on improving that performance. As for the athletic department, Mr. Bailey saw the need for "program building," noting that facilities were in disrepair and resources such as uniforms and equipment were scarce, resulting in a lack of school pride. Respondent's objective was to turn the Evans sports teams into winning programs. Respondent's charge was to "lead and direct" the athletic department and allow Mr. Bailey to focus on academics. However, Mr. Bailey made a commitment to the Evans coaches who were already in place when Mr. Bailey came over from Freedom. Mr. Bailey told the Evans coaches that the 2017- 2018 school year would be an evaluative year, and there would not be any changes made until after the end of the year. Mr. Bailey committed to personally participating in each coach's evaluation at year-end, along with Respondent, and Mr. Bailey would make the decision then regarding whether changes were needed to move in a different direction. Mr. Bailey was of the view that certain changes would be needed after the evaluative year. For example, he noted that several coaches held more than one head coaching position, which he generally disagreed with except for certain "related" sports, such as cross-country and track, which had separate seasons so one individual could be head coach of both. Mr. Bailey also was of the view that an individual should probably not serve as both a head coach and an administrative dean, although exceptions could be allowed and Mr. Bailey was willing to wait and see if individuals at Evans were handling it well.2 For the 2017-2018 "evaluative" school year, Mr. Bailey was willing— and had committed—to not make changes to conform the staffing to his views, and instead, to await year-end evaluations to make these decisions. Respondent expressed a different view, stating that if it had been up to him, he would have terminated all existing coaches when he started at Evans and he would have made them all reapply. But it was not up to Respondent, and Mr. Bailey's commitment stood. Respondent started working at Evans during the last few days of July 2017. He immediately implemented some changes in how the athletic 2 For example, Mr. Thompson was an administrative dean and head football coach at Evans for years before Mr. Bailey became principal and he remained in both positions after Mr. Bailey became principal. department was run. One change involved employing Ms. Woodard, who came over from Freedom with Mr. Bailey and the others, as assistant athletic director with the responsibility for inputting team roster information, including documenting compliant physicals and grade point averages (GPAs) for the students on the roster. This apparently had the effect of revealing students who were disqualified because they did not meet the minimum requirement of a 2.0 GPA. Previously, coaches were responsible for inputting their own team rosters. The claim asserted at hearing was that coaches were "padding" their rosters with disqualified students3 or inactive students.4 The motive suggested for "padding" a roster would be that for "minor" sports like cross-country, track, swimming, golf, and others, higher roster numbers could result in supplements being authorized for assistant coaching positions. A reduction in roster numbers could mean a reduction or loss of supplements, which could mean that assistant coaches would have to coach on a volunteer basis, or a head coach might have to do without, or without as many, assistant coaches. There was no competent credible evidence proving specific instances of wrongful or inappropriate roster padding.5 3 Respondent explained how students without qualifying GPAs might have been mistakenly listed on rosters showing qualifying GPAs. He acknowledged that coaches did not have access to detailed GPA data, and instead, might input a student's cumulative GPA as shown on the prior year's report card. However, that GPA might include grades for classes that were not eligible for purposes of meeting the minimum GPA required to participate in sports. 4 Ms. Bellamy, the girls' basketball head coach, said she discouraged "her" girls from going out for cross-country, because they "probably" would not be allowed to compete in meets. Her comments were more suggestive of a turf war than credible evidence of roster padding. 5 Several witnesses who were not at Evans until 2017-2018 offered their belief that roster padding occurred before the 2017-2018 school year. The credible testimony established only that when rosters were prepared or updated under Respondent's system beginning in August 2017, inputting updated GPAs resulted in some students being disqualified. Ms. Woodard, who implemented the new system, admitted she was not sure how many supplements were lost or in which sport. She thought cross-country may have lost supplements, but then said the sport previously had four or six supplements and that it had four supplements after she updated the rosters. Whitney Poole claimed that rosters had been padded the previous year, but she did not explain how she could have known that, since she was not at Evans before August 2017, and then was only a math teacher. She did not have any position in the athletic department before January 2018 when she became an assistant coach. In general, Ms. Poole was not a credible witness, and with one exception, her testimony was not credited. Sheree Carter Sheree Carter was a coach and administrative dean at Evans in 2017- 2018, when Mr. Bailey, Respondent, and others came to Evans from Freedom. She had been employed at Evans since 2012. She remains employed at Evans to this day. During the 2016-2017 school year, Ms. Carter held the following positions at Evans: administrative dean over attendance; head coach of girls' cross-country and girls' track; and assistant coach for girls' weightlifting. Ms. Carter was slated for those same positions headed into the 2017-2018 school year. Ms. Carter took comfort from Mr. Bailey's assurance that no changes would be made until he made the decisions after personally participating in the year-end evaluations. Ms. Carter testified that she met Respondent at the end of July, during the two-week pre-planning period before classes started. Within a week or two after they met, Respondent started saying things to let her know that he was interested in her. He made her uncomfortable, and she rebuffed his advances. But rather than discouraging his comments, the intensity and frequency of Respondent's advances escalated. Ms. Carter testified that Respondent would walk by her office, which was at the back of the front office, and he would poke his head in to see if anyone else was with her. Respondent never came into her office if someone else was with her; he waited until she was alone, and then he would come in. His conversation opener was that he was recently divorced and was trying to get his feet wet getting back into the dating game. She responded by saying okay, cool, good luck with that. Respondent then started coming by Ms. Carter's office to ask if she wanted to grab lunch together or come eat lunch in his office. She declined each time he asked. After the rebuffed lunch offers, Respondent started asking Ms. Carter if she wanted to go to the movies with him or grab drinks after work. Again, she turned him down each time. Respondent's next approach was to let Ms. Carter know that he had a sofa in his office, followed by repeated invitations to Ms. Carter to hang out and chill with him on the sofa in his office. These invitations were conveyed with a personal, intimate air. Ms. Carter always turned down these advances and let Respondent know she was uncomfortable with what he was asking. Respondent approached Ms. Carter with these advances not only when she was alone in her office, but also, on the practice fields and in the hallways or courtyard, if she was alone. Respondent only approached Ms. Carter to make these advances when no one else was around.6 Ms. Carter described it as "creepy," like "in a stalking type of way. Like he would just wait for that right moment to approach you when you're by yourself and then throw these advances at me." (Tr. 74). Respondent's stalking-type behavior and frequent approaches affected Ms. Carter's ability to do her job. She delayed or avoided communicating with Respondent about coaching matters, despite needing to communicate with the athletic director. She would check hallways before freely moving around to make sure Respondent was not present, and she took to closing her office door to give the impression she was not there. Ms. Carter's testimony was credible and clear. Her demeanor was earnest and believable. In contrast, Respondent's testimony regarding the advances claimed by Ms. Carter lacked credibility. Respondent was evasive. He frequently avoiding a direct answer to the question, as illustrated by the following: Q: And did you invite her to your office to chill? A: I was hardly ever in the office. I mean, so, it's very hard to chill in there. I was very, very on the go. I was very, very on the go. You know, Mr. Bailey was big on the look and appearance. So there was stuff always that needed to be done with the field and 6 Mr. Bailey testified that he never observed Respondent engage in sexual harassment, but conceded that sexual harassment is not normally something that he sees people doing out in the open. with the cosmetics. So I was hardly ever in the office. The only time I was in the office if I had to be [sic]. But I was hardly ever in the office, so I definitely couldn't be there just to chill because it was just too much work to do. (Tr. 324). * * * Q: Did you ever invite her to eat lunch in your office? A: I never ate lunch. It's hard for me to eat lunch because I had lunch duty and we had three lunches. So, when am I going to eat lunch when I'm constantly being fussed at by Mr. Bailey about not answering e-mails. Because I was never in my office so my e-mails were forwarded to Ms. Woodard so I didn't have to hear from him about why I don't answer e-mails. So I never ate lunch during the day. (Tr. 327). Respondent avoided answering the questions posed—whether he ever invited Ms. Carter to chill or eat lunch in his office. Respondent danced around the subject, never denying or refuting Ms. Carter's clear testimony that he had, in fact, invited her multiple times to eat lunch in his office and to chill on the sofa in his office, but she turned him down each time. Respondent did deny that he had asked Ms. Carter to go to the movies7 or out for drinks with him, but he offered weak explanations, which were not persuasive, for why he would not have extended these invitations. When asked if he ever asked Ms. Carter to go to the movies with him, he responded: "No. I was too busy to be trying to go to the movies and live in a whole different county and try to work. You know, Evans was an hour and 20 minutes away. Freedom was 38. So there's no time to go to the movies. Especially with a person you don't know, you know." (Tr. 325-26). And when 7 Ms. Poole, a witness for Respondent who generally went out of her way attempting to testify favorably for Respondent, said that she had been friendly with Ms. Carter at the beginning of the 2017-2018 school year. Ms. Poole admitted that during this time, Ms. Carter told Ms. Poole that Respondent had asked her out to the movies. To that extent, Ms. Poole's testimony was credible, and it corroborated Ms. Carter's testimony. asked if he ever asked Ms. Carter out for a drink, he said: "No, because I don't drink. … I just never had a drink, never smoked. So I don't drink. And because I don't drink, I'm not going to invite somebody out to watch them drink. So." (Tr. 326-27). Respondent's testimony on these points was less credible than Ms. Carter's testimony, and her testimony is credited. Ms. Carter testified that her discomfort with Respondent's advances came to a head at a soccer game, when he approached her and once again asked her out for drinks, and she got upset. She said that she blew up, emphatically reiterating (punctuated with curse words) that she had told him before she was not interested and expressing her frustration that he had not yet accepted the message that she wanted him to stop making advances at her. This was on a weeknight during the week of December 4, 2017. On Friday, December 8, 2017, Respondent went to Ms. Carter's office and told her: (1) that she was immediately removed, mid-season, from the assistant coach position for weightlifting, though she could keep the supplement; (2) that they would be moving in a different direction and she would no longer be head coach for girls' cross-country (which had ended its season one month earlier); and (3) that they would evaluate her position as head coach for girl's track after the spring. Respondent told Ms. Carter that he and Mr. Bailey had made these decisions because Mr. Bailey did not want her coaching and serving as an administrative dean at the same time.8 Ms. Carter was very upset because she loves coaching. She broke down crying and was so distraught, she was unable to perform her job duties to supervise during either lunch periods that day. Ms. Carter believed that 8 Respondent admitted to delivering this news to Ms. Carter, although he said it was in a routine meeting in his office that he had scheduled to give Ms. Carter her end-of-season evaluation for coaching girls' cross-country (conflicting with Mr. Bailey's clear testimony that he always participated in evaluations, which were done at the end of the year). Curiously, Respondent testified that his evaluation had no meaning, and its only purpose was to give coaches something for possible future employers wanting to see evaluations. Respondent failed to explain, if the meeting was only to address a meaningless end-of-season evaluation for one sport, why he used the occasion to deliver meaningful consequences or why he addressed more than that one sport. Respondent took this action to retaliate against her because she had rebuffed his advances, particularly after her strong rebuke of him earlier that week. Up to this point, Ms. Carter had confided in two different colleagues regarding Respondent's advances and her discomfort with them, but she had not lodged a formal complaint against Respondent with Mr. Bailey. She was concerned that Mr. Bailey would take Respondent's side in a dispute because of their longstanding relationship and apparent close personal friendship. Previously, when she had confided in Mr. Thompson, he had told her she should talk to Respondent regarding her discomfort, but she had tried that repeatedly. When she confided again in Mr. Thompson upon being reduced to tears on December 8, 2017, this time he told her she should not be talking with colleagues rather than going through proper channels, and he urged her to file a complaint. Ms. Carter followed that advice, submitting a complaint in an email to Mr. Bailey, which she sent to him just after midnight, very early on Monday morning, December 11, 2017. She asked if she could meet with Mr. Bailey to discuss what Respondent had told her regarding her coaching responsibilities and her concern that Respondent had taken this action because she had turned down his advances. Directly contradicting Respondent's claim, Mr. Bailey testified that he did not make the decision to remove Ms. Carter from her coaching duties during the 2017-2018 school year, nor did he direct Respondent to tell Ms. Carter in December—in the middle of the "evaluative year"—that she could not remain as coach and administrative dean.9 Instead, as he had committed to do at the beginning of the year, Mr. Bailey waited until the end of the school year to have the conversation with Ms. Carter about changes going forward. At that time, he informed her that he did not want her to continue in the dual roles of coaching and administrative dean in the 2018- 9 When Mr. Bailey found out that Respondent had that conversation with Ms. Carter on December 8, 2017, he had a meeting with Respondent to find out why he did that. 2019 school year. Ms. Carter wanted to remain in coaching to continue building her programs. With Mr. Bailey's agreement, she gave up the administrative dean position and returned to classroom teaching the next school year so she could continue coaching. Mr. Bailey was a witness for Respondent and he attempted to be supportive of Respondent in his testimony. However, Mr. Bailey clearly and directly contradicted Respondent's claim that he had instructed Respondent to remove Ms. Carter from coaching on December 8, 2017. Mr. Bailey was surprised by Ms. Carter's email reporting that Respondent had done so and had attributed the decision to Mr. Bailey. After meeting with Ms. Carter, Mr. Bailey reported Ms. Carter's complaint to the Employee Relations office for investigation.10 In contrast to the "situations" involving Respondent when he was first at Evans and again while at Freedom, which were handled by administrative interventions without involving Employee Relations, this time Mr. Bailey found it necessary to involve Employee Relations. Jamila Mitchell Jamila Mitchell, Ph.D., also provided testimony regarding inappropriate statements and conduct by Respondent that made her feel very uncomfortable and that interfered with her doing her job. Dr. Mitchell has been working at Evans since 2014. Her doctorate degree is in computer science. She has been the computer science instructor at Evans and the sports media sponsor. She held those two positions during the 2017-2018 school year. She was not a coach or assistant coach. As sports media sponsor, Dr. Mitchell is involved in all sports-related media, including film, photography, social media, and the school's website. 10 Two separate investigations were initiated: the first addressed alleged sexual harassment and retaliation by Respondent, pursuant to the District's responsibilities under civil rights laws as Ms. Carter's employer not to commit unlawful employment practices. When that investigation was completed with a finding of probable cause to believe there was sexual harassment, Mr. Ganio, then-manager of the District's Employee Relations office, completed an investigation into whether Respondent had engaged in misconduct, which would provide just cause for the School Board to take action against him as a District employee. Her responsibilities include managing sports-related website content and ensuring information is disseminated for all sports-related events. She must keep up with schedules, rosters, college recruiting activities, and events such as college scholarship signing days and awards banquets. Frequent communications with the Evans athletic director are essential to her job duties, at least by the time sports activities are in full swing after the first couple of weeks of each school year. Dr. Mitchell testified that beginning in September 2017, when her job required her to be in frequent communications with Respondent, he started saying and doing things that made Dr. Mitchell uncomfortable. On several occasions, Respondent referred to Dr. Mitchell as his "little Mexican." Dr. Mitchell is not Mexican. Respondent would say this when passing her in the hallway, if they were both at a game or event, or when he came to her classroom. Sometimes she was alone when he said this, but sometimes other people overheard what Respondent said. She was offended by Respondent's words, and also, uncomfortable having to explain to others who heard Respondent call her his little Mexican that she was not Mexican, but was biracial. Despite taking offense, she tried to ignore it or laugh it off. Respondent frequently came by Dr. Mitchell's classroom during her planning period when she was the only one there. At least initially, they would discuss sports media matters. But then the conversations would turn to Respondent telling Dr. Mitchell that he "liked the way her butt looked" in the pants she was wearing that day, or how whatever she was wearing accentuated some part of her body. She tried to change the subject back to work, but his comments made her feel weird and "creeped out." Respondent's frequent comments about her clothing and body impeded communications regarding sports media issues. Respondent's comments also caused Dr. Mitchell to stop wearing form-fitting clothing, pants that were a little bit tight, or shirts cut a little bit low.11 She began wearing loose clothing and when Respondent came by her classroom, she stayed seated behind her desk so he would not comment on "how her butt looked." Her discomfort and worries distracted from needed communications and interfered with getting the job done. It got to the point where Dr. Mitchell avoided communicating in person with Respondent, resorting to communicating by text or phone call. Dr. Mitchell described the "tipping point" for her was when she was walking through a courtyard to go to the front office and Respondent was coming out of the front office. Dr. Mitchell was wearing her hair down (loose), which she rarely did. When they passed in the courtyard, Respondent commented that he liked it when she wore her hair down because it gave him something to grab onto. There were other people in the courtyard—teachers and students—and Dr. Mitchell testified that she just prayed that nobody heard what Respondent said to her. She was highly embarrassed by what she reasonably interpreted as a sexual reference. Dr. Mitchell did not immediately complain about Respondent's inappropriate conduct, in part because she was embarrassed, but also, because she did not know to whom she could complain. She had seen how Mr. Bailey interacted with Respondent, and observed that they seemed to have a very friendly, personal relationship. She was concerned that if she said anything, it would be her job on the line. But when she was contacted by an investigator looking into Sheree Carter's complaint, who had been told that Respondent may have also harassed Dr. Mitchell, she spoke with the 11 Respondent suggested in his PRO that Dr. Mitchell should be faulted for her choice of attire in a school "full of hormonal high school students that most likely has a dress code, stated or implied, for teachers." (Resp. PRO at 28). No credible evidence supports a finding that Dr. Mitchell's attire was provocative, inappropriate, or contrary to any dress code, and none was cited. Respondent's argument is, in effect, that Dr. Mitchell "asked for it"—a classic means to deflect blame and excuse inappropriate sexual conduct, which is, or should be, a relic of the past. Respondent's veiled hint that Dr. Mitchell asked for it is tantamount to a concession that "it" occurred, necessitating an excuse for his behavior. There is no excuse. investigator and provided the same information about Respondent's offensive conduct to which she testified at the hearing. Dr. Mitchell was very credible and genuinely distraught as she described these uncomfortable encounters with Respondent. As with Ms. Carter's specific complaints, Respondent denied (or gave evasive, less-than-clear answers) that he said or did the things described by Dr. Mitchell.12 Respondent's testimony was not as credible as Dr. Mitchell's testimony. Dr. Mitchell's testimony is credited. Jessica Kendrick Jessica Kendrick was the head swim coach at Evans, coaching both the boys' and girls' swim teams, from 2013 through the 2018-2019 school year. Her testimony was fairly narrow in scope, but clear and to the point: when Respondent was the head of the athletics department in the 2017-2018 school year, he made her uncomfortable by standing very close whenever they talked with no one else nearby—that is, when there were no witnesses. Ms. Kendrick is five feet, eight inches in height. Respondent is six feet, one inch tall. He used his height advantage to intimidate Ms. Kendrick, making her feel like he was towering over her when he stood very close and looked down at her. Ms. Kendrick's vivid description was that Respondent would be standing so close to her that she could tell what he had for lunch. Ms. Kendrick's reaction to these close encounters was to back up to create space between Respondent and herself. But Respondent would quickly move forward to close the space she had created. She would inch back again; he would inch toward her to close the gap again. Respondent made Ms. Kendrick feel very uncomfortable. 12 In contrast, the investigative summary of the District's investigation into Ms. Carter's sexual harassment complaint reported that Respondent stated he "does not recall if he made inappropriate comments to [Dr.] Mitchell." (Pet. Ex. 14, Bates p. 35). Although statements of non-party witnesses reported in the investigative summary are hearsay, and thereby limited in use to supplementing or explaining competent evidence, Respondent's statements reported in the investigative summary that was offered against him are party admissions, excepted from hearsay, and admissible for all purposes. See § 90.803(18)(a), Fla. Stat. Ms. Kendrick had been the head swim head coach at Evans for four years before Respondent became athletic director. He made her so uncomfortable when they spoke in person that she went out of her way to avoid him. She told the two assistant swim coaches, Mr. Rivers and Mr. Ross, about her discomfort with Respondent. She asked her assistants to take her place for in-person meetings or discussions with Respondent so she could avoid any more uncomfortable close encounters with Respondent. It affected her job; communications with the athletic director were necessary for her to function effectively as head coach. Ms. Kendrick testified that rather than having to interact with Respondent, if Respondent had continued on as athletic director at Evans, she would have given up the head coaching position. Instead, Respondent resigned, and Ms. Kendrick decided to remain head swim coach at Evans for the 2018-2019 school year. Respondent testified that he had no idea what Ms. Kendrick was talking about. Ms. Kendrick's testimony was more credible than Respondent's and is credited. At the hearing, Respondent made the blanket statement that all the witnesses testifying against him were lying. He claimed that Ms. Carter and Ms. Kendrick were lying to get back at him for changing the procedures to prevent roster padding and costing them coaching supplements.13 He claimed that their colleagues, in whom they had confided and who corroborated their testimony, were also lying. Respondent's attempted attacks on the credibility 13 Ironically, the suggestion that Ms. Carter was mad because she lost supplements as a result of the changed roster procedures was contradicted by Respondent's own testimony. As for her head coaching positions, Respondent testified that head coaches receive supplemental pay irrespective of roster numbers. Ms. Carter might have lost those supplements as a result of Respondent's unauthorized attempt to remove Ms. Carter from cross-country head coach and to threaten removal from track, had those actions stood, but they were reversed by Mr. Bailey. As for the supplement Ms. Carter received as assistant weightlifting coach, Respondent admitted that when he told Ms. Carter she was relieved of her assistant coaching duties mid-season, he told her she could retain the supplement. Respondent's actions had nothing to do with supplements or rosters; Respondent acted to retaliate against Ms. Carter for rebuffing his repeated advances. of the witnesses testifying against him were not persuasive and did not undermine their clear, credible testimony. Most notably, although Respondent claimed some witnesses had a motive to lie to get back at him because of lost coaching supplements, no such motive was or could be attributed to Dr. Mitchell. Dr. Mitchell was not a coach or an assistant coach. Respondent offered no cogent theory to explain why Dr. Mitchell would fabricate her testimony. Respondent's accusation that Dr. Mitchell's testimony was invented does not square with her display of emotions at the hearing. She was visibly shaken and crying when she described her embarrassment with Respondent's sexual innuendos, and when she explained why she did not complain about Respondent at the time. Ulunda Frazier The pattern of behavior evident from the complaints of Ms. Carter, Dr. Mitchell, and Ms. Kendrick is further buttressed, at least generally, by court records regarding Ulunda Frazier and Respondent. Ms. Frazier is a teacher. At the time pertinent to this case, she taught at Oak Ridge High School (Oak Ridge), within the District. At the hearing, Respondent described Ms. Frazier as a longtime personal friend he has known for 15 or 16 years. He said Ms. Frazier used to babysit for Respondent's 15-year-old son when the teenager was an infant and toddler. Respondent admitted that his personal relationship with Ms. Frazier had turned "toxic." He did not offer any details to explain in what way the relationship turned toxic. Instead, alluding to a close intimate relationship gone bad, he said only that his relationship with Ms. Frazier "had become toxic and out of control that was actually birthed out of both of our pains. We -- she was going through an ugly divorce and I was going through my treatments and stuff. And so the relationship had just got toxic and it had -- it was no longer a friendly environment." (Tr. 351). Court records in Frazier v. Crawford, Case No. 48-2018-DR-000923-O, in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, were officially recognized. The records reflect that on January 24, 2018, Ms. Frazier filed a Petition for Injunction Against Stalking under section 784.0485, Florida Statutes, seeking to enjoin Respondent from stalking her. That same day, the court issued a Temporary Injunction for Protection Against Stalking. On January 25, 2018, the Polk County Sheriff's Office served the Temporary Injunction, Ms. Frazier's Petition, and a Notice of Hearing on Respondent at his residence. The hearing was scheduled for February 6, 2018, and was held as noticed. Both Ms. Frazier and Respondent attended. At the conclusion of the hearing, the court issued a Final Judgment of Injunction for Protection Against Stalking (Stalking Injunction). Respondent received a copy by hand delivery in open court, as acknowledged by his signature on the Stalking Injunction. He is therefore "deemed to have knowledge of and to be bound by all matters occurring at the hearing and on the face of" the Stalking Injunction. (Pet. Ex. 18, Bates p. 51-52). The Stalking Injunction contains the following finding: "After hearing the testimony of each party present and of any witnesses, or upon consent of Respondent, the Court finds, based on the specific facts of this case, that Petitioner is a victim of stalking."14 (Pet. Ex. 18, Bates p. 47). On that basis, the Stalking Injunction ordered as follows: "Respondent shall not commit, or cause any other person to commit, any acts of stalking against Petitioner, including stalking, cyberstalking, aggravated stalking, or any criminal offense resulting in physical injury or death. Respondent shall not commit any other violation of the injunction through an intentional unlawful threat, word or act to do violence to Petitioner." (Pet. Ex. 18, Bates p. 50). The Stalking Injunction is in effect until February 26, 2021. 14 "A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree[.]" § 784.048(2), Fla. Stat. (2017). Section 784.0485 creates a cause of action for a person who is a victim of stalking to obtain an injunction for protection against stalking. The Administrative Complaint alleged that the Stalking Injunction "reduced Respondent's effectiveness as an athletic director because it limited his ability to travel to that school and perform his duties." The terms of the Stalking Injunction do not support this allegation. While the Stalking Injunction generally and broadly prohibited Respondent from having any contact with Ms. Frazier, including at Oak Ridge where she worked and at her residence (both of which were in Orlando), there is an express exception to the no-contact prohibition, as follows: "The Respondent may go to Oakridge [sic] High School only for a valid business reason. If any contact occurs, it shall be non-hostile contact." (Pet. Ex. 18, Bates p. 49). In several respects, however, the Stalking Injunction contradicts Respondent's testimony. Respondent denied that he would have made advances on Ms. Carter because he was married and had been married to the same woman since 2010. Yet his close personal relationship with Ms. Frazier predated his marriage by five or six years. Respondent testified that Ms. Frazier babysat for Respondent's 15-year-old son when the teenager was an infant. The fact that Respondent got married to someone else five years later did not prevent Respondent from engaging in a first "friendly" and then "toxic" close relationship with Ms. Frazier, or from stalking Ms. Frazier before the Stalking Injunction was issued against him on February 6, 2018. Whatever the details may be regarding Respondent's stalking of Ms. Frazier, it is noteworthy that she lived and worked in Orlando. This belies Respondent's claim that he could not have harassed Ms. Carter with the repeated advances she described, because he would not have had time to go to the movies or out for drinks near where he worked in Orange County. He attempted to paint the picture that he spent every moment in Orange County working or commuting to and from his home in distant Polk County. The Stalking Injunction stands as evidence that, contrary to Respondent's claim, in addition to working at Evans and commuting to and from Polk County, Respondent found time to have a first friendly, then toxic relationship with Ms. Frazier and to stalk Ms. Frazier where she lived and worked in Orange County. Respondent's Separation from the District The investigation into Ms. Carter's complaint identified individuals who were potential witnesses with relevant information or possible victims. After conducting interviews, the District held a pre-determination meeting on March 7, 2018, to share with Respondent the information learned during the investigation and give him an opportunity to respond. Respondent appeared with a union representative, who instructed him not to respond. On March 27, 2018, Respondent was suspended from work with pay while the District completed its investigation. This "Relief of Duty" status is employed when warranted by the seriousness of the allegations. "Relief of Duty" included an immediate suspension of network access, including email. During the process of completing the investigation, the District discovered a new allegation of inappropriate conduct by Respondent. The District learned of Ms. Frazier's Petition and the resulting Stalking Injunction. It held a second pre-determination meeting on April 3, 2018, to inform Respondent that it had learned about the Stalking Injunction. Again, Respondent was given the chance to respond, but again, he refused to say anything on advice of his union representative. On the same day as the second pre-determination meeting, Barbara Jenkins, the District Superintendent, issued a memorandum to the School Board, transmitting a complaint charging Respondent with misconduct in office and conduct unbecoming a public employee, and recommending that Respondent be terminated from employment for the charged violations. Immediately after the complaint and recommendation for termination were released, Respondent negotiated and finalized a Settlement Agreement and General Release (Agreement) with the School Board. The Agreement expressly stated that it was not to be construed as an admission by Respondent or the District of any wrongdoing. Nonetheless, pursuant to the Agreement, Respondent was required to resign as of April 5, 2018, and to tender a written letter of resignation. Pursuant to the Agreement, Respondent agreed "he will not reapply for or accept employment [at a District school] at any time in the future." Respondent also acknowledged that the District would be submitting its investigation into Respondent's alleged misconduct to the Department of Education Professional Practices Commission, as required by section 1012.796(1)(d), Florida Statutes. In form and substance, the Agreement is a common vehicle utilized for resignation of an employee in lieu of the employee having to answer to charges and face the prospect of termination. Respondent attempted to suggest that his resignation was purely voluntary, based on his decision that he did not want to work in a place where people would lie about him. His claim was not credible. Respondent fully understood when he took the position at Evans, along with at least 15 others brought over from Freedom by Mr. Bailey, that there would be an "us against them" air that he would have to overcome. Mr. Bailey attempted to set the stage for developing good relationships with existing Evans coaches and other staff, by deeming the first year an "evaluative year" in which there would not be any position changes until the evaluative year was discussed with Mr. Bailey, Respondent, and the coach at the end of the year. Respondent knew that Evans had challenging problems to overcome, with scarce resources in terms of facilities, equipment, and uniforms, and that he was expected to build winning programs and instill school pride. He knew he was expected to put in place the systems, policies, and procedures that would allow for program building, and he was well aware that his changes would be unpopular with some. It defies logic and credibility for Respondent to suggest that he chose to walk away from his commitment before completing one school year only because existing Evans coaches and assistant coaches were lying about him. Mr. Bailey acknowledged that, as principal, he was compelled to let the investigation process be carried out. As he put it: "[W]hat I performed is my role as a principal. That when there's conduct that's unbecoming of an employee, or an employee feeling as if they have been, in this case, harassed, I'm going to follow the guidance that has been presented to me in my role as the leader of the school." (Tr. 209). He acknowledged that at the culmination of that process, when it was reported to him, he followed the guidance that he was supposed to follow, and as a result, Respondent was no longer at his school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission issue a final order finding Respondent guilty of violating section 1012.795(1)(j) through a violation of rule 6A-10.081(2)(c)4., and imposing the following as penalties: suspension of Respondent's educator's certificate for a period of three years from the date of the final order; probation for a period of three years after the suspension, with conditions to be determined by the Education Practices Commission, which should include a requirement that Respondent take two college level courses, one in professional ethics for educators and one related to women's rights in the workplace; and payment of a $750.00 fine. DONE AND ENTERED this 29th day of January, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Carol R. Buxton, Esquire Florida Education Association 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 S ELIZABETH W. MCARTHUR 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 29th day of January, 2021. Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent Troutman should have been suspended as an employee of the Dade County School Board.
Findings Of Fact The evidence and testimony presented and the proposed recommended order and memorandums of law have been considered in the writing of this order. Respondent Wayne Troutman is a five year-tenured teacher employed by the Petitioner School Board of Dade County Florida, at Brownville Jr. High School. On November 4th, 1977, Respondent was in the school washroom washing football uniforms. Students were walking down the halls enroute to class. A thirteen (13) year old eighth grade student, Prince Sharpe, called out the word "hook", a term he said he uses when speaking to at least two of his friends. Respondent did not see Sharpe at the time the comment was made but testified that he recognized Sharpe's voice and that the student was speaking to him and called him "hook nigger" three times. Sharpe denied he used the term in reference to Respondent. Shortly thereafter, Respondent entered the classroom in which Ms. Edwinda Dennis, a teacher, was convening her third period class. Be asked permission to speak to her student, Prince Sharpe, and having secured permission went to Sharpe's seat. When Sharpe leaned back in the desk smiling and laughing, Respondent grabbed the boy's shirt in the collar area holding him so that he could only move his feet and aims. Respondent pushed the student against the wall and the window so that the plastic window pine popped out and the student was pushed partially out the window. Ms. Dennis became alarmed, shouted at Respondent to try to stop the struggle and ran to the back of the room and jumped on Respondent's back endeavoring to separate the two. The student was screaming "Let me go!" and when he was released he ran from the classroom. The principal told relatives of the incident and they came to the school and talked with the Respondent. The Respondent admitted that he was "tense" at the time of the struggle. He also testified that he had used such force on other students from time to time. The Petitioner placed Respondent on indefinite suspension charging the violation of School Hoard Policy 6GX13-50-1.07; violation of Section 231.36(6), Florida Statutes, and Section 784.07, Florida Statutes. Petitioner contends: That she term "hook" or "hook nigger" may or may not have had a negative connotation; that there was evidence the child who weighed approximately ninety (90) pounds was pushed against a wall and partially through a window; that Respondent grabbed him around the neck and collar area with undue force and that the attack was unprovoked and an assault on the child; that the conduct of Respondent was inappropriate and misconduct; that Respondent should have been suspended and should be dismissed. Respondent contends: That Respondent did not administer "corporal punishment" as defined in the Board Rules; that the acts of Respondent were not a physical assault and battery; that as a teacher, Respondent stood in "loco parentis" and that touching was acceptable; that the child provoked the teacher with a comment, lend talk and laughter; that the acts of Respondent were mere discipline in a school where discipline is a major problem; that the student was not afraid of Respondent; that Respondent should be reinstated with back pay.
Recommendation Affirm the suspension without pay until the end of the school year in which the incident took place and reinstate for the next year. DONE AND ORDERED this 28th day of July, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Building 3050 Biscayne Boulevard Suite 300E Miami, Florida 33137 Elizabeth J. du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131
The Issue Whether the Petitioner, a teacher under contract with the School Board of Seminole County, should be terminated from his employment based on misconduct in office, gross insubordination, and immorality, based on conduct during the course of the school year 1989-90 and an incident occurring on April 11, 1990.
Findings Of Fact Petitioner has been employed by the School Board of Seminole County since 1983 as a classroom teacher. Petitioner is employed pursuant to a Professional Services Contract. Petitioner was assigned to Lake Brantley High School during the 1988-89 and 1989-90 school year. During the 1989-90 school year, Petitioner taught two classes of honors world history and three classes of humanities. By letter dated August 17, 1989, which was hand delivered to Petitioner and a copy was placed in his personnel file, Petitioner was cautioned by Darvin Boothe, Principal of Lake Brantley High School, that: Any recurrence of behavior of this nature will result in the most serious of consequences. You are strongly advised to take appropriate measures to resolve the confusion, which, by your account, caused you to behave in a way which was unprofessional and unsound. In the letter, it was alleged that in late Fall of 1988 Petitioner placed a personal ad in the Orlando Sentinel which said: "Male seeks male for friendship." A fifteen year old male answered the ad in writing, and Petitioner replied in writing. A telephone conversation then occurred, and this ended the transaction. There was concern expressed by Principal Boothe that the purpose of the correspondence was an attempt by Respondent to initiate a homosexual liaison. Petitioner did not respond in writing to this letter. The Petitioner was a close acquaintance of the Ahuvia family, Citizens of the State of Israel and living in Seminole County. The oldest son, Saar, had been a friend of the Petitioner's son who was killed in an accident while an exchange student in Spain in September 1989. Mrs. Rachel Ahuvia invited the Petitioner to her home on frequent occasions after the death of Petitioner's son and attempted to involve the Petitioner in activities with her children because of Petitioner's apparent emotional reaction to the loss of his son. Ahuvia invited Petitioner to her home for Hanukkah in 1989 and to Passover supper in April 1990. During Petitioner's visit at Passover, Ahuvia asked Petitioner if he would take three of her children, Saar, Ram and Mor on an outing during the Spring Break. Petitioner agreed. It was arranged that Petitioner would take the three children to Rock Springs Park on April 11, 1990. Petitioner suggested that Saar being a 10th grade teenager and the other two being 11 and 9, could invite a friend as company in the outing. One or more friends his age were contacted before Gil Montag (who was 15 at the time and a school mate of Saar's) was contacted and agreed to go on the outing. Petitioner arrived at the Ahuvia home between 12:30 to 1:00 p.m., on April 11, 1990. Saar, a musician, was sleeping after having been up late taping a musical arrangement; rather than wake him, Mrs. Ahuvia suggested that the Petitioner and the other children go without Saar. Petitioner drove to the home of Gil Montag. Montag's parents were away, however, Gil had a friend with him, Danny Terrill. Gil Montag was told that Saar was unable to come. Gil decided to come anyway, and it was agreed that he would also bring his friend, Danny Terrill. The Petitioner and the four children drove to Rock Springs in Petitioner's car. When they arrived, they found it was closed and proceeded to Wekiva Springs. The trip took approximately 20 minutes, and the group arrived at Wekiva Springs at approximately 2:00 p.m. Enroute the children discussed several subjects, including Gil Montag's new earring. Danny Terrill also used one or more Hebrew words he had been taught by Gil Montag, one of which was "zain omed", a Hebrew word meaning "penile erection". The Petitioner requested that this word not be used in the presence of the young children. When the party arrived at Wekiva Springs, they passed through a gate tended by a park ranger. Several hundred people attended the park for day use that day. During the time Petitioner and his party were in the swimming area, there were at least 50 people present at any one time. During the time that Petitioner and his party were at the park, they were in the swimming area or on the grounds immediately surrounding the swimming area. Virtually all of the area where Petitioner and his party were located was within plain view of other patrons of the park swimming or sunning on the immediately surrounding grounds. During the time Petitioner was in the park, he played with the two younger children in the water and engaged in horseplay with the two older boys, Gil Montag and Danny Terrill, both in the water and in the surrounding grounds. A student known to the Petitioner, Toni-Ann Mariani and her visiting cousin, Loretta Mariani, arrived in the park by canoe and saw Petitioner and his party in the swimming area when they arrived. They also saw the two younger children and two older boys, who were introduced by Petitioner, in the swimming area. During the entire period of time Toni-Ann was there, the Petitioner as well as the younger children and two older boys appeared to be engaging in activities typical for the occasion, and it did not appear that anyone in the party was upset, angry or frightened. During one episode of horseplay, Danny Terrill pulled the string out of Gil Montag's bathing suit, which annoyed Gil Montag. In addition, Petitioner and the two older boys wrestled. Petitioner had wrestled in college and was involved with the high school wrestling program. Gil Montag had wrestled for a time in high school, and Danny Terrill had earned several belts in karate. During the wrestling, Petitioner put Gil Montag briefly in a scissors hold around his waist, a legitimate maneuver in olympic style wrestling. During that time, Danny Terrill was a short distance away and did not see any evidence that Petitioner was sexually aroused, nor did Gil Montag make any utterance at the time that made it appear that he was in distress or otherwise upset by the horseplay. During another episode of horseplay, Petitioner, Gil Montag and Danny Terrill, chased each other in the grounds surrounding the swimming area. This activity was not hostile or engaged in by Petitioner for some improper purpose and lasted for a short period of time, approximately 2 to 5 minutes. At about 4:00 p.m., Petitioner and his party decided to leave the park and return home. All of the children were dropped off at their homes without incident. That evening, while Gil Montag's parents were still away, Gil Montag and Danny Terrill invited some friends over and had a party. Although under the legal drinking age, beer was served and consumed, Gil stating that he drank about 12 beers. Danny Terrill testified that 24 beers were shared among 8 boys and that each boy had 2 or 3. Upon returning home from the outing and during the party, no mention was made by Gil Montag to Danny Terrill or to anyone that he had been assaulted in any fashion by Petitioner. A comment was made by Danny Terrill to the effect that he thought Petitioner was a "faggot" because of his mannerisms, not because of any conduct by Petitioner toward Danny. Gil Montag did not, in response to that statement, indicate that he had experienced any overture or conduct by the Petitioner that would substantiate Danny Terrill's slur. The alleged victim, Gil Montag, testified that during the horseplay in the swimming area, that Petitioner pulled the string out of his bathing suit, and that during this episode, while Danny Terrill was in the area, Petitioner was sexually aroused. Montag further testified that during the period Petitioner and the two older boys were "playing chase" on the grounds, that this episode was done in a hostile manner and that, in fact, he had fallen down 10 to 30 concrete steps, and as a result was cut and bleeding in many places on his body. Gil Montag further asserts that during the visit to the park, he was led against his will by the hand to the water after the above-described chasing and then taken against his will by Petitioner to a secluded area of the swimming area where Petitioner wrapped his legs around Gil Montag's waist and moved around in an indecent fashion for the presumed purpose of sexual gratification. Montag asserts that this went on for 10 minutes and that he was unable to escape from the grasp of Petitioner during that time. On or about May 16, 1990, Petitioner notified Gil Montag and his parents that Gil was earning a failing grade in Petitioner's class. During a discussion with Gil's father, Mr. Montag requested that his son's grade be changed and that he be transferred to a different teacher for the last nine weeks of the school year. Petitioner declined and offered the opinion that Gil's mind was not on his work and that he was preoccupied with girls and having a good time. That same evening, Gil Montag told his parents that he was upset because of Petitioner's alleged conduct at Wekiva Springs on April 11. Prior to this occasion, Gil Montag had not made this accusation, but states that he did not do so because of fear. During the school year 1989-90, Petitioner would regularly touch or pat students, including Ryan Anderson, Hisham Aboulhoson and Gil Montag, on their back, butt or knee as a sign of positive reinforcement or approval of work completed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board enter a Final Order finding, as follows: The Petition for Dismissal, filed by the Superintendent of Schools for the Seminole County School District, be DENIED. The Petitioner be reinstated to his position of employment under his professional services contract, and that he receive full back pay and benefits withheld from the date of suspension. DONE AND ENTERED this 27th day of March, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 27th day of March, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Accepted in substance: paragraphs A.1,2,3;B.1,2,3,4,5,6,7,8,9 (in part), 10,11,13,14 (in part), 15 (in part), 16 (in part), 18, 19 (in part), 20,21,22,23,24 (in part) Rejected as argument: paragraphs B.9 (in part), 12,14 (in part),15 (in part), 16 (in part), 17,19 (in part), 24 (in part),28 Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1,2,3,4,8,9,10 (in part),17,18 Rejected as irrelevant, excluded evidence of a previously resolved collateral matter: paragraphs 5,6,7 Rejected as against the greater weight of evidence: paragraphs 11,12,12 (#2),13,14,15,16,17 Copies furnished: John Chamblee, Esquire Chamblee, Miles & Grizzard 202 Cardy Street Tampa, FL 33606 Ned N. Julian, Jr., Esquire Stenstrom, McIntosh, Julian Colbert, Whigham & Simmons 200 West First Street Sanford, FL 32772 Robert W. Hughes Superintendent Seminole County School Board 1211 Mellonville Avenue Sanford, FL 32771 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400
The Issue Did Respondent engage in a personal relationship with the student A. H. which involved sexual intercourse and kissing? Did the Respondent also send several notes and cards to A. H. about this alleged relationship? Was the student A. H. a minor at the time that Respondent is alleged to have engaged in these activities? If the facts are true, has Respondent violated various provisions of Section 231.28(1), Florida Statutes, and Rule 6B-1.006, Florida Administrative Code?
Findings Of Fact Respondent holds Florida Teaching Certificate 437177, covering the area of elementary education. The certificate is valid through June 30, 1998. Respondent was not employed as a teacher at times relevant to the inquiry. Respondent did have affiliation with Keystone Heights High School, Keystone Heights, Florida, in the capacity of volunteer trainer for the boys' basketball team in the school year commencing Fall 1990 through Spring 1991. In the calendar years 1990 and 1991 Respondent's primary occupation was as proprietor of a dance studio unaffiliated with public education. A. H. was a student at Respondent's dance studio. He had attended Respondent's dance school since he was in the 4th or 5th grade. A. H. was a freshman at Keystone Heights High School in the 1989-1990 school year, which commenced in the Fall of 1989 and concluded in the Spring of 1990. A. H. was born on April 25, 1975. In addition to A. H.'s association with Respondent's dance school, A. H. was part of the Keystone Heights boys' basketball team during the time that Respondent served as a volunteer trainer for that team, the school year 1990- 1991. In May 1990, Respondent, then 33 years old, and A. H. attended a dance competition. In that competition, Respondent and A. H. were partners. Respondent, A. H., A. H.'s mother, grandmother and two sisters were staying in a hotel in Orlando, Florida while attending the dance competition. The individuals in the party were staying in adjoining rooms. A. H. and Respondent went to one of the rooms to get dressed for the dance competition and to put on makeup. At this time A. H. and Respondent were alone. A. H. was sitting on the bed watching television having already dressed and prepared himself for the competition. Respondent approached A. H. and sat on his lap and they kissed. A. H. describes this activity as a mutual encounter. After the competition in Orlando, A. H. and the Respondent rode home together in the same car. When A. H. and Respondent got back from Orlando, they parked the Respondent's car behind the dance studio which was in a community known as Midway that is halfway between Melrose, Florida and Keystone Heights, Florida. Having parked the car, Respondent and A. H. engaged in what A. H. referred to as "heavy petting." In particular, A. H. fondled Respondent's breasts, and they kissed. Respondent kissed A. H.'s chest and neck. Before A. H. and Respondent stopped and engaged in this activity behind the studio, Respondent had commented on the trip back from Orlando to this effect, "at least you can't get me pregnant." When A. H. and Respondent engaged in their activities behind the studio after the trip back from Orlando, his shirt was off as was the Respondent's top garments. This encounter lasted approximately one hour and a half. During the summer of 1990, Respondent and A. H. made another trip to Orlando for a dance competition. On two separate nights during that trip, Respondent and A. H. engaged in sexual activity other than intercourse. On the morning of Memorial Day 1990 Respondent came to A. H.'s home in Keystone Heights. This rendezvous was arranged through a telephone conversation between A. H. and Respondent. When Respondent arrived at A. H.'s home he was alone. A. H. and Respondent went to A. H.'s room and engaged in sexual intercourse while in a state of undress. They then showered together and had sexual intercourse a second time. A. H. had never engaged in sexual intercourse before this date. Between Memorial Day 1990 and February 1991, Respondent and A. H. engaged in sexual intercourse approximately 30 times. In addition to having sex in A. H.'s home; they had sex at a duplex apartment in Keystone Heights that was owned by A. H.'s father; they had sex in a car that belonged to Respondent's mother-in-law; they had sex at Respondent's home; they had sex in a guest house on the same property as Respondent's home; and, they had sex at the dance studio. The rendezvous between A. H. and Respondent for purposes of the sexual encounters were clandestine. A. H. was unaware if he and the Respondent were seen or suspected of engaging in their activities. During the course of their relationship, Respondent mentioned marriage to A. H., but A. H. would not discuss marriage with the Respondent. Respondent told A. H. that when he reached the age of 18 that the Respondent and A. H. would run away together and she would work and put A. H. through school. A. H. stated that his reaction to that comment was "I was scared." He remarked about his response to her comments, "just for the time, you know, I'd agree with her, 'Yeah, sure. That's nice.' and try to blow it off and get to the next subject." During their relationship A. H. voluntarily and willingly participated in those pursuits. During the relationship, Respondent wrote notes to A. H. about her feelings for A. H., the details of which were not established at hearing through competent evidence so that facts might be found concerning the contents of those notes. During the relationship between A. H. and the Respondent, Respondent told A. H. that she loved him. Eventually the relationship was concluded by A. H., who states "I broke it off, I just--I couldn't take that much pressure. So I just told her I didn't want to continue the relationship." That decision to conclude the relationship was made in February 1991. At that time A. H. was a sophomore in high school. By virtue of comments made to his friends and acquaintances, it may be inferred that A. H.'s parents found out about his relationship with Respondent. That discovery was made on April 16, 1991. The circumstances involving A. H.'s decision to conclude the relationship in February 1991, the consequences of his parent's discovery in April 1991 and the overall relationship between A. H. and the Respondent were not shown to have left A. H. in a condition that was harmful to his mental or physical health or such that the events constituted harm to his ability to learn as a student, or found to cause A. H. unnecessary embarrassment or disparagement or were they matters which affected his safety.
Recommendation Based upon the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered finding the Respondent in violation of Counts I, III and VI; that dismisses Counts II, IV and V; and that revokes Respondent's teaching certificate for a period of 5 years. DONE and ENTERED this 20th day of February, 1995, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1995. APPENDIX The following discussion is given concerning the proposed findings of fact of the parties. Petitioner's Facts: Paragraphs 1 through 8 are subordinate to the facts found. Paragraph 9 is rejected in that it does not completely describe the reaction by A. H. Moreover, a finding concerning his reaction is not necessary to the resolution of the dispute. Paragraphs 10 through 12 are subordinate to the facts found. Paragraph 13 is not necessary to the resolution of the dispute. Paragraphs 14 through 16 are subordinate to the facts found. Paragraph 17 is not necessary to the resolution of the dispute. Paragraphs 18 and 19 are subordinate to the facts found. Paragraph 20 is contrary to the facts found. Paragraph 21 is not necessary to the resolution of the dispute. Paragraph 22 is subordinate to the facts found. Paragraph 23 is not necessary to the resolution of the dispute. Paragraph 24 is subordinate to the facts found. Paragraphs 25 through 32 are not necessary to the resolution of the dispute. Paragraph 33 is subordinate to the facts found. Respondent's Facts: Paragraphs 1 through 6 are subordinate to the facts found. Paragraphs 7 and 8 are not necessary to the resolution of the dispute. Paragraph 9 is subordinate to the facts found. Paragraphs 10 and 11 are not necessary to the resolution of the dispute. Paragraphs 12 through 82 constitute recitation of testimony, legal argument and some suggested fact finding which is intended to exonerate Respondent. These paragraphs are rejected as contrary to the facts found. Paragraphs 83 through 86 are subordinate to the facts found. Respondent's proposed fact discussion concerning the alibi for Memorial Day 1990 is rejected in that it has been determined that the sexual encounter between the Respondent and A. H. occurred before her trip to Jacksonville, Florida on that date. COPIES FURNISHED: Robert J. Boyd, Esquire 2121 Killearney Way, Suite G Tallahassee, Florida 32308 Ronald G. Meyer, Esquire Meyer and Brooks, P.A. 244 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent, Franklin Lewis, inappropriately touched a student, and, if so, whether this misconduct violates Section 1012.33, Florida Statutes (2004),1/ and Florida Administrative Code Rules 6B-1.001 and 6B-4.009 and constitutes "just cause" for Respondent's dismissal.
Findings Of Fact Respondent has been employed by Petitioner as an instructional employee since August 20, 1996. At the time of his suspension, he taught reading and was the wrestling coach at Dunbar High School (Dunbar) in Fort Myers. Respondent is a member of the collective bargaining unit for instructional personnel. His employment is subject to the terms and conditions of the written agreement between Petitioner and the Teachers Association of Lee County. Prior to the February 7, 2005, incident2/ that is the subject of this case, Respondent was a well-liked and respected person that many students looked up to and turned to for help and support. Respondent is 43 years old. He is divorced and the father of four children. S.W. is 18 years old. He was a student at Dunbar and graduated in 2005. He was a member of the wrestling team during his sophomore, junior, and senior years at Dunbar. Prior to joining the wrestling team, S.W. was in a combined geography/history class taught by Respondent. Respondent encouraged S.W. to join the wrestling team because other students "called him a woman and stuff like that." Respondent believed that if S.W. joined the wrestling team, he would gain the respect of other students because they would know S.W. could defend himself. Mr. Dukes also encouraged S.W. to join the wrestling team. During the wrestling season, October through February, the team practiced every day after school until 5:15 p.m. or 5:30 p.m. Respondent and Mr. Dukes often gave students a ride home after wrestling practices. During the 2004-2005 school year, Respondent usually drove S.W. home after wrestling practices. Early in 2005, S.W. told Respondent that he was interested in becoming a massage therapist, but he did not want other students to know. Respondent agreed not to tell anyone. According to Respondent, he has chronic neck pain from an old injury and wanted to give S.W. an opportunity to practice massage. Respondent suggested that S.W. give Respondent massages, and Respondent would pay S.W. $20 for each massage. S.W. gave Respondent two or three massages before February 7, 2005, and Respondent paid S.W. for them. All the massages took place at Respondent's house. The record does not indicate in what room the earlier massages took place, but a reasonable inference from the record evidence is that the massages always took place in Respondent's bedroom. Respondent stated that during the massages, the door to the room was usually closed. S.W. owed money to Respondent. Although the size of the debt was disputed, S.W. was indebted to Respondent for money Respondent spent on food and drinks for S.W. At S.W.'s request, Respondent occasionally purchased food and drinks for S.W. at convenience stores when Respondent was driving S.W. home from wrestling practices. Sometimes Respondent gave money to S.W. to buy food and drinks on his own. Respondent gave or loaned money to other students. Mr. Dukes also gave small amounts of money to students from time to time, but he never asked to be paid back. Monday, February 7, 2005 On February 7, 2005, following wrestling practice, Respondent drove S.W. and two other members of the team, J.M. and P.L., to an apartment complex where Mr. Dukes lived. They went there to use the complex's sauna for the purpose of "sweating off" weight. Wrestlers compete in weight classifications, and it is important to a wrestler to keep his weight within the classification that is considered optimum for him. Following their use of the sauna, the three students got back in Respondent's car to be taken home. Respondent first dropped off P.L. at P.L.'s house and then dropped off J.M. at J.M.'s church. At S.W.'s urging, Respondent drove back to Dunbar so S.W. could use the scale at the school to check his weight. After S.W. checked his weight, Respondent and S.W. drove to Respondent's house. According to Respondent, they went to his house because S.W. wanted to give him a massage to "pay off" S.W.'s debt to Respondent. S.W. says Respondent suggested the massage. When Respondent and S.W. arrived at Respondent's house, Respondent's 10-year-old daughter and adult sister were in the house. Respondent and S.W. went into Respondent's bedroom. At first, the door to the bedroom remained open. They watched a video of Respondent competing in a wrestling match when he was in high school. When the video ended, Respondent closed the bedroom door. Respondent took off his shirt and lay on the bed to get a massage from S.W. According to Respondent, he was lying on his stomach with his head on a pillow at the bottom of the bed. S.W. was sitting on the bed, at Respondent's right side, with his feet on the floor. S.W. began to massage Respondent's shoulders. According to Respondent, his head was on the pillow at the beginning of the massage; but in order to see what S.W. was referring to on the video that was playing on the television located to Respondent's front and right, Respondent raised his head and held it in his right hand, propped up by his right elbow. Respondent said his body was also twisted to the right. It was from this position that Respondent claims his head accidentally slipped from his hand and landed in S.W.'s lap or on S.W.'s leg. Petitioner claims that, if Respondent's description of the relative positions of Respondent and S.W. on the bed were true, it would have been physically impossible for Respondent's head to have slipped from his hand and fallen against S.W.'s leg. The evidence is not sufficient to support a finding that it would have been impossible. The improbability of such an occurrence, however, is a factor that contributes to the overall finding that Respondent's account of the incident lacks credibility. According to Respondent, when his head slipped and fell against S.W.'s leg or lap, no part of his hands ever touched S.W. in "his private area." S.W.'s account of the incident in the bedroom is much different. He testified that during the massage, they were not watching a video. Respondent had his head in S.W.'s lap. As S.W. was massaging Respondent's shoulders, Respondent pulled S.W.'s pants outward. S.W. said that he "felt lips on [his] stomach." Then, he felt Respondent's hand go into his pants and touch the "top of [his] penis" and pubic hair. S.W. explained that he was referring to the base of his penis, where it attaches to his abdomen. Respondent and S.W. agree that S.W. pushed Respondent away, and S.W. asked Respondent to take him home. According to Respondent, he told S.W. it was an accident and that he was sorry. S.W. said he walked out of the bedroom and looked back to see Respondent with "his head down shaking it like when, you know, you can't believe you did something." While he was waiting for Respondent to put his shirt back on and take him home, S.W. stood for a few minutes near a pool table where Respondent's sister and daughter were playing pool. Respondent's sister, Marjorie Lewis, M.D., testified that S.W. looked "very calm." According to S.W., during the short drive to his house, Respondent "told me he was sorry, that this never happened before, and he didn't know what got into him." Tuesday, February 8, 2005 The next morning, S.W. got a ride to school from his friend and fellow Dunbar student, M.G. S.W. told M.G. that he was quitting the wrestling team, and M.G. pressed S.W. for the reason. According to M.G., S.W. told him that he was giving Respondent a massage when Respondent placed his head in S.W.'s lap and then put his hand in S.W.'s "pubic area." S.W. told M.G. he shoved Respondent away, and Respondent sat on the bed with his head in his hands, as if "he was ashamed of himself." S.W. did not tell M.G. that Respondent kissed his stomach. At the hearing, S.W. said he told M.G. that Respondent "started to pull his [S.W.'s] pants down," reached into his pubic area, and "tried" to grab his penis. In explaining why he told M.G. that Respondent "tried" to touch his penis, S.W. said he meant that Respondent only touched the top of his penis, but did not grab all of it. Other statements made by S.W. that Respondent "grabbed my penis," are not inconsistencies that show S.W. lacks credibility. In this case, the inconsistencies simply reflect the imprecision that is common when the circumstances of an event are repeated several times to both friends and strangers. S.W. was a credible witness, and he showed no doubt that Respondent touched his penis. When S.W. and M.G. got to Dunbar, M.G. accompanied S.W., at S.W.'s request, to Respondent's classroom to get some things belonging to S.W. Respondent was in the classroom, and M.G. approached and talked to him. M.G. and Respondent knew each other because M.G. had been on the wrestling team. During their conversation, Respondent never made eye contact with M.G., but kept his eyes on his computer screen. According to M.G., that was unusual behavior for Respondent. Later that same day, M.G. repeated what S.W. told him to S.W.'s friend and wrestling teammate, J.M. J.M. testified that M.G. told him that Respondent made S.W. give him a massage and Respondent "tried to touch his penis." J.M. talked to S.W. in the school cafeteria a short time later. S.W. said he quit the wrestling team because of what happened the day before at Respondent's house and that S.W. felt "degraded" and "like a four-year-old." J.M. testified that S.W. told him Respondent locked the bedroom door, "tried to reach into [S.W.'s] pants, like touching his pubic area." S.W. did not tell J.M. that Respondent kissed his stomach. Sometime during the school day, Respondent saw S.W. and urged him not to quit the wrestling team. According to Respondent, S.W. told Respondent he was not quitting the team because of the incident at Respondent's house, but because of other "personal reasons." Later that day, Respondent telephoned S.W. According to Respondent, he called to tell S.W. that S.W. was mistaken about Respondent's head hitting S.W.'s lap, that his head only hit S.W.'s leg. According to S.W., Respondent asked S.W. to keep the incident a secret and "he'd do anything." Respondent admits that he told S.W. during this telephone conversation not to report the incident, but did so "because I thought it was silly." Wednesday, February 9, 2005 The next evening, S.W. called Laurie Beaudry, his Big Sister from the Big Brother/Big Sister Program and told her he was quitting the wrestling team. According to Ms. Beaudry, S.W. told her of an "inappropriate touching" incident. Because he was upset, Ms. Beaudry offered to pick him up so they could talk. She picked S.W. up and returned to her house. On the way to pick up S.W., Ms. Beaudry called Respondent on her cellular telephone and asked Respondent whether he knew why S.W. was upset and wanted to quit the wrestling team. Respondent told her he did not know. After S.W. and Ms. Beaudry arrived at her house, S.W. told her that on Monday he was giving Respondent a massage, "then Mr. Lewis was kissing on his stomach, and then he pulled his pants and grabbed his thing." Later that evening, Respondent telephoned J.M. Respondent and J.M. had a close relationship, and J.M. said he thought of Respondent as a big brother. Respondent asked J.M. what S.W. was telling people about the incident. J.M. asked Respondent to tell his side of the story first. Respondent admitted at the hearing that what he then told J.M. was a lie. He told J.M. that he and S.W. had been practicing a wrestling move, and S.W. got upset when his pants came down. Respondent claims that what he described to J.M. actually happened at Dunbar, a week earlier. According to Respondent, J.M. told him S.W.'s account of the incident was that Respondent made S.W. give him a massage, and Respondent's head fell in S.W.'s lap. According to J.M., he told Respondent that S.W. accused Respondent of trying to touch S.W. in his pubic area. Respondent denies that J.M. said anything about S.W.'s accusing Respondent of touching S.W.'s "private area." According to J.M., he told Respondent he did not believe Respondent's account of the incident. Respondent began to cry during their telephone conversation and said, "this can't get out" and "this could ruin my life." Respondent asked J.M. to tell S.W. that Respondent would "do anything," such as leave Dunbar or the wrestling team, if S.W. did not report the incident. Respondent denies that he cried or made these statements to J.M. Immediately following his telephone conversation with Respondent, J.M. called Mr. Dukes to discuss the incident. Based on what J.M. told him, Mr. Dukes understood S.W.'s story to be that Respondent fondled S.W. J.M told Mr. Dukes he was also going to quit the wrestling team because of the incident. Shortly after the conversation between Mr. Dukes and J.M., Respondent and Mr. Dukes talked by telephone. Respondent denied J.M.'s account of the incident. Respondent admitted at the hearing that he told Mr. Dukes the same lie he told J.M., that he and S.W. had been practicing a wrestling move and S.W. got upset when his pants "came down" and Respondent's head "went towards his crotch." Respondent asked Mr. Dukes to accompany Respondent to Ms. Beaudry's house to see S.W. and "get to the bottom of what was going on." Respondent knew S.W. was at Ms. Beaudry's house because he had called for S.W. at S.W.'s house and had spoken to S.W.'s foster mother. During the drive to Ms. Beaudry's house, Respondent and Mr. Dukes discussed the allegations made by S.W. According to Mr. Dukes, Respondent said, "S.W.'s story is true." Mr. Dukes became upset and Respondent said "he didn't blame [Mr. Dukes] for being mad at him." Respondent denies that he told Mr. Dukes that S.W.'s account of the incident was true. When Respondent and Mr. Dukes arrived at Ms. Beaudry's house, Mr. Dukes suggested that Respondent remain in the car. Inside the house, Mr. Dukes talked with S.W. who was upset and did not want to see Respondent. According to Mr. Dukes, S.W. told him Respondent touched "his private area." At some point, Ms. Beaudry said she wanted to speak to Respondent, and Respondent was asked to come into the house. S.W. went into a bedroom, and S.W. and Respondent did not see or speak to each other. During the discussion between Respondent and Ms. Beaudry, Respondent began crying. Respondent says he was crying because he was thinking about how his children would be harassed when the matter got into the newspaper. According to Mr. Dukes, when Ms. Beaudry confronted Respondent with S.W.'s accusation that Respondent "grabbed his penis," Respondent's reaction was "mournful." Respondent "said he was sorry, you know, and he don't know why it happened and this has never happened before and things like that." According to Ms. Beaudry, Respondent sat in a chair, held his head in his hands, and rocked back and forth crying and saying, "I'm sorry. I'm sorry. Is [S.W.] OK? Is [S.W.] OK?" Respondent did not deny S.W.'s account of the incident or offer Ms. Beaudry a different account of the incident. Respondent asked Ms. Beaudry and Mr. Dukes not to report the incident and said, "I'll do anything. I'll move. I'll leave the school or whatever." About 11:30 that evening, after Respondent returned home, he told his sister, Dr. Lewis, that there had been a "misunderstanding" with S.W. According to Dr. Lewis, Respondent told her "he may have inadvertently touched [S.W.] near his private area." Dr. Lewis noted that Respondent showed signs of depression in the days that followed. Thursday, February 10, 2005 The next day, February 10, 2005, Mr. Dukes reported the incident to an employee in Dunbar's Office of Student Services. From that first contact, a series of contacts were made with Dunbar officials leading to a formal investigation and Petitioner's initiation of these termination proceedings against Respondent. Sometime that same day, Dr. Lewis called Ms. Beaudry to ask how S.W. was doing and to offer counseling to S.W. Ms. Beaudry declined the offer. A reasonable inference can be drawn from Dr. Lewis' offer of counseling for S.W. that she believed his emotional upset was genuine and not contrived. Credibility This is not just a case of S.W.'s word against Respondent's. Respondent's account of the events is also contradicted by J.M. (regarding what J.M. told Respondent about the incident, whether Respondent cried, and whether Respondent asked J.M. to keep the incident a secret) and Mr. Dukes (whether Respondent admitted that S.W. was telling the truth). Furthermore, Respondent admitted that his first explanation of the incident to J.M. and Mr. Dukes was a lie. The record evidence does not explain why S.W. would have become so upset if the only thing that happened was what Respondent claims -- an accidental, brief contact between Respondent's head and S.W.'s leg or lap. S.W. testified that he loved and respected Respondent like a brother or father. Respondent did not deny their close relationship. The record contains no credible evidence to establish a motive for S.W. to destroy his relationship with Respondent and jeopardize Respondent's career as a teacher by falsely accusing him. Respondent removed S.W. as one of the captains of the wrestling team sometime during the 2004-2005 wrestling season for using excessive profanity, but Respondent himself never said he believed this "demotion" was the reason for S.W.'s accusation against him. S.W.'s demotion from captain is not sufficient, standing alone, to support an inference that it caused S.W. to become so angry with Respondent that he fabricated the incident that occurred on February 7, 2005. Moreover, it would not account for the contradictions between Respondent's account of his conversations with J.M. and Mr. Dukes and their account of the same conversations. Respondent had an obvious motive to lie in order to avoid the adverse professional and financial consequences of S.W.'s accusation against him. The more persuasive and credible evidence supports a finding that Respondent's account of the incident is untrue. The truthfulness of S.W.'s account of the incident is corroborated by Respondent's behavior in the days that followed. Respondent exhibited remorse, fear, and shame. This behavior, while not always reliable as proof of guilt, was more consistent with S.W.'s account of the incident than with Respondent's account. Petitioner has met its burden to prove by a preponderance of the evidence its factual allegation that on February 7, 2005, while Respondent was receiving a massage from S.W. in the bedroom of Respondent's home, Respondent reached his hand into S.W.'s pants and touched S.W.'s penis. Ms. Beaudry and Mr. Dukes stated that the incident caused S.W. to become more introverted. Mr. Dukes said S.W. and J.M. performed poorly as wrestlers after the incident. The wrestlers, in general, and S.W., in particular, were teased and picked on by other students when the incident was reported in the news and became public knowledge. Respondent's misconduct undermines the foundation of the relationship between a teacher and his students, and thereby impairs his effectiveness in the Lee County school system. Respondent's dishonesty, which includes some of his testimony under oath in these proceedings, also impairs his effectiveness in the Lee County school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding Respondent, Franklin Lewis', misconduct constitutes "just cause" under Section 1012.33, Florida Statutes (2004), and Florida Administrative Code Rule 6B-4.009 to dismiss him from his employment as a teacher with Petitioner, the Lee County School Board. DONE AND ENTERED this 31st day of October, 2005, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2005.
The Issue The issue is whether the Seminole County School Board has just cause to terminate Respondent's employment or to otherwise discipline him based upon the conduct alleged in the Petition for Termination.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties The School Board is the governing body of the local school district in and for Seminole County, Florida. Respondent is a 48-year-old male. He has been employed as an educational support employee of the School Board for approximately five years. During the 2001-02 school year, Respondent worked at Seminole High School (SHS) as a computer specialist. Collective Bargaining Agreement and SHS Handbook Respondent's employment with the School Board is governed by the collective bargaining agreement between the Seminole Educational Clerical Association, Inc., and the School Board (SECA Agreement). Article VII, Section 5 of the SECA Agreement provides in pertinent part: Regular employees who have been hired for a minimum of three (3) continuous years . . . shall not be disciplined (which shall include reprimands), suspended, or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following providing just cause is present: Violation of School Board Policy. Violation of work rules. * * * Article VIII, Section 1 of the SECA Agreement provides in relevant part that "[e]mployees may be immediately disciplined including termination for serious violation of the following: misconduct; " Respondent's employment is also governed by the SHS Faculty Handbook (SHS Handbook). The SHS Handbook is provided to SHS employees at an orientation session prior to the beginning of each school year. Respondent acknowledged receipt of the SHS Handbook prior to the 2001-02 school year. The SHS Handbook includes a sexual harassment policy which states that the School Board "will not tolerate sexual/racial harassment activity by any of its employees." As it relates to the circumstances of this case, the policy defines sexual harassment as follows: Sexual harassment consists of unwelcome sexual advances, requests for sexual favors and other inappropriate verbal, nonverbal, graphic, written or physical conduct of a sexual nature when: * * * (c) such conduct substantially interferes with . . . [a] student’s academic performance, or creates an intimidating, hostile, or offensive . . . school environment. Sexual harassment, as defined above, may include but is not limited to the following: verbal, nonverbal, graphic, and written harassment or abuse; * * * (c) repeated remarks to a person with sexual or demeaning implications; * * * In determining whether alleged conduct constitutes sexual[] harassment, the totality of the circumstances, the nature of the conduct, and the context in which the alleged conduct occurred will be investigated. . . . . The sexual harassment policy in the SHS Handbook is virtually identical to the School Board's district-wide sexual harassment policy. Thus, a violation of the policy in the SHS Handbook is a violation of School Board policy. Alleged Inappropriate Comments/Conduct by Respondent During the 2001-02 School Year Respondent had four "peer counselors" assigned to him during the 2001-02 school year, including eleventh-grader Nichole Combee. A peer counselor is a student who assists a teacher or other school staff member with designated tasks, such as filing or running errands on campus. The student provides that assistance for one class period per day. Nichole had approached Respondent at some point during the first semester of the 2001-02 school year and asked whether she could be a peer counselor for him. The record does not reflect the process by which that request was processed or approved by the administration at SHS, or even whether such approval is required. Nichole started as a peer counselor for Respondent in January 2002, which is the beginning of the second semester of the 2001-02 school year. Nichole continued in that position through May 23, 2002, when the regular school year ended. Nichole was Respondent's peer counselor during seventh period, which is the last period of the school day. Nichole's primary duty as Respondent's peer counselor was filing computer permission slips. During the time that Nichole was Respondent's peer counselor, she discussed her family troubles and school attendance problems with Respondent and his assistant, Mark Williams. Respondent tried to help Nichole with those problems. On several occasions, he talked to Nichole's mother on the phone in an attempt to help work things out between Nichole and her mother with respect to the "trouble" created at home by Nichole's academic and attendance problems. Nichole also discussed problems that she was having with male students and some male teachers at SHS looking at her large breasts rather than her eyes when they were speaking to her. She told Respondent at the time that he and Mr. Williams always looked her in the eye, and she reaffirmed that statement in her testimony at the hearing. Nichole discussed matters related to her breasts with Respondent on other occasions as well. On at least one occasion, she told Respondent that her breasts caused her back to hurt because of their size. On subsequent occasions when Nichole complained about her back hurting, Respondent replied by saying, "Well, you know why." That comment was intended by Respondent and understood by Nichole to be a reference to Nichole's prior comments that her large breasts were the cause of her back pain. Respondent never told Nichole that she should not discuss her breasts or other personal matters with him. Respondent acknowledged at the hearing that it would have been inappropriate for him to initiate a conversation with Nichole about her breasts (as a source of her back pain or otherwise), but that he did not see anything wrong with the discussions that he had with Nichole on that subject because she brought it up and because there was nothing sexual being implied. After classes had ended on the last day of the 2001-02 school year, a number of students engaged in a "water fight" using water balloons and "water bazookas." This conduct is apparently a "tradition" at SHS. The SHS administration had directed the school staff to try to prevent this conduct and/or to get the students off campus and onto their busses as quickly as possible. Respondent observed a group of students involved in a water fight near his office in the media center, and he went outside to break up the students. The group included Nichole and her friend Natalie Cotto-Caraballo, who was a tenth-grader at SHS. Nichole and Natalie were wearing white tank-top shirts that they had made for the last day of school. The shirts had gotten wet during the water fight and, as a result, the girls' bras were visible through the shirts. Respondent commented to Nichole and Natalie that he could see their bras through their shirts and that they needed to cover themselves up. He then directed the girls and the other students in the group to their buses. Nichole testified that the comment made her feel somewhat uncomfortable because "it's our bras and, you know, even though people see them, usually they don't say anything, you know." Respondent's comment regarding his ability to see the girls' bras was not inappropriate under the circumstances; it was a statement of fact and justified Respondent's direction to the girls to cover themselves up. Nichole did not immediately report the bra comment, either to her parent(s) or the SHS administration. Indeed, the comment did not even come to light until Nichole's second interview with the School Board's investigator in August 2002. Respondent gave Nichole a hug as she was leaving for her bus on the last day of school and told her to have a nice summer. Despite its close proximity in time to the bra comment, Nichole testified that the hug did not make her uncomfortable. She just considered it to be friendly "good bye" hug, which was all that was intended by Respondent. Nichole did not complain about Respondent to her parent(s) or anyone in the SHS administration during the time that she was his peer counselor. Lunch Invitations During Summer School Nichole attended the first session of summer school, which began on June 3, 2002, less than two weeks after the end of the regular school year. The only class that Nichole took during summer school was an English class taught by "Ms. Morris." Nichole was not Respondent's peer counselor during summer school, nor was she working on any school-related project with Respondent during that time. On June 3, 2002, while Respondent and Mr. Williams were in Ms. Morris' class fixing a computer, Respondent asked Nichole if she wanted to go to lunch with him off-campus. Nichole declined the invitation because she was "grounded" and had to pick up her brother from school. Respondent was again in Ms. Morris' class on June 5, 2002, and he again invited Nichole to lunch. Nichole again declined. Respondent did not have permission from Nichole's parent(s) or the SHS administration to take Nichole off-campus. The reason that Respondent invited Nichole to lunch was to thank her for doing a good job as his peer counselor and to congratulate her on deciding to stay in school and attend summer school, which Respondent and Mr. Williams had both counseled her to do. Respondent had taken a former male student off-campus to lunch for the same reasons in the past. Respondent and Nichole were not alone at the time of either invitation. Both invitations occurred in Ms. Morris' classroom, and Ms. Morris and other students were "milling around" in the classroom at the time. At the hearing, Nichole testified that she didn't think anything of the lunch invitations at first since she considered Respondent a "friend." However, she also testified that it "it was a little uncomfortable because he is a teacher." Nichole did not report the lunch invitations to Ms. Morris or to anyone in the SHS administration. Nichole did, however, tell her mother about Respondent's lunch invitations because "she thought she should know." On June 5, 2003, Nichole's mother called the SHS principal, Karen Coleman, and complained about the lunch invitations. Ms. Coleman told Nichole’s mother that she would look into the matter, which she did. The resulting investigation led to this proceeding. Investigation and Preliminary Disciplinary Recommendation Ms. Coleman began the investigation by speaking to Nichole on June 5, 2002. That discussion focused only on the lunch invitations. Nichole provided Ms. Colemen an unsworn written statement regarding the lunch invitations on June 5, 2002. That statement did not include any reference to the "lingerie incident" discussed below or the incidents described above involving the bra comment or the hug that Respondent gave to Nichole on the last day of school. Nichole provided Ms. Coleman another unsworn written statement on June 6, 2002. That statement referenced Respondent's comments about the source of Nichole's back pain, but it did not mention the lingerie incident or the other incidents described above. After speaking with Nichole, Ms. Coleman spoke with Respondent. Respondent admitted that he had invited Nichole to lunch off-campus. He further admitted that he did not have permission from Nichole’s parent(s) to take her off-campus and that he did not obtain permission from the SHS administration. Respondent told Ms. Coleman that he did not realize that such permission was necessary. Respondent had taken a male peer counselor to lunch off-campus in the past without receiving approval from the student's parents or the SHS. After Ms. Coleman's conversations with Nichole and Respondent, she contacted John Reichert, the School Board's director of human resources. Mr. Reichert directed John Byerly, the School Board’s internal affairs investigator, to conduct a formal investigation. Mr. Byerly interviewed Nichole on June 10, 2002, at SHS. Nichole did not mention the lingerie incident, the bra comment, or the hug to Mr. Byerly during that interview. Mr. Byerly also interviewed Respondent and Mr. Williams as part of his investigation. The results of Mr. Byerly's investigation were presented to the Executive Professional Standards Review Committee (Review Committee) on June 27, 2002. Among other functions, the Review Committee is used to make disciplinary recommendations to Mr. Reichert. The Review Committee’s recommendation was characterized at the hearing as "preliminary," and it is apparently not binding on Mr. Reichert when he formulates his recommendations to the Superintendent regarding employee disciplinary actions. The Review Committee recommended that Respondent be suspended for three days and/or be reassigned or transferred to another school. That recommendation was based only upon Respondent’s lunch invitations to Nichole and comments regarding the source of her back pain; it did not take into account the lingerie incident, the bra comment, or the hug because those incidents had not been disclosed by Nichole or Natalie at that point. Mr. Reichert and/or the Superintendent apparently did not accept the Review Committee’s recommendation because the Superintendent's July 26, 2002, letter recommended termination of Respondent's employment. At the hearing, Mr. Reichert testified that the reason for the change in the recommended discipline was the subsequent discovery of the lingerie incident, which he characterized as the "major driving factor" behind the termination recommendation. However, the preponderance of the credible evidence demonstrates that the lingerie incident was not disclosed to School Board staff until after the July 26, 2002, letter. Alleged Gift of Lingerie The lingerie incident was first disclosed by Natalie on August 2, 2002, when she was interviewed by Mr. Byerly.1 Natalie had given an unsworn written statement to Ms. Coleman on that same date, but that statement did not mention the lingerie incident. Based upon the "new information" from Natalie, Mr. Byerly interviewed Nichole again on August 15, 2002. The interview occurred at Lyman High School (LHS), where Nichole had transferred for her senior year.2 After the interview, Mr. Byerly had Nichole prepare a sworn written statement. The statement included the following account of the lingerie incident, which was consistent with Nichole's testimony at the hearing: When I was a peer counselor for Mr. Reeder, I had walked into class on[e] afternoon in 7th period and we were talking and he said ["]oh here I got something for you.["] He handed me a white plastic bag and through the bag I could see a black thing and I knew it was the langera [sic]. I then just put it on the floor and went on with my work. When the bell rang I picked up my belongings including the white plastic bag. When I got on the bus I showed Natalie it. It was a black see[-]through spagatie [sic] strap shirt and black thongs. When I got off the bus I walked home and through [sic] it away. That was the last time anything was ever said about it. Mr. Byerly interviewed Natalie again on August 16, 2002. Natalie's told Mr. Byerly that the lingerie incident occurred "a couple months before the end of the regular school year" and that Nichole showed her the lingerie on the bus. However, the sworn written statement she prepared after the interview indicated that the incident occurred "[a]bout the day before school was over" and that she learned of it "on the bus/car." Nichole told Natalie that the lingerie was from Respondent. Natalie had no independent personal knowledge that it was from him. There were some inconsistencies in Natalie's and Nichole's descriptions of the lingerie, but those inconsistencies were not material. They consistently described the lingerie as having a black see-through top and black panties. Nichole did not report the incident to the SHS administration around the time that it allegedly occurred. Nor did she tell her mother about the incident, even though she considered the lingerie gift to be more inappropriate than the lunch invitations which she did immediately tell her mother about. Nichole testified that she was somewhat embarrassed by the gift and she did not want her mother to think she "led into it." Respondent unequivocally denied that he gave Nichole any lingerie or other clothing, and Nichole's and Natalie's testimony relating to the lingerie incident was not credible. Thus, the School Board failed to prove that Respondent gave Nichole the lingerie. It is undisputed that Respondent never engaged in any type of sexual contact (e.g., kissing, inappropriate touching) with Nichole. Nichole made that point clear in both of her interviews with Mr. Byerly and in her testimony at the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board issue a final order which dismisses the Petition for Termination and provides Respondent the remedial relief that he is entitled under the collective bargaining agreement. DONE AND ORDERED this 17th day of July, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2003.
Findings Of Fact At all times material hereto, the Respondent held Teaching Certificate Number 570975 issued by the State of Florida, Department of Education, covering the area of physical education. At all times material hereto, Respondent was employed by the Palm Beach County School Board and assigned to Santaluces Community High School. Incident to his teaching position at that school, Respondent also was one of the coaches for the male wrestling team and was a weight instructor. During the 1987-88 school year, Gina Marie Finnan attended the Respondent's third period personal fitness class at Santaluces Community High School. During the month of November, 1987, Finnan, then a sophomore born August 30, 1971, became a statistician for the school's wrestling team. As a statistician for the wrestling team, Finnan worked under Respondent and began to accept rides home from him following practice sessions and/or wrestling matches which were conducted either at the high school or at other sites within the community. The first physical encounter between Finnan and Respondent occurred at the conclusion of the Thanksgiving Sock Hop held at the school. Initially, Finnan had obtained possession of the Respondent's keys while they were in the school gym. The Respondent, in an attempt to obtain the return of his keys, made physical contact with her and ultimately ended up seated on the gym floor with his back resting against the bleachers and Finnan seated on his lap. With Finnan sitting on his lap, Respondent then placed his arms around her and kissed her. The only other person then present in the gym was Finnan's friend and classmate, Katherine Coffin. Coffin had been with Finnan for the sock hop and was prepared to proceed to lunch when she observed Respondent and Finnan "playing around" while fighting over Respondent's keys. During this time, several students attempted to enter the gym but were told to leave by Respondent. Respondent then went over and shut the doors to the gym, which caused the doors to automatically lock, thereby preventing anyone from entering the gym. Following this, Respondent and Finnan became silent, so Coffin walked around the bleachers and observed Respondent sitting on the floor with Finnan in front of him with her back to him. Respondent had his arms around Finnan. At that time, Coffin left the gym. Katherine Coffin did not feel that Respondent's conduct at the time was "right" for a teacher. The next time Respondent made physical contact with Finnan was near the end of November following a wrestling match on school grounds. At the time, all the equipment had been secured and the two of them were in the locker room Respondent kissed the student and touched her breasts and buttocks. This was followed by Respondent's offer to drive the student home. The student then called her mother to advise her that she need not come to school to pick her up in that Finnan had found another ride home. In route to the student's residence, Respondent parked his vehicle off the side of the road, and the two began kissing, with the Respondent "feeling" the student's breasts. This incident was followed by five or six other incidents when Finnan would accept rides home from the Respondent, and Respondent would kiss her and feel her breasts and buttocks. Shortly before the Christmas holidays, Finnan was approached by Respondent and advised that his wife would be away for the holidays and the student "should try to maybe stop by and see him and spend more time with him." Finnan solicited the help of another classmate, Robin Freedman, in hopes that she would help provide her with an alibi should the opportunity present itself for her to spend time with Respondent. This help consisted of Robin Freedman providing a "cover" for Finnan by telling Finnan's mother, should she call, that Finnan was there but unavailable to speak with the mother at the time. When Gina Finnan asked her to "cover" for her while she was visiting Respondent, Robin Freedman "didn't know what to say" in response to Gina's request so she went to her own mother for advice. During this time period, Gina Finnan received two letters from Respondent. Both of these letters were destroyed by Finnan, but, before their destruction, at least one of the two letters was shown to Katherine Coffin and to Robin Freedman. The one letter was described as a "fantasy letter" which talked about wanting to have sexual intercourse. Although the letters were not signed except for initials that did not correspond with those of the Respondent or Gina Finnan, Respondent, when questioned by Finnan, related to her that "it was in case anybody found them," and that Finnan was to throw them away.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the teaching certificate of Mark Miele be permanently revoked. DONE and ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida. 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 15th day of February, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-2841 Petitioner's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 16-18 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. The statements contained within the five unnumbered paragraphs of Respondent's proposed recommended order have been rejected as being contrary to the weight of the credible evidence in this cause. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Mark Miele 5350 Rosemarie Avenue North Boynton Beach, Florida 33437 Martin B Schaap, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399
