The Issue The issue for consideration in this hearing is whether Respondent should be dismissed from employment as a non-instructional employee by the School Board of Lake County based on his arrest on February 26, 1989 for sexual battery on a child 12 years old.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Anthony Louis Young, was employed by the Lake County School District as a custodian at Rimes Elementary School. The School Board of Lake County is the agency responsible for the administration of public primary and secondary education in Lake County. Respondent had been employed as custodian at Rimes since 1983. This was a non-instructional position. In addition to his duties as custodian, he also had signed a vandal trailer contract under which he occupied, with his family, free of charge, a house trailer located on the school campus. The trailer and all utilities except telephone were furnished without charge to the Respondent. His obligation was to provide himself with a telephone and to make visual checks of the school buildings from time to time when school was not in session. Mr. Young did not receive any salary under the terms of the trailer contract. On February 13, 1989, Julia Young, Respondent's wife and mother by a different father of Nina Walker, age 12, discovered a pair of bloody underpants belonging to her daughter and became suspicious of the cause. She made an appointment with a doctor at the Public Health Service to have her daughter examined but did not keep it, nor did she provide any urine specimens from her daughter for testing. Finally, on or about February 26, 1989, she asked her daughter about the pants and in response was told, by Nina, that her stepfather, Respondent, had come into her room while Ms. Young was gone and had "messed" with her. Nina did not go into detail at this time, but as a result, that same day Ms. Young called the Sheriff's Office to report Respondent for alleged sexual battery on Nina. She had not discussed the matter with Respondent before making the call. When the Sheriff's Deputies came to her home, she told them the story that Nina had told her about the abuse which had allegedly taken place on a previous date. Ms. Young's report was made to Deputy Pallitto who, upon hearing the story, notified the representative from DHRS and then interviewed Nina. In her statement made to Pallitto, Nina told the following story: Respondent had picked her up at her grandmother's house on February 13, 1989 and taken her home. Instead of dropping her off as he usually did, he came inside, followed her into her room, and began touching her on her breasts and vagina. When Nina stated she would tell her mother, Respondent allegedly said he would tell her that Nina had used profanity. He then reportedly forced her onto the bed and told her to take off her clothes. He went into the living room and put some music on to play and then returned and undressed himself. He put what apparently was a condom on and told Nina to open her legs. He then attempted to insert his penis into her vagina and it hurt. As he was trying to do this, Nina's brother came in the back door and this caused Respondent to get off her and leave the room. Deputy Pallitto asked Nina to write out her statement, which she did. After completing her affidavit, she was taken to a doctor for a physical examination. Based on her oral statement, her affidavit which was consistent therewith, and the conclusion of the doctor that her physical condition was consistent with a penetration of her vagina by something, Respondent was arrested. During the period that Nina was waiting to see the doctor, she was again asked to tell her story and at this point, told much the same story as she had previously told, both orally and in writing. Several days later, on February 28, 1989, Deputy Pallitto was contacted by the Assistant State's Attorney who advised him that earlier that day Nina, along with her mother and grandmother, had come to his office and recanted her previous story. At Pallitto's request, she wrote out another affidavit which, in his opinion, was much more difficult for her to do than had been the original. In her second affidavit, Nina indicated she recanted because Respondent was not guilty of what she had alleged and she did not want to see an innocent man go to prison. In the second affidavit, Nina indicated her first story was a lie and claimed that when she attempted to tell the truth at first, she was pressured to make a statement implicating the Respondent. It was not indicated who "pressured" her. Ms. Williams arrived at Respondent's house trailer while Nina was writing out her original affidavit, and when she read it, found it to be consistent with what she had heard directly from Nina and from her mother. Ms. Williams took Nina to the doctor because she wanted Nina to have a vaginal exam as soon as possible to see if penetration could be determined. After the doctor indicated that Nina's condition was consistent with penetration by something, she took both Nina and Nina's brother and sheltered them for a month. At the end of that period, the boy was returned home, but Nina was sent to stay with an aunt in Ft. Lauderdale at the request of Ms. Young. This was done after Nina had recanted her original accusation, but according to Ms. Williams, this is not at all unusual. Ms. Williams also indicated that Ms. Young had seen love letter type notes written to Respondent by children from the school. These were not presented because, Ms. Young indicates, she tore them up and threw them away. Ms. Williams alleges that Ms. Young indicated in her initial interview that Nina was not the sort of child who would make up stories. In fact, Ms. Williams' investigation, and the testimony of Ms. Witter, one of Nina's teachers who is familiar with Nina's reputation at school, confirms this. At the hearing, however, both Ms. Young and Ms. Walker, the grandmother, indicated Nina is as likely to tell a lie as she is to tell the truth, and though she had not been in disciplinary difficulties at school before, she has been somewhat promiscuous on at least one occasion with a male cousin. The investigator from the Department of Health and Rehabilitative Services who, investigated this matter filed her report indicating the situation as a "confirmed" case of child abuse. Mr. Young was thereafter notified of this classification by letter and did not take any action to contest it. It is the policy of the School Board not to hire individuals who are charged with child abuse and placed in the abuse registry. Even if found innocent of sexual abuse on a minor, an individual would not be hired for a custodial position. Two weeks after Respondent was arrested, the State's Attorney decided not to prosecute and Respondent was released from jail. On the day of his release, a letter advising him that he had been suspended with pay pending a recommendation for disciplinary dismissal by the Board was delivered to him by Mr. Galbraith, the then Assistant Superintendent. This letter advised Respondent he was entitled to an informal conference after the Superintendent had conducted an investigation into the allegations. The investigation was conducted and Respondent requested an informal conference which was scheduled for March 23, 1989. However, before that conference could take place, the Board was advised of a decision of the 5th District Court Of Appeals which afforded Respondent a due process hearing under Chapter 120, Florida Statutes. Respondent was so advised and requested the formal hearing, and as a result, the dismissal action was held in abeyance pending the formal hearing. Before the formal hearing could be held, however, Respondent's one year contract with the Board expired and, though he had been rehired almost automatically every year since he started with the Board in 1983, on this occasion, because of the allegations against him, Mr. Wolf, the Principal at Rimes, declined to offer him a contract for the following year. At about the same time, the Board advised him to vacate the trailer he occupied on campus. Consequently, no disciplinary dismissal has ever been executed. Shortly after his release from jail in March, 1989, Mr. Young left the area and secured alternative employment in Orlando. He has never requested that he be reinstated after the charges against him were dropped. His sole contest of the Board's action is the request for hearing on the dismissal action. While working with the Board, Respondent was paid approximately $520.00 every two weeks. On or about April 1, 1989, he secured work with a firm in Orlando and has been making $6.25 an hour working 50 hours per week, with overtime for all hours over 40. Though Respondent previously claimed he did not want his job back, he now claims he does, but in light of his current income and the fact that he is currently working in an area away from the locus of the incident, it is found that his stated desire for reinstatement is not sincere. Once Respondent was arrested his principal, Mr. Wolf, recommended to the Board that he be dismissed. School Board Policy 4.06(1), dealing with non- instructional personnel, provides that a staff member may be discharged during his term of office for "good and sufficient reasons". Both Mr. Wolf and Mr. Galbraith advised Dr. Sanders that under the circumstances of this case, wherein an employee who deals on a regular basis with young children is arrested for an offense which, as here, involves allegations of sexual misconduct with a child, the interests of the children and the school system would be best served by his dismissal.
Recommendation Based on the foregoing Findings Of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Anthony Louis Young, be awarded back pay for the period from the date the charges against him were dismissed to the end of the 1988 - 1989 school year. RECOMMENDED this 4th day of December, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2620 The following constitutes my specific rulings pursuant to S. 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted in this case. FOR THE PETITIONER: None submitted FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. 6. - 9. Accepted and incorporated herein. Accepted. & 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. - 17. Accepted. Accepted and incorporated herein. Accepted. - 23. Accepted and incorporated herein. 24. & 25. Accepted and incorporated herein. COPIES FURNISHED: Stephen W. Johnson, Esquire 100 West Main Street Leesburg, Florida Dr. Thomas E. Sanders, Superintendent The School Board of Lake County, Florida 34749 201 W. Burleigh Blvd. Tavares, Florida 32778 Harry L. Lamb, Jr., Esquire 312 West 1st Street, Suite 605 Sanford Florida 32771 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
The Issue Whether just cause exists to uphold the dismissal of Tirso Valls ("Respondent") from employment with the Miami-Dade County School Board ("School Board" or "Petitioner").
Findings Of Fact Based on the record and the evidence presented, the undersigned makes the following findings of fact: At all times relevant to this case, Petitioner was charged with the duty to operate, control, and supervise all public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, § 4(b), Florida Constitution, and section 1012.23, Florida Statutes. Respondent was employed as a physical education teacher at Cutler Ridge Elementary School ("CRES"). Respondent first arrived at the school in August 2017 at the start of the 2017/2018 school year. Shortly after his arrival, Respondent began exhibiting odd behavior, which was noticed by the administration and other staff members. The principal, Wright-Mullings, found that it was difficult to communicate with Respondent and he appeared disheveled in his dress and appearance at times. Early in the 2017/2018 school year, fifth-grade students also began complaining about Respondent's behavior. In response, three separate investigations were initiated into Respondent's conduct based on specific reports by several students. The first concerned allegations that Respondent was making insulting comments, screaming, and poking students; the second concerned Respondent allegedly snatching a jump rope from a female student, injuring her hand; and the third allegation concerned Respondent referring to a female student in a demeaning manner and calling her derogatory names. Pet. Exs. 3-5. These allegations gave the principal cause for concern because she wanted students and their parents to feel comfortable with teachers at the school. She also felt that these allegations raised safety concerns. After investigation by the school police, probable cause for three separate violations of School Board Policy 3210, Standards of Ethical Conduct, were found.2/ Taking exception to the investigative results, Respondent requested that a supplemental investigation be conducted. This was done. However, the outcomes of the initial investigations did not change. Pet. Exs. 6 and 7. Respondent was not formally disciplined for the allegations or findings made in these investigations, since the disciplinary process was never fully completed. However, as a result of these investigations, Respondent was removed from CRES and placed in an alternative assignment at the regional office on September 1, 2017, followed by placement at the District's Federal and State Compliance Office on September 19, 2017. The principal remained concerned that despite completion of the three investigations and disciplinary process, the safety of the students could still be in jeopardy if Respondent returned to the school. Suffice it to say, that in addition to these three investigations, multiple and repeated instances of odd and bizarre behavior by Respondent occurred at school and around the students he was charged to protect and educate. These are outlined in detail in Petitioner's Exhibit 14. They occurred primarily from August 18 through September 1, 2017. Some of the odd and abnormal behavior by Respondent was witnessed by the principal herself. Other behavior was reported by staff members and supplemented or explained what the principal had seen. For several months, and during the course of the investigations, the principal had expressed her ongoing concerns about Respondent to Pina, district director of the Office of Professional Standards. They also discussed the need to refer Respondent for a medical fitness for duty evaluation. Pina shared the principal's concerns regarding Respondent's odd behavior and conduct. This was based, in part, on her own observations of Respondent. She too was concerned for the safety of the students. When Pina brought the results of the investigations regarding Respondent before the Disciplinary Review Team for review and action, it was decided that discipline would be deferred while the School Board proceeded with a fitness for duty evaluation of Respondent. Pina instructed the principal to monitor and record Respondent's behaviors and maintain the results in writing. Wright-Mullings contacted her staff and had some of them write statements regarding their observations of Respondent. Pet. Exs. 10-13. Wright-Mullings compiled her own written summary containing her observations of Respondent's conduct, as well as conduct and actions by Respondent that her staff had observed and reported. Pet. Ex. 14. These observations by her and the staff included, among other things, Respondent's inability to understand directives and to communicate; repeatedly asking the same questions or asking for clarity on points made to him; the inability to understand sample lesson plans; a disheveled appearance that included holes in his shirts and body odor; suppressed anger when questioned about uncompleted tasks; illogical explanations concerning his actions; a nervous laugh; odd facial expressions; staring blankly at coworkers; speaking very close to people in their personal space and becoming agitated. These behaviors and the incidents giving rise to the investigations were carefully evaluated, weighed, and considered by Wright-Mullings. They gave the principal reasonable cause for concern, and she was uneasy with the prospect of Respondent coming back to work at CRES. Other teachers and staff members at CRES also expressed discomfort regarding Respondent's odd and abnormal behaviors.3/ Pursuant to School Board Policy 3161--Fitness for Duty--and Article XXI, Section (2)(F), of the Collective Bargaining Agreement between the United Teachers of Dade Labor Union and the School Board ("UTD Contract"), Pina held a Conference for the Record ("CFR") with Respondent on April 11, 2018, to address concerns about his fitness for duty. Pet. Ex. 19. At the conference, Respondent was advised of the troubling nature of his behavior and conduct, and the need of the School Board to do a fitness for duty evaluation of him. Pet. Ex. 19. On April 16, 2018, Respondent was again advised of the basis for a fitness for duty evaluation in writing. He signed a release to have the results of that evaluation sent to Pina. Pet. Exs. 16 and 17. As permitted by School Board policy, Respondent reviewed and selected a licensed psychologist from a list provided to him. Thereafter, a request for an evaluation of Respondent was sent to the doctor he selected, Dr. Theodora "Teddy" Tarr, on April 17, 2018. Pet. Exs. 18 and 19. Dr. Tarr had two clinical sessions with Respondent. She also reviewed Respondent's work history at Miami-Dade County, as well as Respondent's prior written responses to the complaints at the elementary school. Respondent also completed an intake form and a self-inventory on certain issues that were of concern to the doctor, both of which were reviewed and considered by her. Pet. Ex. 20, p. 57. After an examination and testing of Respondent, Dr. Tarr prepared a confidential assessment report. In essence, her report concluded that Respondent was not fit for duty as a teacher. More specifically, the report from Dr. Tarr stated: Refer Mr. T.V. for therapy. He needs social skill training and further assessment. He is incapable or unwilling to correct negative behaviors evidencing poor communication skills for self-control. It is not advisable he return to a teaching environment without identifying inappropriate behaviors and correct boundary, communication and social skill issues. Mr. T.V. is not qualified to return to his position in the MDC School System due to poor insight, poor boundaries, difficulty communicating, and confusing body language. (Emphasis added). Pet. Ex. 20, p. 57. Dr. Tarr provided the report to Pina. Subsequently, Pina held another conference with Respondent on April 30, 2018. At the conference, it was explained to Respondent that he had the option to seek a second fitness medical opinion pursuant to the UTD Contract, and that he could take a medical leave of absence, resign, or retire. Pet. Ex. 21. Respondent was required to give Pina his decision by May 3, 2018. Respondent gave no response by the May 3, 2018, deadline. He also never sought a second medical opinion despite having the rest of the school year and summer months to do so. On August 1, 2018, Pina held another meeting with Respondent and advised him that since he had not exercised any of the options available to him, and based on the doctor's report and his conduct and actions to date, the School Board would be dismissing him at the School Board meeting of August 15, 2018. Pet. Exs. 22 and 23. On August 16, 2018, Respondent was sent a final memorandum informing him that he had been dismissed by the School Board. Pet. Ex. 25.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Miami-Dade County School Board upholding Tirso Valls' dismissal from employment with the School Board. DONE AND ENTERED this 12th day of March, 2019, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2019.
The Issue The issue in the case is whether the Orange County School Board (Petitioner) had just cause for termination of the employment of Michele O'Neill (Respondent).
Findings Of Fact At all times material to this case, the Respondent was employed under a professional services contract by the Petitioner as a classroom teacher at Lakemont Elementary School, a unit of the Orange County Public School System. At all times material to this case, Dr. Susan Stephens was the principal of Lakemont Elementary School. The Petitioner has adopted a "Drug-Free Workplace" policy (the Policy) that in relevant part provides as follows: No employee shall use, possess, manufacture, distribute, or be under the influence of controlled substances or alcohol while on duty or on school board property, except when he/she is using a controlled substance in conformance with the instructions of a physician. The Policy provides for "Reasonable Suspicion testing" and provides that such tests may be performed "based on a belief that an employee is using or has used alcohol or drugs" in violation of the Policy, and further provides as follows: Reasonable suspicion testing must be based on specific, contemporaneous documented objective and articulable observations and circumstances which are consistent with the long and short term effects of alcohol or substance abuse; including, but not limited to, physical signs and symptoms, appearance, behavior, speech and/or odor on the person. Supervisors who have Reasonable Suspicion that an employee may be under the influence while on duty are required to immediately direct the employee to submit to testing as provided for by the board. Reasonable Suspicion shall be in accordance with training provided to managers, and will require confirmation by two trained managers. One of the two managers may include the supervisor, if trained. A refusal to submit to testing will result in a recommendation to terminate the employee. The Policy includes an "observation checklist" of characteristics indicative of potential alcohol or controlled substance use, which "includes, but is not limited to" slurred speech, confusion/disorientation, odor of alcohol on breath or person, rapid/continuous eye movement or an inability to focus, and improper job performance and/or violation of authority. Dr. Stephens has received training in "Reasonable Suspicion" observations. During the 2002-2003 school year, the Respondent was seriously injured in an automobile crash that required an extended absence from the classroom. She eventually returned to teaching about a year later, but continued to suffer the after- effects of the injuries, including an altered and uneven manner of walking. For the vast majority of the Respondent's employment with the Petitioner, her performance has been evaluated as "effective," and she was regarded as a good teacher. There is some evidence that, after the Respondent's post-accident return to teaching, there were concerns related to the Respondent's job performance. A letter from Dr. Stephens to the Respondent dated February 25, 2005, specifically addressed a number of issues, including collaboration with co-workers, anger management, and focusing on academic instruction during classroom time. Also subsequent to the Respondent's return to the classroom, a small number of parents whose children were being taught by the Respondent expressed various concerns about the education the students were receiving. For various reasons, some parents asked that their children be transferred to the classrooms of other teachers. Late in the school day on Friday, September 30, 2005, a parent contacted Dr. Stephens and reported that during a classroom meeting with the Respondent, the parent detected the odor of alcohol on the Respondent. The parent asked that the child be transferred to another teacher's classroom. Dr. Stephens attempted to locate the Respondent at that time, but the school day was finished and the Respondent had apparently left the campus. On Monday, October 3, 2005, Dr. Stephens came to the Respondent's classroom to discuss the requested transfer, and during the meeting, Dr. Stephens detected the odor of alcohol emanating from the Respondent. Dr. Stephens returned to her office and asked the school's assistant principal, Randall Hart, to go to the Respondent's classroom and talk to her. He did so and then returned to Dr. Stephens' office where he reported to her that the Respondent smelled of alcohol. Dr. Stephens contacted the Petitioner's Employee Relations department to inquire as to how to proceed, and was provided the names of several school board personnel who had received training in "Reasonable Suspicion" observations. From the names provided to Dr. Stephens, she contacted Dr. Suzanne Ackley, principal of Brookshire Elementary School in Winter Park, and asked her to come to Lakemont Elementary School and observe a teacher for indications of being under the influence. Dr. Ackley arrived shortly after being contacted by Dr. Stephens. Dr. Stephens and Dr. Ackley went to the Respondent's classroom and met with the Respondent. No students were present in the room at the time. Dr. Stephens identified Dr. Ackley as the principal of Brookshire Elementary. Dr. Ackley engaged the Respondent in a conversation about curriculum issues. During the meeting, Dr. Ackley detected the odor of alcohol emanating from the Respondent, and believed that the Respondent's speech sounded "slurred." After meeting the Respondent, Dr. Ackley and Dr. Stephens returned to the school office. Dr. Ackley told Dr. Stephens that she had detected the odor of alcohol while talking to the Respondent. Dr. Ackley then left the Lakemont campus. Shortly after Dr. Ackley departed, and in accordance with the Policy, Dr. Stephens informed the Respondent that there was concern related to possible alcohol use. Dr. Stephens ordered the Respondent to accompany her to a facility used by the school board for alcohol and controlled substance testing. Although the Respondent initially agreed to accompany Dr. Stephens to the facility and to submit to the test, within a few minutes, the Respondent changed her mind and refused to travel with the principal to the testing facility. The Respondent stated that she wanted to go home prior to going to the testing facility, ostensibly to retrieve some prescription medications that she wanted to take to the facility. The Respondent testified that she had not been using alcohol on October 3, 2005. She offered vague testimony about an immaterial personal matter, the import of which was that the Respondent went to an emergency room on October 1, 2005, where she received prescriptions for medications including Flexeril, a muscle relaxant. She asserted that she did not refuse to submit to the test, but that she merely wanted to drive herself home to retrieve the prescription medications prior to continuing on to the drug testing facility, to establish that the behaviors exhibited were related to the use of the medications prescribed at the hospital. The Respondent's testimony is not credible and is rejected. The Respondent offered the expert testimony of Dr. Rahn Shaw, who opined that the prescribed medications could have accounted for some of the Respondent's physical presentation on October 3, 2005; however, there is no evidence that use of the referenced medications could create an odor of alcohol on or about a person taking the medications. Dr. Stephens declined to permit the Respondent to go home before submitting to the test, and continued in attempting to convince the Respondent to accompany her to the testing facility. Dr. Stephens specifically and repeatedly advised the Respondent that failure to comply with the request would jeopardize the Respondent's employment status, but the Respondent refused to comply. The Respondent decided to leave the school grounds. She went to her car and began to drive the vehicle from the campus, but did not get far from her parking space. The Respondent was prevented from doing so by the school's D.A.R.E. officer, who arrived after being contacted by school personnel concerned about the Respondent's ability to operate the vehicle. The D.A.R.E. officer is also a uniformed police officer. The officer testified that she eventually persuaded the Respondent to exit the vehicle and escorted her to an office in the school where students, who were passing in the vicinity, would not see the Respondent. The officer further testified that Respondent smelled of alcohol at the time the officer intervened in the situation. The Respondent insisted that she was not under the influence of alcohol, and in response, the officer performed a gaze nystagmus test and a "finger-to-nose" test, after which the officer concluded that the Respondent was not capable of driving herself home. Several of the Petitioner's witnesses testified that they were concerned about the Respondent's ability to transport herself home in her personal vehicle. The refusal to permit the Respondent to transport herself to her home or to the testing facility was clearly reasonable based on the observations of the Respondent's behavior. It should also be noted that Dr. Shaw testified that persons using Flexeril "shouldn't be driving or operating machinery because it makes everybody I know drowsy and lethargic" and that "you could qualify for a DUI in this state by taking that medicine and driving most of the time." A cab was called, and the Respondent was taken home in the cab on October 3, 2005. Prior to leaving the campus, Dr. Stephens again attempted to convince the Respondent to submit to the testing and advised that the Respondent's employment was in jeopardy, but to no avail. Dr. Stephens had been in communication with the Employee Relations department during the incident, and had been told to direct the Respondent to contact the Employee Relations department on Tuesday, October 4th, if she chose not to comply with the testing directive. After determining that the Respondent would not comply with the directive and prior to the Petitioner's departure from the school grounds on October 3rd, Dr. Stephens instructed the Respondent to contact the Employee Relations department on the next day. The Respondent later returned to the school grounds and retrieved her vehicle. The Respondent failed to contact the Employee Relations department on October 4, 2005. At the close of that day, and after the Respondent had failed to make contact, Shonda Von Schriltz, senior manager for the Petitioner's Employee Relations department, sent two letters by express mail to the Respondent. The first letter gave notice of a meeting scheduled for October 10, 2005, to discuss the incident. The second letter advised that the Respondent would be placed on "Relief of Duty" with pay, and that the Respondent was required to remain available to school personnel during school hours while on the paid relief period. Attempts to deliver the letters apparently failed for reasons that are unclear. In any event, there was no communication between the Respondent and the Petitioner until October 13, 2005. On that date, a predetermination conference, which was arranged based on an October 12, 2005, request from a teacher's union representative, was held. During the meeting, at which Ms. Von Schriltz was present, the Respondent denied that she had used alcohol on October 3, 2005, or that she had been requested to submit to testing. She had no recollection of having been told anything by Dr. Stephens, and was unable to offer a rationale for leaving campus early on October 3rd. During the October 13th meeting, the Respondent was directed to maintain contact with the Employee Relations department, but after the meeting ended, there was no contact until November 8, 2005, when the Respondent answered one of several telephone calls that had been placed to her number by Ms. Von Schriltz. During the November 8th conversation, the Respondent had no recollection of Ms. Von Schriltz or of the October 13th meeting, and instructed Ms. Von Schriltz to contact the Respondent's legal counsel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of Michele O'Neill. DONE AND ENTERED this 16th day of June, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 16th day of June, 2006. COPIES FURNISHED: Joseph Egan, Jr., Esquire Egan, Lev & Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802-2231 Elizabeth F. Swanson, Esquire Egan, Lev and Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802-2231 Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue At issue is whether the Respondent committed the offenses set forth in the Administrative Complaint dated July 30, 2002, and if so, whether his employment should be terminated.
Findings Of Fact Mocombe has been employed by the School Board as a social studies teacher since 1997, when he graduated from Florida Atlantic University. He began his career substitute teaching at Sunrise Middle School (Sunrise), and later moved into a full-time position at Lauderhill Middle School (Lauderhill). In the years following graduation, while working as a teacher, Mocombe continued his studies at Florida Atlantic University and attained a master's degree and a Ph.D. He also received three formal reprimands, and a reputation as a person who could engage in adolescent behavior toward peers and insubordinate behavior to his principal without suffering any meaningful consequence. Mocombe calls himself a brilliant teacher, whose teaching philosophy is informed by his belief that "Revolution comes first. I'm a Marxist." Also a high priority for Mocombe is hedonism. Mocombe is known at Lauderhill as a "player," a term defined by one witness as "[S]omeone who has a lot of women and a lot of women [who] know about each other," a characterization which Mocombe embraces. Although married, Mocombe had a sexual relationship with a teaching colleague at Lauderhill by the name of Belinda Hope (Hope). He also was attracted to a first year teacher by the name of Kim Barnes (Barnes). Specifically, said he wanted to "get into her pants," during the 2000-2001 school year. Mocombe has no sense of boundaries in the workplace. He freely offers his opinions on religion, politics, and sex, some intended to be humorous, some not. Mocombe is aware of his need to be the center of attention and to shock people. He testified, "Even in school, I used to go walking around and said I was God just to get a reaction out of people." Most adults tread carefully, or not at all, around such deeply personal subjects. The training and ethics of the teaching profession emphasize respect for the dignity and worth of each individual, irrespective of his political and religious beliefs, or lack thereof. Teachers are educated to understand that sophomoric jokes about sex are not to be inflicted upon unwilling listeners. These lessons are reemphasized annually in sexual harassment training provided to all teachers employed by the School Board. Mocombe did not benefit from this training. He was known at Lauderhill for a constant stream of crude references to sex. He made no secret of his view that a woman's role is to have babies and serve men sexually. In addition, Mocombe would mock organized religion in the presence of colleagues who take their faith seriously. He often spoke of starting his own church, in which he would be known as Prophet Paul and the prerequisite for all women seeking to join the church would be to have his baby. Such comments, as well as his propensity to refer to women as "bitches" and "whores," were deeply offensive to some, but they kept silent. Lauderhill was an ideal environment for Mocombe. The atmosphere at the school is sexually charged to an extent inappropriate to the serious business of teaching children who are at a fragile stage of their own sexual development. Adolescent sexual banter consumes a great deal of time in and out of Lauderhill's teachers' lounge. At least in Mocombe's class, cursing and horseplay in the presence of the teacher-- even with the teacher--is acceptable. Unrebutted testimony placed an assistant principal in the main office discussing "sex, among other things," with Mocombe and other members of Lauderhill's staff in the main office at a time when at least one person not employed there could hear their discussion. Phillip Patton (Patton) was Mocombe's principal, first at Sunrise and later at Lauderhill. Patton's patience with Mocombe's behavior was seemingly boundless. In the lax atmosphere at Lauderhill, some of Mocombe's colleagues regarded his frequent references to sex, as well as to religion, politics, and the appearance of female colleagues, as harmless banter. Others, such as Marrisa Cooper (Cooper) who testified on Mocombe's behalf, felt that it was not the school's responsibility to deal with harassment; rather, the person at whom the harassment was directed should have the "balls" to deal with it. Cooper explained that it was understood at Lauderhill that Mocombe [believed] "that women are there to have children, which everyone always disagrees with statements because he always makes these general statements about women, and a lot of people take them as being belittling or degrading women. I don't take it personal because you are not talking to me, I know what I am made of and the way I am, so I never take them personally. But again, everybody maybe don't have the balls that I have." Others at Lauderhill were offended by Mocombe's conduct, but kept their silence, believing that Patton would not impose meaningful discipline on him. In fact, Patton's patience with Mocombe ran out only when Barnes and another teacher, Tracey Bryant (Bryant) put their complaints in writing, at which time Patton was required by School Board policies and procedures to forward the complaints for follow- up by trained investigators. The charges at issue here arise out of Mocombe's interaction with three individuals, student Hudson Mortimer (Mortimer), and the above-mentioned teachers Bryant and Barnes. Each situation is discussed separately in paragraphs 16 through 77, below. Hudson Mortimer: At the time of the incident alleged in the Administrative Complaint, Mortimer was a sixth grader at Lauderhill and a student of Mocombe's. Mortimer shares Mocombe's high opinion of himself as a teacher. Although Mortimer testified at the behest of the School Board, he volunteered, "I don't think he should get his license suspended." On October 11, 2001, Mocombe and Mortimer were "playing with each other." More particularly, Mortimer was "cracking" on his teacher, calling him "ugly and stuff." Mortimer's and Mocombe's accounts of the incident are consistent, and create a picture of two kids on the same level, playing together when they should be working. The incident began with Mortimer and Mocombe trading good natured insults, which included adolescent name-calling, using phrases such as "ugly-ass," while tossing whatever object was at hand at one another. Eventually Mocombe tossed a marking pen at Mortimer which hit the student over one eye, causing minor injury. The School Board contends that this incident constitutes the imposition of inappropriate discipline of sufficient severity to warrant termination. Pursuant to School Board rules and policies requiring that events which may give rise to litigation be documented, Patton, through a staff member, sent an accident report form to Mocombe for him to fill out. Mocombe refused, saying, "I'm not filling out anything, it was an accident. Patton wants to, he can fill it out himself." Patton took no disciplinary action against Mocombe for his refusal to comply with this routine and entirely appropriate request that he follow a reasonable School Board policy. This was not the first time, nor would it be the last, that Mocombe was given to understand that there would be no meaningful consequence to him for ignoring rules which he did not wish to follow. Tracey Bryant: Bryant is a 13-year teacher. Her complaint against Mocombe arises out of an incident which she characterizes as sexual harassment, and which occurred in the teachers' lounge at Lauderhill on April 5, 2001. At the time of the incident, Bryant was one of about a half dozen teachers present in the lounge. While conversing with a colleague, she was interrupted by Mocombe who asked, "Ms. Bryant are you pregnant?" Stunned, she coldly told him, "No." Referring to Bryant and to another teacher then present, Mocombe commented to the effect that their "butts were getting to be alike---hanging." Bryant quickly left the room. Here, as with the incident involving Mortimer, Mocombe and the alleged victim tell similar stories. Both agree that Mocombe was intending to be jocular in his interaction with them. But while Mocombe's alleged student victim supports the manner in which Mocombe interacts with him in general, and in particular is not offended by the allegedly inappropriate conduct set forth in the Administrative Complaint, Bryant felt "humiliated and disrespected" by Mocombe's comments about her size. In addition, Bryant was aware of Mocombe's history of making what she viewed as inappropriate comments about and to females. She had heard him make numerous comments she regarded as inappropriate in the workplace to Hope, a good friend of hers with whom Mocombe would eventually have an acrimonious break-up. When the offensive comment about Bryant's size was directed to her personally, she complained, in writing, to Patton. The conflict between Bryant and Mocombe continued at the hearing. At one point, Mocombe snickered during legal argument being made by the School Board attorney while Bryant was on the witness stand. Mocombe was provoked by a comment made to him by the School Board's attorney (who in turn was admonished to direct his comments to the tribunal, and not to parties or witnesses) and said of the School Board's charges against him, "I find it baffling and humorous, yes." Bryant immediately jumped in to say, "That's how he is, yes. No remorse or nothing." Bryant's reading of Mocombe's attitude is accurate. During his testimony, Mocombe supplied details of the incident which were not presented in the School Board's case, and which reflect a lack of understanding of why his conduct was so offensive. After having months to reflect on why Bryant brought these charges, Mocombe remains unembarrassed by his faux pas of assuming--and saying aloud to a roomful of colleagues--that Bryant's weight gain was due to pregnancy. He volunteered during his testimony that rather than drop the subject after Bryant made her displeasure clear, Mocombe persisted, discussing his exchange with Bryant about Bryant's weight with another colleague, Vicki Drane. While not denying the substance of Bryant's account of the incident in the teachers' lounge, Mocombe argues that Bryant is out to get him because of his break-up with Hope. However, neither Mocombe nor any of his witnesses offered any type of corroboration in support of his assertion that Bryant and others conspired to avenge his spurned lover by getting him fired. After carefully observing Bryant's demeanor under oath, and considering the entire record, the undersigned finds no evidence to suggest that Bryant's testimony was untruthful, or that her complaint was motivated by anything other than her own distress at Mocombe's callous behavior in calling attention to her weight gain, behavior which hurt and embarrassed her in front of her colleagues. Kim Barnes: Barnes met Mocombe in the office at Lauderhill, where she was being interviewed for what would become her first teaching job. As previously noted, the School Board provides annual training to its employees regarding sexual harassment and other types of conduct inappropriate in the workplace. But Barnes' first contact with Lauderhill employees in their main office, where the administrative staff, including the principal, have their offices, suggested an atmosphere inconsistent with what is to be expected in a well managed place of learning. Mocombe acknowledges that he wanted to "impress" Barnes in order to "get into her pants." This is his account of his first meeting with Barnes in the school office: The first -- the very first interaction I had with Ms. Barnes were the beginning of the last school year. We were in teacher planning. She came in for an interview and we were all in the student office discussing sex among other things. Q. Who was we? A. Ms. Cooper, Ms. Mayo, who was the office manager, the assistant principal at that time, Mr. King, myself, and Ms. Barnes. And I made the reference about I want six children. My actual reference was my goal is to have as many little Mocombes running around so I can start my own revolution, take over the world, my own Marxist revolution and indoctrinate them. And she made the reference that she wanted to have five children. I thought hey, we could work out if that's the case. (Transcript page 276, lines 2-19). In hindsight, it was a mistake for Barnes to tell Mocombe the number of children she might like to have. The above-mentioned defense witness, Cooper, was an office worker at Lauderhill and was present and participated in the discussion of "sex among other things." Cooper, knowing of Mocombe's obsession with sex, deemed that Barnes, having joined the discussion to the extent of remarking that she would like to have five children, had granted consent for Mocombe to make sexual advances. Barnes' account of the conversation is slightly different. She recalls telling Mocombe she might like to have five children in response to a direct question by him. Perhaps she voluntarily "made the reference," as Mocombe recalls. This is the type of minor discrepancy to be expected from witnesses asked to recall the details of an event which took place months ago. What is important is that Mocombe did not then and does not now see why the comments which he freely admits making are utterly inappropriate to the time and place where he made them. Although Cooper considers herself a friend of Mocombe, in giving testimony on his behalf, she volunteered that on the day of the Barnes' job interview, Cooper commented to Barnes that Mocombe was "no good." Counsel for Respondent did not suggest what issue this testimony goes to, but the testimony offered on Mocombe's behalf, taken together, suggests a belief by Mocombe and his friends that Barnes was on notice that as a "player," Mocombe was unable to relate to professional women in a professional way, and that he was not expected to do so by his colleagues or supervisors. Barnes was hired and began work at Lauderhill in the fall of the 2000-2001 school year. In the beginning, Mocombe confined his comments to Barnes to acknowledging her presence, usually in terms of her looks, such as, "Hi, sexy." Over time, the comments became more graphic. Mocombe would remark on the size of Barnes' breasts, her "phat (pretty hot and tender) ass" and would state his desire to have sex with her in stunningly offensive terms. In November 2000, Barnes expressed her distress about Mocombe's conduct to Reginald Edwards (Edwards), a substitute teacher who also works as a Baptist pastor. Edwards reported Barnes' concerns to principal Patton. Patton did nothing to follow up. Barnes also expressed her distress to her assigned teaching mentor, Arnetta Davis (Davis). Davis advised her that Mocombe was well known for this type of conduct, and recommended that she try to "nip it in the bud." Barnes is not an aggressive personality, but she tried to make Mocombe understand that she did not appreciate his comments. Mocombe was not deterred. Her efforts to nip Mocombe's conduct in the bud having failed, Barnes conferred again with Davis. Davis confirmed what Barnes had come to suspect: Mocombe conducted himself in this manner because he had been doing so for as long as he had been teaching, with no more than a wrist slap ever imposed. Barnes came to hold a reasonable belief that, in Davis' words, "apparently everyone knew about it, [Mocombe's inappropriate behavior] it was just how he was, and everyone just basically looked a blind eye about it." Davis could not provide Barnes with any assurance that if she complained to Patton, Mocombe would experience any meaningful consequence. Worse, Davis confirmed Barnes' fear that she, Barnes, might be deemed a troublemaker and be "blackballed" if she complained. Barnes was in no position to be blackballed. At the time she began her employment at Lauderhill, she had not yet received her permanent teacher's certificate. Moreover, she needed a summer teaching job and believed she was not likely to get one by being a "troublemaker." Based upon Davis' advice, and her own observation that Mocombe's constant sex talk was part of the landscape at Lauderhill, Barnes reasonably feared that Mocombe would continue to be protected by Patton, and that her own career might be seriously impaired if she sought to avail herself of School Board policies and procedures designed to provide employees recourse from sexual and other types of harassment. Davis' advice to Barnes was reasonable. Davis had witnessed Mocombe conduct himself in an unprofessional and disruptive manner at faculty meetings with no apparent consequences. Interestingly, at least by the time of the hearing, Mocombe's perception of his relationship with Patton differs from the perception shared by most of Lauderhill's professional staff. Mocombe came to feel that Patton would go out of his way to write [Mocombe] up for anything which Patton believed to be a challenge to his authority. But the totality of the evidence suggests that at all times material to this case, the belief widely held by Lauderhill staff that Patton's patience with Mocombe was practically unlimited, is closer to the truth. By March of 2001, Mocombe's conduct toward Barnes had escalated. One day, Barnes came in to the teachers' lounge to check mail. About a half dozen teachers were present. Mocombe freely--indeed proudly--described this incident: he said, for all to hear, "I can't stand up because my dick is hard, or I'm hard." Davis was coming to believe that she could no longer ethically ignore Mocombe's conduct toward Barnes. Around the time Bryant made her written complaint to Patton, Davis went to Patton on Barnes' behalf. Patton in turn went to Barnes and told her that she had to put her complaints about Mocombe into writing if anything was to be done. Barnes did so. By way of defense, Mocombe suggests that Barnes was the aggressor, pursuing him to consummate a physical relationship. Mocombe says he chose not to have sex with Barnes. This excerpt from Mocombe's testimony fairly summarizes his theory of the case: The same reason she was inquiring of Mr. Edwards about me, and she found out about my dealings with women. I turned her down, all right. If that's what you want to ask, we didn't have sex because I didn't want to have sex. Q. She wanted sex but you didn't? A. I didn't say that. I just said we didn't have sex. I chose not to have sex. I didn't say -- Q. Did you ask her? A. We came close a couple of times in the classroom. Q. To have sex with her? A. That's what you want. Yeah, we did. We came close a couple of times in the classroom. Every day for 20 to 25 days in the classroom with this woman, and you think -- maybe you [sic] blind. Yeah, I'm a good looking man. You must be out of your mind. (Transcript page 310, lines 6-24). Mocombe also claimed, with reference to Barnes, "This girl hugged me every morning in the lounge" and that on at least five occasions she voluntarily engaged with him in activities which, if done by teenagers, would be called "making out." Mocombe never attempted to reconcile this testimony with his admission that he wanted to "get into [Barnes'] pants." Moreover, there are numerous ways in which the colorful incidents recounted by Mocombe, if they occurred, could be corroborated. For example, Mocombe claims he said to Barnes in the presence of two teachers, one of whom testified at the hearing, that he confronted Barnes after learning she had filed a complaint. As he described the scene, "I was like, hell, no. I didn't do anything to this heifer. I was like just Friday you were kissing me." Leaving aside the use of Mocombe's highly derogatory term "heifer," had Mocombe said such a thing in the heat of this particular moment, it surely would have made an impression upon Barnes and the other witnesses. Yet none of them was questioned about it. Rather, Mocombe expects the trier of fact to accept his version because, as he put it, "Come on now. Hey, I'm a good looking man. Not only that, I'm intelligent too I don't know what [sic]. So she is ridiculous. But you know what, she got that off. They set me up. It's good. I like that." Upon receipt of the written complaints from Bryant and Barnes, Patton, in accordance with School Board procedure, informed Mocombe of the charges and instructed him not to contact either complainant. According to Patton, Mocombe's response to the accusations was nonchalant. In fact, Mocombe was enraged. He ignored Patton's no-contact directive and approached both Barnes and Bryant in an effort to convince them to drop their complaints. This is how Mocombe described the scenes when he made his unauthorized approaches to Barnes and Bryant: "You know what the fuck, I'm sorry whatever [sic], just cancel this shit. . . . And then I went over to Tracey Bryant, and I was like what, you were having a bad day. I was asking you are you pregnant. She was like, yeah, she was having a bad day. Ms. Russell asked me to apologize. I like apologized. And that was it. That was it. And Ms. Bryant said she was going to drop it, and then that was it. " Elsewhere in his testimony, Mocombe described the post-complaint encounter with Barnes in more detail: ". I walked to her classroom . . . I was like what the fuck is your problem. Are you a psycho. What's the [sic] fuck. You know what, I actually said you are a fucking nut bag. What the hell is this. She was like---she sat on the desk. She got on the desk and was like I'm afraid of you Mocombe. I was like what the fuck is wrong with you. I am like are you a psycho. I am like are you psychotic." Because Mocombe is not charged with insubordination or any other infraction based upon his disregard of the instruction that he not communicate with Barnes and Bryant, ordinarily testimony about these communications would be irrelevant and inadmissible. But, Mocombe did not object to testimony about these communications from School Board witnesses, and was eager to talk about these encounters himself. Mocombe appears to view his accounts of these incidents as exculpatory. To the contrary, if Barnes had ever pursued a sexual relationship with Mocombe, one would expect that his tirade about her complaint would have taken a very different form. Mocombe's testimony on cross-examination provides additional insight into Mocombe's sense of entitlement to disregard basic standards of civility and respect towards colleagues, and to view any attractive co-worker as a potential sex partner. This passage, which summarizes Mocombe's view of the charges against him, is instructive on that point, and also contains an additional admission that he was seeking to have sex with Barnes: Can you get to the real issue here? I don't believe Mortimer is the actual issue here. The actual issue is regarding Kim Barnes and Tracey Bryant. Simply add that on to show some kind of -- that I'm an ineffective teacher. I'm a brilliant teacher. Even Patton will admit to that fact, and nothing here has anything to do with my ability to teach. Because I'll be frank, I'm a brilliant teacher, I'm 27 years old. Continue. Q. Thank you. Let's then go on to the major issue. The heifer as you described Ms. Barnes, you were just seeking to have sex with her; is that right? A. For the most part, yes. (Transcript page 295, lines 11-24). On this and several other occasions during his testimony, Mocombe stated, "I'm 27," in contexts which suggested that in his view, his youth exempts him from standards of conduct which apply to older people. The law makes no such distinction. The common thread which runs through the testimony of witnesses for both sides is that Mocombe believes his youth, good looks and personality exempt him from the constraints of middle class morality, to the extent that it demands that teachers exhibit basic respect for all persons, whether or not, in the teacher's opinion, such respect is deserved. Mocombe is a young man of obvious intelligence and charisma, and Patton did him a disservice in turning a blind eye to his refusal to conform his conduct to the requirements of the standards of his profession. Even at the hearing, Mocombe was unable to control his desire to articulate, in crude terms, his contempt for those he disrespects. This exchange from Mocombe's cross-examination is illustrative: Q. All right. And you also touched her body parts; is that correct? A. Sure. Don't you touch your wife? (Transcript page 298, lines 6-8). Asked at the hearing if he acted inappropriately toward Barnes, Mocombe replied, "According to her I did. No, I honestly don't think so, no. I thought it was in jest. . . . I thought it was just we were something. I didn't just fall off the turnip truck for Christ's sake. I have a Ph.D. in philosophy. Anyway. No, I don't feel I acted inappropriately to Ms. Barnes." Mocombe has had months to think about it, but he continues to adhere to the belief that he is entitled to give free rein to his hedonistic impulses, and to express them in the crudest possible terms. Based upon the undersigned's careful observation of the parties and witnesses under oath, and throughout the hearing, and after careful consideration of the record as a whole, the suggestion by Mocombe and his witnesses that Barnes pursued Mocombe and was a willing participant in make-out sessions with him is expressly rejected. Neither has Mocombe proven a conspiracy by the friends of his former lover to destroy Mocombe's career. Even if School Board witnesses are motivated in whole or part by affection for Hope, and there was no competent evidence to support this view, the question of whether Mocombe may be lawfully terminated must be determined with reference to his conduct, and not the joy, or lack thereof, which witnesses may feel at the outcome. Prior disciplinary history: There is a theme which runs through the incidents which give rise to Mocombe's current difficulties. The common denominator is immaturity. Mocombe does not have an adult understanding of how his behavior offends contemporary standards of appropriate workplace behavior, and the corrosive impact of his coarse language and preoccupation with sex upon the professional environment which the public has a right to expect in its schools. In his short teaching career, he has received three reprimands, all relating to incidents in which he was unable to follow well known rules of acceptable workplace communication. Mocombe received his first reprimand while still a substitute teacher at Sunrise, where Patton was principal. He was reprimanded for using inappropriate language in the presence of students. The reprimand, dated January 5, 1999, included a directive requiring him to enroll in a teacher training class. On April 11, 2000, Mocombe was reprimanded for unprofessional and profane comments made toward his former lover, Hope. Mocombe's tirade occurred in Patton's presence. Mocombe screamed at Hope such comments as, "Fuck you, you bitch--yeah I fucked you, you ain't nothing but a damn whore; you're nothing but a good fuck; I am gonna put my foot up your ass." The letter of reprimand regarding this incident cited Rule 6B-1.006 which requires that educators refrain from engaging in "harassment or discriminatory conduct which unreasonably interferes with an individual's performance or professional or work responsibilities or with the orderly process of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment. " The letter specifically warned that further misconduct of any nature could result in termination of employment. On January 10, 2001, Mocombe received a letter of reprimand for sending a chain letter to all of his teaching colleagues at Lauderhill in violation of well-established school board policy prohibiting the use of the in-house email system for communications unrelated to work. Mocombe's testimony revealed a complete lack of understanding that he has done anything wrong. Instead, he believes he is being "railroaded" in these proceedings. Based upon his prior disciplinary history, and the manner in which his defense was conducted, the conclusion is inescapable that if reinstated, Mocombe would continue to exhibit, during working hours, his passion for "revolution, education, and hedonism" in whatever manner he pleases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order discharging Mocombe from further employment in the Broward County Public Schools. DONE AND ENTERED this 14th day of March 2003, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings 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 this 14th day of March, 2003. COPIES FURNISHED: Robert F. McKee, Esquire Kelly & McKee 1718 East 7th Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316-1924 Dr. Franklin L. Till, Jr., Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
The Issue The issues are whether the allegations of the Petition for Termination of Employment are correct, and, if so, whether the Lee County School Board (Petitioner) has just cause for terminating the employment of Valarie Strawder (Respondent).
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner as a food service worker at Riverdale High School. On May 16, 2008, the Respondent became involved in an altercation with a 15-year-old male student ("J.T.") enrolled in the Riverdale Middle School. At the time of the incident, the middle school and high school were co-located on the same campus. For several years prior to the altercation, the Respondent had been the girlfriend of the student's father. According to the uncontroverted testimony of the Respondent, the situation became tense after the man fathered a child by another woman, but the Respondent remained involved with him. The Respondent testified also without contradiction that for various reasons involving the other woman, her boyfriend's school-aged children did not like the Respondent and engaged in routine harassment of the Respondent. There was evidence that both the Respondent and the children had complained about each other to school officials. J.T. was described by one of the school's teacher's as "mouthy." The Respondent also testified as to physical damage that had occurred to her automobile, but the evidence was insufficient to attribute the cause of the damage to the children. The Riverdale cafeteria was designed to separate the dining areas from the combined kitchen and food service areas ("kitchen"). Doors from the kitchen to the dining area were locked from inside the kitchen to prevent unauthorized entry by students. Food was served through openings between the dining and kitchen areas. The openings ("windows") could be securely covered by rolling metal shutters mounted above the windows. At approximately 12:30 p.m., on May 16, 2008, J.T. was in the dining area and, through a window, was engaged in a conversation with Ludine Waters, a food service worker who was located in the kitchen. The Respondent entered the dining area from the kitchen, walked to the open window, and pulled down the rolling metal shutter located above the window through which J.T. and Ms. Waters were talking. The Respondent testified that she saw J.T. standing at the window, but was not aware that he was talking with Ms. Waters at the time the Respondent closed the window. Immediately after the Respondent closed the window, J.T. spoke to the Respondent and called her a "rude bitch" and a "bald-headed bitch." As the Respondent re-entered the kitchen through the secured doors, she replied "your mammy" to the student, apparently intending to convey a derogatory remark about J.T.'s mother. After the Respondent re-entered the kitchen, J.T. threw a beverage bottle through a window that remained open between the dining area and the kitchen. The Respondent then observed J.T. taking off his coat and stating that he would "beat her ass," indicating to the Respondent that J.T. was preparing to fight with her. The Respondent testified that she said to J.T., "if you think you can beat me, bring it." The Respondent also testified at the hearing that she believed that J.T. was "just playing," but the Respondent's subsequent interaction with J.T. does not support the Respondent's testimony. After the Respondent told J.T. to "bring it," J.T. proceeded towards the door into the kitchen and so did the Respondent. At the time both arrived at the door, it opened and the two began to fight. The evidence fails to establish who opened the door, but given that the door locks were designed to prevent students entering from the dining area, it is reasonable to presume that the door was opened from inside the kitchen. The physical altercation between the Respondent and J.T. was brief. Both the Respondent and the student struck and hit each other, and the student pulled off the Respondent's wig. The Respondent and J.T. were separated by a physical education teacher who was in the cafeteria at the time of the incident and who, upon observing the commotion, rapidly moved to quell the disturbance by pulling the student away from the Respondent. The Respondent has asserted that she was acting in self-defense at the time of the altercation, but the evidence fails to support the assertion. In addition to the doorway where the altercation occurred, the kitchen had a second exit that connected to a staff dining room towards the rear of the kitchen. The Respondent made no effort to go to the staff dining room where she could have avoided further interaction with J.T. Additionally, there was a telephone in the staff dining room and another telephone in the cafeteria manager's office. The Respondent made no effort to call for assistance or security prior to engaging in the fight with the student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the Respondent's employment as a food service worker. DONE AND ENTERED this 13th day of April, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2009. COPIES FURNISHED: Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966 Robert J. Coleman, Esquire Coleman & Coleman Post Office Box 2089 Fort Myers, Florida 33902-2089 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. James W. Browder, Superintendent Lee County School Board 2855 Colonial Boulevard Fort Myers, Florida 33966-1012
The Issue Whether just cause exists for Petitioner, the Polk County School Board, to terminate Respondent, Helena Mays, from her employment as a classroom teacher.
Findings Of Fact It is well established under Florida law that determining whether alleged misconduct violates a statute or rule is a question of ultimate fact to be decided by the trier- of-fact based on the weight of the evidence. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Thus, determining whether the alleged misconduct violates the law is a factual, not legal, inquiry. “The School Board bears the burden of proving by a preponderance of the evidence each element of the charged offense which may warrant dismissal.” Cropsey v. Sch. Bd., 19 So. 3d 351, 355 (Fla. 2d DCA 2009) (citing Dileo v. Sch. Bd. of Dade Cty., 569 So. 2d 883 (Fla. 3d DCA 1990)). Preponderance of the evidence is defined as “the greater weight of the evidence,” or evidence that “more likely than not” tends to prove a certain proposition. S. Fla. Water Mgmt. v. RLI Live Oak, LLC, 139 So. 3d 869, 872 (Fla. 2014). The School Board contends that “just cause” exists to terminate Ms. Mays because she improperly required K.G., D.G., and C.C. to clean the floor with a toothbrush on one occasion each, which constituted “misconduct in office.” § 1012.33(1)(a); Fla. Admin. Code R. 6A-5.056(2)(b), (c). The School Board alleges two violations of “the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A-10.081, F.A.C.,” and two identical violations of “adopted school board rules.” First, the School Board alleges that Ms. Mays breached her obligations to K.G., D.G., and C.C. by “intentionally expos[ing] [them] to unnecessary embarrassment or disparagement.” Fla. Admin. Code R. 6A-10.081(2)(a)5.; Polk Cty. Sch. Bd. R. 3210A.5. Second, the School Board alleges that Ms. Mays breached her obligations to K.G., D.G., and C.C. by failing to “make reasonable effort to protect [them] from conditions harmful to learning and/or to [their] mental and/or physical health and/or safety.” Fla. Admin. Code R. 6A-10.081(2)(a)1.; Polk Cty. Sch. Bd. R. 3210A.1. There is no dispute that Ms. Mays required K.G. and D.G. to each clean the floor with a toothbrush. Thus, the relevant issue as to these students is whether the School Board proved by a preponderance of the evidence that this disciplinary tactic constituted “misconduct in office.” However, as to C.C., the evidence did not establish that Ms. Mays required him to clean the floor with a toothbrush. C.C. testified that he cleaned the floor with a washcloth and had no recollection of ever using a toothbrush. Because the School Board’s termination notice focused solely on the use of a toothbrush as an improper disciplinary tactic, it cannot belatedly allege now that requiring C.C. to clean the floor with a washcloth constituted misconduct in office. In fact, a washcloth is more akin to a sponge, which the School Board does not contend was misconduct given its decision to proceed only on the instances involving a toothbrush. Nevertheless, the undersigned will evaluate the evidence as it relates to C.C. in the same manner as the other two students. Based on the weight of the evidence detailed above, the School Board failed to establish by a preponderance of the evidence that Ms. Mays exposed the students to unnecessary embarrassment or disparagement, much less that she did so intentionally. None of the three students testified that they felt embarrassed or disparaged, and Investigator Marbutt did not believe that Ms. Mays intentionally tried to embarrass or harm them. At most, Investigator Marbutt agreed that there were “potential violations for creating physical or emotional harm and potentially humiliating the students,” but he never explained how the evidence substantiated that “potential” belief. Principal Burkett also confirmed that Ms. Mays never said she intended to humiliate or inflict pain on the students. In sum, the credible weight of the evidence does not establish that Ms. Mays violated rule 6A-10.081(2)(a)5. or School Board rule 3210A.5. Likewise, based on the weight of the evidence discussed above, the School Board did not establish by a preponderance of the evidence that Ms. Mays unreasonably failed to protect the students from conditions harmful to learning, their mental and/or physical health, or their safety. No credible, competent evidence was presented that this disciplinary tactic unreasonably exposed the students to any such harmful conditions, much less a safety hazard. K.G. and D.G. offered no testimony that they suffered pain while being disciplined in this manner and, though C.C. indicated that his hands were sore, it was the same pain he experienced when he wrote too much. Principal Burkett testified that the School preferred a more positive method of discipline, but neither he nor any other witness explained how these three isolated events that were not shown to last more than 15 minutes unreasonably harmed the students. In short, the credible weight of the evidence does not support the allegation that Ms. Mays violated Rule 6A-10.081(2)(a)1. or School Board Rule 3210A.1. Accordingly, the undersigned finds as a matter of ultimate fact that the School Board did not show by a preponderance of the evidence that it had “just cause” to terminate Ms. Mays. § 1012.33(1)(a), Fla. Stat.
Recommendation Based on the foregoing Findings of Fact, Ultimate Findings of Fact, and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order dismissing the charges against Ms. Mays, reinstating her employment as a teacher, and awarding her back pay to the date on which she was first suspended without pay. DONE AND ENTERED this 4th day of March, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2019.
Findings Of Fact At all times material hereto, Respondent held Florida Teaching Certificate No. 390436, Provisional Graduate, Rank III, valid through June 30, 1981, covering the areas of Sociology, English, History and Social Studies. On or about October 19, 1978, Respondent while acting within the scope of his employment as a teacher at Robert E. Lee Junior High School in Dade County, Florida, was observed to seize a student, Rodney Canull, by his hair and right arm, lift the student off the ground, and throw the student repeatedly onto a concrete ramp. As soon as the student was able to extricate himself from Respondent, he fled the scene of the altercation. However, later the same day, Respondent was again observed in a confrontation with this same student, in which Respondent had twisted the student's arm behind his back, and the student was doubled over in pain with his head below his knees. On or about April 24, 1978, Respondent was involved in a physical confrontation with another student, Carla Brinson, at Robert E. Lee Junior High School. The confrontation between Ms. Brinson and Respondent occurred in the course of Respondent's attempt to discipline the student. When Respondent requested that the student turn around so that he could administer corporal punishment, she refused. Upon the student's refusal, the Respondent threw her to the floor. The student got up from the floor, and struck Respondent with her fist, whereupon Respondent struck the student in the face with his fist. The student then ran out the front door of the classroom in which the confrontation had occurred, and was pursued by Respondent, who began to strike the student with his belt. Both Respondent and the student ended up on the ground in front of the portable classroom where Respondent again struck the student in the forehead with the heel of his open hand. When another teacher attempted to intervene in the confrontation, he was pushed aside and Respondent continued to strike the student with his belt. On or about May 11, 1977, Respondent was involved in a physical confrontation with a student at Madison Junior High School in Dade County, Florida, named Wesley G. Frater. In the course of Respondent inquiring as to whether the student belonged in a particular room, the student referred to Respondent as "man", whereupon Respondent began shoving the student into a row of standing metal lockers, approximately 25 in number, and then lifted the student upside down from the ground and dropped him onto a concrete floor. On or about May 20, 1977, Respondent was involved in a physical confrontation at Madison Junior High School with a student named Vincent Johnson. Some dispute of an undetermined nature occurred between the student and the Respondent, after which the student attempted to flee from Respondent. Respondent chased the student down in the school parking lot, and threw the student against a parked truck. Respondent then threw the student to the ground, picked him up and attempted to transport him to the principal's office. Once in the corridor of the school building, Respondent picked the student up and repeatedly threw him to the floor. Other teachers at the school, after hearing a disturbance in the hallway, intervened to separate Respondent and the student. As previously indicated in this Recommended Order, Respondent neither appeared in person nor offered any evidence for inclusion in the record in this proceeding through his counsel. As a result, the record in this proceeding contains no explanation or justification for Respondent's conduct. However, it is clear from the record that Respondent's conduct, as outlined above, worked to create an atmosphere of fear among his students, thereby seriously reducing his effectiveness as a teacher.
Findings Of Fact At all times pertinent to the allegations treated herein, Respondent, William Wyche, held a Florida Teaching Certificate number 106113, issued on October 29, 1980, covering the area of industrial arts. Respondent applied for a Florida teaching certificate by submitting the required application form and documentation on or about October 20, 1980. At the time of submission, Respondent replied "no" to the question in Section V of the form which asks: "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation. . .?" This answer was false in that: On September 20, 1979, respondent was found guilty of driving while his license was suspended, and fined $50.00; On March 20, 1980, Respondent was found guilty of obtaining property by worthless check and fined $25.00; On March 20, 1980, Respondent was found guilty of driving with a suspended license and fined $100.00; On April 2, 1980, Respondent was found guilty of obtaining property by worthless check and was fined $25.00; and, On April 25, 1980, Respondent was found guilty of obtaining property by worthless check and was fined $25.00. On that same date, in a separate case involving an identical charge, adjudication was withheld but Respondent was placed on probation for sixty days. Respondent explains the check charges on the basis that at the time they took place, all within a few weeks of each other, his bank account had been garnished and because of that garnishment, though he had ample funds in his account to honor these checks, the bank did not honor them. There were quite a few checks dishonored for this reason-so many, in fact, that he lost track of some of them and though he redeemed most, he failed to redeem these. As to the convictions for driving with a suspended license, he thought these were minor traffic offenses that did not have to be listed. Respondent was employed as an industrial arts (IA) teacher at Kirby Smith Junior High School (KSJHS) in Jacksonville, Florida during the 1981-82 school year, teaching in the metal shop. During this period, he was evaluated on a regular basis, based on observations and evaluations by other school officials carried on at various times throughout the school year. During these evaluations, such things as classroom conditions, the instructor's presentations, the preparation of lesson plans, and the use of lesson plans as guidelines for in-class instruction were considered. Lonnie W. Davenport was assistant principal for curriculum at KSJHS during this period and had to insure that teaching was taking place properly in both form and substance. To do this, he contacted his teachers daily and also relied on observations such as described above, and reports submitted to him. These reports were regarding such things as student class size, grade reports by teachers, black/white student count in the homerooms, and teachers' lesson plans which were required from each teacher weekly. While he has no formal IA training, he has a lot of experience in the area. Mr. Davenport first took serious note of the Respondent in mid- December, 1981 when he noted that Respondent had not submitted complete lesson plans. There were holes in those submitted relating to time and quality. In addition, the principal had asked him to look into reported irregularities in Respondent's classroom. His examination of Respondent's lesson plans showed that they were inadequate because they: did not conform to the form required; did not cover the subject matter sufficiently; did not follow a time sequence properly; and, were not sufficiently specific. They should have broken down the instruction into segments for skill development on a step-by-step, day-by-day basis. In short, Respondent's plans did not adequately tell what he was intending to do in his classroom. As to Respondent's teaching, Davenport's observation showed that Respondent: had no plans to show what was expected of his students; maintained the shop in a depressing state. (Here, however, it was admitted that this school was old and the shop dingy, and Respondent could not control all of that. However, Respondent's teaching aids, such as posters, which were old, faded, and torn, added to the dinginess.) allowed shop metal to lay around the shop without being placed in stock storage, creating a safety hazard; failed to safeguard and neglected one student's artwork project, and other students' projects were left out and not placed in storage for the next class period; stored a large stack of sheet metal under a work bench with cutting corners end edges protruding (also a safety hazard) allowed equipment which should have been stored to remain out; failed to have safety lines placed on the floor around individual pieces of equipment; failed to insure that soldering forges were properly shielded or securely fastened down; and, failed to post safety rules prominently in the classroom. Respondent contends that he submitted purchase orders requesting corrections be made of these deficiencies. However, with the exception of several orders for paint, some of which may have been used for the safety lines and to brighten up the area, the remainder of the purchase orders he introduced into evidence (Respondent's Composite Exhibit E), were for metal stock and other pieces of new or replacement equipment. There was no evidence of work orders for correction of any of the cited defects. Mr. Davenport's observations as to Respondent's teaching ability were that: He sat at his desk in the classroom while his students were working in the shop behind his back. As a result, students with problems had to come out of the shop to him for help rather than him being available in the shop to help; students were not required to wear safety goggles while operating power equipment nor did Respondent use them while operating the equipment; The student projects assigned or approved by Respondent were too simple and provided no challenge; The quality of the finished product turned out by Respondent's students was poor; Grading of student projects was accomplished on the basis of negotiation with the student and not on accomplishment or work quality; Once the student had completed the basic project, Respondent had no follow-up projects for them to do to use up the remainder of the school year. He, allowing them to occupy themselves with "busy work," showed to Davenport a lack of commitment to planning; Respondent was observed and overheard by Davenport to chastise a student by threatening to destroy the student's project, resulting in failure. This observation, which Respondent admitted to Davenport, is contrary to a school policy which prevents discipline from affecting an academic grade; and, In one particular class observed, Respondent came to class late. He had allowed a student to take roll, a function required of the teacher, and evidence available to Davenport, led him to believe this was a repeated- occurrence; Respondent's absence allowed students to engage in horseplay and rowdy behavior and, even when Respondent came into class, he chastised the wrong student. As to the type of instruction Respondent was observed to give, when a student would bring a project to him and ask a question, he would answer. For the most part, however, he stayed at his desk while the students worked unsupervised in the shop. He showed no initiative and did not even require students to draw plans or prepare material lists before starting work on a project. On one occasion, a student was injured in the shop. Respondent merely washed the injury, wrapped it, and sent the student back to work. Davenport, who observed this incident, told Respondent on the spot that the student should go to the office for first aid and that Respondent should file an accident report on the incident. The report was not filed by Respondent and the student went to the office at the direction of Davenport, not Respondent. This showed a complete lack of concern, according to Davenport. Davenport counseled the Respondent on the above deficiencies but observed no immediate response. He went back to Respondent's class 5-7 times subsequently for follow-up visits of from 20 minutes to an hour in duration and found little change for the better. He repeatedly offered Respondent assistance in any area to correct the shortcomings and got no response until in March, 1982, when Respondent found out he was going to get an unsatisfactory rating. He had been notified in writing, on January 8 end again on February 5, 1982, by his principal Mr. Shanklin, in addition to others, including an evaluation on January 13, 1982 by Mr. Lowell T. Hudson, supervisor of industrial arts for the school board, that his performance was deficient. These warnings could have left little doubt as to the fact his performance was below standard. Finally, on March 15, 1982, Mr. Shanklin rendered an evaluation on Respondent which showed an overall rating of unsatisfactory. Of the six areas rated in classroom management, two were satisfactory and four were unsatisfactory. Of the twenty- one areas rated in teaching effectiveness, one was satisfactory, nine were rated as needing improvement, and eleven were rated unsatisfactory. Seven of the nine areas of professional/personal characteristics were rated satisfactory, one needed improvement, and one was unsatisfactory. Even after this unsatisfactory report, the school administrative staff still tried to help Respondent. They offered him direct help themselves and, in addition, the services of county in service resource personnel to help with planning. Respondent was receptive to this verbally, but never took any steps to use them. As a result, there was no improvement in Respondent's performance but merely a maintenance of the status quo. There were some minor improvements in the condition of the shop but these were merely cosmetic and did not, in any way, relate to the quality of instruction. In Davenport's opinion, Respondent does not meet the minimum standards of competency for teachers nor can he be trained to meet these standards. He is convinced, and it is so found that Respondent's race played no part in the evaluation process. The principal at KSJHS during this period, Mr. Jack H. Shanklin, agreed with and amplified on Davenport's analysis of Respondent. His first difficulty with Respondent came in October, 1981 when the Dean of Girls wrote him a memorandum stating that Respondent had struck a student with a dowel rod. This was not the first instance of Respondent's striking students. Since Respondent was not designated as one to administer corporal punishment, she had previously warned him to send all disciplinary problems to the office. When Shanklin discussed this with Respondent, he said he did it to control the class. Shanklin did not personally evaluate Respondent until early January, 1982, after Davenport's evaluation. Prior to going to the class, he reviewed Respondent's lesson plans and found them to be sketchy. In his opinion, a substitute teacher could not have taught from them and they were "totally unacceptable." When he went into the classroom, he found the Respondent lecturing end he could not understand what Respondent was trying to get across. Respondent mumbled, was hard to understand, and used few, if any, visual aids. It was obvious to him that the students were bored, confused, and were getting nothing from the presentation. In addition, he observed the shop and found it to be dingy, dirty, and a safety hazard. Mr. Shanklin discussed these deficiencies with Respondent a few days later when he gave him the letter regarding the observation. He went into these deficiencies, and recommendations to correct them, quite thoroughly. He made suggestions as to resource people available to help and pointed out specific references to the teachers' manual. In each case, Respondent always indicated he understood and would try to comply. However, in the succeeding month leading up to the February letter, there were no signs of improvement at all nor was there any indication he had utilized the resource people. Follow-up visits to the classroom showed no change and no indication Respondent was getting anything across to the students. After the February letter was given to Respondent by Mr. Shanklin personally, they had a conference in which Shanklin discussed Respondent's deficiencies and he was told what he had to change to get a favorable evaluation. The most critical areas for improvement identified were: lesson plans safety conditions, and classroom appearance, as well as Respondent's personal untidy and nonprofessional appearance. After this discussion, Shanklin made several visits to Respondent's classroom prior to the March evaluation and did note some improvements in classroom appearance and safety, but not in lesson planning or teaching. Even after the March evaluation, up to the end of the school term, he noted no improvement. On March 29, 1982, he gave Respondent a third letter outlining areas for improvement. Respondent finished out the 1981-82 school year but because of the unsatisfactory evaluation he received, requested a transfer to a different school for the 1982-83 school year. In Shanklin's opinion, Respondent did not meet minimum standards of competency nor could he achieve them because of a lack of effort to improve. Shanklin feels Respondent does not care about the education of children and would make only superficial efforts to be trained. Race is not a factor in this evaluation. At least 50 percent of Shanklin's staff is black. He has 85 teachers on his staff and in the last three years, he has rated 13 teachers unsatisfactory. Of these, 8 or 9 were black. Therefore, of the 255 teacher evaluations he has rendered in three years, 8 or 9 unsatisfactory's were given to black teachers. Dalton D. Epting, Director of Certified Personnel for the school board, talked with Respondent about his evaluation on several occasions when Respondent was at Wolfson High School. If a teacher is on tenure status and received an unsatisfactory evaluation, he may request a transfer to a different school for a second year during which efforts are made through counseling, training, and other assistance, to help him become satisfactory. When Respondent, due to his unsatisfactory evaluation at KSJHS requested a transfer, he was assigned for the second year, to Wolfson High where, for reasons cited below, he was rated unsatisfactory for the second year in a row. Respondent was sent to Wolfson for his second year because there was no vacancy for IA teachers in the system. Even though Wolfson was also full, rather than send Respondent back to KSJHS, they sent him to Wolfson, with all its teachers, so he could have the benefit of other good teachers. Race was not a factor in this decision. It is not automatic that a teacher who receives a second consecutive unsatisfactory rating is discharged. The system looks to see if the teacher was given every assistance to improve; to ensure that everything reasonable was done by way of counseling, resource help, training, and the like, to help him. If it was and the teacher did not improve, he is discharged. Here, school officials looked at all evaluations for both years, considered the discussions held with Respondent, and the input from cadre and resource personnel, and decided that Respondent was incompetent. The decision was made, therefore, to discharge the Respondent and this action was taken. During the 1982-83 school year, after his first unsatisfactory evaluation, Respondent worked for David E. White, principal at Wolfson High School. Immediately White sat down with Respondent, along with the IA supervisor to let him know what was expected of him and what help was available to him. He observed Respondent in the classroom on several occasions and, based on these and other factors in accordance with school board rules, in an effort to let the teacher know how he or she is doing, rendered an unsatisfactory rating on Respondent on October 30, 1982. Among the examples of Respondent's incompetence which led up to this evaluation were progress reports, discipline referrals, notes, and tests prepared by Respondent, some of which went home to parents, that contained obvious spelling, grammatical, and syntax errors. At first, White became aware of concern by students and their parents about Respondent's performance. When these complaints first began, White called in the IA supervisor for the school district, Mr. Hudson, to evaluate Respondent. He began evaluating Respondent himself when the complaints continued. These complaints were to the effect, basically, that the students could not understand Respondent. (It is noted here that Respondent suffers from a slight speech impediment). He would merely read from the textbook with no teacher-student interaction. There was little lab work - mostly lecture or reading. This was not appropriate in the Graphic Arts area which consists of such skills as printing, photography, silk-screening, and the like. Consistent with the notes, reports, end referral slips prepared by Respondent, White noted a lack of grammatical correctness in his oral presentations as well. In addition, White observed that the Respondent's students were not being motivated by him and spent little time on their classroom tasks, and he also observed that Respondent's presentation was lacking in technological detail. For example, on one occasion, Respondent was discussing a box camera and failed to detail the advantages and disadvantages of this type of camera, the type of films available for it, and the merits of each. When the class period was over, White discussed the above with Respondent, suggesting how the lecture could be improved. The following day White came back to class to see how Respondent carried the discussion forward and it was as if White had not said anything. Respondent continued to omit from his lecture the substantive technological information White, as principal, felt should be taught. White concluded that Respondent was not at all familiar with the subject matter he was teaching. 1/ Respondent was also considered to be deficient in his administrative skills. He lost (or had stolen) his grade book as well as his computer worksheets twice during one 9 week period. This created seven extra hours work for the curriculum office, with 3 additional hours by Respondent, to reconstruct, his grades. The fact that Respondent had to help in this project meant someone had to cover his classes for him. It also created a lot of inquiry by parents who, on learning of the lost grade book, questioned the validity of grades given their children. In addition, Respondent's attendance registers were not turned in on time notwithstanding frequent reminders in advance of due dates. At the end of the first semester, White had a conference with Respondent about the above. Respondent began being absent due to sickness in January, 1983 and went on sick leave on 9 February, 1983 which extended through the remainder of the school year. It is important to note that Respondent's absence at this time was valid and there is no inference or insinuation to the contrary. While he was absent, on March 8, 1983, Respondent was given a notice of intent to render an unsatisfactory evaluation report which was, in fact, issued on April 15, 1983. Here it must be noted that there could have been no improvement in performance between the notice and the evaluation as Respondent was not present for duty but was on sick leave. In any event, White contends that as a result of Respondent's teaching, the school's IA program has been seriously damaged, but that has not been shown. While Respondent's classes did net prepare his students for the second year curriculum in those areas, there is no evidence that the school's program has been seriously damaged. Nonetheless, it was shown be that, as white contends, Respondent did not meet minimum county standards and could not be improved to meet them. Consequently, on August 15, 1983, the superintendent of the Duval County public schools, by certified letter, notified Respondent that because of the two years of unsatisfactory evaluations, indicating professional incompetence, he was recommending the School Board discharge Respondent from employment. Thereafter, on January 16, 1984, the Duval County School Board, by Final Order, sustained the charge of professional incompetence, and discharged Respondent as a teacher. Race was definitely not an issue in White's evaluation. In his school, at which the student body comes from the upper level socioeconomic group, and which has rated first in Area Scholastic Aptitude Test scores for the past five ears, White has no black administrators or department chairmen on his staff. One black former department chairman was promoted to vice-principal at another school. His choices for personnel are based on qualifications, not race. At the present time, 12 percent of the teachers on staff are black and over the six years White has been principal at Wolfson High, only 3 black teachers have transferred out. While at both KSJHS and Wolfson High, Respondent was encouraged to consult with Everett T. Hudson, IA supervisor for the school board, and was, in fact, evaluated by him in both settings. He evaluated Respondent first on January 14, 1982, at the request of the Principal at KSJHS end observed Respondent during his 8-9 a.m. first period class. His conclusions were: classroom and shop cleanliness were poor; it appeared that activities were winding down shop organization was poor (no clean-up schedule was posted and metal stock was laying everywhere; the students' projects were not meaningful or of a quality nature; respondent spent too much time lecturing and did not allow for sufficient shop time, and, respondent's lesson plans were not available. When seen, it was obvious Respondent had not used the curriculum guide to draft the few plans he had. When Respondent transferred to Wolfson High, the Principal there also asked Hudson to come out and evaluate Respondent on a more frequent basis. Consequently, because of this request and because of the fact that due to Respondent's previous unsatisfactory rating he was on probation, Hudson evaluated Respondent ten times, at least once in each month, between September 8, 1982 and January 5, 1983. As a result of these evaluations, it appeared to Hudson that Respondent did not know how to: plan a project; lay out equipment; identify woods and where they came from; use certain equipment. It further appeared to Hudson that Respondent's lectures were poor in that he mumbled and he didn't seem to know what he was talking about. Further, his lesson plans were poor, and he failed to keep up with an appropriate time schedule for class. As a result, Hudson ended up, himself, helping the students rather than evaluating. When these observations were made, Mr. Hudson would go over them with Respondent and give Respondent a copy. Notwithstanding he pointed out these deficiencies repeatedly, there appeared to be no improvement at all. The school system here has a remedial program for teachers to use to improve their performance. There are resource teachers to provide assistance and there are also "in service" programs for teachers. Mr. Hudson suggested Respondent take some, one of which he was teaching right at Respondent's school. As he recalls, Respondent came twice out of 15 sessions. As a result of the above, Hudson does not believe that Respondent meets minimum competency standards and could not meet them. In his opinion, Respondent: suffers from a lack of organizational ability; has lackadaisical attitude toward improving the program; would not spend the necessary time to upgrade his skills, and has a weak knowledge of the subject matter. Here again, race was not an issue in these evaluations. Hudson supervises 95 IA teachers in the Duval County school system and is the only administrator. Of these teachers, approximately 25 are black. Over 13 years, he has been called in to evaluate, like this, 5 or 6 teachers, only one of whom was black, and of this number, only 2 have been discharged. Respondent has a Bachelor of Science decree in Education and a Masters degree in Industrial Education, both from Florida A & M University. In addition, he has attended a leadership development course at Michigan State University, military classes in the same while in the army at Ft. Dix, New Jersey, and numerous workshops in Florida at his own expense. It was his hope, when he started working in Duval County, to develop some feel for the IA field in that school system As a result of his experience there, he is of the opinion that the entire IA program is underfunded. Students have to pay for the wood and metal materials they use to build a prefect. He urges that without materials and equipment, a teacher cannot teach, a point concerned by Mr. Davenport, and that was the reason he submitted the purchase orders he did at KSJHS. In that regard, it would appear that about the time Respondent was teaching at KSJHS in 1981, a report by an Inspector (Jenkins) from the school district offices, reflected that materials and equipment in Respondent's class area did not meet minimum state requirements. In addition, there was some problem regarding the excessive size of the class. This problem was immediately corrected end certification in this area was restored. He also contends that a teacher's teaching style may differ from that of his principal's and still be correct. With regard to the April 15, 1953 unsatisfactory evaluation, Respondent contends, in an attempt to contest his rating, that since he was out sick much of the month of January, 1983, and all of the time from February 9, 1983 to the end of the school year, a rating dated in mid April would cover as large a period of time when he was not there as when he was. The Teacher Tenure Act under which this system operates provides for a second full year of evaluation before discharge. Since he was sick for half the second year, he contends, his discharge was not valid. He wants to fulfill his probationary period to prove he is a worthy teacher.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore: RECOMMENDED that Respondent, William Wyche's teacher certificate issued by the State of Florida be revoked for a period of three years, with provision for reinstatement as provided for by statute. DONE and RECOMMENDED this 16th day of August, 1984, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk with the Division of Administrative Hearings this 16th day of August, 1984.
The Issue Whether just cause exists to sustain Respondent’s dismissal from employment with the Miami-Dade County School Board.
Findings Of Fact Petitioner is a duly-constituted district school board charged with the duty to operate, control, and supervise all free public schools within Miami-Dade County, Florida. Article IX, § 4(b), Fla. Const. In 2010, Whitley started working for the School Board as a school security monitor. During the 2016-2017 school year, Whitley was assigned to Thomas Jefferson Middle School (“Thomas Jefferson”) as a security monitor. He remains employed in that role at Thomas Jefferson presently. Whitley’s job duties and responsibilities include, but are not limited to, maintaining the safety of the children, ensuring the children make it to class on time, assisting with any problems that may be going on in the school, and monitoring the security cameras. At all times relevant to the proceeding, Respondent has been employed by the School Board pursuant to a continuing contract. The incident giving rise to this proceeding occurred on February 6, 2017. On February 6, 2017, Whitley was patrolling his assigned hall and noticed that M.G., a 13-year-old sixth grader, was out of class and sitting at Respondent’s desk in the hallway. Whitley requested that M.G. get out of the chair, and M.G. refused to get out of the desk. According to M.G., after M.G. refused, Whitley flipped the desk while he was seated, which caused M.G. to fall and hit his head on the floor. There is conflicting evidence as to what happened when Whitley approached the desk (“incident”). At hearing, M.G. credibly testified that he reported the incident to Principal Robin Atkins the same day and that he also got an ice pack for his head. Almost a month later, the Office of Professional Standards opened an investigation regarding the incident. Afterward, Respondent was notified that M.G. accused him of flipping the desk that he was sitting in and causing him to hit his head as a result. In 2017, law enforcement interviewed Respondent. The matter was ultimately turned over to the School Board's General Investigative Unit (“GIU”). The investigation took approximately two years to conclude. Even though Thomas Jefferson maintained security footage and recorded videos of the hallway where the incident occurred, no video footage existed for anyone to review regarding the incident. Based on its investigation, on or about May 30, 2019, GIU determined that there was probable cause to support the allegation that Respondent had violated School Board Policy 4210, Standards of Ethical Conduct; 4210.01, Code of Ethics; and 4213, Student Supervision and Welfare. Respondent learned about the determination soon thereafter. After summer break, when Respondent returned to work, on or about August 27, 2019, Carlos Diaz, the district director of the School Board's Office of Professional Standards conducted a conference-for-the-record (“CFR”) meeting to discuss the pending allegations from the GIU case. Respondent was present at the CFR with his union representative. Following the CFR, the Disciplinary Review Team (“DRT”) met. DRT considered Respondent’s repeated and similar conduct for inappropriate contact with students and Respondent’s prior directives in its decision to discipline Respondent. DRT recommended that Respondent be terminated. The recommendation was adopted by the School Board. Prior Disciplinary History During his employment with the School Board, Whitley has been disciplined twice regarding inappropriate touching of students prior to the incident. The School Board kept a record of Respondent’s discipline in Whitley’s personnel file. On or about April 16, 2013, Whitley received a written reprimand after an investigation concluded that he shoved and touched a student’s shoulder repeatedly. Whitley’s reprimand directed Respondent to “[r]efrain from any physical touching of students.” In November 2013, Whitley was suspended for 12 workdays without pay after an investigation concluded that Respondent inappropriately picked up and dropped a student to the ground. The CFR memorandum regarding Respondent’s November 2013 occurrence directed Whitley to: “adhere to School Board Policies 4210, Standards of Ethical Conduct; 4210.01, Code of Ethics; and 4213, Student Supervision and Welfare”; “refrain from inappropriate communications with students”; and “refrain from inappropriate physical contact with students.” Hearing At the final hearing, M.G. provided persuasive credible testimony regarding the incident. He testified that he was sitting in Whitley’s chair in the hall. M.G. also admitted that he refused to move and told Respondent “no” when told to move. Whitley testified that M.G. “jumped” out of the chair. The undersigned does not credit Whitley’s testimony based on his contradictory statements about the incident, which diminish the trustworthiness of his testimony.1 Findings of Ultimate Fact Accordingly, the undersigned finds that M.G.’s credible testimony established that Whitley initiated contact with M.G., grabbed the desk to lean in, and flipped M.G., who was seated, out of the desk. As a result of Whitley’s actions, M.G. landed in a manner where his “hand hit the ground,” head hit the concrete floor, and, by doing so, jeopardized M.G.’s health, safety, and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order: finding Respondent in violation of rules 6A-5.056(2) and (4), 6A-10.081, and School Board Policies 4210, 4210.01, and 4213 as charged; and upholding Respondent's termination from employment for just cause. DONE AND ENTERED this 29th day of October, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2020. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
