The Issue Whether the Respondent committed acts of misconduct by fighting on school grounds with another School Board employee. Whether Respondent should be terminated from his employment with the School Board for acts of misconduct committed off duty.
Findings Of Fact Respondent is a non-instructional employee of the School Board and has been employed by the School Board since 1973. Respondent is a carpenter and is assigned to the Maintenance Division of the School Board in the position of classified staff, maintenance. Respondent's normal working hours as a carpenter are from 7:30 a.m. until 4:00 p.m. Respondent worked his normal duty hours on July 10, 1989, and clocked out at approximately 4:00 p.m. Robert Heckart is a non-instructional employee of the Petitioner. He has been employed for approximately seven years as an air conditioning mechanic and was working out of the south area of Brevard County. On July 10, 1989, between the hours of 8:00 p.m. and 11:00 p.m., Respondent and a co-worker, Robert Heckart, were involved in two physical altercations with each other. The first of these altercations occurred at Respondent's mobile home on the grounds of the Indialantic Elementary School. The second occurred at Robert Heckart's mobile home on the grounds of Creel Elementary School. Respondent and Robert Heckart both maintained their residences on the elementary school campuses pursuant to Security Trailer Agreements with the School Board. The Security Trailer Agreements required Respondent and Heckart to perform various security duties on the elementary school campuses in exchange for rent-free placement of their mobile homes on the school campus and utilities furnished by the School Board. The duties required of Respondent and Heckart by the Security Agreements include notification of police of trespass or vandalism, nightly and weekend checks of the school grounds and buildings to ensure doors and windows are locked, and emergency response and notification of authorities. After work or about 4:00 p.m. on July 19, 1989, Respondent, Robert Heckart, and a co-worker, Warren B. McKenzie, went to the Porthole Lounge in Melbourne. They were met by Respondent's girlfriend, Sharri Brinkoetter. Respondent, Heckart and McKenzie drank beer and played darts and pool. Respondent Warren McKenzie observed Respondent taking some pills. At approximately 5:15 p.m. Respondent, Ms. Brinkoetter, and Robert Heckart left the Porthole Lounge. Robert Heckart went home to his security trailer at Creel Elementary School. At approximately 8:00 p.m., Robert Heckart received a telephone call from Sharri Brinkoetter who was crying and yelling that Respondent was beating her up and was trying to kill her. Ms. Brinkoetter asked Heckart to help her and to talk to the Respondent. Robert Heckart and his son Chris drove to Respondent's trailer at Indialantic Elementary School where they found Respondent and Sharri Brinkoetter. Respondent was pacing the floor in the front room of the trailer in an agitated state. Heckart asked Sharri Brinkoetter what the problem was and Respondent told him it was none of his business. Heckart thought the situation had calmed down and decided to return home. Heckart proceeded down the steps of the trailer and was jumped from behind by Respondent. Heckart and Respondent scuffled and wrestled on the ground. Respondent had cuts and stitches in his face from an automobile accident several weeks before. Heckart pinned Respondent to the ground until he calmed down. Heckart and Respondent apologized to each other and Respondent apologized to Sharri Brinkoetter. Heckart and his son returned home to Heckart's security trailer at Creel Elementary. Upon returning home at approximately 9:45 p.m., Heckart took a shower, put on his housecoat and laid down in bed. Heckart's wife prepared a cold pack for his eye which had been hurt in the fight with Respondent and began preparing Heckart something to eat. About 10:30 p.m., Respondent arrived at Heckart's trailer. Respondent asked Robert Heckart's daughter to have her father come out on the porch. Heckart, thinking Respondent came over to apologize, got out of bed and went out on his porch. When Heckart arrived on the porch, Respondent was in the back yard standing behind the passenger door of Sharri Brinkoetter's car. Respondent was standing behind the door with one hand behind his back. Respondent told Heckart to come down off the porch to the car. When Heckart approached the car, Respondent pulled a wooden club from behind his back and swung the club at Heckart. Heckart grabbed the club and began wrestling with Respondent while attempting to take the club away from him. Respondent was growling like an animal and continued to attack Heckart. The wooden club broke while Heckart was trying to take it from Respondent's hand. One piece of the club flew off to the side and Heckart got the other piece from Respondent and threw it on the ground. Heckart wrestled Respondent to the ground and was trying to restrain him when Heckart's wife Lorna came out of the trailer into the yard. Heckart saw his wife behind him and yelled for her to call the police. Sharri Brinkoetter who had gotten out of the car asked Lorna Heckart not to call the police. Lorna Heckart screamed at Respondent to stop fighting but Respondent continued swinging and attacking Heckart while growling incoherently. Robert Heckart continued trying to subdue Respondent by pinning him to the ground. Heckart again yelled for his wife to call the police which she did by dialing 911. Lorna Heckart reported the situation to the police and went back outside where her husband had succeeded in pinning Respondent to the ground and trying to hold him there. The police arrived within approximately three (3) minutes. When the police arrived, Heckart released Respondent from the ground and stood back while the police took control of the situation. The police called the paramedics who put Respondent in an ambulance and transported him to the hospital. Heckart was not treated as a result of either altercation. Robert Heckart gets along well with his supervisors and co- workers, and is not prone to violence. Heckart has worked for the School Board as an air conditioning mechanic since 1985. Respondent has exhibited a violent temper on and off the job. Respondent has wide mood swings, gets angry very easily, and has created a disruptive atmosphere on the job. Respondent was the aggressor in both altercations with Robert Heckart that occurred on July 10, 1989. Respondent's use of a club against Robert Heckart at Heckart's security trailer at Creel Elementary is a particularly serious act of misconduct. As a result of the July 10, 1989 altercations, Henry E. Hartrick, Director of Maintenance recommended that Respondent be terminated from his position with the Petitioner due to misconduct. No official action was taken against Heckart. Respondent's official personnel file reflected that Respondent was given consistently high ratings, including the areas of work attitude, reliability and cooperativeness. Respondent received one reprimand related to a misuse of a county vehicle. Respondent's past violent behavior with his co-workers and the circumstances of Respondent's misconduct in this case has jeopardized the ability of the maintenance department to perform its assigned duties and has disrupted the department's operations.
Recommendation Based on the findings of fact and conclusions of law, it is RECOMMENDED: that Respondent's suspension, effective July 20, 1989, be upheld and that he be terminated from employment with the School Board of Brevard County. DONE and ENTERED this 7th day of May, 1990, in Tallahassee, Florida. DANIEL N. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1990. APPENDIX Petitioner's Proposed Findings of Fact: Accepted: Paragraph 1, 2, 3, 4, 5, 6, 7 (in part), 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 (in part), 22, 23. Rejected as against the greater weight of the evidence: 7 (in part). Respondent's Proposed Findings of Facts: Paragraph 1, 2, 3, 4 (in substance), 5, 6, 7 (in substance), 12 (in substance), 13, 16, 17 (in part). Rejected as against the greater weight of the evidence: 10 (in part), 14, 15 (in substance), 18. Not relevant: 19, 20. COPIES FURNISHED: Harold T. Bistline, Esquire Building I, Suite 10 1970 Michigan Avenue Cocoa, FL 32922 Burton J. Green, Esquire 103 N. Atlantic Avenue Cocoa Beach, FL 32931 Abraham L. Collinsworth Superintendent Brevard County School Board 1260 South Florida Avenue Rockledge, FL 32955 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, FL 32399-0400
Findings Of Fact During the 1993/1994 school year, the Respondent, Alan Davis, was in his 12th year teaching eighth grade science at Meadowlawn Middle School in St. Petersburg, Florida. He is on a professional services contract. He has a good record and reputation as science teacher at the school and no prior disciplinary problems (or even accusations against him.) The Respondent's classroom was located on the east wall of the school building, at the intersection of two interior hallways to the north and west of the classroom. There is a classroom door to the outside to the east, and the entire east wall of the classroom consists of windows looking across a walkway directly onto portable special education classrooms. There are vertical blinds that can be drawn across the windows and closed. The blinds usually are drawn but not closed. There is a classroom door to the hallway to the west of the classroom. Immediately across the intersecting hallway to the north of the classroom is the door to the teachers' lounge. Immediately past the intersecting hallway to the north is the door to the office of the school resource officer. Immediately past the resource officer's office, only approximately 25 feet from the door to the Respondent's classroom, is a suite of offices belonging to the school principal and other school administration personnel. Kim Wilder was an eighth grader at Meadowlawn during the 1993/1994 school year. She was in the Respondent's fourth period science class. Through about half of the year, she enjoyed a good record and reputation as a pupil of the school. Her grades were A's and B's, and she was not a disciplinary problem. However, several people noticed a change in her behavior in the middle of the school year. Her relationship with her parents deteriorated somewhat, and she sometimes displayed an attitude of not caring about family or school. The beginning of these changes in Kim roughly coincided with her friendship with a boy named Gilbert, who was a poor student, both in academics (he had to repeat grades) and in conduct. Gilbert also later began to spread rumors that he and Kim allegedly were sexually active. Such rumors came to the attention of interested and concerned teachers, one of whom alerted Kim's parents. Kim's parents became convinced that Gilbert was a bad influence on Kim and that she would be better off not seeing him. They refused to allow him to visit at their home, and they insisted that she stop seeing him. This created a conflict between Kim and her family. In the course of conversations with some girl friends approximately the end of March or beginning of April, 1994, Kim disclosed that she had been sexually assaulted by the Respondent. Initially, she told one of her friends only that the Respondent had "felt on" and "kissed" her. She told others additional details. But the first three friends she told did not recall any allegation that the Respondent performed oral sex on Kim. In later retellings, Kim added that allegation. In one later retelling, she added the allegation that the Respondent felt her breasts. Kim forbade her friends to tell anyone about her allegations. But one of her friends disclosed the allegations, and school authorities were informed on or about April 8, 1994. When Kim learned that the school authorities were investigating her allegations, she was very upset and angry at the friend who disclosed her confidences. When the school authorities confronted Kim, she maintained that her allegations were true, and the school authorities brought her home from school. Kim's parents were not home but her sister-in-law, who lived next door, was home and spoke with Kim. Based on the sister-in-law's testimony, it does not appear that Kim's statement to her was very detailed. Although Kim and her parents reported that they generally have an open and communicative relationship, Kim refused to discuss the allegations with them when they came home from work. Instead, she referred her parents to her sister-in-law. Through at least August 26, 1994, Kim had not discussed the details of her allegations with her parents. (They have, however, read statements she has written concerning the allegations.) Law enforcement interviewed Kim at her home on April 8, 1994, and memorialized the interview in a written statement. On June 21, 1994, Kim wrote an account of the alleged assault by the Respondent. Kim also recounted the entirety of the alleged assault twice during testimony at final hearing, once on direct and again on cross; parts were repeated once more on redirect. All of these statements are replete with rich detail, making them seem real. However, with one noteworthy exception, the consistent precision with which the details are repeated seems unnatural and could give the impression of being recited from a memorized script. Before her fourth period science class on Friday, December 10, 1993, the Respondent told her that her mother had telephoned the Respondent earlier that morning to inquire about the C on her report card for the second grading period (after getting an A for the first grading period) and that the Respondent had told Kim's her mother that Kim was missing seven assignments. The Respondent told Kim that she could get the assignments, together with the book she needed to do them, after school. (The required book would not be available until after school because the Respondent's classes shared the use of the same books during class.) Meanwhile, in the detailed versions of her allegations, Kim stated that she was jokingly bantering with a friend and the Respondent about whose "man" the Respondent was, as they did from time to time. She stated that, on this occasion, the Respondent informed them that he was "a dirty old man." She stated that she and her friend did not take the Respondent's statement seriously. Kim stated that, after school ended at about 3:50 p.m. on Friday, December 10, 1993, she went to the Respondent's class room to get the make-up assignments. She testified that she would have arrived at approximately 4 p.m. She said the Respondent was straightening desks and that she helped him finish before sitting in one of the desks. She stated that he then asked her if she had come by to see if he really was a "dirty old man." She made an off-hand comment to the effect, "I guess," or "whatever." He then walked to the classroom door and shut it. Several of the witnesses, including her friends and her sister-in-law, testified that, when Kim first told them what happened, she said that the Respondent locked the classroom door. The report of the law enforcement interview on April 8, 1994, also indicated that Kim told law enforcement that the Respondent locked the door. In fact, the classroom door does not lock from the inside. In her June 21, 1994, statement and in her testimony at final hearing, Kim stated that she thought the Respondent locked the door. Kim alleged that, after shutting (and, in the early versions, locking) the door, the Respondent put a poster with a monkey on it over the window portion of the door and dragged an easel with a flip chart in front of the door, apparently to block access to the classroom or, at least, to serve as an alarm to give him some time to react in the event someone tried to enter the classroom. There was indeed a poster of a monkey (or chimpanzee) on display in the Respondent's classroom that year, and there also was an easel in the classroom that would have been at the Respondent's disposal. But, in fact, the classroom door opens into the hallway, not into the classroom, and the placement of the easel in front of the door would not have been very effective. It is possible that it was the Respondent, not Kim, who overlooked the manner in which the door opened. But, even if the classroom door had been locked or blocked, the Respondent's classroom was adjacent to another science classroom, and there is a door between the two classrooms that does not lock. Ordinarily, it would not be uncommon for the Respondent's fellow science teacher, as well as a few students, to be in the adjacent classroom from 3:50 p.m. until as late as 4:05 p.m. In addition, administration personnel in the suite containing the principal's office and the other administration offices generally are occupied until 4:30 p.m., or later, even on a Friday. Custodians also circulated through the building after school (although they generally did not clean the Respondent's classroom until later.) Fortuitously, it has been possible to deduce, from some of the details provided in Kim's allegations, the precise day on which the alleged assault occurred--Friday, December 10, 1993. It so happens that Friday, December 10, 1993, was the last day of the school science fair. There were approximately 200 projects on display in the school gymnasium, which was just down the hall from the Respondent's classroom. Entrants in the fair were required to dismantle and remove their projects after school that day. As a result, although both students and teachers generally leave the school building promptly on Fridays, and fewer after school activities usually are planned for Fridays, more than the normal number of students would have been in the hallway during the time immediately after the end of school on that particular Friday. In addition, the Respondent's fellow science teacher in the connecting classroom adjacent to the Respondent's had arranged with a handful of his students to allow them to dismantle their projects earlier in the day and store them in his classroom. These students would have been in the connecting adjacent classroom between approximately 3:50 and 4:05 p.m. picking up their science projects. Kim alleged that, after securing the classroom door, the Respondent returned to her and asked whether she thought he was a "dirty old man." She stated that, when she answered, "no, I think you are a nice guy," he suggested, "maybe you should go now," and went over to remove the easel and open the door. But, she alleged, when she insisted that she had to stay in order to get her assignments, he again went to the door and repeated the steps he had just taken to secure the door. This time, when he returned to her, he backed her into a corner of the classroom, using gentle pressure on the shoulders, and (in each telling, "putting his arm around her neck") began kissing her. Kim stated that she did not resist the Respondent or call for help because the Respondent was not being violent, and she was afraid that he would become violent if she was not compliant, so she kissed him back. She alleged that he proceeded to lift her ankle-length "peach and black floral print skirt" (which she was wearing with a "black, long sleeve V-neck shirt"), remove her panties (and, in each telling, she stepped out of the panties "with [her] right foot" while he held her panties) and insert his finger into her vagina. She alleged that he pressed down on her shoulders until she was in a squatting position, lay on his back on the floor and positioned his head under her, and initiated oral sex. After this, he allegedly stood her up, and resumed kissing her, while unbuckling his belt and unzipping his pants. She alleged that he took her hand and placed it on his penis. She alleged that, when he removed his hand from hers, she removed her hand from his penis. When she allegedly thwarted his attempt to have intercourse with her, he allegedly turned her around to face the wall, bent her over (somehow, towards the walls she was facing), again pulled up her skirt, and (as best she could tell) again attempted intercourse, this time from the rear (she alleged that she "felt something hard against her vagina"). Then, she alleged, she detected movement from behind her and assumed that he was masturbating and ejaculating because, when she turned around after the movement stopped, he was wiping something off the floor with a yellow towel. (A yellow cloth, from which a piece had been torn or cut, was found in one of the closets in the Respondent's classroom during the School Board's investigation of the allegations. But it was not proven that the cloth which the Respondent allegedly used to clean the floor on the afternoon of Friday, December 10, 1993, had come from the cloth found in the closet in the Respondent's classroom.) Kim alleged that the Respondent apologized to her for what he did and begged her both never to come back to his classroom alone after school and not to tell anyone. She alleged that the Respondent made reference to a teacher who was being disciplined for sexual misconduct with a student 20 years ago and stated that he always would be afraid that she would disclose what he had done. (In fact, such a story had been reported in the local newspapers on December 8, 1993.) Kim alleged that she promised the Respondent she would not tell anyone. According to Kim, after the incident, which lasted a total of 20-30 minutes, she and the Respondent calmly and amicably left the school together. They allegedly exited through the classroom door into the hallway to the west of the classroom, crossed the intersecting hallway, immediately down which is located the door to the teachers' lounge, and continued walking down the hallway. Immediately past the intersecting hallway, they would have had to pass both the office of the school resource officer and the suite of offices belonging to the school principal and other school administration personnel. A little further down the hallway, they would have passed between the school cafeteria and the school gymnasium (the site of the science fair). Just past the cafeteria and gymnasium, they would have come to the door leading to the parking lot. Kim stated that no one saw them and that they did not see anyone on their way out of the building. Kim alleged that, before she left the building to walk home, she watched the Respondent walk across the parking lot and get in his pickup truck. The Respondent testified that, after learning the date on which it was deduced that the assault allegedly occurred, he realized that it would have been impossible for Kim to have witnessed him getting into his pickup truck on the day in question. He testified that he was having mechanical problems with the truck that week and was driving his wife's car across the bay bridge to work after dropping her off at her place of employment in Tampa, where they lived, while his truck was being repaired. He produced a cancelled check and was able to secure a computer printout from the bill he paid for the repairs when he picked the truck up the next day, Saturday, December 11, 1993. Kim also testified that the Respondent left the "monkey poster" on the door covering the window when they left the classroom. But the custodian who cleaned the Respondent's classroom each evening did not recall ever seeing the "monkey poster" anywhere but on the wall. The Respondent denied engaging in any of the alleged inappropriate behavior. He was able to reconstruct that he had bus duty on Friday, December 10, 1993, and would not have returned to his classroom until 4 p.m. He recalled that there was an unusual amount of activity in the hallways, especially for a Friday, but that probably was attributable to the school science fair. He recalled that, as he approached his classroom, he noticed several students in the adjacent connecting classroom with his fellow science teacher. He thinks he saw Kim there, too. In any event, Kim followed him into his classroom shortly after he unlocked it, opened the door and turned on the lights. He remembered that she helped him straighten desks and that he sat at a desk with her to go over the assignments. He did not recall whether he or she actually wrote the assignments down. He then gave her the book she needed, and she left. He testified that the entire process took approximately five minutes and that the door to the classroom never was closed during that time. Kim alleged that, although she never completed the missing assignments, the Respondent raised her grade from a C to a B. The Respondent testified that Kim completed four of the seven missing assignments. The Respondent normally would not either keep the make-up assignments nor, to prevent other students from copying them, return them to the student. Kim alleged that the Respondent gave her special privileges, like library passes, after the assault. But it was not proven that the Respondent gave more privileges to Kim after the alleged incident than before, or that he gave her privileges that he did not also give to other good students like Kim. Kim alleged that the Respondent often complimented her appearance. The Respondent admitted to affirmatively answering occasional direct questions from Kim as to whether she was pretty. He also recalled occasions when he told Kim and other female students that they were "pretty enough already" and did not need to (and should not) comb their hair and apply makeup in class. Kim alleged that, on one occasion, the Respondent commented that a low-cut blouse she was wearing was distracting. The Respondent recalled once reprimanding Kim for wearing a blouse that was revealing and in violation of school dress code. He admitted that he may have told her that it could be distracting to other students. The Respondent admitted to making an inappropriate comment to or about Kim on one occasion. The school assembled in the gymnasium one day for the introduction of a fund-raising campaign that featured a "money machine." The money machine consisted of a transparent booth with dollar bills inside. As part of the fund-raising campaign, students would be allowed to enter the booth while fans blowing air through holes in the floor of the booth blew the dollars bills off the floor and around inside the booth. The student inside had a limited period of time to grab as many dollar bills as possible. When volunteers were requested to demonstrate the "money machine," Kim thought better of it since she was wearing a skirt. The next day, in the Respondent's class, the Respondent asked Kim why she hadn't volunteered. When she answered that she was wearing a skirt and was concerned that air in the booth would have lifted her skirt, the Respondent commented aloud to the class, "that would have been interesting," or words to that effect. The Respondent was trying to be funny but admitted that the comment was not appropriate. It is noteworthy that, when the Respondent was told that Gilbert was spreading rumors to the effect that he and Kim had an intimate sexual relationship, the Respondent warned Kim to take appropriate steps to protect her reputation. It was revealed during the course of the investigation into Kim's allegations against the Respondent that Kim also has made allegations that, during the summer of 1993, she was forcibly raped at two in the morning, in the bathroom of a restaurant, by a 24-year old male acquaintance. Although Kim's mother thought she remembered Kim returning home upset after the alleged incident, she also testified that she may have learned about it after the allegations against the Respondent surfaced--long after the alleged rape. (Kim's mother, who has been terminally ill and on several medications for some time, seemed confused on this point.) Regardless when Kim revealed the alleged rape, both she and her mother agreed that Kim asked her mother not to tell anyone because Kim could "handle it" by herself. Kim did not receive any treatment or counseling for the alleged rape. Kim also did not mention the alleged rape to law enforcement during the investigation into the allegations against the Respondent. Although it is possible that the alleged rape or the Respondent's alleged sexual assault actually happened, both seem improbable. Yet, it is troubling that no obvious motivation for Kim to fabricate the allegations against the Respondent appears from the evidence. It is possible that she was seeking attention. It is possible that her mother's medical condition could have played a role in motivating such action. On the other hand, it could have had something to do with the relationship between Kim and Gilbert. Maybe she was upset with the Respondent for his role, minor as it was, in turning her parents against Gilbert. Maybe she was trying to deflect her parents' attention away from the bad influence that Gilbert might have represented by trying to make the point that acquaintances or even teachers could pose a worse threat. Maybe the alleged rape and the allegations against the Respondent arose from apprehension about how to explain feared consequences of sexual activity with Gilbert, as irrational as it might seem. Maybe there are other possible explanations in the nature of mental or emotional instability. Perhaps the most likely explanation is that Kim was simply making up a story to impress her girl friends and found herself committed to the story when one of them disobeyed Kim's command not to tell anyone. One can only speculate as to what the actual motivation could have been.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the charges and reinstating the Respondent with back pay. RECOMMENDED this 1st day of March, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 1st day of March, 1995. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-8. Accepted and incorporated. Rejected as not proven. Accepted and incorporated. First sentence, accepted and incorporated; the rest is rejected as not proven. Accepted and incorporated. 13.-29. Rejected as not proven. Accepted and incorporated. Rejected as not proven that she "volunteered." (She decided not to volunteer.) Rejected as not proven that he told Kim (privately, as opposed to as part of the class). Otherwise, accepted and incorporated. 32.-33. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13.-17. Accepted and incorporated to the extent not subordinate or unnecessary or argument. COPIES FURNISHED: Keith B. Martin, Esquire School Board of Pinellas County 301-4th Street S.W. Post Office Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301 1718 East Seventh Avenue Post Office Box 75638 Tampa, Florida 33675-0638 J. Howard Hinesley Superintendent Pinellas County School System Post Office Box 4688 Clearwater, Florida 34618-4688
The Issue The issue for determination is whether Petitioner has just cause to terminate Respondent's employment as an educational support employee.
Findings Of Fact The allegations against Respondent are set forth in the Amended Petition for Termination filed with DOAH on November 10, 2003 (the petition). In relevant part, the petition alleges that Respondent is guilty of falsifying his application for employment, theft of a rug belonging to his employer, and lying to Petitioner's supervisor about the disposition of the rug. Petitioner was the head custodian at the Sanibel School in Lee County, Florida (the school), from October 15, 2001, until August 19, 2003, when Petitioner suspended Respondent with pay and benefits. The position of head custodian is an educational support employee defined in Subsection 1012.40(1)(a), Florida Statutes (2003). Respondent submitted a written application for employment on October 15, 2001. The application required Petitioner to disclose whether Petitioner had ever been convicted, found guilty, or had adjudication withheld in any criminal offense other than a minor traffic violation. The application did not define a minor traffic violation, but expressly stated that a "DUI" is not a minor traffic violation. Respondent answered "no" to the question on the application. Petitioner has not adopted, by rule or non-rule policy, a definition of a minor traffic violation. Local law enforcement officers arrested Respondent for driving under the influence on February 11, 2001. The court did not find Respondent guilty of the charge and did not withhold adjudication. Rather, Respondent pled guilty to reckless driving, and the court required Respondent to complete "DUI school." Respondent did not falsify his employment application. Respondent lacked the requisite intent to mislead Petitioner. Petitioner did not define a minor traffic violation on the application or by rule or non-rule policy. Petitioner's PRO does not cite any judicial decisions defining a minor traffic violation. The court did not convict Respondent of the DUI charge, and Respondent believed that reckless driving was a minor traffic violation. Respondent provided fingerprints with his application and agreed to a criminal background screening. Respondent believed that if Petitioner considered the reckless driving conviction to be more than a minor traffic violation, Petitioner would deny the application for employment. Petitioner did not charge Respondent with falsifying his application until almost two years later when Petitioner charged Respondent with stealing an area rug and lying to Petitioner's supervisor. The preponderance of evidence does not support a finding that Respondent stole an area rug from the school (the rug). No finding is made that the rug belonged to the school or that Respondent possessed the knowledge or intent needed for Respondent's actions to satisfy the definition of theft. Some school personnel, including the principal and assistant principal, clearly believed the rug belonged to the school. When Respondent took the rug home after the end of the 2002-2003 school year, the rug was in good condition, had no odor, had no mold, and had no carpet weevils. During the 2002-2003 school year, a teacher at the school mentioned to her students that they needed an area rug for the students to sit on during certain group times in the classroom. A parent of one of the students gave the rug to the teacher to use in the classroom. In some situations, an item donated to a teacher may belong to the teacher. In other situations, the item may belong to the school. Petitioner's PRO includes a proposed finding at paragraph 21 that ownership of donated items is a gray area. Sometime in April or May of 2003, toward the end of the 2002-2003 school year, the teacher told Respondent that she did not intend to keep the rug and was going to place the rug on a table designated for items that teachers and staff no longer wanted. Unwritten school policy authorized teachers and staff to take items on the table for use in their classrooms or to take home items that were not school property because the school was undergoing remodeling. School personnel tagged or affixed a bar code to all school property worth $750 or more. Property of lesser value sometimes received tags or bar codes depending on the type of property. School personnel did not tag the rug or affix a bar code to it. The rug did not meet fire code requirements for use in the school. Respondent told the teacher that he might want the rug for his home. The teacher told Respondent, "that would be fine." When the teacher resigned from her employment at the conclusion of the 2002-2003 school year, school personnel gave her an "exit reminder." The exit reminder stated, in relevant part, that items donated to teachers for the classroom are the property of the school and do not belong to the individual teacher. Respondent did not receive the exit reminder that school personnel gave to the teacher when she resigned. The teacher had not received the exit reminder when she told Respondent earlier in the school year that he could take the rug home. It is undisputed that school personnel did not tag the rug or affix a bar code to it. The rug remained on school premises until sometime in July of 2003. While the rug was at the school, Respondent cleaned the rug at the direction of school personnel. The rug remained in the all-purpose room, which also serves as the cafeteria, after Respondent cleaned it. Late in July 2003, Respondent took the rug to his home with the assistance of a custodian under Respondent's supervision. He cut the rug to fit his screened porch. Rain soaked the rug several times. The rug is no longer suitable for the classroom. Respondent lied to the principal and another teacher. When they asked Respondent about the rug on more than one occasion, Respondent stated that the rug had black mold and carpet weevils and that he had thrown it into a garbage dumpster adjacent to the school. The school's principal and assistant principal unsuccessfully attempted to locate the rug in the garbage dumpster. The Principal then referred the matter to district personnel to investigate the matter. District personnel requested an investigation by local law enforcement personnel. Local law enforcement personnel questioned Respondent on August 19, 2003, and recovered the rug. Respondent explained that a teacher at the school had given the rug to him. In August 2004, the teacher provided law enforcement investigators with a sworn statement that she gave the rug to Respondent and that Respondent did not steal the rug. The teacher subsequently contacted school personnel to inform them that she had given the rug to Respondent and that Respondent did not steal the rug. The teacher's testimony at the hearing was consistent with her prior statements to law enforcement investigators and to school personnel and was credible and persuasive. Petitioner has not previously disciplined Respondent. However, school personnel have engaged in informal conferences and verbal instruction concerning alleged deficiencies in work performance. Petitioner's expert witness testified by telephone during the administrative hearing. Informal conferences and verbal instructions do not constitute discipline under the collective bargaining agreement with the Support Personnel Association of Lee County (the SPALC agreement). Annual performance assessments have rated Respondent as attaining an effective level of performance in all areas assessed. The assistant principal recommended Respondent for re-employment for the 2002-2003 school year and the next school year. In the annual performance assessment for the 2001-2002 school year, the assistant principal described Respondent as a great asset to the school, self-directed, and self-motivated. In the annual assessment for the 2002-2003 school year, the assistant principal stated that Respondent does a great job for our school, is willing to go "above and beyond," and is flexible and patient. In the fall of 2002, Respondent became a union steward. Between the fall of 2002 and August 17, 2003, Respondent filed three grievances against school personnel. Respondent perceived his work environment as hostile and, rightly or wrongly, viewed the principal and assistant principal as threats to his employment. Respondent lied about taking the rug because, rightly or wrongly, he feared that school personnel would use the rug as a guise for disciplining Respondent or even terminating his employment. On August 19, 2003, Petitioner suspended Respondent with pay and benefits while Petitioner investigated the alleged theft of the rug from the school.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of falsifying his application, not guilty of stealing a rug belonging to the school, and guilty of lying to his supervisor; suspending Respondent without pay and benefits from November 6, 2003, through the date of this Recommended Order; and reinstating Respondent hereafter with pay and benefits. DONE AND ENTERED this 23rd day of June, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 23rd day of June, 2004. COPIES FURNISHED: Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 J. Paul Carland, II, Esquire Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Dr. James W. Browder, III, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue for determination in this case is whether the Respondent should be suspended and/or discharged from employment as a teacher with the School Board of Dade County for the reasons set forth in the Notice of Specific Charges filed on August 11, 1989. That Notice alleges that Respondent is guilty of misconduct in office as defined by Florida Administrative Code Rule 6B-4.009(3), violations of the Code of Ethics of the Education Profession (specifically, Rules 6B-1.001(3) and 6B-1.005(3)(a) and (e),) conduct unbecoming a School Board employee in violation of School Board Rules 6Gx13-4A-1.21 and 6Gx13-4C- 1.01 and/or violation of the School Board's ccrporal punishment policy set forth in School Board Rules 6Gx13-5D-1.07.
Findings Of Fact Respondent holds a teaching certificate from the State of Florida and has been employed pursuant to a continuing professional contract with the School Board of Dade County ("School Board") since September, 1986. During the 1988/1989 school year, Respondent was assigned as an elementary school teacher at Broadmoor Elementary School. As part of his duties as a teacher at Broadmoor, Respondent supervised the children on the physical education field at the school prior to the commencement of classes. The number of students playing in this area each morning often exceeded two hundred and, at the time in question, Respondent was the only teacher assigned to supervise the children. On April 3, 1989, while carrying out his duties as supervisor of the physical education field prior to the commencement of classes, Respondent was involved in an incident involving a student, R.S. who was eight years old and in the third grade at the time. The initial encounter between Respondent and R.S. on that date occurred when Respondent was distributing balls to the students to play with. The student struck Respondent in the back and ran off to the playing field. A few minutes later, the student struck the Respondent a second time by punching him in the stomach when he attempted to break up an altercation between and another student. After punching Respondent in the stomach, R.S. again ran off. Shortly thereafter, a dispute arose between R.S. and several other students who were playing box ball. The other students contended that R.S. was "out". However, R.S. refused to leave the game. The other students called Respondent over to intervene. Respondent instructed the students to replay the point. On the replayed point, R.S. was again "out", but she refused to leave the game and Respondent approached her and directed her to give him the ball. After turning the ball over to Respondent, R.S. began yelling and kicking at Respondent to get the ball back. In grabbing for the ball, R.S. tore the sleeve of Respondent's shirt and ripped some buttons off it. Respondent grabbed R.S. by the arm and told her that they "needed to talk." Respondent attempted to physically remove R.S. from the playing area by grabbing her arm and leg. R.S. resisted the efforts. In trying to restrain and control the student, the Respondent applied a "PIT" hold which Respondent had learned while teaching emotionally disturbed children at the Montenari School. The acronym PIT refers to prevention intevention training. While there is some indication that PIT methods include procedures for incapacitating an individual and placing them on the ground, the Respondent in this case did not attempt to place the student on the ground. Instead, Respondent attempted to hold the student in a position where she could no longer effectively strike or kick at him. R.S. is not emotionally disturbed and does not have a history of discipline probless. While PIT methods are apparently used to restrain violent or aggressive emotionally disturbed students, they are not authorized by the Dade County Public School System for use in restraining students in a regular school. At the time of this incident, the student, R.S., was in third grade and weighed approximately 60 pounds. The Respondent weighed approximately 250 pounds. While Respondent was holding the student and attempting to remove her from the area as described above, the student and the Respondent fell to the ground. While the student contended that the Respondent deliberatley "slammed" her to the ground, the more persuasive evidence indicates that both Respondent and the student accidentally fell while Respondent was attempting to remove her from the playing area. Thus, it is found that Respondent did not deliberately throw the child to the ground. While on the ground, the student continued to struggle and attempted to get up. Respondent pushed her back to the ground and held her down. As a result of the struggle, the student suffered scrapes on the side of her face and a swollen lip. It is unclear whether the injuries occurred as a result of the fall or Respondent's subsequent actions in pushing the student back to the ground. After the student calmed down, the Respondent took R.S. to his room rather than to the Administrative Office or the clinic as required by school policy. Petitioner contends that no administrative staff was in the office at the time and that he attempted unsucessfully to contact the student's parents. However, he did not alert any other school personnel or administrative staff of this incident and the student was left unattended in the Petitioner's office for a short period of time. Other students alerted R.S.'s homeroom teacher of the incident and that teacher located the student and brought her to the clinic where she was treated and her parents were contacted. R.S. had punched Respondent on prior occasions. However, Respondent never reported those incidents to school administrators or to the student's parents. Instead, he attempted to work with the child utilizing nonviolent techniques. Several parents of students at the school have voiced concern over the incident and Respondent's handling of the matter. As a result, Respondent's effectiveness as a teacher at the school has been impaired.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order finding Respondent guilty of misconduct in office and imposing a ten day suspension without pay upon Respondent. DONE and ORDERED this 21st day of February, 1990, in Tallahassee, Florida. J. STEPHEN MENTON 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 21st day of February, 1990.
Findings Of Fact Admitted Facts 1/ Respondent holds Florida teaching certificate 534707. The certificate authorizes Respondent to teach social studies. It is valid through June 30, 1994. Respondent is employed as a Social Studies Teacher at Osceola High School in Osceola County, Florida. He has been so employed at all times material to this proceeding, except for a suspension of five days without pay. The five-day suspension and a letter of reprimand were imposed by the Osceola County School District pursuant to a Disciplinary Agreement between Respondent and the District. The conduct that led to the Disciplinary Agreement is the same conduct that is at issue in this proceeding. In November, 1992, Respondent's classes studied the assassination of President John F. Kennedy. Tim Dodson ("Dodson") was a male student in one of those classes. Dodson told Respondent that Dodson's father owned a replica of the rifle used to assassinate President Kennedy. Respondent sent a note to Dodson's father requesting that Dodson bring the rifle to Respondent's class. Dodson brought the rifle to Respondent's class during the week of November 16, 1992. On November 18, 1992, Respondent took his class outside to the football field. Dodson climbed to the top of an observation tower and fired two rounds of live ammunition at a target located on the ground. Purpose The purpose of firing the rifle from the observation tower was to simulate the angle of fire from Lee Harvey Oswald to President Kennedy in 1963. The firing time was not part of the simulation. Out of concern for safety, Respondent did not permit Dodson to fire the rifle in the same time that Oswald fired his rifle. The three story observation tower on the football field was lower than the fifth story of the book depository in Dallas, Texas. However, the distance from the observation tower to the target was also shorter than the distance from the book depository to President Kennedy. Respondent determined that the angle created by the lower tower and shorter distance in the simulation approximated the actual angle of fire in the assassination of President Kennedy. The target was a metal military helmet resting on a two- by-four board. The target was set at approximately the same height that President Kennedy was positioned in 1963. Prior to November 18, 1992, Respondent's students studied the assassination of President Kennedy and watched the "Zapruder" film of the assassination. On November 18, 1992, students witnessed the simulation and inspected the target after the simulation. They then wrote papers on the assassination and the "lone gunman" theory. Procedure The simulation was originally scheduled for November 16, 1992. Respondent cancelled that simulation because of trouble with the bolt action in the rifle and because of rain. On November 18, 1992, Respondent prescribed specific procedures to be followed during the simulation. Dodson carried the rifle. A second student carried the bolt action. A third student carried the ammunition. A fourth student was designated as a "backup shooter" in the event Dodson missed the target. Both Dodson and the backup shooter were excellent shots and had significant experience with firearms. Respondent, the three students carrying the rifle parts and ammunition, and the backup shooter climbed to the top of the tower. The tower platform was approximately 48 square feet. Respondent instructed Dodson to shoot only on Respondent's command. Respondent also instructed Dodson not to shoot if Dodson saw anyone in the vicinity. Respondent descended the observation tower and remained on the ground with the rest of the students in his class. Respondent and the students on the ground stood behind the shooter and the observation tower. The three students who remained on the platform with Dodson stood behind Dodson. Dodson assembled the rifle and loaded it. On Respondent's command from the ground, Dodson fired two shots at the target. One round hit the target; the other hit the ground. Dodson took the bolt action from the rifle and handed it to the designated student. Dodson and the other three students descended the tower. They inspected the target with the students on the ground and returned to class with the other students. Neither Respondent, any other school official, nor any other competent adult was on the tower platform with Dodson and the other three students. Dodson and the other three students on the platform were not supervised immediately before, during, and after Dodson fired the rifle. Vicinity The observation tower was located approximately 400 feet west of the nearest campus building; in a vacant football field-track-and-parking complex (the "complex"). The complex is approximately 500 feet wide, east to west, and approximately 1,200 feet long, north to south. The observation tower was situated approximately 300 feet west of the east boundary, midway between the north and south boundaries, and 200 feet east of the west boundary. The west boundary of the complex is formed by a drainage ditch that runs the entire 1,200 feet between the complex's north and south boundaries. At its closest point, the drainage ditch was approximately 200 feet west of the observation tower. The target was located approximately 250 feet southwest of the observation tower. It was approximately 10 feet in front of the drainage ditch. The drainage ditch is approximately 25 feet deep. On the west side of the drainage ditch, and adjacent to it, is a line of trees, shrubs, and a six foot chain link fence (the "ditch and tree line"). West of the ditch and tree line are athletic fields used only in the Spring. West of the athletic fields are vacant lands owned by the airport. On November 18, 1992, students and maintenance workers had access to the complex where the observation tower was located. Respondent investigated the complex surrounding the observation tower up to the ditch and tree line. Respondent correctly determined that no one was present in the area Respondent inspected. Students and maintenance workers also had access to the athletic fields west of the ditch and tree line. Although Respondent did not inspect that area, no students were in fact present in the uninspected area. Unknown to Respondent and his students, three maintenance workers were present in the uninspected area. The workers parked their trucks on the softball field between first and second base. They were parked approximately 500 feet west of the ditch and tree line. The maintenance workers were not in the line of fire. They parked their trucks approximately 700 feet due west of the observation tower and approximately 600 feet northwest of the target. The target was approximately 250 southwest of the observation tower and east of the ditch and tree line. Approximately two minutes after parking their trucks on the softball field, the three maintenance workers heard a shot. Two of the maintenance workers left their vehicle. They walked over to the ditch and tree line to investigate the shot. One of the workers walked to a clear spot in the tree line. He tried to look over the top of "some pretty good-sized brush" growing in the clear spot. He saw "three or four kids' heads" on top of the observation tower. The workers found nothing else, returned to their trucks, and completed their duties. Embarrassment And Disparagement Petitioner did not intentionally expose a student to unnecessary embarrassment or disparagement within the meaning of Florida Administrative Code Rule 6B-1.006(3)(e). 2/ Dodson was proud of his role in the simulation. Students uniformly considered the simulation to be a positive learning experience. Although the simulation received significant notoriety in the community through local media coverage and community attention, no student felt embarrassed or disparaged by either the notoriety or the simulation. The notoriety that did occur and any embarrassment or disparagement that may have occurred, if any, was not intended by Respondent. Learning Experience And Mental Health Or Safety Respondent did not fail to make a reasonable effort to protect students from conditions harmful to learning or to students' mental health or safety within the meaning of Florida Administrative Code 6B-1.006(3)(a). 3/ The simulation was a positive learning experience. Students described the learning experience as "great" and "interesting." Almost two years after the simulation, students involved in the simulation were excited about their experience and remembered what they had learned about a significant episode in American history. Physical Health Or Safety Respondent failed to make a reasonable effort to protect students from conditions harmful to their physical health or safety in violation of Florida Administrative Code 6B-1.006(3)(a). The effort made by Respondent was not reasonable, and it failed in fact to protect students from conditions harmful to their physical safety and to their physical health. Unreasonable Effort The effort made by Respondent was unreasonable in three respects. First, it was not reasonable for Respondent to conduct the simulation in the absence of prior notice to, and written authority from, the appropriate school and law enforcement officials. Second, it was not reasonable for Respondent to sanction the possession of a rifle and the firing of live ammunition on campus. Finally, it was not reasonable for Respondent to conduct the simulation without appropriate supervision on the tower platform. 7.01(a) Prior Notice And Consent Prior notice to school and law enforcement officials would have given those officials an opportunity to determine if the simulation was appropriate under any circumstances. If those officials determined that the simulation was appropriate, they would then have had the opportunity to determine the level of supervision required to conduct the simulation in a manner that protected students from conditions harmful to their physical health and safety. By unilaterally determining that the simulation and attendant conditions were appropriate, Respondent denied school and law enforcement officials the opportunity make their own decisions and exposed those officials to potential liability for any actual harm to the students that may have occurred. It was unreasonable to expose those officials to such liability without their prior knowledge and consent. 7.01(b) Sanctioned Use Of Firearms The sanctioned use of a rifle and live ammunition on campus was unreasonable. It creates a risk that students will draw an incorrect inference from the simulation. Respondent testified in the formal hearing that he was under the mistaken impression that it was okay to permit firearms on campus. He based his impression on the fact that the principal had previously condoned the presence of a firearm in Respondent's class, that Respondent had seen ROTC members and police liaison officers present on campus with guns, and that Respondent had also previously witnessed civil war reenactments on campus and mistakenly assumed that the participants used live ammunition. Respondent drew an incorrect inference from the sanctioned presence of firearms on campus. If a person of Respondent's education, experience, and intelligence can draw an incorrect inference from the sanctioned presence of firearms on campus, there is at least an equal risk that Respondent's youthful and inexperienced students will draw a similar inference from the use of a firearm that is sanctioned by Respondent. Respondent's failure to consider this factor rendered his effort unreasonable. 4/ 7.01(c) Inadequate Supervision Respondent's effort to protect his students from harmful conditions was also unreasonable because Respondent failed to provide adequate supervision for students on the tower platform. The failure to have, at a minimum, at least one school official, law enforcement official, or other competent adult on the tower platform with Dodson and his companions was not a reasonable effort to protect students on the platform and students on the ground from harmful conditions. Harmful Conditions The effort actually made by Respondent failed, in fact, to protect students from conditions harmful to their physical safety. The effort created unsafe conditions including the possession and discharge of a rifle, loaded with live ammunition, by an unsupervised high school student, positioned on top of a three story tower, accompanied by three other students who were also unsupervised, while Respondent and the other students observed from the ground three stories below. Those conditions were unsafe and, therefore, failed to protect students from conditions harmful to their physical safety. The conditions of the simulation threatened harm to the students physical health by creating a risk of actual harm. The conditions were, therefore, harmful to the students' physical health for purposes of Florida Administrative Code Rule 6B-1.006(3)(a). The harm that students were threatened with included serious injury or death. A misfire could have resulted in serious injury or death to any of the students on the ground or on the platform. Similarly, a fall from a height of three stories could have resulted in serious injury or death to any of the four students on the platform. Mitigating Factors The physical health of any one student was not in fact harmed as a result of the simulation. The angle of the rifle to the target, the depth of the ditch, and the density of the tree line made it unlikely that a bullet fired at the target would hit anything except the target, the ground, or the ditch and tree line. Dodson and the "backup shooter" had substantial experience with firearms and were expert marksmen. Those factors diminished the possibility of a misfire and the possibility that bullets fired at the target would hit anything other than the target or the ditch. The bullets, in fact, struck only the target or the ditch. No students other than those involved in the simulation were present in the complex. No students were present in the uninspected area west of the ditch and tree line. No person who was not a student was injured as a result of the simulation. The maintenance workers were not in the line of fire and were not in fact harmed. Respondent did not fail to make a reasonable effort to protect students from conditions harmful to their physical health or safety before and after the simulation. Respondent gave Dodson specific instructions before Dodson brought the rifle to school. Pursuant to Respondent's instructions, Dodson removed the bolt action from the rifle, put the rifle in his car, locked the rifle in his car, and went to class. Respondent and Dodson immediately retrieved the rifle from the car and carried the separate parts of the rifle and the ammunition back to the classroom. Respondent followed adequate safety precautions before and after the simulation. The unloaded rifle, the bolt action that had been removed from the rifle, and the ammunition were kept locked in Respondent's closet in his classroom. The only times that the rifle was not locked in the closet was during the simulation and when Respondent permitted his students to view the rifle when it was first brought to school. The only time that the rifle was harmful was on the platform immediately before, during, and after it was fired. Earlier in the school year, school officials condoned the presence of a World War II rifle brought into Respondent's class without notice to school officials and without their prior consent. The school principal entered Respondent's classroom on other business and saw Respondent and other students inspecting the rifle. The principal did not object to the presence of the rifle and joked about students wanting to get rid of the principal. The school principal encouraged Respondent to use simulations. At a meeting of social studies teachers conducted in the beginning of the school year, the school principal encouraged those teachers to take teaching risks and to use new and unconventional methods for reaching students. Simulations were included in the methods suggested by the principal. 5/ Respondent is highly regarded by students. They give him high marks for bringing his subject matter to life. He frequently uses films, demonstrations, and simulations to capture students' interest through visual history. Students in Respondent's classes learn, enjoy learning, and retain what they learn. Other students try to get into Respondent's classes. Respondent is highly regarded by his employer. The Assistant Principal of Osceola High School testified: He is a very good teacher, very effective. Kids love him. He works very hard. He loves teaching. He is passionate with his subject. When I . . . observe him, I get so involved that I don't want to leave. Respondent's employment assessment for the last two years has been "excellent." The abilities and skills that Respondent brings to the classroom are significant resources for students and provide them with substantial benefits. School officials arranged for Respondent to complete his five-day suspension so that he did not miss any time in the classroom. Respondent is highly respected by the school faculty. Respondent's role in the simulation conducted on November 18, 1992, did not diminish the respect Respondent has earned from his peers. The faculty at Osceola High School voted Respondent teacher of the year for the 1993-94 school year. Respondent was runner-up for teacher of the year in the 1992-93 school year, the year that Respondent conducted the simulation. Respondent is a well educated public school teacher. Respondent received his undergraduate degree from Central Michigan University, a teachers college. He received a master's degree in education, curriculum, and instruction from Michigan State University. Respondent received a specialist degree in leadership (i.e., administration) from the University of Central Florida. A specialist degree is awarded to persons who hold a master's degree and successfully complete all of the requirements for a doctorate except the dissertation. Respondent is presently a doctoral student in leadership at the University of Central Florida. Respondent has significant teaching experience. He has been teaching public school children for over 16 years, including 10 years at Osceola High School, a time at Winter Park Junior High School in Orange County, Florida, and six years in DeWitt, Michigan, a suburb of Lansing, Michigan. Respondent has been an adjunct teacher at Valencia Community College and the University of Central Florida. While Respondent taught public school children, he was also involved in assisting students in their extra curricular activities. Respondent was a head basketball coach for junior varsity and freshman basketball, a high school football coach, and a varsity and junior varsity baseball coach. Respondent coached youth leagues for girls softball and boys baseball. He coached in summer basketball camps put on by Michigan State University and worked for the Milwaukee Bucks in coaching basketball clinics for them. Respondent also teaches religious education and is the head of a youth group. Respondent has no prior disciplinary history against his teaching certificate. The Disciplinary Agreement entered into between Osceola High School and Respondent, as a result of the simulation conducted on November 18, 1992, is the only disciplinary action taken against Respondent during his considerable teaching career. One of the elements of The Disciplinary Agreement involved a period of probation. Respondent was returned to a Needs Improvement status and evaluated by school officials at the end of his probationary period. Respondent successfully completed the probation, was evaluated "excellent," and returned to his regular status.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission (the "Commission") enter a Final Order finding Respondent: not guilty of intentionally exposing a student to unnecessary embarrassment or disparagement within the meaning of Florida Administrative Code Rule 6B-1.006(3)(e); not guilty of failing to make a reasonable effort to protect students from conditions harmful to learning or to their mental health or safety within the meaning of Rule 6B-1.006(3)(a); and guilty of failing to make a reasonable effort to protect students from conditions harmful to their physical health or safety in violation of Rule 6B- 1.006(3)(a) and Section 231.28(1)(i), Florida Statutes. It is further recommended that the Final Order impose the following penalty: a letter of reprimand filed in Respondent's teaching certificate file; the completion, at Respondent's expense and within one year of the date of the Final Order, of an appropriate course in classroom safety which shall not exceed one, three hour college level class; and suspension of Respondent's teaching certificate for not more than 30 days to be carried out in a manner that will not preclude students at Osceola High School from receiving regular classroom instruction from Respondent, will not preclude the automatic reinstatement of Respondent's teaching certificate at the conclusion of the period of suspension, and will not have an adverse effect for Respondent's current employment status at Osceola High School and any attendant benefits such as medical insurance and retirement benefits; or either at the election of Respondent or in the event it is not feasible to implement suspension subject to the limitations stated herein, an administrative fine not greater than $1,000 to be paid in lieu of suspension of the teaching certificate. The actual term of suspension or the actual amount of the fine, if elected, shall be determined by the Commission subject to the limits established in this Recommended Order. Respondent may elect to pay the fine at any time prior to the first day of the actual suspension determined by the Commission. Subject to the limits established herein, any fine elected by Respondent shall be imposed in accordance with the provisions of Section 231.262(6)(c), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of October, 1994. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1994.
Findings Of Fact Case History The Department of Education, State of Florida, has filed an Administrative Complaint against Respondent, Daniel E. Moody, the substance of which Complaint is discussed in the Issues statement to this Recommended Order. Respondent has requested a formal hearing to consider the Administrative Complaint, having denied the material allegations of the Complaint. See Subsection 120.57(1), Florida Statutes. Following notice, a hearing de novo was held on March 3, 1982. In the course of the final hearing, Petitioner presented Clarence Newsome, Robert D. Williamson and Dalton Epting as witnesses. Petitioner offered two (2) exhibits which were received into evidence. Respondent testified in his own behalf and offered as witnesses William Benjamin Kyle, William L. Stone, and Rudolph W. McKissick. Respondent had one exhibit, late- filed, which is not granted admission for reasons which will be discussed in the Conclusions of Law section to this Recommended Order. Material Facts Respondent holds a teaching certificate issued by Petitioner. That certificate is No. 314402, Rank III, certifying Moody in the area of math. The certificate is valid through June 30, 1988. Respondent is presently employed and was so employed at all times material to the Administrative Complaint as a high school teacher in the public school system of Duval County, Florida, assigned to Englewood High School to teach mathematics. Presently, Respondent is Chairman of the Math Department in that school. On November 9, 1980, around 9:30 A.M., Respondent entered the Pic-N- Save store located at 7912 Lenn Turner Road, Jacksonville, Florida. Once inside the store, he went to a shopping aisle where automobile tune-up kits were located and picked up a package which had been opened. This package normally contained three (3) tune-up items; namely, points, condenser and rotor cap. The rotor cap in this particular package had been removed and an employee in the store had retaped the package container and placed it on the shelf before this occasion. After examining the package, Respondent replaced it on the shelf and picked up a second package which also was a tune-up kit containing three (3) parts. This package was sealed and had not been opened prior to Respondent's selection of the item. Respondent then began to tear open the cellophane which enclosed the tune-up pieces in the second package, pausing when persons who were in the store would enter the area where Moody was located. At those points in time, Respondent would stop tearing the cellophane and take other auto parts off shelves and then hang them back. Respondent was moving up the aisle as he conducted this process of opening the package. Once the package had been opened, he removed a rotor cap from the package and placed it in the right front pocket of his pants. Respondent then walked back to the area where he had originally picked up the second tune-up kit, laid that package down and picked up the original tune-up kit which had been taped by store employees and which was missing the rotor cap. He then proceeded to a service counter where the store manager, Clarence Newsome, was working. Moody spoke to Newsome and pointed out the fact that a part was missing from the first package and asked Newsome to discount the tune-up kit price, which Newsome agreed to do, discounting the cost from $2.59 to $1.59. This discount was noted by marking down the price on the package and returning it to Respondent. Robert Dale Williamson, an officer with the Jacksonville Sheriff's Department and part-time security officer at the Pic-N-Save store had observed Moody's activities with the two (2) packages of tune-up parts and had left his concealed observation position and followed the Respondent to the counter where Newsome was located. Once Respondent had concluded his transaction with Newsome, he turned around and was confronted by Officer Williamson who produced his sheriff's badge and identification card and asked Moody to accompany him to an area in the downstairs portion of the store. Moody and Williamson walked downstairs and once in a room in the downstairs location, Williamson asked Moody to remove the part that he had placed in his pocket. Moody responded that he did not have a part in his pocket and this remark was followed by Williamson's act of "frisking" Respondent and removing the black rotor cap from Moody's right front pocket, which had been taken from the second auto tune-up kit package. Moody made no comment about this item being removed from his pocket. While another employee stayed with Moody in this room, Williamson then went back into the store area where the second package had been left, recovered the package and the two (2) items that remained in that package and subsequently placed those items and the rotor cap which had been removed from Moody's pocket into a bag which was sealed and left with the store manager. Testimony by Dalton Epting, Director of Certified Personnel for Duval County School System, established that with the exception of a limited number of school personnel, the events of November 9, 1980, related to the alleged shoplifting were not known throughout the school system, either by faculty or students, nor in the general community. At the time of the incident, Epting was Principal at the high school at which the Respondent taught. Epting conferred with Respondent about the incident when it was brought to his attention and the Respondent having professed his innocence, Epting did not recommend further action be taken by the Duval County School Board. As an educator, Epting testified and accurately stated that a shoplifting incident is a matter which is not an acceptable example for young people and is an immoral act. In this instance, Epting correctly identified that the school authorities, students and community having not been told of the matters at issue here, Respondent has not lost his effectiveness as an educator, and Moody continues to maintain a good relationship and reputation among other teachers. During Epting's administration at Englewood High School, Respondent was promoted to Chairman of the Math Department and Respondent has passed a screening process which would allow him to be promoted to an administrative position. William Leon Stone who is the assistant principal for student services at Englewood High School also accurately stated that there has been no loss of effectiveness on the part of Respondent in his abilities as teacher, premised upon a knowledge by the overall community or by faculty members and school officials or students of the incident in question, those various groups having not been given knowledge of the events. Stone has found Moody's performance as teacher at Englewood High School to be in keeping with the standards of the Duval County School System. Finally, testimony was offered by Rev. Rudolph W. McKissick who is the pastor of Bethel Baptist Institutional Church in Jacksonville, Florida. Respondent is a member of that congregation and is an ordained deacon. Rev. McKissick gave testimony to the effect that Respondent has good moral character and is an active parishioner in church activities.
The Issue The issue presented is whether Respondent should be terminated from his employment with the Leon County School Board based upon the charges in the Notice of Final Disciplinary Action.
Findings Of Fact After serving ten years with the United States Marine Corps, Respondent Lester L. Hall became a firearms instructor for a Maryland police department. He also began to work with at-risk children. After he returned to Leon County, Florida, in 1996, he began working with at-risk children at DISC Village and worked there until 2005. In 2003 Respondent began his college education at Tallahassee Community College. He is now in his last year at Flagler College, which has a satellite branch on the community college's campus. He is majoring in elementary education and exceptional student education. Sometime in 2006, Respondent began working as an instructional aide at Gretchen Everhart School. Everhart is a special day school with approximately 250 students. Those students are primarily moderately to severely mentally handicapped, and some are also physically handicapped. On July 26, 2006, Respondent was promoted to assistant director of the Students Motivated in Learning at Everhart (SMILE) after-school program. He was terminated from his position as of October 13, 2006, for reasons unrelated to the allegation which gives rise to this proceeding. In January 2007 Respondent began working at DeSoto Trail Elementary School as an instructional aide. Renee Gadson has worked for the Leon County School Board as a substitute teacher since 1992. During the 2006-07 school year and thereafter she worked at several different schools within Leon County, including Everhart. On September 13, 2008, Gadson saw Respondent at Everhart talking with some adults and then helping to load a student into a van. The next day she again saw Respondent at Everhart. After seeing Respondent at Everhart two days in a row, she then went to Pam Jameson, the site coordinator for the SMILE program, demanding to know why Respondent was at the school and why he was allowed to be near children. Jameson inquired as to why Gadson was so upset. Gadson related to Jameson that two years earlier, Gadson had gone to Everhart to pick up her nephew from the SMILE program and upon entering the classroom saw a young female with her head in Respondent's crotch area. Jameson told Gadson to report this to the Principal. Late that day Gadson spoke with Principal Jane Floyd- Bullen. Gadson told the Principal what she had told Jameson. According to Gadson, Respondent was standing just three feet inside the open classroom door and that in addition to the young female and Respondent, two other students were present in the classroom: Gadson's nephew and another boy who was in a wheelchair. She further explained that as she and Respondent made eye contact, Respondent pushed the girl away, turned away from Gadson, and adjusted his clothing. Respondent then turned to Gadson and began talking to her about how her nephew's day had gone. A few minutes later, the pregnant mother of the boy in the wheelchair arrived to pick up her son, and Gadson left the classroom. She said that she looked for program director Jameson, but Jameson was not there so Gadson left the school. Gadson explained that after a few more days she did not see Respondent at Everhart any more so she assumed the problem had been taken care of until she saw him there two years later. Floyd-Bullen asked Gadson if she had reported what she saw to anyone at the time, and Gadson said she thought she had but could not remember to whom she had spoken. Since it was late Friday afternoon when Gadson came to her, on Monday morning Floyd-Bullen contacted James Parry, the School Board's Chief of Labor and Employee Relations to report this conversation. Two investigations ensued: one by the School Board's Department of Safety and Security and one by the Leon County Sheriff's Office. On September 17, 2008, Respondent was given a letter telling him he was being placed on administrative leave with pay pending resolution of an investigation. Respondent was not told the subject of the investigation until he was summoned to the Sheriff's Office for questioning and was told then. Investigating Gadson's allegation was difficult because it was two years later, and the date of the incident she reported could only be narrowed down to late-September or early- October 2006. Further, although it was easy to identify the boy in the wheelchair, identifying the young girl was difficult. Gadson made the identification based upon looking at pictures in the most-recent Everhart yearbook. She identified a girl who had an unusual gait. The girl identified by Gadson has an I.Q. of 24 or 25 and is non-communicative, as are Gadson's nephew and the boy in the wheelchair. The girl she identified was not in the SMILE program during the time period of the alleged incident but "could" have been there if no one was at her home when the school bus delivered her there and if the bus driver had returned her to Everhart and taken her to the SMILE classroom. During the investigation Gadson remembered that she had reported the incident in 2006 to Joanne Kilpatrick, an employee at Everhart. When questioned, Kilpatrick did not remember any such conversation. During the investigation Gadson described what the girl was wearing, what Respondent was wearing, and what she was wearing two years earlier. She explained that she was wearing tennis shoes so her footsteps walking to the classroom made no noise and that the electric-powered doors to the hallway where the classroom was located were partially opened and so she opened them manually, thus preventing the motor to make its usual noise. She admitted that she had not seen Respondent's penis and the little girl was not moving during the incident which she described. During the investigation Gadson was asked by the detective investigating the case to take a computerized voice stress analyzer test. Among the questions she was asked during the test were two very specific questions which included Respondent's name, her nephew's name, and the classroom as the location. Her answers were considered to be "non-deceptive" by the person who administered the test and the person who read the computer print-out. When Respondent was informed of the allegation against him, he became extremely upset and frightened. His demeanor varied during the interview among being calm, being frightened, being angry, and crying. He denied the allegation but was unable to tell the detective why Gadson would make such an allegation if it didn't happen. He asked if he could be given a lie detector test and was offered the computerized voice stress analyzer test. Among the questions he was asked, the only two relevant questions were general in nature, unlike the very specific questions asked Gadson. Respondent, who was then a 43-year-old, unmarried, full-time college student, was asked: "Have you ever exposed your penis to a student?" and "Have you ever had a student perform oral sex on you?" His answers were determined to be "deceptive" by the person who administered the test and the person who read the computer print-out. At the final hearing Respondent explained the physical location of the SMILE classroom, the second classroom on the left, in a hallway with other classrooms and with an outside entrance to the building at the rear and another in the front of the building. At the time of the alleged incident, there were 17 students enrolled in the SMILE program, which ended at 6:00 p.m. Between the hours of 5:00 p.m. and 6:00, the time of the alleged incident, the classroom is busy with parents, staff, and students coming in and going out. The mother of the boy in the wheelchair regularly brought her young daughter with her when she picked up her son. Respondent had a teasing relationship with the girl and even had a nickname for her. Since her mother was 8 1/2 months pregnant at the time and moved slowly, the girl would usually arrive at the classroom before her mother. Respondent thinks it is possible that the girl ran into the classroom and hugged Respondent just as Gadson appeared in the doorway and saw a girl with her head in Respondent's crotch area. That girl was the age of the girl described by Gadson, but the girl identified by Gadson was several years older than the age of the girl Gadson described. At the conclusion of the Sheriff's Office investigation, the State Attorney's Office declined to prosecute. Although Gadson, as she repeats her story, is credible, it is determined that her allegation has become true to her over time, but was not true at the time of the alleged incident. Her behavior at the time is inexplicable if she saw what she now says she saw. She came into the classroom through its open door. She said and did nothing to confront Respondent about what would constitute not just child abuse but a serious crime. She did nothing to comfort the girl or remove the girl from Respondent's presence. She simply chatted with Respondent for a few minutes and left, assumedly leaving the girl with Respondent. When she was unable to find Jameson, she simply left the school without contacting anyone at the School Board, calling the abuse hotline, or contacting the police. In short, she did not report what she now says she saw to anyone in a position of authority to do something, including the principal at Everhart who testified that Gadson regularly came to her to voice concerns about other matters. Her testimony that she assumed Respondent had been dealt with since she didn't see him at Everhart after a few more days is also strange for two reasons. First, the conversation she says she had with Kilpatrick which Kilpatrick doesn't remember was simply saying that Respondent had done something inappropriate. Thereafter, since no one ever asked her what she had seen, it would have been clear to a reasonable person that there was no one looking into her vague report. Second, her testimony means that she was not bothered by the fact that Respondent was still at Everhart after the alleged incident, even for a few days. Gadson's behavior on the day of the alleged incident and thereafter can only be justified if she didn't think at the time that she had seen an abusive and criminal act taking place even though she has apparently convinced herself she had two years later. Gadson has been an educator for many years, and it is beyond belief that she would react as she did if she believed that she had witnessed what she later described and yet simply left the child to be alone in the classroom with Respondent when the mother removed her son in the wheelchair. After Respondent quit his job at DISC Village, he filed a complaint with the Florida Commission on Human Relations alleging discrimination. An evidentiary hearing was conducted by this forum and resulted in a Recommended Order recommending that Respondent's complaint be dismissed. That recommendation was adopted by the Commission. (DOAH Case No. 06-1052, Final Order entered October 12, 2006). The findings of fact in the DOAH Recommended Order entered July 20, 2006, reflect that an investigation of Respondent was about to commence when Respondent left his employment. There is no evidence that an investigation was already underway. When Respondent was terminated from his position as the assistant director of the SMILE after-school program, he filed a complaint with the Florida Commission on Human Relations. An employee there conducted an investigation and determined that there was no reasonable basis for believing that an unlawful employment practice had occurred. Respondent did not pursue his claim any further. Respondent's March 8, 2007, application for employment by the School Board of Leon County in Section III asks for employment history. Respondent left blank the reason(s) for leaving his prior positions. In question numbered 2 Respondent answered in the affirmative that he had been terminated in October 2006. Questions numbered 3 and 4 asked if he had left a job by mutual agreement or under unfavorable circumstances. While it can be argued that Respondent's answers to these questions in the negative were technically correct but conceptually incorrect, his answers do not reflect on his credibility in this proceeding. Despite his only-arguably- incorrect answers, Respondent's testimony is more credible than Gadson's.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the charges against Respondent and reimbursing him for lost wages and benefits from the date of termination until the effective date of his non-reappointment. DONE AND ENTERED this 27th day of July, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 27th day of July, 2009. COPIES FURNISHED: Lester L. Hall 810 Wadsworth Street, Apartment 113-B Tallahassee, Florida 32304 J. David Holder, Esquire J. David Holder, P.A. 1400 Village Square Boulevard, Suite 3-196 Tallahassee, Florida 32312 Jackie Pons, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The respondent, Dianne Tice, began teaching home economics at the Jan Mann Opportunity School North (Jan Mann) in the 1981-82 school year. Jan Mann is a school devoted to students with behavior problems, attendance problems and learning disorders. Student James Woody, thirteen years old, was a continuing discipline problem for teachers at Jan Mann. At the time of his admission to Jan Mann, there were discussions as to whether Woody was the type of student who should be admitted. The staff psychologist at Jan Mann believed that a more appropriate placement would have been a residential facility. Nevertheless, Woody was admitted to Jan Mann. On March 13, 1984, Woody was attending respondent's fifth period home economics class. Due to his loud, profane language and banging on desks and chairs, respondent sent Woody to the Principal's office with a referral slip. Approximately twenty minutes later, Woody returned to the respondent's classroom and again became disruptive. Respondent then requested the security guard or hall monitor to either talk to Woody or again take him to the Principal's office. The hall monitor spoke with Woody, placed him back in the classroom and told respondent to put Woody outside the classroom with him if Woody caused any further trouble. Thereafter, the respondent was in the front of the classroom when another student asked to be assisted with the placement of buttonholes in some pants she was sewing. The respondent picked up a pair of scissors, a seam ripper and some keys and began walking to the rear of the classroom to get other equipment from a cabinet so that she could assist the student. At this point, Woody again became disruptive -- pounding on desks and using loud, profane language. The evidence is very conflicting as to what then transpired. Woody left his desk, and it is not clear whether respondent told him to leave the classroom before then or whether he was attempting to proceed to the rear of the room in order to use the restroom. In any event, Respondent was walking toward or behind Woody with the scissors, seam ripper and keys still in her hands. They both ended up at the rear door of the classroom, which opens and closes by means of a push bar. Woody was on the outside of the door and respondent was on the inside. The evidence is again conflicting as to whether respondent was attempting to hold the door closed so that Woody could not reenter her classroom, or whether she was attempting to open the door to either bring him back in or see where he had gone. Whatever she was attempting to do, Woody was either pulling or pushing in the opposite direction. The hall monitor, sitting some ten to fifteen feet away from the door, observed Woody at the door outside the classroom pulling on the door, and began to go over to the door when Woody released the door and cafe over to him. The monitor observed blood on Woody's hand and took him to the bathroom to wash his hand. He then went back to respondent's classroom and asked respondent how Woody had gotten cut. Respondent then ran into the bathroom to help. What was said in the bathroom is also the subject of conflicting testimony. Woody at first told school personnel that he cut his hand while banging on a desk. Respondent told him not to try and protect her. Whatever was said, respondent does not deny that Woody may have been accidentally cut with the scissors, seam ripper or keys during the scuffle at the rear door of the classroom. After the incident, respondent told several people that she had cut Woody. There is no evidence, however, that respondent intentionally stabbed Woody's hand during the incident. As noted above, respondent was first employed at Jan Mann for the 1981- 82 school year. Her annual evaluation for that year indicates that she was rated acceptable in all categories of the evaluation and was recommended for re- employment by her then Principal, Robert Edwards. During this first year, respondent was also formally observed by the Dade County School Board Supervisor of Home and Family Education. She was found to be acceptable in all categories and all comments were very favorable. During the 1982-83 school year, respondent was formally observed in her classroom on three occasions. In November of 1982, Assistant Principal Altman rated respondent unacceptable in the two categories of "classroom management" and "techniques of instruction," and acceptable in the remaining six categories. She was given an overall summary rating of acceptable. In January of 1983, respondent was again observed by Ms. Altman and received an unacceptable rating in three categories, but an overall summary rating of acceptable. Approximately one week after the January evaluation, respondent and Ms. Altman were involved in an incident which resulted in respondent filing a grievance against Ms. Altman for allegedly pushing her in the presence of her students. Principal Oden investigated the matter and decided that respondent's allegations against Ms. Altman were unfounded. In March of 1983, a Department of Education consultant performed an instructional program review and found respondent to have met all assessment standards. Additionally, it was noted that respondent was "commended for her management and organization of the facility." Respondent's annual evaluation by Principal Oden, dated June 9, 1983, indicates that she was rated acceptable in all categories except for the category entitled "preparation and planning." Principal Oden remarked that respondent "does a good job at teaching, but needs to devote more attention to planning." Respondent was recommended for re-employment by Principal Oden. During the 1983-84 school year, Respondent had two formal classroom observations. Assistant Principal Willie Shatteen observed her classroom on October 6, 1983, and found her performance to be acceptable in all categories. His written comments included the following: "lesson plans are evident," "materials are arranged far in advance," "students orderly and attentive," and "has knowledge of background of each student to provide for individual's need." In a follow-up letter, however, Mr. Shatteen criticized respondent for not following her lesson plans and for her negative attitude toward constructive criticism. Several conferences were held between respondent and her supervisors in October and November, 1983. By letter dated November 17, 1983, Principal Oden expressed several concerns he had relating primarily to respondent's planning, teaching and classroom management skills, and made ten recommendations for improvement. Principal Oden formally observed respondent's classroom on December 8, 1983, and rated her acceptable in all categories except "preparation and planning," but gave her an overall rating of acceptable. His comments in the area of "preparation and planning" included "improvement may be achieved through better planning." A "conference for the record" was held on December 13, 1983, to discuss the recommendations made in the November 17th letter. Also discussed was the possibility that respondent would not be recommended for continued employment at Jan Mann should she fail to make the necessary improvements discussed in the November 17th letter. Another conference was arranged for a time between January 19, 1984, and January 25, 1984. The record is not clear as to whether that conference occurred. Respondent's lesson plans were submitted to and reviewed by her supervisors every week. While the January 4, 1984, review found that the plans were not organized to include certain items and that a conference was needed, the plans for the following five weeks were found to be "accepted" and, in one instance, "plans are excellent. No improvement is needed at this time." Just prior to the March 13, 1984, incident involving student James Woody, Principal Oden decided that he was going to recommend respondent for a continuing contract. He told her this and her name was included on the list submitted to the School Board containing those recommended for a continuing contract. While be felt that there were some modifications needed in her teaching behavior, he also felt that there was room for her to improve with the beginning of a new year. Had it not been for the Woody incident, Principal Oden would have recommended respondent for a continuing contract. Indeed, his decision of "not recommended for employment" contained on the 1983-84 annual evaluation contains the remark "pending S.I.U. ..." -- referring to the investigation of the Woody incident by the School Board's Special Investigative Unit. Had respondent been cleared of the Woody incident, she would have been recommended by Principal Oden for re-employment on a continuing contract basis. His annual evaluation for the 1983-84 school year, signed on March 21, 1984, rates respondent as unacceptable in the two categories of "preparation and planning" and "professional responsibility," and acceptable in the remaining six categories. Apparently in connection with the investigation of the Woody incident, a psychiatric evaluation of respondent was performed by Dr. Gail D. Wainger, a psychiatrist. After spending approximately one hour with the respondent on March 20, 1984 (the same day that respondent was informed that she would not be recommended for employment), Dr. Wainger concluded that respondent appears to be suffering from chronic paranoid schizophrenia, and that she experiences misperceptions and shows evidence of poor judgment. This diagnosis was based, in part, upon the respondent's expressions to the effect that the school administration was against her and was attempting to get rid of her and also her relating to Dr. Wainger incidents which occurred at an apartment complex in which she formerly resided. Dr. Wainger is of the opinion that respondent would be likely to decompensate during stressful situations. On June 20 and 22, 1984, another psychiatric examination of respondent was performed by Dr. Lloyd Richard Miller, a psychiatrist. Dr. Miller spent approximately three hours with the respondent over two different days, performed some psychological testing, and also reviewed Dr. Wainger's psychiatric report. It was his conclusion that respondent did not suffer from a mental illness, and he did "not view her as guarded, suspicious or paranoid in any way. It was Dr. Miller's opinion that respondent has the sufficient mental capacity to return to work as a teacher. An expert in the area of teaching personnel evaluation and personnel management employed with the Dade County School Board, Dr. Desmond Patrick Grey, reviewed respondent's personnel files, including her classroom performance and annual evaluations, the investigative reports of the Woody incident and Dr. Wainger's psychiatric report. Dr. Grey was of the opinion that respondent's performance evaluations indicate a serious problem that would limit her effectiveness as a teacher; that the Woody incident impaired the integrity of the profession and the respondent; and that respondent has an incapacity to perform the expected function of a teacher. Three employees at Jan Mann testified in respondent's behalf. A school psychologist believed that respondent's character and reputation at Jan Mann were outstanding. A graphic arts aide felt that respondent was excellent dealing with the children and was dedicated in her occupation. A workshop instructor felt that respondent had been a "pretty competent teacher."
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Amended Specific Notice of Charges against respondent Dianne Tice be DISMISSED, and that she be awarded back salary for the remainder of the contract period following her suspension. Respectfully submitted and entered this 16th day of May, 1985, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1985. COPIES FURNISHED: Thomas Robertson, Esquire Merritt, Sikes and Craig, P.A. McCormick Building - 3rd floor 111 Southwest Third Street Miami, Fla. 33130 Carl DiBernardo, Esquire Commercial Bank of Kendall 8603 S. Dixie Highway - Suite 210 Miami, Fla. 33143 Phyllis O. Douglas, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Fla. 33132
The Issue The issue is whether Respondent Okaloosa County School Board engaged in an unlawful employment practice with regard to Petitioner.
Findings Of Fact Ms. Stallworth, during the 2004-2005 school year, was a teacher's aide employed by the School Board at W. E. Combs School in Ft. Walton Beach, Florida. She is a female African- American. She was assigned to assist Dawn Hall, who was a teacher in the Teen Age Parenting Program (TAPP) at Combs. Ms. Hall is a female of the Caucasian race. Ms. Stallworth is a non-instructional employee of the School Board and is a member of the collective bargaining unit of the Okaloosa County Educational Support Personnel Association. The School Board of Okaloosa County operates the school system in the Okaloosa County School District. It operates the Combs School and the TAPP program. The TAPP program provides an alternative education to students who are pregnant or who have recently given birth. There are often babies in the classroom of the TAPP program. The ages of students in the TAPP program range from 12 to 19. The School Board of Okaloosa County is an employer as that term is defined in Section 760.02(7), Florida Statutes. Ms. Stallworth has been employed by the School Board since June of 2000. She was a substitute teacher when she first began working for the School Board. She began work at Combs School on February 2, 2004. At the beginning of the 2004-2005 school year, she assisted Teresa Lancaster, a certified teacher. She filed papers and made copies of materials, helped individual students if they were struggling in a particular area, and accomplished such other tasks as were assigned by the teacher. Ms. Stallworth asserted that her relationship with Ms. Lancaster was satisfactory and stated that she believed that Ms. Lancaster was a very good teacher. However, the relationship was not without conflict. School administrators were aware that the two did not always get along. Citing "burnout," Ms. Lancaster did not return after the Christmas vacation at the end of 2004. She was replaced by Dawn Hall. Ms. Hall was absent with a medical problem the entire month of January 2005. During that time it was necessary for Ms. Stallworth to assume many of the duties that would normally be accomplished by a certified teacher. This was true even when a certified substitute was present in the classroom because of the specialized nature of the TAPP program. The substitute teachers relied on Ms. Stallworth's experience and skill in working with the students. Due to a budget shortfall that occurred during the latter part of the school year, all of the staff at Combs were asked to volunteer to do extra duties. Ms. Stallworth willingly did all that she was asked, including emptying trash cans. She was never asked by Mr. Gaines to mop floors or clean toilets. The duties of a teacher's aide are relatively open-ended. When Ms. Hall returned to work after her illness Ms. Stallworth was required to accomplish jobs normally done by a certified teacher, such as computer data entry, taking attendance, and supervising testing. These tasks were typical of the tasks done by aides. The satisfactory completion of them was the ultimate responsibility of Ms. Hall, however. William Gainey, who was the administrator of Combs School during the 2004-2005 school year, supervised Ms. Hall and Ms. Stallworth. He had a favorable opinion of Ms. Stallworth's performance and gave her outstanding evaluations. Subsequent to January 2005, Mr. Gainey received, from time to time, verbal and written complaints about Ms. Hall, from Ms. Stallworth, and from Ms. Hall's students, and from some parents. The students said Ms. Hall was distant and not available and that she made inappropriate comments about abortion and using guns. Some students complained that she yelled at them. They said she was often on the telephone and in her office with her door closed. None of the complaints alleged racial discrimination. Mr. Gainey suspected that some of the complaints from the students were precipitated by Ms. Stallworth, who, he knew, did not get along with Ms. Hall. Nevertheless, Mr. Gainey investigated the complaints and found some were valid, although none raised the issue of racial discrimination. He discussed the complaints with Ms. Hall. He told her that if she repeated certain behavior, he would put a letter in her personnel file. He did not reprimand Ms. Hall because he felt a warning would be sufficient. Mr. Gainey had observed Ms. Hall's class from time to time and he noted that the two women only spoke when necessary to accomplish classroom activities. Mr. Gainey had a meeting with Ms. Hall and Ms. Stallworth in an effort to resolve their differences. This effort failed because the two women disliked each other so intensely, and were so emotional, that a civil resolution was impossible. Subsequent to the meeting, Mr. Gainey received a memorandum from Ms. Hall dated March 22, 2004. This memorandum noting the ongoing conflict with Ms. Stallworth, stated that Ms. Stallworth was hostile toward her, and stated that Ms. Stallworth engaged in unprofessional conduct toward her. She noted that Ms. Stallworth called her "sick," "nasty," and "pitiful" during the meeting. She stated that she did not need an aide. Sometime prior to March 7, 2005, both Ms. Stallworth and Ms. Hall complained to Arden Farley. Mr. Farley is the program director in charge of equal opportunity, mediation, and investigations for the School Board. Mr. Farley has worked in the equal opportunity area for twenty years in the military, and he has been addressing complaints of discrimination based on race, creed, color, sex, national origin and religion for twelve years for the School Board. He met with Ms. Stallworth and she revealed that she was upset with Ms. Hall. She related that she thought that Ms. Hall was unprofessional. Mr. Farley inquired as to whether her concern involved issues of equal opportunity and discerned that the matter did not involve civil rights. As he put it, Ms. Stallworth, ". . . did not articulate any 'EEO' activity." Mr. Farley considered this to be a "management situation" and suggested that she address the matter with Mr. Gainey. Mr. Farley became aware that Ms. Hall had complained about Ms. Stallworth. He determined that the two women were incompatible and unhappy with one another. Ms. Hall complained to him that Ms. Stallworth would not follow her instructions, and Ms. Stallworth stated that Ms. Hall was an incompetent teacher. Both complaints were vague and Mr. Farley could not get the two women to provide him with specifics. Mr. Farley conducted a cursory investigation. The reason he pursued the matter, to the extent that he did, is because there was some indication that an ethics violation may have occurred and ethics violations also fall under his purview. He learned that each of the women had stated that they were going to "get rid of" the other. He learned from a student that both of the women were disrespectful to the other in the presence of the students. He did not uncover any indication that race or bias was involved in the situation. Ms. Stallworth stated, in a letter dated March 25, 2005, addressed to Mr. Farley, that Ms. Hall had called her a "mad woman." She said that Ms. Hall had made comments in the classroom about guns, abortions, sexual preferences of administrators, and had sprayed a household cleaner on a student's desk. The largest part of the letter addressed what Ms. Stallworth believed to be unprofessional behavior on the part of Ms. Hall. There is no assertion of any racial bias contained in this document. On April 6, 2005, Ms. Stallworth penned a memorandum to Mr. Gainey, which addressed what she believed to be Ms. Hall's shortcomings. In this memorandum she claimed that Ms. Hall created a hostile environment for the paraprofessional and students in her classroom. Apparently the paraprofessional to which she referred was herself. She made additional allegations that addressed claims that Ms. Hall used poor teaching methods and was not dedicated to her mission. There is no assertion of any racial bias in this document. On June 15, 2005, subsequent to learning that she was to be transferred to Crestview, Ms. Stallworth penned a letter to Mr. Farley that addressed behavior on the part of Ms. Hall that she believed to be unprofessional. This letter is two and one-quarter pages long and does not mention racial discrimination. It complains generally that Ms. Hall made slanderous comments about her and others and engaged in unprofessional conduct in front of her students. She asked repeatedly, "why am I being punished?" Petitioner first made allegations of racism on August 10, 2005, and August 26, 2005, when she signed Employment Complaints of Discrimination. Even in these filings it is clear that she was primarily angry because she believed she had been required to do certain jobs in the classroom without an increase in pay and because she was transferred. She noted that her nemesis, Ms. Hall, was not the subject of discipline. Petitioner repeated these allegations of racism on the part of Ms. Hall, under oath, during the hearing. The allegations, expanded at the hearing, follow: Ms. Stallworth claimed that Ms. Hall said that Filipinos are nasty, and that she didn't want her daughter with a Filipino because she didn't want slant-eyed grandchildren. She said that Filipinos eat rats. Ms. Stallworth claimed that Ms. Hall said, with regard to her daughter dating a black person, that the guy was a thug and she couldn't stand him and she was going to buy a gun and she hoped her daughter "blowed" his head off because she just didn't like him. Ms. Stallworth claimed that Ms. Hall said that snuff reminded her of the color of black skin. Ms. Stallworth claimed that Ms. Hall said that she, Ms. Stallworth, was a mad black woman. Ms. Hall denied making these remarks, under oath, at the hearing, and there was no evidence that contradicted her denial. It is found that the complaints made at or near the time Ms. Stallworth was working with Ms. Hall accurately reflect her complaints, which were management or professional complaints, not race-based complaints. Mr. Gainey had a high opinion of Ms. Stallworth and gave her an outstanding evaluation. He did not participate in the decision to transfer Ms. Stallworth to Crestview. Frank Fuller was Assistant Superintendent for Nontraditional Schools for the School Board during times pertinent. He was Mr. Gainey's supervisor. He was aware of the conflict between Ms. Stallworth and Ms. Hall during the late winter and early spring of 2005. Mr. Fuller suggested that Mr. Gainey bring the two women together and attempt to ameliorate their differences and that suggestion led to the unfruitful meeting discussed above. Mr. Fuller made the decision to transfer Ms. Stallworth from the Combs campus in Ft. Walton Beach, north to Crestview, in part because Ms. Burrows, the TAPP teacher in Crestview, requested an aide. Ms. Burrows had been teaching in the TAPPS program in Crestview for a number of years without an aide. Ms. Burrows insisted on having a good aide if she was to teach a reinvigorated TAPPS program in Crestview. Ms. Stallworth, who was an excellent aide, was the person she needed, in Mr. Fuller's opinion. The decision to move Ms. Stallworth was made in May 2005, about two weeks before the end of the school year. Mr. Fuller, in deciding to transfer Ms. Stallworth determined that it was in the best interest of all parties that a unilateral transfer be made. The general population shift in Okaloosa County is to the north. It was anticipated that the campus where Combs was located would be leased to the University of West Florida and ultimately that occurred. Mr. Fuller had a desire to stabilize the program in the north and evaluate the future of the program in the south. Ms. Stallworth's race was not a factor in the decision to move her to Crestview. It was not a transfer motivated by retaliation. Indeed, Ms. Stallworth never made a complaint about an unlawful employment practice that might precipitate retaliation until some two months after she learned that she was going to be transferred. Although Mr. Fuller was aware that Ms. Stallworth had filed a complaint with Mr. Farley, he was not aware of the nature of the complaint. Her complaints did not contain any allegation of civil rights violations that would trigger retaliation as described in Chapter 760. She was not, in other words, engaging in a protected activity when she complained that Ms. Hall was rude and incompetent. Ms. Hall resigned her position with the School Board on May 24, 2006. The job site to which Ms. Stallworth was transferred is much closer to her home in Crestview than the job site at Combs. She asserted some inconvenience because her doctors were in proximity to Combs and some college classes she was taking were nearer Combs than Crestview. "Full justification," for the transfer was not provided to Ms. Stallworth as Article 10.B.2.a of the Master Contract between the School Board and the Okaloosa County Education Support Personnel Association requires. Ms. Stallworth has not received a poor evaluation, has not been disciplined, has not been demoted, has not been suspended, has not been terminated, and has not suffered a decrease in pay or benefits.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Rachell Stallworth's Employment Complaint of Discrimination and an Amended Employment Complaint of Discrimination be dismissed. DONE AND ENTERED this 3rd day of October, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 3rd day of October, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Vickie Allene Gesellschap, Esquire Anchors Smith Grimsley 909 Mar Walt Drive, Suite 1014 Fort Walton Beach, Florida 32547 Jeffery D. Toney, Esquire Post Office Box 579 Crestview, Florida 32536 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
