The Issue Whether Respondent engaged in the conduct alleged in the Superintendent of Schools' Notice of Suspension and Recommendation for Dismissal from Employment. If so, whether such conduct provides the School District of Palm Beach County with "just cause" to take disciplinary action against Respondent pursuant to Section 231.36, Florida Statutes. If so, what specific disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Palm Beach County, Florida. Respondent's Certification Respondent previously held a temporary, non-renewable teaching certificate (Certificate Number 618674) issued by the Florida Department of Education certifying that he was eligible to teach biology in grades six through twelve in the State of Florida. The certificate's "validity period" was July 1, 1995, through June 30, 1997. Respondent's Employment with the School District At all material times to the instant case, Respondent was employed by the School District as a biology teacher in the ESOL program at Atlantic Community High School. The ESOL program is designed to meet the special needs of students whose native language is not English. The Collective Bargaining Agreement As a teacher employed by the School District, Respondent was a member of a collective bargaining unit represented by the Palm Beach County Classroom Teachers Association (CTA) and covered by a collective bargaining agreement between the School District and the CTA (CTA Contract), effective from July 1, 1995, to June 30, 1997. Article II, Section M, of the CTA Contract addresses the subject of "discipline of employees." It provide as follows: Without the consent of the employee and the Association [CTA], disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Association representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Association representative. An employee against whom action is to be taken under any Section and his/her Association representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and his/her Association representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, 1/ progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall not be placed in the employee's personnel file and shall not be used to the further detriment of the employee after twelve months of the action/inaction of the employee which led to the notation. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension With Pay. A suspension with pay may be issued to an employee when appropriate in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension with pay shall be placed in writing, dated and signed by the giver and receiver of the Megha P. suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension Without Pay. A suspension without pay may be issued to an employee when appropriate, in keeping with provisions of this Agreement, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken include either a suspension or dismissal, the grievance shall be initiated at STEP TWO. Megha P. was a student at Atlantic Community High School during the 1995-96 and 1996-97 school years. Megha was a ninth grader during the 1995-96 school year. Respondent was Megha's biology teacher during the first semester of that school year. On the day of her final examination in Respondent's class, Megha arrived at school early, approximately three hours before the examination was scheduled to commence. Shortly after her arrival at school that day, she was approached by Respondent, who asked her to accompany him to his classroom to help him with some paperwork. Megha complied with Respondent's request. After Megha and Respondent walked into the classroom, Respondent closed the classroom door behind them and told Megha to sit on his lap. Megha refused. Respondent then forced her to sit on his lap. While Megha was on his lap, Respondent fondled her buttocks and breasts. Megha tried to stand up and walk away, but Respondent physically restrained her and she was unable to escape his grasp. As he was restraining her, Respondent demanded that Megha give him "hugs and kisses." Megha told him "no." Respondent, however, persisted. He told Megha that "all the girls" give him "hugs and kisses" and that she should do the same. Megha responded that she did not care what "all the girls" did. Despite Respondent's persistence, Megha never gave Respondent the "hugs and kisses" he had requested. Megha was involved in another incident with Respondent during the first semester of the following school year. She was not a student of Respondent's at the time. On this subsequent occasion, Megha went to Respondent's classroom to purchase a bagel. (Respondent was selling bagels at school to raise money for a class trip.) When Megha entered the classroom, Respondent commented to her that she always wore loose fitting pants without a belt. Megha replied that she did not like wearing belts. Respondent then suddenly pulled down Megha's pants. Megha quickly pulled up her pants and left the classroom. Following this incident, Respondent, on several occasions, invited Megha to his classroom, but Megha declined his invitations. Suchi H. When she was in the ninth grade at Atlantic Community High School, Suchi H. was a member of a student organization (the Asian Club) sponsored by Respondent. On a club outing to the beach, during the taking of a group photograph, Respondent, who was standing next to Suchi, put his hand on the side of her breast and kept it there. Respondent's uninvited advance made Suchi feel very uncomfortable. Lovely R. During the first semester of the 1996-97 school year, Lovely R. was a student in Respondent's class. She was in eleventh grade at the time. Lovely was once late to Respondent's class on the day of an examination and Respondent told her to come back to the classroom later in the day to take the examination. Lovely did as she was told and returned to Respondent's classroom later that day. Upon entering the classroom, she locked the door behind her pursuant to Respondent's instructions. Respondent then gave Lovely a copy of the examination, along with the answer key. When asked by Lovely why he had given her the answers to the examination, Respondent replied that he was her friend and would do anything for her. Acting without Lovely's consent, Respondent thereupon moved his hands down her body, touching her neck, shoulders, breast and buttocks. He also tried to kiss her on the face, but was unsuccessful as Lovely turned her head away from him. Not wanting to be subjected to any more of Respondent's advances, Lovely told him that she had another examination she had to take (a story she made up) and left the classroom. Before this incident, Lovely had been receiving A's for her work in Respondent's class. After the incident, she received, undeservedly, F's from Respondent. Alexis G. During the first semester of the 1996-97 school year, Alexis G. was a tenth grade student in Respondent's class. One day during the semester, Respondent asked Alexis to stay after school so that she could show him a homework assignment she had done. He told her that if she did not see him after the end of that school day, she would not receive any credit for having done the assignment. At the end of the school day, Alexis went to Respondent's classroom. After she entered the room, Respondent locked the door behind her. He then directed Alexis to a table in the back of the room and told her to lie down on it. Following Respondent's instructions, Alexis got on the table and laid down on her stomach. Respondent proceeded to caress Alexis' back, breasts and buttocks and press his body against hers. He then asked Alexis to take her clothes off. Alexis told him "no" and screamed at him to get off of her. Respondent responded by moving away from Alexis. With Respondent off of her, Alexis stood up and left the classroom. On a subsequent occasion, acting in accordance with Respondent's instructions, Alexis visited Respondent in his classroom before her sixth period class. When she arrived, Respondent was alone. Following Respondent's directives, she gave him a massage. Chrisly A. In 1996, when she was in tenth grade, Chrisly A. was a student in Respondent's class. One day in class, Respondent approached Chrisly and told her that he wanted to speak to her during sixth period that day to discuss her grades. When Chrisly expressed concerns about missing her sixth period class, Respondent gave her a pass to show to her sixth period teacher. Chrisly went to Respondent's classroom after her fifth period class that day as Respondent had asked her to. After Chrisly entered the classroom, Respondent locked the door behind her. He then began to talk with Chrisly about her grades, as he had said he would earlier that day when he had requested her to meet with him. After a short period of time, however, he abruptly changed the subject of their discussion when he told Chrisly that he liked her and that he wanted to be her boyfriend and have sex with her. In addition, he asked Chrisly when she had her menstrual period. Respondent then forced Chrisly to sit in his lap. While Chrisly was on his lap, he stroked her neck, breasts and stomach and made her kiss him. He asked Chrisly to take off the shirts she was wearing so he could see her body, but she refused. Chrisly tried to get up from Respondent's lap, but Respondent held on to her and would not let her go. Finally, after someone knocked on the classroom door, Respondent permitted Chrisly to leave. Effectiveness By engaging in the conduct described above with Megha, Suchi, Lovely, Alexis, and Chrisly, Respondent has impaired his effectiveness as a teacher in the school system and as a member of the community. Aftermath Neither Megha, Suchi, Lovely, Alexis, nor Chrisly immediately reported Respondent to school authorities. Respondent's highly inappropriate conduct with these students, however, was ultimately brought to the authorities' attention. Following an investigation conducted by the School Board's Police Department, the School Board's Department of Employee Relations determined, based upon the findings of the investigation (which were contained in a written report prepared by the investigating officer), that a pre-disciplinary meeting should be held with Respondent. Such a pre-disciplinary meeting was held on April 7, 1997. Present at the meeting were representatives of the School District, a representative of the Palm Beach County Teachers Association, Respondent and his attorney. During the meeting, Respondent declined the opportunity to make a statement. On or about April 8, 1997, the Superintendent of Schools sent Respondent a Notice of Suspension and Recommendation for Dismissal from Employment, which read as follows: Based upon substantial information presented to me, I hereby inform you that I have found probable cause sufficient to warrant recommendation for your suspension without pay and dismissal from employment with the School District as an ESOL instructor. You are charged with committing misconduct sufficient to constitute just cause under the 1995-1997 collective bargaining agreement between The School District of Palm Beach County, and the Palm Beach County Classroom Teachers Association, based upon your repeated inappropriate behavior with students. Specifically, on numerous occasions you made sexual advances towards female students. Such conduct constitutes a violation of Section 231.36(1)(a), Florida Statutes (1995), School Board Rules and Regulations, and the Code of Ethics for the Education Profession in Florida, Chapter 6B- 1, Florida Administrative Code. Please be advised that I will recommend at the April 23, 1997, meeting of the School Board of Palm Beach County, Florida, that the School Board suspend you without pay effective April 24, 1997, and that termination of employment will become effective upon the expiration of fifteen (15) days thereafter. This action is taken in accordance with Sections 230.23 and 230.33, Florida Statutes. The April 23, 1997, School Board meeting will be held in the Board Room at 3300 Forest Hill Boulevard, West Palm Beach, Florida at 5:00 p.m. You or your representative have the right to attend this meeting and present an oral statement or documentation to show why you should not be suspended without pay and/or terminated. If you intend to speak before the School Board, please immediately notify Ms. Alicia Bell, Clerk, at (407) 434- 8139, of your intention to make a presentation at that meeting. Pursuant to School Board Policy 3.27, you have the right to request a formal hearing contesting the recommendation for your suspension without pay and dismissal. If you desire to request a formal hearing, you must put your request in writing and submit it within fifteen (15) days from receipt of this letter to Cynthia S. Prettyman, General Counsel, School District of Palm Beach County, 3318 Forest Hill Boulevard, C-302, West Palm Beach Florida 33406-5813. Failure on your part to timely request a hearing will be deemed a waiver of your right to a hearing on the matter, and all material allegations and charges made against you shall be deemed true by the School Board for purposes of entering a final order in this matter. By letter dated April 22, 1998, Respondent, through counsel, requested a hearing on the matter. The letter from Respondent's counsel read as follows: Our office has been retained for the purpose of representing Mr. Prakash Pathmanathan before the School Board of Palm Beach County, Florida with respect to the issues raised in the Superintendent's letter dated April 8, 1997, charging Mr. Pathmanathan with inappropriate behavior with students. Mr. Pathmanathan denies that there is any basis to support the Superintendent's recommendation for suspension without pay, and contests the recommendation for his dismissal. Mr. Pathmanathan requests that a hearing be conducted with respect to all issues raised by the charges described above and his defense to the charges, and requests that the hearing be conducted pursuant to the provisions of Section 120.57(1), Fla. Stat., before an Administrative Law Judge appointed by the Division of Administrative Hearings. Neither Mr. Pathmanathan, I, nor any other representative for Mr. Pathmanathan will make a presentation at the School Board meeting scheduled for April 23, 1997, when the Board will consider the propriety of the recommendation for suspension without pay, and recommend Mr. Pathmanathan's dismissal from employment. Accordingly, we request that the matter be placed on the Board's consent agenda. The matter was subsequently referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the hearing Respondent had requested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing him as an employee of the School Board. DONE AND ENTERED this 4th day of December, 1998, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1998.
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(3)(a) and 6A-10.081(5)(d), as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke, suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2016). Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2016). Respondent holds Florida Educator's Certificate 829054, covering the areas of Education, Leadership, Physical Education, Social Science, and Exceptional Student Education, which is valid through June 30, 2018. At all times pertinent hereto, Respondent was employed as an Exceptional Student Education Teacher at Holly Hill School in the Volusia County School District. Holly Hill School is a combined K-8 school. During the time in question, Respondent shared a small office with Ms. Pollok and Mr. Edwards. The office was formerly a teachers’ lounge/lunchroom. It still had a counter, sink, and refrigerator, and had bathrooms that continued to be used on occasion by other teachers. Each of the three teachers who shared the office had their own desk. The office also included two smaller tables at which the teachers could provide service to their ESE students when necessary. At the start of the 2013-2014 school year, Ms. Pollok knew Mr. Edwards, who had been in the ESE program, but did not know Respondent. The incidents described herein occurred between the start of the 2013-2014 school year on August 13, 2013, through late November, 2013, when Respondent was removed from the classroom. Racial Comments Over the period of time in question, Respondent made numerous statements of a racial nature. While on hall duty between classes, Respondent would occasionally call African-American children “Bebe’s kids.” The reference was to an animated television show in which “Bebe’s kids” were unruly and ill-mannered African-American children. Mr. Edwards understood the comment to be derogatory, and noted that the children hearing the comment would occasionally react, even to the point of commenting that they did not want to be referred to as such. Respondent’s statements were also heard by Ms. Burnam-Hoyt, who likewise understood the term to be derogatory, and observed that the children at the receiving end of the comment looked shocked. She advised Respondent that he should not call them that name. Ms. Pollok testified that Respondent routinely called children “nappy” during hall duty when students transition from one period to the next. The comments were directed to middle school students, whose reactions were perceived by her as being ones of humiliation or embarrassment.1/ Mr. Edwards testified that he heard Respondent refer to African-American children as “nappy,” though not with the frequency with which he called them “Bebe’s kids.” Respondent testified that he only called one child “nappy” at the request of the child, an ESE student -- though not one of his students -- who wanted to be called “napster” or “nappy.” There was no competent, substantial evidence to support that claim. No other teacher substantiated such a request, and Mr. Edwards and Ms. Burnam-Hoyt testified credibly that the term was used more broadly. In any event, as stated by Ms. Fisher, there would be no reason to address any student by that type of obviously inappropriate term, even if requested. Mr. Edwards perceived Respondent’s comments as inappropriate, and they made him uncomfortable. He believed, rightfully, that the comments made Ms. Pollok uncomfortable as well. There was no evidence that any student’s learning ability or mental health was actually adversely affected by Respondent’s racially-demeaning statements. Nonetheless, under the circumstances described herein, Petitioner proved that Respondent failed to make reasonable effort to protect students at Holly Hill School from humiliation and embarrassment, conditions reasonably understood to be harmful to their learning environment and their mental health. Sexual Comments Over the period of time in question, Respondent repeatedly made statements of a sexual nature. On occasion, when Ms. Pollok arrived to work in less than a cheerful mood, Respondent would state to the effect of “What's the matter, Pollo[]k, why are you grumpy? Am I going to have to go downstairs and talk to your husband about how to wake you up properly?” The first time he made the comment, he accompanied it with hip thrusts and grunts, i.e., sounds that people make when they're having sex, thus accentuating the sexual nature of the comment. The first time Respondent made the statement, Ms. Pollok felt awkward, left the office, and went to her husband’s classroom (he was also a teacher at Holly Hill School) where she stayed until the school day started. When he continued to make such statements on a more regular basis, it made her uncomfortable. Mr. Edwards heard Respondent make the statement to Ms. Pollok on one or two occasions. Respondent denied having ever made the comments, attributing them to Mr. Anderson, who laughingly took credit. Regardless of whether Mr. Anderson may have also made comparable statements, the testimony of Ms. Pollok and Mr. Edwards that Respondent made the statements at issue is more credible, and is accepted. Ms. Burnam-Hoyt, who enjoys a well-known and long-term relationship with her wife, would occasionally visit the office. On one occasion, while in the presence of Mr. Edwards, Respondent told Ms. Burnam-Hoyt that she looked nice that day and said “I wish you would switch teams.” Though she gave an off-hand reply, Ms. Burnam-Hoyt did not discuss her sexuality, especially in the workplace, and was offended by the comment. On several other occasions, when Ms. Burnam-Hoyt was not in the room, Respondent commented in the presence of both Ms. Pollok and Mr. Edwards that he wished “she didn’t bat for the other team.” On one occasion, when Ms. Pollok had returned from ESE training and asked Respondent about his day, he replied that “it was pretty boring until your old boss, what's her name, Mandy [Elzy], bent over and showed me her boobs.” Respondent commented, with regard to Anna Garces, that “she was spicy and he'd like to make her his consuela.” When Donna Mounts, a P.E. instructor, would come to the office, Respondent’s favorite phrase was that he “would like to mount Coach Mounts.” Respondent did not make the statement directly to Ms. Mounts, but he made it in the office on a routine basis. Respondent commented regarding Marcie Lockamy, an African-American assistant principal, that “I don’t normally do black ladies, but she’s pretty hot . . . I’d get at that.” Respondent’s denial that he made the statement, or that he even knew who Ms. Lockamy was, was not convincing. Respondent’s comments were repetitive, and he would make some statement every day. Ms. Pollok and Mr. Edwards told Respondent that he should “tone it down.” In particular, Mr. Edwards testified credibly that he advised Respondent “at different points” that his comments about women were not appropriate, not only because of his own view of the matter, but because he believed them to be disturbing to Ms. Pollok. The requests and recommendations had no identifiable effect. Mr. Anderson’s testimony in this case, apparently designed to exonerate Respondent and transfer responsibility for many of the statements to himself, was not persuasive, and in several instances, conflicted with the more credible testimony of other witnesses.2/ Respondent’s general defense to his sexual comments was that he was just “joking around,” that they occurred when he and the target of his comments “were talking and laughing and having a good time in between classes,” that they were a “jovial gesture,” and the like. He denied that they were perceived as offensive by any the persons within earshot, a statement denied by the persons exposed to his comments. Individually, Respondent’s comments could be categorized as puerile. Collectively, and over time, they rose to the degree that they created a hostile, abusive, offensive, and oppressive environment in the small office that constituted the workplace for the three teachers. Threatening Comments The Administrative Complaint alleges that, over the period of time in question, Respondent made “threatening comments to or around [Ms. Pollok].” As to comments regarding Respondent’s prior work- history as a police officer, Mr. Edwards testified credibly that they were nothing more than “experiences that people have or wanted to share.” Mr. Edwards did not take those statements as threatening. When Respondent discovered that he was being investigated by Holly Hill School, he was understandably upset. He made some comments that expressed his frustration. However, Mr. Edwards testified that Respondent did not threaten him or Ms. Pollok. Respondent admitted to being upset and frustrated, but denied either expressing, or having the intent to harm anyone. The comments, under the circumstances, were not so out of line as to objectively constitute a threat to one’s safety or welfare. Under the circumstances described herein, Petitioner did not prove that Respondent’s allegedly threatening statements created a hostile, intimidating, abusive, offensive, or oppressive environment in violation of rule 6A-10.081(5)(d). Holly Hill School’s Response Ms. Pollok complained of Respondent’s behavior to various administrators at Holly Hill School, including Mr. Strother, and went so far as to request a reassignment of her duties so as to avoid Respondent. On November 1, 2013, Mr. Strother spoke with Respondent. The conversation was “short and brief,” and non-specific, with Mr. Strother generally advising Respondent to “be cognizant of conversations you're having and what you're saying around other people.” On or about November 4, 2013, Ms. Pollok renewed her complaint to Mr. Strother about Respondent’s comments about “the ladies,” and their looks and sexual preferences. Mr. Strother could tell that the comments made Ms. Pollok uncomfortable. Mr. Edwards had also spoken to Mr. Strother regarding Respondent’s comments. As a result of those complaints, Mr. Strother sent out an email directing all teachers to have “professional conversations,” and to lead “by example with appropriate conversation.” Though the email was not specific, included other topics, and was sent to a number of Holly Hill School employees, it nonetheless should have placed Respondent on notice to heed not only Mr. Strother’s earlier advice, but also the earlier admonitions from Mr. Edwards and Ms. Pollok to “tone it down.” It did not have the intended effect. On November 20, 2013, Ms. Pollok reported Respondent’s unabated comments about women and those made towards students to Ms. Fisher. Ms. Pollok was upset and crying during their discussion. Ms. Fisher then spoke with Mr. Strother to confirm Ms. Pollok’s earlier complaints. Ms. Fisher reported the allegations to the school district, and on November 21, 2013, an investigation of Respondent’s conduct was initiated. The investigation delved into the sexually-inappropriate comments, and extended into areas that are not the subject of this proceeding, for which Respondent received a reprimand. As to the comments directed to students, which were determined to be violative of principles of professional conduct and school board policy for failing to protect students or exposing them to excessive embarrassment or disparagement, Respondent was suspended without pay for five days, and transferred from Holly Hill School.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rules 6A-10.081(3)(a) and 6A-10.081(5)(d). It is further recommended that the Education Practices Commission impose a suspension of the Respondent's educator certificate for a period of one year, and a probationary period of one year upon his return to teaching in any public or private school in Florida on such reasonable terms and conditions as the Educational Practices Commission determines are necessary to prevent recurrences of the conduct proven in this case. DONE AND ENTERED this 23rd day of January, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 23rd day of January, 2017.
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. 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 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
The Issue The issue in this proceeding is whether Petitioner should dismiss Respondent as an educational support employee for alleged inappropriate interactions with colleagues, including physical and verbal altercations, failure to correct performance deficiencies, and insubordination.
Findings Of Fact Petitioner employed Respondent as a plant operator from August 17, 1998, until the date of suspension without pay on December 14, 2004. A plant operator is a non-instructional employee responsible for housekeeping and janitorial tasks at the school to which the operator is assigned. From sometime shortly after Respondent began his employment with Petitioner in 1998 through November 2, 2004, Respondent engaged in repeated acts of inappropriate interactions with colleagues, including physical and verbal altercations, failure to correct performance deficiencies, and insubordination. Respondent has a long history of discipline, and efforts to correct his deficiencies have been unsuccessful. Petitioner first assigned Respondent to Forest Lake Elementary School (Forest Lake) and, sometime in November 2004, transferred Respondent to the Palm Harbor University High School (Palm Harbor). The attitude and job performance of Respondent at Forest Lake were inadequate. The principal at Forest Lake issued a letter of reprimand to Respondent in November 2004, and transferred Respondent to Palm Harbor later in the same month. At Palm Harbor, Respondent worked the "evening shift" from 2:30 p.m. until 11:00 p.m. The work performance was satisfactory, and Respondent earned a satisfactory annual appraisal on January 20, 1999, for the 1998-1999 school year. The work performance of Respondent declined through June 1999. Respondent lost productivity, lacked teamwork, complained, and cursed. The night foreman discussed the decline in performance with Respondent and, in an attempt to assist improvement, changed the area of the school for which Respondent was responsible. The night foreman noted in the personnel record that Respondent had lost productivity, lacked teamwork, complained, and cursed. The annual appraisal issued in June 2000, for the 1999-2000 school year indicated a rating of "needs improvement" in quality of work, quantity of work, and attitude. During the 2000-2001 school year, Respondent filed a complaint against the night foreman and unsuccessfully attempted to enlist other plant operators to file similar complaints. Petitioner investigated the complaint, found insufficient evidence to substantiate the complaint, and Respondent did not pursue the complaint. The job performance of Respondent continued to decline. Respondent failed to adequately clean the gym lobby, sometimes left work early, and ignored directions for improvement. The annual appraisal issued in January 2001, for the 2001-2002 school year, rated Respondent as "unsatisfactory" in the quality of work, quantity work, and attitude. The appraisal further indicated that Respondent "needs to improve" in his relations with others, initiative, and judgment. Respondent did not improve his job performance. A teacher complained to the administration about the condition of her classroom, and another plant operator reported that Respondent described the night crew as a "bunch of pussies." Other plant operators requested that they not be assigned to a crew with Respondent. Between February and May 2001, the night foreman counseled Respondent on a number of occasions. Sometime in August 2001, the Head Plant Operator (HPO) reassigned Respondent from Buildings 6 and 8 to Buildings 3 and 11 in an effort to assist Respondent in the improvement of his job performance. Respondent refused alternatives for reassignment to portable classrooms at Palm Harbor or reassignment to a nearby middle school. On September 13, 2001, Respondent smoked on campus during his shift. Respondent also watched television during his shift. Deficiencies in performance continued through September of that year. On October 8, 2001, the principal counseled Respondent about smoking on campus and poor job performance and issued a letter of caution to Respondent. In relevant part, the letter required Respondent to improve his job performance and to refrain from smoking on campus. The annual appraisal issued in January 2002, for the 2002-2003 school year, rated Respondent as "needs to improve" in punctuality. The appraisal rated Respondent as "unsatisfactory" in quality of work, quantity work, relations with others, initiative, judgment, and attitude. The annual appraisal issued in January 2003, for the 2003-2004 school year, rated Respondent as "needs to improve" in quality of work, quantity of work, relations with others, initiative, and judgment. Several areas in job performance showed improvement or were "getting better." The appraisal did not rate Respondent as "unsatisfactory" in any category. In May 2003, Respondent was watching television during work, not staying on task, not adequately cleaning the areas of his responsibility, and not properly stocking restrooms. Respondent exhibited hostility and disdain in response to efforts to assist him in improving his deficiencies. On May 19, 2003, the HPO counseled Respondent and notified Respondent that it was the last verbal warning for Respondent to improve his job performance. On May 27, 2003, the assistant principal at Palm Harbor conducted a meeting with Respondent, the night foreman, and the HPO. The assistant principal created a Success Plan that included guidance for Respondent to improve his job performance. Respondent signed the Success Plan. In July 2003, Respondent was absent from his work on one occasion for several hours. During the month, Respondent cleaned little and took excessive breaks. By July 16, 2003, Respondent had made no progress toward the goals outlined in the Success Plan. The assistant principal again met Respondent and notified Respondent that excessive breaks and absences from his assigned work areas constituted insubordination and misconduct. The assistant principal directed Respondent not to make threatening comments to the night foreman and issued a letter of reprimand that Respondent signed. Respondent continued to work inadequately and to take excessive breaks. On September 4, 2003, Respondent angrily confronted a plant operator who had criticized Respondent for leaving a building door open. Respondent uttered profanities, took several steps toward the co-worker, and made physical contact in a threatening manner. Respondent subsequently returned to his work area. On September 4 and 11, 2003, Respondent failed to empty the trash in a classroom and failed to vacuum the classroom for several days. The condition attracted roaches, and the classroom teacher complained to school administrators. Respondent persisted in failing to add soap to restrooms that Respondent cleaned. In October 2003, Respondent engaged in another angry exchange with a second plant operator. Respondent cursed at his peer and accused the peer of unfair treatment. On October 23, 2003, the assistant principal again met with Respondent, the night foreman, and the HPO to review the progress of Respondent toward the goals in the Success Plan. The assistant principal notified Respondent that the incidents involving profanity, defiance, and insubordination were unacceptable violations of the Success Plan. The assistant principal also discussed other instances of failure to complete tasks on time or not at all. On November 3, 2003, the assistant principal issued a letter of reprimand to Respondent. Respondent refused to sign the letter. On January 7, 2004, the assistant principal again met with Respondent, the night foreman, and the HPO. They focused on three violations of the Success Plan involving Respondent's interactions with others, insubordination, and failure to perform daily tasks. The assistant principal issued another letter of reprimand to Respondent that Respondent signed. On January 8, 2004, Respondent slapped the hand of second plant operator during a confrontation between the two. During the same month, Respondent did not adequately clean and stock restrooms. Respondent also failed to use plastic bags for trash cans in one classroom. The annual appraisal issued in January 2004, for the 2004-2005 school year, rated Respondent as "needs to improve" in areas of job knowledge and punctuality. The appraisal rated Respondent as "unsatisfactory" in the areas of quality of work, quantity of work, relations with others, initiative, judgment, and attitude. Between February 9 and 12, 2004, Respondent failed to clean a men's restroom after repeated instructions to do so by the HPO. Respondent eventually cleaned the restroom, but did so inadequately. In March 2004, Respondent repeatedly failed to lock a classroom he cleaned. In April 2004, Respondent failed to clean tables in another classroom. Respondent continued to clean other areas of responsibility in a deficient manner. In March 2004, Petitioner referred the matter to its Office of Professional Standards (OPS). The OPS administrator offered Respondent a three-day suspension without pay, and Respondent accepted the offer. Respondent served the suspension from April 14 through April 16, 2004. During Respondent's work shift on April 30, 2004, Respondent took breaks early, sat in a plant operations closet, and watched television. During Respondent's work shift on May 4, 2004, Respondent began lunch 35 minutes before the scheduled lunchtime in a dark room and watched television. The night foreman instructed Respondent to work until the normal lunch break. Approximately 20 minutes after the instruction, Respondent was viewing television and not working. Later that evening, Respondent sat in a closet doing nothing. By May 5, 2004, Respondent continued to perform unsatisfactorily. The unsatisfactory job performance continued through May 18, 2004. On May 19, 2004, the assistant principal again met with Respondent, the night foreman, and the HPO. The level of performance by Respondent continued to be unsatisfactory. Respondent refused to vacuum a hallway carpet or to sweep a floor in his area and stated that he had "other work to do." Respondent did not complete assigned tasks. Respondent continued to ignore instructions not to store a vacuum cleaner in a particular room. The assistant principal issued another letter of reprimand to Respondent. On September 8, 2004, Respondent failed to vacuum eight of 17 portable classrooms in a timely manner. Respondent failed to assist another worker in an assigned task. On October 21, 2004, Respondent angrily confronted a third plant operator. On November 2, 2004, Respondent called a fourth plant operator a liar and made physical contact with the worker. It required three attempts by the night foreman before he could separate the two workers. The night foreman reported the incident to the HPO. The HPO directed the foreman to instruct Respondent to go home. Respondent called the foreman a "lying SOB," and Respondent declared that he would "get even." Petitioner placed Respondent on administrative leave with pay during an investigation of the incident. By letter dated November 19, 2004, the Superintendent of the Pinellas County School District (Superintendent) suspended Respondent with pay from November 11 until the next School Board meeting on December 14, 2004. At the meeting, Petitioner adopted the recommendation of dismissal. Petitioner has adopted as a rule "Policy 8:25 Disciplinary Guidelines for Employees" (Policy 8:25) in accordance with Sections 1012.22 and 1012.23, Florida Statutes (2004). The rule provides relevant standards for employee discipline.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the alleged violations and dismissing Respondent from his employment. DONE AND ENTERED this 20th day of July, 2005, 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 20th day of July, 2005. COPIES FURNISHED: Michael P. Begeny 62046 Polly Drive Tarpon Springs, Florida 34689 Thomas L. Wittmer, Esquire Pinellas County School Board 301 Fourth Street, Southwest Largo, Florida 33770 Dr. Clayton M. Wilcox, Superintendent Pinellas County School Board Post Office Box 2942 Largo, Florida 33779-2942 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 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 is whether Respondent's Teaching Certificate should be revoked or otherwise disciplined based on the acts alleged in the Administrative Complaint. The Petitioner presented the testimony of Linda Rondone, Jane E. Vowell, Susan C. Vassilev, Kyril P. Vassilev, III and Johnny B. McKenzie. Petitioner's Exhibits 1-5 were admitted in evidence. Official recognition, pursuant to Section 90.202, Florida Statutes, was taken of the statutes and violations charged in the case of State of Florida v. Jeffrey Siegfried, 85-1568 MMA02, and the Code of Ethics of the Education Profession in Florida, Section 6B--1.01, Florida Administrative Code. The Respondent, Jeffrey W. Siegfried, failed to appear for the formal hearing despite notice to him personally and to his former counsel who was granted leave to withdraw. Petitioner submitted proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part of this Recommended Order.
Findings Of Fact At all times material hereto, the Respondent held Teaching Certificate Number 440229, issued by the Department of Education for the State of Florida. The Respondent's Teaching Certificate covers the areas of English and Reading. On or about June 13, 1978, the Respondent applied for a teaching certificate for the State of Florida. The Respondent filled out the application and answered "No" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" The Respondent signed the application in front of a notary on June 13, 1978, certifying that all information pertaining to the application was true and correct. Petitioner presented charging documents from the Court of Common Pleas of Montgomery County, Pennsylvania, in which the Respondent was charged with three crimes alleged to have occurred on June 7, 1975, to wit: Unlawful Possession of a Controlled Substance, Corruption of Minors and Disorderly Conduct. Further, the documents indicated that the Respondent was sentenced on December 4, 1975, to the Program of Accelerated Rehabilitative Disposition on the charges of Possession of Marijuana and Corruption of Minors. The program involved a twenty four (24) month probationary period and payment of $350.00 restitution. The charge of Disorderly Conduct was nolle prossed. On July 20, 1979, the Respondent filled out an Application of Instructional Position for Palm Beach County, Florida. The Respondent in said application again made no mention of his criminal history. He again checked off "No" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" The Respondent signed the application certifying that all the answers given were true. In the fall of 1980, the Respondent was employed by the Palm Beach County School District. On January 24, 1986, an Information was filed in the County Court of Palm Beach County, Florida, charging the Respondent with Possession of Marijuana on January 15, 1985 and Child Abuse on December 23, 1984. Susan C. Vassilev, mother of Kyril Vassilev, testified that she had been friends with the Respondent for 3 or 4 years preceding December of 1984. Throughout their acquaintance, the Respondent was employed as a full time teacher for the Palm Beach County School Board. Mrs. Vassilev's son, Kyril, occasionally did yard work and odd jobs for the Respondent. On December 23rd of 1984, Mrs. Vassilev reminded her son about a Christmas Eve dinner invitation at the Respondent's house. He answered her, "No, I'm not going there. He's a fag. I don't want anything to do with him." Mrs. Vassilev than testified as to what her son told her which was again reiterated by her son when he testified later in the hearing. In November and December, 1984, Kyril Vassilev was thirteen (13) years old. He had met the Respondent through his mother and knew the Respondent to be a teacher in Palm Beach County. Kyril went to the Respondent's house in late November or early December of 1984 to do some yard work for the Respondent. The Respondent picked Kyril up and while in the Respondent's van, the Respondent suggested that he knew a way for Kyril to earn a lot of money and only work two hours a day, 2 or 3 times a week. After Kyril mowed the Respondent's yard, he came into the Respondent's house for a drink. He asked the Respondent how he could make such easy money. The Respondent told him it was called child pornography and explained that it involved Kyril posing for nude photographs. The Respondent showed Kyril photographs of a nude boy in a magazine and claimed that he had helped the boy earn money by arranging for him to pose nude. Kyril told the Respondent that he wasn't interested and went back outside to continue staining the backyard fence. After a while, Kyril went back inside for another drink. The Respondent at that point told Kyril that the photographers had called and were willing to pay him $200.00 for posing nude. Kyril again told the Respondent that he was not interested. After finishing work, Kyril again came into the house and the Respondent told him the photographers had called again and upped the price to $500.00. Kyril told the Respondent no again. The Respondent sent Kyril to buy camera film at Eckerds. Kyril testified that he was afraid, but he went and got the film and brought it back. Again the Respondent asked Kyril if he would reconsider. Kyril, again, declined. Before Kyril left, the Respondent informed him that he couldn't tell his mother or anyone else. The Respondent told Kyril that he need not worry about his mother finding out, because the Respondent would open a secret bank account for him, where he could keep the money. Before leaving for the day, Kyril testified that, the Respondent told him "they" had called and were now willing to pay up to $1,000. The Respondent took Kyril home and enroute again tried to talk him into posing nude. Kyril again declined. The Respondent indicated that Kyril could make even more money doing things with other boys in front of the camera. Kyril was waiting until after Christmas to tell his mother, but because of the invitation to the Respondent's residence for Christmas Eve dinner, he decided to tell his mother on December 24, 1984. Mrs. Vassilev confronted the Respondent with her son's allegations and he claimed to be working undercover for school security to infiltrate a child pornography ring. Johnny B. McKenzie testified that as Director of Security for Palm Beach School Board that he had no knowledge of the Respondent working for school security. On July 11, 1985, the Respondent pled no contest to Count I, Possession of Marijuana less than 20 grams and Count II, Child Abuse. Judge Karen Martin, County Court Judge in and for Palm Beach County, Florida, withheld adjudication as to Count I and adjudicated the Respondent guilty of Count II. The Respondent was placed on twelve (12) months probation with special conditions that he: (1) make no contact with any child under the age of 18 years without another adult being present; (2) make no contact with the mother of the victim and/or the victim, himself; (3) undergo substance abuse evaluation and treatment if needed; and, (4) undergo psychological evaluation and counseling if needed. Ms. Jane E. Vowell, then acting as Assistant Superintendent, testified that on or about January 17, 1985, the Respondent was called into her office and she informed him of the charges against him, and told him that she would recommend to the Superintendent that he be suspended with pay and given an opportunity to resign. The Respondent resigned on February 4, 1985. Ms. Vowell testified that the Respondent's teaching certificate should be permanently revoked because he lacked the moral character needed to be a teacher responsible for children. On March 6, 1985, the Respondent submitted an Application for Instructional Position to the Broward County School Board. The Respondent again answered "No" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" He again signed the application certifying that all the information given on the application was true and correct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking the teaching certificate of Jeffrey W. Siegfried. RECOMMENDED this 5th day of February 1987, in Tallahassee, Florida. DIANE K. KIESLING 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 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2020 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Proposed findings of fact 1-33 are adopted in substance in Findings of Fact 1-33. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Jeffrey W. Siegfried Post Office Box 172 Truro, Massachusetts 02666 Marlene T. Greenfield Administrator Professional Practices Services 319 West Madison Street Tallahassee, Florida 32301 Karen Barr Wilde Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32301
The Issue The issues for determination are: (1) did the College of Central Florida (“CCF”) commit an unlawful employment practice by discriminating against Petitioner on the basis of age and/or sex; and (2) did CCF unlawfully retaliate against Petitioner by firing her.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Howell began working in CCF’s lawn maintenance department on August 17, 2015. She worked 25 hours a week performing activities such as removing weeds, picking up debris, and maintaining the flower beds around CCF’s campus. CCF’s lawn maintenance department consisted of approximately 20 people, but Ms. Howell was the only female. At the time of the final hearing, Ms. Howell was 67 years old. Tommy Morelock, CCF’s director of facilities, made the decision to hire Ms. Howell. Ms. Howell claims that her co-workers mistreated her. For example, she asserts that there were at least three occasions when co-workers intentionally drove a four-wheel drive vehicle or a pickup truck into a golf cart driven by her. Another alleged incident involved a co-worker running a finger down her neck. In addition, Thomas Smith supposedly “flipped her off” on numerous occasions throughout her tenure at CCF and referred to her as a “f***ing c*nt.” In approximately August of 2016, after a co-worker allegedly used a vehicle to strike a golf cart driven by Ms. Howell, her fiancée, Newell Melton, called CCF in order to lodge a complaint with Mr. Morelock. Mr. Melton ultimately spoke with Katherine Hunt, one of Mr. Morelock’s subordinates and CCF’s manager of facility operations and construction projects. Ms. Hunt met with Ms. Howell soon afterward about these alleged incidents. Ms. Howell also described how her male co- workers would grab themselves between the legs. However, Ms. Howell did not indicate that those actions were directed toward her. Ms. Howell did not mention any improper conduct by Thomas Smith during her meeting with Ms. Hunt. In late 2016 or early 2017, Ms. Howell also met with Mark Sakowski, another of Mr. Morelock’s subordinates and CCF’s manager of plant safety and facility operations, about one of the vehicle incidents. Mr. Sakowski told Ms. Howell that he would talk to the co-worker in question and asked her to bring any future issues to his attention. Ms. Howell did not mention anything to Mr. Sakowski about Thomas Smith directing obscene gestures toward her. After the meeting, Mr. Sakowski spoke to employees within the lawn maintenance department about professionalism, safety, and having respect for others. Ms. Howell never filed a formal complaint with CCF about her co-workers’ alleged misconduct. At Mr. Morelock’s request, Ms. Howell met with him and Caroline Smith, CCF’s equity officer, on June 7, 2017, to discuss her complaints. During this meeting, Ms. Howell described: (a) how her co-workers would drive vehicles into golf carts she was occupying; (b) the incident in which a co-worker ran a finger down her neck; and (c) a rumor among her co-workers that she was planning to file a sexual harassment complaint. As CCF’s equity officer, Ms. Smith is responsible for investigating student and employee claims of discrimination or harassment. After hearing Ms. Smith’s description of the alleged incidents, she concluded that the allegations involved inappropriate “horseplay” rather than age and/or gender-based discrimination. She then explained CCF’s employee complaint procedure to Ms. Howell, but Ms. Howell declined to initiate a formal complaint. Ms. Howell did not mention Mr. Smith’s alleged misconduct during her meeting with Mr. Morelock and Ms. Smith. In a memorandum dated June 7, 2017, and addressed to Ms. Howell, Mr. Morelock wrote the following: As discussed in our 11:00 AM meeting today with the College Equity Officer, Mrs. Smith, to address your complaints regarding horseplay in the workplace, rumors, and possible harassment, I have met with the 3 employees in your complaint and have addressed these issues. Please let me know immediately if there are any further incidents or if you have any additional concerns. Mr. Morelock noted in the memorandum that Ms. Hunt, Mr. Sakowski, and Ms. Smith received copies. Ms. Howell received a copy of Mr. Morelock’s memorandum shortly after their meeting. At approximately 12:30 p.m. on July 19, 2017, Ms. Howell was nearing the end of her workday and driving a golf cart. She crossed paths with a vehicle driven by Mr. Smith and noticed in her rearview mirror that Mr. Smith was directing an obscene gesture toward her.2/ Ms. Howell proceeded on her way to leaving the CCF campus. However, she reversed course and, with the assistance of another co-worker, spent approximately ten minutes driving around the CCF campus looking for Mr. Smith. Upon finding Mr. Smith at the back of the CCF campus planting junipers, Ms. Howell exited the golf cart and angrily told Mr. Smith to stop directing obscene gestures toward her. According to Mr. Smith, Ms. Howell went into a “tirade.” After confronting Mr. Smith, Ms. Howell left the campus without reporting this new incident to any supervisors. As far as she knew, none of the pertinent supervisors were available. Mr. Smith felt threatened and immediately sought out Mr. Sakowski. Mr. Smith reported that Ms. Howell demanded that he stop spreading rumors about her, and Ms. Howell supposedly stated that CCF, Mr. Smith, and Mr. Smith’s wife “would be sorry.”3/ Rather than obtaining Ms. Howell’s version of the confrontation, Mr. Sakowski and Ms. Hunt spoke to Mr. Morelock, who was on vacation at the time. Mr. Morelock recommended that they confer with CCF’s director of Human Resources and authorized them to resolve the matter as they saw fit. Mr. Sakowski and Ms. Smith called Ms. Howell on July 21, 2017, and notified her that she had been fired. The only explanation given to Ms. Howell was that she did not work well with supervisors and co-workers. Mr. Sakowski explained that he was concerned about his staff’s safety and that of CCF’s students: We take safety very seriously on the campus. And in this day and age with mass-casualty and active-shooter scenarios, we practice these drills on campus on an annual basis. And it did scare me that -- I did not want it [to] make national news. Mr. Sakowski was also concerned by the fact that Ms. Howell confronted Mr. Smith rather than reporting his obscene gesture to a supervisor: Instead of coming back onto campus after leaving her shift, she should have come into the building and either got myself or Ms. Hunt at that time and explained what had just happened instead of taking matters into her own hands. Because Mr. Morelock’s memorandum to Ms. Howell directed her to “[p]lease let me know immediately if there are any further incidents or if you have any additional concerns,” Ms. Hunt considered Ms. Howell to be insubordinate when she confronted Mr. Smith on July 19, 2017.4/ This was the first disciplinary action that CCF had taken against Ms. Howell. Since being fired by CCF, Ms. Howell has unsuccessfully applied for two positions, a greeter at a hospital and a landscaping technician at a local cemetery. While she considers herself to be retired, Ms. Howell is still looking for employment. Ultimate Findings Ms. Howell persuasively testified that Mr. Smith directed an obscene gesture toward her on July 19, 2017. However, the preponderance of the evidence demonstrates that CCF did not know nor should have known that Mr. Smith directed obscene gestures and/or language toward Ms. Howell. While Ms. Howell consistently testified that she did not discuss Mr. Smith’s conduct with Mr. Sakowski or Ms. Hunt, she gave conflicting testimony as to whether she reported Mr. Smith’s conduct to Mr. Morelock during their meeting on June 7, 2017. In contrast, Carol Smith, CCF’s equity officer, persuasively testified that Mr. Smith’s conduct was not discussed during that meeting.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 17th day of June, 2019, in Tallahassee, Leon County, Florida. S W. CHISENHALL 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 17th day of June, 2019.
Findings Of Fact David B. Clark, Respondent, is employed by the Leon County School Board on continuing contract and was so employed at all times here involved. By Request for Leave dated May 31, 1978 (Exhibit 2) Respondent requested leave without pay from August 1978 through June 1979 for the purpose of continuing education. The request was forwarded approved by the Respondent's principal and approved by N. E. (Ed) Fenn, Petitioner. The principal who recommended approval of Respondent's leave request testified he would not have recommended approval had he not believed Respondent would pursue graduate studies. At the time Respondent submitted his application for leave he had been assured of financial assistance from his family to provide him the necessary funds to be a full-time student at Florida State University in the Masters program in public administration. In July Respondent learned he would be unable to get the financing he had expected to allow him to attend school full time. He proceeded to the school personnel office, advised the personnel director of his dilemma and requested advice. She advised him to go to the school at which he was employed the past school year and ask for his position back for the 1978-79 school year. When he did so he found a new principal had been appointed who was unsure of the job availability but he advised Respondent that his previous year's position had been filled by someone else. Respondent went back to the personnel officer for Leon County School Board where he learned there were no jobs available but he could be listed on the rolls as a substitute. He also was told that he should attempt to take some graduate courses even if he couldn't afford to go full time. Respondent agreed to try and do so. By letter dated 31 July 1978 (Exhibit 5) Respondent applied to be placed on the rolls as a substitute teacher for the 1978-79 school year. Respondent then took a sales job at which he worked in the late afternoon and early evening while also working as a substitute teacher. After the first semester, Respondent quit his sales job and worked full-time as a substitute teacher until the end of the school year. He was then offered a summer job on a construction project in Georgia, which he took. After Respondent reapplied and was employed for the 1979-1980 school year, the charges of gross insubordination and misconduct in office followed. Respondent's evaluation reports (Exhibit 4) contain a satisfactory rating in all categories for the past three years. Only in the year 1974-1975 was a "needs to improve" rating given in any of the categories for evaluation. Subsequent to the 1974-1975 evaluation year Respondent was placed on continuing contract status.
The Issue Whether Respondent's teaching certificate should be revoked, suspended or otherwise disciplined for the violation alleged in the Administrative Complaint filed by the Petitioner.
Findings Of Fact At all times material to this proceeding, the Respondent held a Florida teaching certificate, number 652475, covering the area of substitute teaching, which is valid through June 30, 1993. At all times material to this proceeding, the Respondent was an authorized substitute teacher for the Pinellas and Manatee County School Districts. During the spring of 1990 Respondent was employed as a substitute teacher with the Manatee County School District and assigned as a teacher at Southeast High School. Respondent was an authorized substitute teacher for the Pinellas County School District, but after certain allegations arose concerning improper conduct by Respondent toward a student Respondent was not called to substitute. On May 3, 1989, the Respondent was arrested in Pinellas County and charged with soliciting a 14 year old child for sexual activity while in the position of custodial authority to the child. The child was a student in Respondent's class at Baypoint Middle School where Respondent was employed as a teacher by the Pinellas County School District. On May 3, 1989, Respondent was also arrested and charged with unlawfully obtaining a Florida Driver's license. In July 1989, the state attorney filed a two-count Information charging Respondent with procuring a person less than sixteen years for prostitution, and for soliciting for prostitution. Also, in July 1989, the state attorney filed an Information charging Respondent with knowingly making false statements, knowingly concealing a material fact, or otherwise committing fraud in an application for a Florida driver's license. On April 8, 1990, the Respondent was arrested in Pinellas County and charged with driving with a suspended driver's license. On April 27, 1990, the Respondent entered a plea of guilty to the charge of driving with a suspended license and was found guilty. The court withheld adjudication of guilt, and Respondent was ordered to pay $30.00 in costs. On May 4, 1990, Respondent was arrested and charged with petit theft. On June 21, 1990, the state attorney filed an Information charging Respondent with knowingly and unlawfully obtaining or using or endeavoring to obtain to use the property of another, to wit: petit theft, a second degree misdemeanor. On June 30, 1990, the Respondent entered a plea of guilty to the charge of petit theft. The court adjudged the Respondent's guilty and ordered him to pay a fine of $150.00 plus costs. On May 14, 1991, the Respondent entered a plea of nolo contendere to the charges of procuring a person less than sixteen years for prostitution, soliciting for prostitution, and making a false application for driver's license. The Respondent was represented by the Public Defender's office. The court withheld adjudication of guilt and imposition of sentence. The Respondent was placed on three years probation which included one year in the Community Control Program. The Respondent did not attempt to refute the above charges at the hearing. The Manatee County School Board became aware of Respondent's arrest in Pinellas County for solicitation of a minor and of certain alleged misconduct toward students at Southeast High School in Manatee County by the Respondent at the end of the 1989-90 school year. However, the Petitioner did not present any competent, substantial evidence of this alleged misconduct. The only evidence presented by the Petitioner was hearsay. There was insufficient evidence to show that Respondent's effectiveness as an employee of the School Board of Manatee County had been seriously reduced as a result of his personal conduct, notwithstanding that the Manatee County School Board would not rehire Respondent as a result of his personal conduct coming to their attention or the fact that his arrest and criminal history was reported in the Bradenton Herald, a daily newspaper circulated generally in Manatee County and the City of Bradenton. On September 4, 1990, in an attempt to secure employment with the District of Columbia Public Schools, Respondent signed a Disclosure Statement under penalty of perjury which included the following statement: I declare or affirm under penalty of perjury that I have not been convicted of, and or/am not the subject of pending charges for, the commission or attempt to commit any of the following offense(s), except as described below: murder; child abuse; rape; a sexual offense involving a minor or non-consenting adult; child pornography; kidnapping or abduction of a child; assault where the victim was a child under the age of sixteen years; illegal use, sale or distribution of controlled substances; illegal possession or use of weapons; or a crime of moral turpitude (i.e., one characterized by behavior or acts that violate moral sentiments accepted moral standards of the community and are of a morally culpable quality). I further certify that I am the applicant whose signature is affixed below. Although the Disclosure Statement provides a place for the description of convictions or pending charges, the Respondent did not list the conviction for petit theft or the pending charges of procuring a person less than sixteen years for prostitution, solicitation for prostitution and making false application for a driver's license that were pending in Pinellas County or the charges pending at the time in Manatee County for solicitation of a child for sexual acts by a person in custodial authority and solicitation of sex.
Recommendation Having considered the foregoing Findings of Facts and Conclusions of Law, it is, accordingly, RECOMMENDED: That a Final Order be entered finding Respondent, Kenneth K. Long guilty of violating Section 231.28(1)(c)(e) and (h), Florida Statutes and Rule 6B- 1.006(5)(a)(g) and (h), Florida Administrative Code, and for such violation permanently revoke Respondent's Florida teaching certificate No. 652475. It is further recommended that Counts III, VI, VII and VIII of the Administrative Complaint be dismissed. DONE and ENTERED this 27th day of August, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 27th day of August, 1992. APPENDIX TO RECOMMENDED ORDER In Case No. 92-7879 The following constitutes my specific ruling pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number is parenthesis is the finding(s) of fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(4); 5(5); 6(11); 7(7); 8(8); 9(9); 10(10); 11(12); 13(12); 14(13); 16(13); and 17-18(14). Proposed findings of fact 12 and 15 are rejected as not being supported by competent, substantial evidence in the record. Proposed finding of fact is more of an argument to support proposed finding of fact 18 than a proposed finding of fact. Respondent did not file any proposed findings of fact with the Division of Administrative Hearings. COPIES FURNISHED: Margaret O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Kenneth K. Long 5301 85th Avenue #202 New Carrolton, MD 20784 Karen Barr Wilde, Exec. Dir. 301 Fla. Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, FL 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Fla. Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400
