Findings Of Fact Introduction At all times relevant hereto, respondent, Michael A. Graham, was a middle school teacher at West Miami Junior High School (WMJHS) in Miami, Florida. He is under a continuing contract as a teacher for petitioner, School Board of Dade County (Board). He has been an employee in the school system since 1975 and a full-time teacher since 1981. Graham holds bachelor and master degrees from the University of Miami and is currently taking course work at Florida International University towards a second master's degree. On January 12, 1988 the Board voted to suspend Graham without pay for thirty days effective January 20, 1988 for "just cause and misconduct in office." On July 1, 1988 the Board issued a Notice of Charges containing six counts of alleged misconduct. 1/ The charging document alleged that respondent failed to disclose on his job application dated September 24, 1981 that he had been previously arrested on numerous occasions, (b) intentionally exposed a student, I.M., to unnecessary embarrassment, (c) intentionally exposed a student, V.E., to unnecessary embarrassment or disparagement, (d) intentionally committed a battery on U.C., a student, (e) continually and intentionally refused to discontinue uttering profane and/or vulgar language in his classroom during school years 1985-86, 1986-87 and 1987-88, and (f) continually and intentionally refused to discontinue excessive tardiness and excessive absences during the same school years. These charges will be taken up separately below. Filing A False Application (Counts I and II) During the course of his employment with the Board, Graham has filled out various applications and other informational forms. Relevant to this proceeding is an application for an instructional position filed with the Board on September 24, 1981. The application asked the following question: Have you ever been convicted of anything other than minor traffic violations? Graham responded in the negative. Sometime after Graham filed the above application, the Board had an occasion to run a background check on him. Among other things, the Board uncovered the fact that Graham had been arrested on February 29, 1976 for resisting an officer without violence to his person and disorderly conduct, both misdemeanors. The first charge was nolle prossed while Graham was found guilty of the second charge and received a suspended sentence. Certified copies of these records have been introduced into evidence as petitioner's exhibit 10. Although petitioner did not introduce into evidence certified copies of other arrests, there was testimony, without objection, that Graham had been arrested for the following charges: 12/17/71 - public drunkenness 6/05/74 - theft 5/14/76 - worthless checks 4/08/77 - "warrant arrests" 5/18/77 - worthless checks 9/11/79 - worthless checks 9/17/81 - aggravated battery 11/05/82 - worthless checks 2/21/86 - worthless checks During a conference with a school administrator on August 21, 1987, Graham acknowledged that, with the exception of the May 14, 1976 arrest which he did not remember, and the April 8, 1977 matter which he stated involved a voluntary return on his part to the State of Indiana, all other arrests occurred. However, there is no evidence that Graham was convicted of any of these charges, and his testimony that all charges were later dropped was not contradicted. At hearing Graham explained that he thought the question concerning prior arrests on the employment application meant whether his civil rights had ever been taken away. Since they had not, he stated he believed his negative answer was appropriate. Exposing Students to Embarrassment or Disparagement (Counts III and IV) It is alleged that in school year 1986-87, respondent exposed I.M., a seventh grade female student, to "unnecessary embarrassment or disparagement." The student did not appear at hearing but gave post-hearing deposition testimony. As clarified at hearing, this charge stems from alleged off-color remarks about I.M.'s clothing made by Graham to I.M. in front of the class. I.M. was a student in Graham's history class in school year 1986-87. While in class on May 11, 1987, I.M. left her desk to go to the restroom. She was wearing tight fitting pants. When she returned, Graham remarked in a loud voice, and in front of the class, that her pants were so tight he "could see her crack and count the hairs." Graham also made her perform a "fabric test" to ascertain whether she could pinch the cloth on the pants without pinching her skin. If I.M. pinched both skin and cloth, this confirmed that the pants were too tight. After Graham made his comments and required I.M. to take the "fabric test," I.M. became embarrassed, felt "cheap," began crying and left the room. She reported the incident to her counselor and prepared a written statement which is attached to her deposition. Also, she described the incident to a school investigator the same day, giving essentially the same version of events described above. This account is deemed to be more accurate and credible than a slightly different version of events given by I.M. by deposition some fifteen months later. Graham recalled the incident differently. According to his recollection, when I.M. returned from the bathroom to the classroom, he told her she had "inappropriate clothing," and if she disputed this, she would be given a hall pass to visit the principal. If the principal approved the pants, she could wear them to school. Otherwise, Graham told her not to wear them to his class in the future. Graham contended also that he said "Your clothing is too tight around the hips and crotch" and denied using the words "hairs" or "crack." He conceded he may have asked her to perform a "fabric test." However, this version of events is not deemed to be credible and is hereby discredited. Student V.E. is a fundamentalist Christian who was in Graham's American History class for the first three days of school year 1987-88. On the first or second day of class Graham gave a class assignment requiring the students to use the Bible as a historical reference but to explain the story without the (i ideas of miracles and deity. V.E. understood this to mean that she was to "take all miracles" out of the story and to "not have God in it." During class that day, V.E. asked a question about a Bible parable being discussed by Graham and, after she gave the biblical version of what happened, Graham asked her if she believed in magic. V.E. felt "bad" and "intimidated" by Graham's question. When she went home that evening, V.E. told her mother about the class assignment. The mother was upset and prepared a letter for Graham and the assistant principal questioning the subject matter of the assignment. V.E. was told by her mother to hand carry a copy of the letter to Graham the next day. Before she could do this, the assistant principal told Graham that V.E.`s mother had sent a letter. When she entered the classroom the next day, V.E. was asked by Graham if she had a letter for him. After being handed the letter, Graham asked V.E. why she told her mother about the assignment and added "I'm pissed." This episode took place in front of the entire classroom. This caused V.E. to be very "upset" and "embarrassed." She immediately transferred out of Graham's class. Graham countered that there was no "homework assignment" per se and that he was merely seeking to obtain "critical thinking" from his students. According to Graham, his discussion was consistent with the approved curriculum and was intended to have the students reconcile biblical stories with other theories of evolution of men. Graham believed that V.E. had misunderstood the discussion as being an attack on religion when in fact it was not. He added that, of all the students, only V.E. reached that erroneous conclusion. He conceded that he "may have" used the words "I'm pissed" but contended that he was justified in questioning her in front of the entire classroom because students frequently hurried off to other classes once the end-of-period bell rang. Battering Urbano (Count IV) In school year 1986-87, Urbano was a fifteen year old male student. He has since departed the state. It is alleged that Graham committed battery on Urbano. According to Graham, who gave the only eyewitness account of the entire fray, Urbano was still a student when the incident occurred but was in the process of withdrawing from school and moving to California. Urbano had been in several classes taught by Graham and had a history of disruptive conduct. Urbano returned to the campus one day to speak with a girlfriend who was in Graham's classroom. Urbano entered the classroom during a change in classes. Not wanting a confrontation, Graham requested the girl to ask Urbano to leave. When she did this, Urbano began cursing Graham and slowly backed into the hallway outside of Graham's classroom. As Graham attempted to close his door, Urbano blocked the door and pushed Graham who responded by pushing Urbano out of the doorway. Urbano then threw a four pound textbook into Graham's chest. After Graham asked Urbano to follow him to the principal's office, Urbano drew back his fist to strike Graham. At that point, and in self-defense, Graham struck Urbano with a blow to the side of his face. In retaliation, Urbano threw a karate kick into Graham's left knee. Graham followed by administering a second blow to Urbano's face. A female physical education teacher then approached the melee, grabbed Urbano on the shoulder and escorted him to the principal's office. According to Graham, Urbano was immediately suspended from school. This was not contradicted. There is no evidence that Graham was criminally charged with battery or disciplined by the school for the incident. Using Profane and Vulgar Language in Class (Count V) It is charged that in school years 1985-86, 1986-87 and 1987-88 Graham was given direct orders to discontinue "uttering profane and/or vulgar language while in the performance of assigned duties as a classroom teacher," and that respondent "continually and intentionally refused to discontinue" doing so. The allegations stem from disciplinary action taken in the fall of 1985. On October 17, 1985 respondent participated in a conference for the record with WMJHS principal Kavenaugh for using "very salty language" in the classroom. Neither Kavenaugh or Graham could recall what words were actually used by Graham. As noted in finding of fact 11, Graham used the words "I'm pissed" while talking to student V.E. in September, 1987. About the same time, he recited a "parable" in V.E.'s class which went generally as follows: A large flock of birds immigrated south one winter but one bird's wings froze, and it fell to the ground. A horse came along and deposited cow shit on the bird. Although the cow shit did not smell good, it kept the bird warm. A cat then came upon the fallen bird, wiped the cow shit off of its wings and ate it. The moral: not everyone who shits on you is your enemy, and not everyone who does you a favor is your friend. Graham acknowledged reciting the above story in class but claimed he used the word "chip" instead of "shit." However, V.E. stated she heard the word "shit," and this version of the events is accepted as being more credible. Principal Kavenaugh gave some vague testimony about other incidents of vulgarity but could not give specifics as to when this occurred or what was said. Other than the order to quit using "very salty language" in October 1985, there is no evidence of any other orders given to Graham by a principal or administrative officer directing him to refrain from using vulgarity or profanity. Excessive Tardiness and Absences (Count VI) The notice of charges alleges that in school years 1985-86, 1986-87 and 1987-88 Graham was "given direct orders to discontinue his excessive tardiness and/or excessive absences," and that he "continually and intentionally refused to discontinue" doing so. Assistant principal Sotolongo authored memoranda to respondent on May 27, 1986 and March 25, 1987 regarding class absences. The first concerned respondent sitting in the teacher's lounge ten minutes after class had started on May 23, 1986. For this infraction, Graham received a reprimand. The assistant principal stated that Graham was "periodically" absent from class but could not recall the number of times this occurred or the dates of such absences. The second memorandum was prompted by Graham being absent from school during the afternoon of March 24, 1987. Graham's explanation of having to see a doctor for a workers' compensation injury was not accepted as being satisfactory. Principal Kavenaugh authored a memorandum on May 6, 1986 concerning punctual attendance by Graham. The memorandum was prepared after Graham had been late to school at least ten times between January 10, 1986 and May 5, 1986. Respondent promised to make an "extra effort" to comply with attendance requirements. There is no evidence that, after the May 6, 1986 memorandum, Graham was late for school or that he refused to comply with attendance requirements. Miscellaneous Graham was told by principal Kavenaugh on one occasion "to be courteous and free of sarcasm" while teaching his students. This order was memorialized in a memorandum dated June 19, 1987. There is no evidence he disobeyed this order. On November 10, 1987 Graham was placed on prescription for one item of performance. This meant he had to correct a deficiency in professional performance and responsibilities. The prescription was prompted primarily by the V.E. incident and the parable given in the history class, both occurring in September, 1987. There is no evidence that Graham did not fulfill the terms of the prescription. According to Dr. D. Patrick Gray, who was accepted as an expert in professional ethics, performance appraisal and professional or personnel management, Graham violated the teachers' code of ethics by intentionally exposing a student to unnecessary embarrassment or disparagement, unreasonably denying a student access to a diverse point of view, and failing to keep the confidence of personally identifiable information concerning a student. He opined further that, given respondent's conduct as described in the Notice of Charges, Graham's effectiveness as a teacher had been seriously impaired.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of those charges in Counts I and II and a portion of Count III. All others should be dismissed. Respondent should also be suspended without pay for thirty days as proposed by the agency in its suspension notice effective January 20, 1988. DONE AND ORDERED this 19th day of September, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1988.
The Issue The issue in this case is whether Respondent's employment contract with Petitioner should be terminated for violation of School Board policies.
Findings Of Fact Petitioner is the local school board responsible for hiring, firing and overseeing all employees working for the School Board and/or within the Lee County Public School system (also called the "School District" herein). Respondent is an employee of the School Board, serving as an electronics field technician in the School Board's maintenance department. Respondent has worked for the School Board off and on since 1996, when he was a school bus driver. He has been an electronics technician since 2000. In that position, Respondent oversees the maintenance and repair of clocks, alarms, intercoms, scoreboards, sound and lighting systems, burglary systems, and the like for all schools within the School District. Respondent has never received any form of discipline from the School Board. His record is clear, and he has been commended for his work. His work ethic was viewed by others as consistent with that of similarly-situated employees (although Respondent may take more breaks than others). School District maintenance workers work an eight-hour work day, commencing at 7:00 a.m. (per provisions of the SPALC Contract and Collective Bargaining Agreement). Each worker is expected to arrive at the maintenance area on Canal Street (hereinafter "Canal Street") and be ready to commence work by 7:00 a.m., each morning. The work day generally starts with a briefing of sorts to make sure each worker is aware of his/her tasks for the day. After the briefing, workers pick up tools and supplies from various locations around the Canal Street area and then proceed to the first school site requiring performance of an assigned task. A work day for Respondent could involve driving to any one of the numerous school campuses within the School Board's jurisdiction. Workers are given 30 minutes for lunch each day, including the time it takes to drive to and from the lunch site. In addition, workers are allowed two 15-minute breaks, one in the morning and another in the afternoon. Again, the break time includes the time taken to drive to a break site, if the employee decides to take a break at other than the place he/she is working at that time. Employees are not permitted to do personal business or make unauthorized stops during the work day without prior permission from a supervisor. Respondent is a member of the U.S. Naval Reserve and currently holds the rank/level of E5. He attends regular weekend drills each month and also spends two weeks each year on temporary active duty. Respondent has been in the reserves throughout his tenure with the School Board. There has never been an issue between Petitioner and Respondent concerning Respondent's military status or his taking two weeks each summer to attend to his military duties. Respondent is proud of his military service, as evidenced by the fact that he wore his military uniform during both days of the final hearing.1 In May 2008, Respondent spent 17 days on active duty, serving in Bahrain. This was Respondent's active duty requirement for calendar year 2008. However, he then volunteered for an additional period of active duty in July 2008. This second active duty stint was done in furtherance of his military career and at the suggestion of a superior officer. It was strictly voluntary, but Respondent felt somewhat compelled to "volunteer" based on his superior's comments. Respondent then did his second active duty stint beginning June 28, 2008, and ending July 27, 2008. This period of time coincided with the maintenance department's busiest time for its electronics technicians. The maintenance department annually used the time in between school terms to get various maintenance items completed while it would be the least disruptive to students in the classrooms. The summer period is used to "clean up" things that remain pending from the school year. It is clear that Respondent's supervisors were not happy that Respondent had volunteered to be absent during this busy time, but Respondent was allowed to go on active duty anyway. This left the School Board short-handed as to its needed electronics technicians for that period of time. Respondent's supervisor expressed concern to Respondent about this second period of active duty, specifically that it was occurring during the summer break. Respondent recognized the strain this additional leave put on his co-workers and apologized for that fact. Respondent assured his supervisor it would not happen again. Upon his return from the voluntary active duty, Respondent was told that he was being placed on "suspension of driving privileges," meaning that he could not drive School Board vehicles until further notice. This suspension was based on information gleaned from review of data generated by a new tracking system being used in School Board maintenance vehicles (which will be discussed below). Respondent is of the opinion that the suspension was some sort of retaliation for his having gone on the second active duty tour during June and July. The Global Positioning System--Background Beginning in May 2008, the School Board decided to install global positioning system (GPS) devices in all of its maintenance vehicles. The installation began with 50 randomly selected vehicles of the 150-vehicle fleet. The purpose of the GPS devices was to track School Board vehicles and assure that all vehicles were being utilized properly and in accordance with School Board policies. This measure was prompted by repeated complaints from the public about maintenance vehicles being seen involved in non-school activities or at non-school locations. The GPS system in Respondent's maintenance vehicle was installed on May 22, 2008. The signal from the GPS was instantaneous, but required calibration and installation of certain software before it could be effectively utilized. The GPS became fully functional on June 20, 2008, at 10:07 a.m. The GPS system tracked the location, speed, and duration of stops for the vehicle. This data was maintained on a computer server which could print maps showing a vehicle's movements on any given day or time. The maps could be annotated with the vehicle's speed, length of stay at any one location, and actual driving route. On or about June 27, 2008, William G. Moore, director of School Support for the School Board, was being given a course on the use of the new GPS system and how it worked. During his training, Moore randomly selected some vehicles to review, solely for the purpose of ascertaining how the system tracked and recorded information. One of the vehicles Moore randomly selected was vehicle No. 423, which turned out to be Respondent's work van. Moore did not know Respondent personally and did not know to which of the 150 or so School Board vehicles any one person was assigned. Moore then selected June 26, 2008, randomly as a record to review as part of his training. The June 26, 2008, record for vehicle No. 423 immediately raised red flags in Moore's mind. He observed that the vehicle was at a non-school site for over three hours (although it was later determined to be a training site and a legitimate stop). The vehicle was also shown entering a residential community (although again it was later determined that the driver had permission for that trip). However, based on his initial determination that something was amiss and not having any explanation for those instances, Moore decided to more fully examine the route history for vehicle No. 423. First, he determined that this vehicle was assigned to Respondent. (The vehicle will hereinafter be referred to as the work van.) Moore's further investigation turned up a number of questionable stops and trips by the work van during the period June 20 through June 27, 2008. The findings of his investigation will be set forth in pertinent part below on a day-by-day basis, coupled with explanations from Respondent as to each day's activities. Friday, June 20, 2008 At 10:07 a.m. (when the GPS first started working), the work van was departing from Ft. Myers High School ("Ft. Myers High") en route to Estero High School ("Estero"). Upon arrival at Estero, the van remained parked for five minutes, then left the parking lot and drove around the building to the front entrance of Estero for a period of one minute. Leaving Estero, the work van headed to a residential neighborhood known as the Bimini Circle Subdivision, where it stayed for 11 minutes. The work van then proceeded to a 7-11 Store where it remained for 35 minutes. The next stop was back at Estero where the work van remained for one hour and 46 minutes. At 2:00 p.m., the work van left Estero, stopped briefly at the 7-11 Store, then returned to Canal Street at 2:59 p.m. The School Board perceived several violations of policy gleaned from the information on the GPS for the work van during the June 20, 2008, work day: First, the work van was at Estero for a total of two hours and 13 minutes on this date. The total time at Ft. Myers High for this date is not detailed by the GPS, but would presumably be approximately two and a half hours, i.e., allotting time for driving from Canal Street up until the GPS turned on at 10:07 a.m. Respondent's daily activity log indicates five hours at Estero and three hours at Ft. Myers High. Respondent took two unauthorized stops at a store, presumably for personal reasons, and then spent 11 minutes at a residence during work hours. Respondent took in excess of 30 minutes for his lunch hour (35 minutes at a location, plus an undisclosed amount of time driving to and from that location). Respondent took a longer route back to Canal Street than necessary, presumably wasting time. (Employees were expected to work the entire day, then return to Canal Street precisely at 3:00 p.m. A 30-minute debriefing session, return of tools, etc., would occur and then employees would be released from duty at 3:30 p.m. Employees were told repeatedly NOT to return to Canal Street until 3:00 p.m.) Respondent explained his actions and refuted the School Board's concerns as follows: Upon leaving Canal Street that morning, Respondent went directly to Ft. Myers High and remained there until 10:07 a.m. The rest of his day, approximately five hours, was dedicated to work at Estero, but included travel time, breaks, and lunch. The two hours and 13 minutes actually at Estero should be supplemented by driving time to the school from Ft. Myers, driving time to his breaks and lunch, driving time to and from his personal errand, and driving time back to Canal Street. Respondent remembers asking for and receiving permission to stop by his wife's house (the residence in the Bimini Circle Subdivision) to retrieve his wallet. The stops at 7-11 Stores were for lunch and two allowable breaks. The longer route back to Canal Street was taken in order to avoid an accident on the shorter route. During June of 2008, technicians would fill out their daily work logs using rounded estimates of time. They made no attempt to precisely state exact periods of time spent at any one job site. Rather, the daily logs were a very general statement of which job sites had been involved in the employee's work that day. (This procedure has subsequently changed, but was extant at all times relevant hereto.) It is clear Respondent took a longer than allowable lunch break on this date. Further, the time taken for breaks, if drive time was included, was in excess of the allotted amounts. It is clear Respondent was actually at Estero for only about half the time recorded on the daily work log. However, under the procedures in place at that time, the work log time entry was not dispositive of his actual time at the site. Monday, June 23, 2008 On this date, the School Board gleaned the following violations of policies from its review of the GPS log: Respondent was at Estero for two hours and nine minutes, but his daily work log indicates six hours at Estero and two hours at Gateway Elementary. The work van made stops at McDonalds and Bank of America on the way to Estero, then at the Bimini Circle address for eight and a half minutes after leaving Estero. Petitioner says any stops for personal business are strictly prohibited while in a School Board vehicle. After a 47-minute stop at Dairy Queen, the work van then proceeded to Gateway where it stayed for approximately two hours. Upon leaving Gateway, the work van stopped at Home Depot--an unauthorized stop--for about 18 minutes. Respondent provides the following explanation and rebuttal concerning the School Board's concerns for that day: Again, his work sheet indicates the correct amount of time actually at Gateway. The remainder of his day, including all travel, breaks, and lunch, was allocated on this time sheet to Estero no matter how long he was actually there. The stops at McDonalds and Bank of America were simply to allow his co-worker (Sheryl Reed) to get an iced tea and to get money for lunch. Respondent maintains that these types of stops were not specifically prohibited and were common practice. Respondent maintains the stop at his wife's house was his break time (although a stop at McDonalds and Bank of America had already occurred that morning). The 47-minute lunch hour was caused by Respondent simply losing track of time. That is, he admits that it was a longer lunch break than allowed, but it was not done intentionally. The stop at Home Depot was to obtain a coaxial wire needed for the Estero job, but the wire was not available. Employees are allowed to shop at local retail stores to acquire equipment or supplies not available through the School Board. However, all such purchases must be made by way of a purchase card (P-Card) so that purchases can be tracked. There is no P-Card receipt for the Home Depot visit on this date, but Respondent maintains that is because no purchase was made. That is, the coaxial wire he was looking for was not available. Reed said that Respondent made personal purchases from Home Depot and Lowe's on occasion during the summer of 2008 (because he was in the process of remodeling his house). He had purchased floor tiles and other items a couple of times a week that summer. However, she cannot remember whether he purchased anything on that particular date. Respondent admits that he did make purchases of home improvement products during work hours and transported the products in the work van to his house. He does not remember making any such stops for purposes during the week of June 20 through 27, 2008. Tuesday, June 24, 2008 On this date, Respondent's daily work log indicates three hours spent at Gateway and five hours spent at Island Coast.2 The GPS indicates the work van was at Gateway for three hours and at Island Coast for one hour and 40 minutes. The School Board also found the following other policy violations: A stop at Weaver's Corner for 36 minutes and 40 seconds, presumably a long lunch made longer by travel time to and from the lunch venue. An unauthorized visit for eight minutes and 40 seconds at a bank. A visit to a gas station for eight minutes, then a short drive to another gas station for five minutes. Respondent provides the following explanation and rebuttal to the School Board's findings: As before, the extended period of time for the Island Coast job site includes travel, breaks, and lunch. However, it would have been more accurate on this day to have split the two job sites equally. The stops at the gas stations were intentionally made so as not to return to Canal Street before the allotted 3:00 p.m., return time. Respondent does not provide any explanation for the longer than allowable lunch break. Wednesday, June 25, 2008 There were three stops on this date listed on Respondent's daily work log: Island Coast (4 hours), Dunbar Community (2 hours), and Ft. Myers High (2 hours). The GPS indicates the work van was at Island Coast for two hours and 11 minutes; at Dunbar Community for 11 minutes and 20 seconds; at Villas Elementary for one hour and 14 minutes; then at Ft. Myers High for four minutes and 40 seconds. Other perceived policy violations included: A short stop at a bank in the Wal-Mart parking lot upon leaving Canal Street. A lunch stop of 42 minutes and 30 seconds, not counting driving time to and from the restaurant. Another stop at Bank of America for in excess of ten minutes. A short, seven and a half-minute stop at a shopping center. Respondent provided the following in rebuttal and response to the School Board's perceived violations of policy: The quick stops at the banks were not prohibited and were common practice. They may have been part of Respondent's break time on that date. The lunch hour ran over, but was not excessive or intentional. It may have also included part of a break he never took that day. Thursday, June 26, 2008 This is the date that Moore initially reviewed in his training session that raised red flags concerning Respondent's time issues. On this date, the daily work log indicates seven hours in training and one hour at Villas Elementary. The School Board's concerns about this date are set forth above, but would also include: An authorized trip during the lunch hour for Respondent to retrieve a lap top which was being delivered by overnight delivery (so the computer would not be left sitting on the front porch). This trip which took approximately 18 minutes, of which 30 seconds was spent stopped at his house. Respondent also took time for lunch before returning to the training site. A circuitous, out-of-the-way route between the training site and the next job site (Villas Elementary). A short stop at a 7-11 Store and then a longer-than- usual route back to Canal Street. Respondent's explanation and rebuttal to the School Board's concerns were as follows: Respondent had permission to make a quick visit to his home during the lunch hour to see why his home alarm had activated. (He does not remember anything about a lap top or a need to retrieve it.) Respondent says that in the 30 seconds his work van was at the house, he exited the vehicle, walked to the house, unlocked the door and entered, turned off the alarm (which had been activated by his dog, who had escaped from his kennel), put his dog back in its kennel, re-set the alarm and left. Respondent was able to do his personal errand and get to the restaurant and eat lunch with his co-workers within the time (one hour) allotted for lunch that day by the trainer. The circuitous route was for the purpose of delivering some money to his daughter at her school. She was waiting for him outside, and he didn't even have to stop the work van to hand off the money. Rather, his daughter reached out and grabbed the money as he rolled past. The stop at the 7-11 Store was to use the rest room. Respondent's testimony concerning the stop at his house is not entirely believable. It would seem to take more than 30 seconds to accomplish the things that he did. However, inasmuch as he made the stop and was still able to join his co-workers in time for lunch, the reason for his home visit is immaterial. Also, the rolling delivery of money to his daughter is very unusual, but there is no evidence that the exchange did not take place in that fashion. Friday, June 27, 2008 This day's daily work log indicates three work sites: Dunbar Middle School (4 hours), Ft. Myers High (2 hours), and Cypress High School (Cypress High)(2 hours). The GPS indicates 33 minutes and 50 seconds at Dunbar; one hour and 47 minutes at Ft. Myers High; and five minutes and 50 seconds at Cypress High. The work van then went back to Dunbar for one hour, 51 minutes and 30 seconds. The School Board's other concerns about time and travel on this date are as follows: After leaving Canal Street that morning, the work van made stops at McDonalds for three minutes and at Lowe's for 15 minutes. There is a stop of one hour and eight minutes at a shopping plaza, presumably a long lunch hour. Respondent's response to the allegations of policy violations for this day are as follows: The McDonalds visit was again an allowable stop (as he understood the policies) for his assistant to get an iced tea. The Lowe's stop was for the purpose of getting concrete anchors needed for a School Board job, but none were available and so no purchase was made on the P-Card. The long lunch hour was just that; he was not thinking clearly because this was just one day prior to going on active duty and he was preoccupied with those thoughts. The extra driving time was due to the fact that after leaving Dunbar, Respondent was called on the radio to go back there for an emergency job. The daily work logs do not correspond exactly with Respondent's work day because that was not the purpose of the logs. The logs were, at that time, simply an indicator of which schools had been visited on any given day. There was no effort by anyone to be exact or precise with the times recorded on the daily logs. The daily logs are essentially of no value in determining where an employee might have been at any point in time on any given day. There is no way to reconcile the GPS times with the daily work logs. Each employee is expected to work a full day. If the number of tasks assigned during the morning meetings at Canal Street did not fill a technician's day, he/she was expected to locate additional work or do work on an on-going project to fill the day.3 Nonetheless, it is often difficult to coordinate a day's activities to make the assignments equate to the exact hours and minutes in a work day. A large part of an employee's time during the work day is spent driving his/her vehicle. The driving time is supposed to be factored into the time spent on a particular work site. Thus, if it took 30 minutes to get to a work site, that time would be added to the time spent actually at the site. Then, when driving to a subsequent work site, the drive time would be assigned to that next site, etc. Employees are on their honor to take breaks and lunch only when allowed and for the time allotted. There is no time clock, so each person must attempt to keep time themselves so as to honor the allotted times. This is often difficult due to slow service at a restaurant, inability to take breaks at a particular time, or other factors. The GPS system has provided the School Board with an effective tool for monitoring its employees' movements and location. However, at all times relevant hereto, the GPS system was in its infancy and the School Board was still learning how to assimilate and read the data generated by the system. Thus, Respondent's activities from June 20 through June 27, 2008, were examined in a way no other employee's had been looked at heretofore. It is, therefore, hard to make a comparative determination of Respondent's actions versus an established norm. Nonetheless, the School Board's findings are supported by the GPS data. That is, the daily work logs are not consistent with time actually spent at particular job sites. Respondent's lunch breaks exceed the allotted 30-minute time period almost every day that was examined. There are stops at local establishments that are not part of the employee's work duties. Some of the routes taken by an employee are not the shortest routes, although it is impossible to ascertain whether they are the best routes based on other extraneous factors. The time spent on breaks, versus travel time, is hard to ascertain with any degree of certainty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Lee County School Board, rescinding the notice of termination and imposing a less stringent penalty, e.g., a period of probation, a letter of reprimand and/or some remedial training, against Respondent, Christopher Rasmussen. DONE AND ENTERED this 22nd day of June, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2009.
The Issue Whether the Petitioner has cause as set forth in the notice of specific charges to order that the Respondent's professional services contract not be renewed.
Findings Of Fact At all times pertinent to this proceeding, the Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools with the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. North County Elementary School (North County) and Myrtle Grove Elementary School (Myrtle Grove) are public schools in Dade County, Florida. Respondent graduated from North Eastern Illinois University in 1978. She began her employment with the Petitioner at North County at the beginning of the 1987/88 school year. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher pursuant to a professional services contract. Teachers employed by the Petitioner are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system provides for periodic observations of a teacher's performance that is followed by an evaluation of that performance. The evaluator records what he or she considers to be observed deficiencies in the teacher's performance and provides a plan, referred to as a prescription, for performance improvement. At all times pertinent to this proceeding, the TADS method was used to evaluate the Respondent's performance. Respondent taught at North County during the 1987/88 school year. The principal of North County for that school year was Gertrude Pope. Ms. Pope evaluated Respondent's performance based on the TADS method and rated her overall performance as acceptable. Ms. Pope testified that Respondent had difficulty in classroom management during the 1987/88 school year, and that she tried to help Respondent improve her classroom management by giving her materials, having her observe other teachers who were good in classroom management, and by having her view a videotape on assertive discipline. Ms. Pope wanted Respondent to develop and use in her classroom an assertive discipline plan, which consists of strategies to maintain discipline in the classroom and specifies behavioral standards and the consequences for failing to adhere to those standards. Respondent's TADS assessment for the 1988/89 school year was acceptable. In August 1989, Dr. Ruthann Marleaux became the principal at North County, a position she retained at the time of the formal hearing. On October 27, 1989, Respondent's left knee and left instep were injured at school when a child accidentally stepped on her foot. After that injury, Respondent had a significant number of absences from the classroom caused by pain and the buildup of fluid in her left knee. In February, 1990, Respondent underwent surgery to repair the damage to her knee and was placed on worker's compensation leave. Following that injury, Respondent used a cane or crutches to walk. On May 11, 1990, Respondent returned to her teaching duties at North County. This return to work was approved by the Petitioner's worker's compensation department. Following a conference with the Respondent, Dr. Marleaux, and a coordinator of the worker's compensation department, it was agreed that certain modifications would be made to accommodate Respondent's knee problem. Dr. Marleaux arranged for someone to escort the children in Respondent's class back to the classroom after lunch and after physical education. An aide was assigned to assist Respondent during the first week of her return to work. Respondent's TADS assessment for the 1989/90 school year was acceptable. Following several days of absences towards the beginning of the 1990/91 school year, Dr. Marleaux notified Respondent by memorandum dated October 10, 1990, that her absences were adversely impacting the educational environment and the progress of the children assigned to her class. The memorandum contained the following directives pertaining to future absences: Intent to be absent must be communicated directly to me or in my absence, Mr. Peter Harden, assistant principal. This is in accordance with procedures delineated in the site book. Absences for illness must be documented by your treating physician and a written medical note stating an unconditional medical release to return to full duties presented to me upon your return to the site. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. There are 180 days in a school year. During the 1990/91 school year, Respondent was absent a total of 101 days. Despite those absences, Respondent's TADS assessment for the 1990/91 school year was acceptable. Respondent underwent surgery again on her left knee in March, 1992. After another worker's compensation leave, Respondent was assigned a teaching position at Myrtle Grove under the supervision of Cecil Daniels, the school principal. Petitioner was advised that, as of June 4, 1992, the following restrictions were placed on Respondent's activities: No weight bearing for more than 20 minutes at one time on the left knee. No squatting. No kneeling. No climbing. No lifting more than 25 pounds at one time. The duties assigned to Respondent were within the medical restrictions delineated by Respondent's doctor. On June 11, 1992, Respondent refused to assume her assigned duties at Myrtle Grove. Respondent asserted that she was entitled to light duty employment and that she had been assigned too many children. As a result of Respondent's refusal, Mr. Daniels dismissed her for the day and employed a substitute teacher for the day. On June 12, 1992, Mr. Daniels held a conference-for-the-record with Respondent concerning this incident. There was no evidence as to Respondent's TADS assessment for the 1991/92 school year. 1992/93 SCHOOL YEAR Respondent was again assigned to Myrtle Grove for the beginning of the 1992/93 school year. Shortly after school began, Mr. Daniels discovered that Respondent had failed to follow school procedures at the end of the 1991/92 school year pertaining to the records that are kept for students. Mr. Daniels had a conference for the record with Respondent on September 30, 1992, at which he discussed this deficiency with her and also discussed with her two concerns he had about her class management. One concern was the result of a complaint he had received from a parent who reported that Respondent had not attended to an injury to a student. The second concern was that there had been several fights between students in her class. On or about October 8, 1992, Respondent was transferred from Myrtle Grove back to North County. Mr. Daniels had asked the district office to make this transfer. By memorandum dated October 16, 1992, Dr. Marleaux advised Respondent in writing that the directives pertaining to absences from the work site as set forth in her memorandum dated October 10, 1990, were still in effect. Petitioner maintains an employee assistance program (EAP) as a resource for employees who have personal or family problems that may be impacting an employee's job performance. On October 23, 1992, Dr. Marleaux referred Respondent to the EAP because of marked changes in Respondent's mood. Respondent had been seen crying in the classroom and in the teacher's lounge. She was visibly upset and physically shaking. Respondent testified that she was seen by a mental health professional as a result of that referral, but there was no evidence that Respondent benefited by the referral. Respondent testified that she did not think she needed help at the time the referral was made. Respondent was formally observed in the classroom by Dr. Marleaux on October 26, 1992. There was no evidence that the timing of this observation, in light of Respondent's behavior that resulted in the EAP referral, was inappropriate. Dr. Marleaux's observation was between 11:30 a.m. and 12:20 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance as unacceptable in the category of classroom management. Respondent began the instructional activities of the class 20 minutes late and ended the instruction 15 minutes early. There were a number of off-task students to whom Respondent did not respond either verbally or non-verbally. Although Respondent had classroom rules, it was Dr. Marleaux's observation that the behavioral expectations had not been made clear to the students and that Respondent was not implementing her assertive discipline plan. There was a contention that Dr. Marleaux was overly critical in her observations of Respondent. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on October 26, 1992. Dr. Marleaux's observation report included a prescription to remediate Respondent's unsatisfactory performance. This prescription consisted of a number of assignments that Respondent was to complete by a date certain. She was to observe a teacher with a successful assertive discipline plan, develop five strategies used by that teacher to improve classroom management, and review her assertive discipline plan with the assistant principal. She was also to complete activities in the TADS Prescription Manual and to develop lesson plans which required full periods of instruction. The respective deadlines for completing these assignments were between November 6 and November 16, 1992. These prescribed assignments are found to be reasonable and formulated to assist Respondent to improve her job performance. Peter Harden was assistant principal at North County during the 1992/93 school year. Mr. Harden formally observed Respondent in the classroom on November 24, 1992. His observation was between 1:30 p.m. and 2:11 p.m. while Respondent was teaching her third grade class mathematics. Following his observation, Mr. Harden prepared an observation report that rated Respondent's performance in classroom management as unacceptable. Mr. Harden observations were similar to those of Dr. Marleaux during her observation the previous month. Mr. Harden observed that off-task students were neither verbally nor non- verbally redirected. Respondent began the instructional activities 20 minutes late and ended the lesson 19 minutes early. Respondent did not make behavioral expectations clear to the students. The students did not appear to be aware of the class rules and regulations. The observation report contained prescribed assignments that Mr. Harden believed would help Respondent improve her deficiencies in classroom management. A deadline of December 14, 1992, was set for Respondent to complete these assignments. Based on the evidence presented, including the demeanor of the witnesses, it is found that Mr. Harden fairly and accurately evaluated Respondent's performance on November 24, 1992. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 14, 1992, a midyear conference-for-the-record was conducted by Dr. Marleaux with the Respondent and her union representative in attendance. Respondent's TADS evaluations following the formal observations by Dr. Marleaux in October, 1992, and by Mr. Harden in November, 1992, were discussed. Respondent had not completed her prescribed assignments at the time of this conference because she had been ill. Dr. Marleaux extended the deadlines for completing the remaining assignments. Respondent was given notice that if she ended the 1992/93 school year in a prescriptive status, there could be possible employment consequences such as a return to annual contract status or termination of employment. During the conference, Respondent asked permission to observe a handicapped teacher. In response to that request, Dr. Marleaux arranged for Respondent to observe a teacher at Kelsey Pharr Elementary School who had to use crutches to walk. Respondent was formally observed in the classroom by Dr. Marleaux on January 13, 1993, between 12:55 p.m. and 2:00 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance in the following areas as being unacceptable: preparation and planning, classroom management, and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning based on her observation that Respondent did not follow at least half of her lesson plan as required by TADS. Dr. Marleaux rated Respondent as unacceptable in classroom management based on her observation that out of a one hour lesson plan, Respondent taught for only 20 minutes. Dr. Marleaux observed that there was a lot of wasted class time. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction based on her observation that Respondent's teaching methods confused the students, she did not use the media resources skillfully, and she did not provide feedback to the students about their performance deficiencies. Respondent did not make any adjustment in her instruction, despite the confusion of the students. The observation report prepared by Dr. Marleaux following the observation in January 1993, contained prescribed assignments that she believed would help Respondent improve the deficiencies noted in her report. She was to write detailed lesson plans and turn them in to the principal weekly. She was to prepare all activities prior to teaching the lesson. She was to utilize the instructional activities recommended by the textbook. She was to follow the instructional methods outlined in the teacher's edition of the textbook. She was to observe a master teacher. These assignments were to be completed by January 29, 1993. Dr. Marleaux fairly and accurately evaluated Respondent's performance on January 13, 1993. The assignments prescribed were reasonable and formulated to assist Respondent improve her job performance. At the times pertinent to this proceeding, Norma Bossard was Petitioner's Executive Director for Foreign Language Arts and Reading and an experienced TADS evaluator. Ms. Bossard and Dr. Marleaux simultaneously observed Respondent in her classroom on February 19, 1993, and thereafter independently evaluated her performance. This review, referred to as an External Review, was during a language arts lesson between 10:45 a.m. and 12:30 p.m. Both administrators rated Respondent unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated as unacceptable in preparation and planning because she did not follow her lesson plan. Respondent was rated as unacceptable in knowledge of subject matter because she did not develop ideas and information in a meaningful and orderly manner and because there was a lot of wasted class time. Respondent was rated as unacceptable in techniques of instruction because she did not provide feedback to the students about their performance deficiencies and strengths. Out of 23 students, only two students completed the assignment. Respondent was oblivious that students were cheating. Respondent was rated as unacceptable in assessment techniques because she did not examine work completed by students and she did not monitor whether students were learning. Respondent was prescribed activities in an effort to aid her in remediating her unsatisfactory performance. She was given a prescribed lesson format for language arts. She was to observe a seasoned teacher. She was given a series of books called "Teaching and Learning the Language Arts". Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux and Ms. Bossard fairly and accurately evaluated Respondent's performance during their external review on February 19, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On March 29, 1993, the Superintendent of Schools notified Respondent in writing that her performance during the 1992/93 school year had been unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. She was advised that the failure to correct these performance deficiencies prior to April 13, 1994, could result in the termination of her employment at the close of the 1993/94 school year. In the spring of 1993, Respondent entered Charter Hospital, a psychiatric facility, for deep depression and anxiety. She was absent for the remainder of the school year since she was physically and mentally unable to work. On April 2, 1993, Dr. Marleaux again notified Respondent that her absences were adversely affecting the educational environment and academic progress of her students. Respondent was again directed to communicate her absences to the principal or assistant principal, to document her absences by a medical note from her treating physician, to provide a medical release to return to full duties, to provide lesson plans for the substitute teacher when she is absent, and to take leave when future absences appeared imminent. During the 1992/93 school year, Respondent was absent 78-1/2 days. On May 18, 1993, Respondent was notified of her unacceptable annual evaluation by memoranda in lieu of a conference-for-the-record because she was on leave. Respondent's overall evaluation for the 1992/93 school year was unacceptable. She was rated unacceptable in the categories of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Because she had failed to complete the assignments that had been assigned to her in an effort to correct the deficiencies in her unacceptable performance, Respondent's salary level was frozen at the end of the 1992/93 school year so that she did not receive any raise for the 1993/94 school year. 1993/94 School Year Respondent was cleared through the Office of Professional Standards to return to work at North County on August 25, 1993. The medical restrictions delineated by her doctor were implemented. In an effort to reduce the amount of walking she would have to do, Respondent was given a parking space close to the entrance to her classroom and she was given assistance in taking her students to and from lunch, to the library, and to the physical education field. Respondent was also given the same directives pertaining to absences that had been given to her on previous occasions, including in Dr. Marleaux's memorandum of October 10, 1990. Respondent requested permission to observe a teacher in a wheelchair. This request was denied because Respondent's doctor had prohibited Respondent from being in a wheelchair. The doctor preferred that she walk, with crutches if necessary, to reduce muscle atrophy. Beginning September 8, 1993, Respondent was absent again for several weeks. On September 22, 1993, Dr. Marleaux notified Respondent that the deadline for her to complete her prescribed assignments would be extended until October 8, 1993. This extension benefited Respondent since it gave her more time to remediate her deficiencies. In October, 1993, Respondent requested, through her treating physician, that she be transferred to another school, that she be given vocational rehabilitation, or that she be given a leave of absence. These requests were denied. Although Respondent argued that the denial of these requests was unreasonable, the evidence in this proceeding failed to establish that contention. Petitioner made arrangements for Respondent to have a full- time classroom aide for the remainder of the year. After a full-time aide was assigned for Respondent, Dr. Marleaux required the Respondent's aide to leave the room during formal observations. Respondent asserts that this was unfair and evidences Dr. Marleaux's bias against the Respondent. This assertion is rejected since the Petitioner established that the removal of the aide during a formal observation is standard procedure and allows the students to focus on the teacher without being distracted by the presence of the aide. On November 2, 1993, Respondent was formally observed in the classroom by Joyce Daniels, an assistant principal at North County. This observation was during a fourth grade math class and was between 9:00 a.m. and 10:10 a.m. Based on her observations, Ms. Daniels rated Respondent as being unacceptable in the following categories: classroom management and techniques of instruction. Ms. Daniels rated Respondent as being unacceptable in classroom management based on her observation that Respondent appeared to be unaware of certain students who were being disruptive and others who were not on task. Respondent did not redirect the off-task students either verbally or non- verbally. She was not following her assertive discipline plan. Ms. Daniels rated Respondent as being unacceptable in techniques of instruction because she did not use calculators as recommended in the teacher's manual and because she wrote on the board in a manner that the students were unable to see. Ms. Daniels prescribed assignments to help Respondent improve her unacceptable performance. She was to observe two of the teachers at the school and she was to view the assertive discipline plan videos and review the assertive discipline workbook. She was to meet with the media specialist for help with the use of media. Based on the evidence presented, including the demeanor of the witnesses, it is found that Ms. Daniels fairly and accurately evaluated Respondent's performance on November 2, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 3, 1993, Respondent was formally observed in the classroom by Dr. Marleaux. This observation was from 9:00 a.m. to 10:00 a.m. during her fourth grade math class. Based on her observations, Dr. Marleaux rated Respondent's performance as being unacceptable in the following categories: knowledge of subject matter, techniques of instruction, and teacher-student relationships. Dr. Marleaux rated Respondent as being unacceptable in knowledge of subject matter because she made substantial errors during the course of the lesson that created confusion on the part of the students. Respondent did not respond to the students who did not understand the lesson. Dr. Marleaux rated Respondent as being unacceptable in techniques of instruction because she did not use media resources skillfully. She did not use the calculators that were recommended and which were available in the school. She did not have her charts on the blackboard prior to the lesson. When she put the charts on the blackboard, she sat directly in front of them and some of the children could not see. Dr. Marleaux rated Respondent as being unacceptable in teacher-student relationships because Respondent did not consistently utilize the consequences in her assertive discipline plan when students failed to adhere to standards of conduct. The students were punished with different consequences for similar misbehavior. Dr. Marleaux heard Respondent make caustic comments to students. Dr. Marleaux observed that these comments drew attention to these students and embarrassed one of them. Dr. Marleaux again prescribed assignments designed to remediate Respondent's unacceptable performance. The date for submission of her lesson plans was changed to Thursday at Respondent's request. She was to meet with the guidance counselor to learn strategies that would avoid sarcasm and embarrassment to students. She was to meet with the media specialist to learn techniques in the use of media. It was recommended that she use an overhead projector. She was to observe another math teacher who had been helping her. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on December 3, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 13, 1993, Dr. Marleaux held a conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance assessments and assistance and to discuss possible action by the School District if remediation were not attained. Respondent was apprised that unremediated performance deficiencies must be reported to the Department of Education and that she may not be reappointed to her teaching position for the 1994/95 school year. Respondent was formally observed by Joyce Daniels in January, 1994. In her observation report, Ms. Daniels rated Respondent's performance as being acceptable in all categories. Respondent re-injured her left knee when she fell in February, 1994. Respondent asked permission to use a wheelchair following this fall. Because the information that the school had received from her doctor reflected that Respondent should not use a wheelchair, Dr. Marleaux told Respondent not to use a wheelchair at North County. Respondent subsequently began using a wheelchair, and Dr. Marleaux did not object. During 1994, Respondent was given scheduled time to elevate her leg and put ice on her knee. On March 28, 1994, Respondent was again observed in an external review by Dr. Marleaux and Dr. E. Trausche, an administrator and TADS evaluator employed by Petitioner. This observation was between 9:00 a.m. and 10:00 a.m. during a mathematics lesson. Dr. Marleaux rated Respondent as being unacceptable in the following categories: preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Dr. Trausche rated Respondent as being unacceptable in the following categories: knowledge of subject matter and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning because she did not follow her lesson plan. The activities in the teacher's edition were not accomplished. She did not use the suggested materials to accomplish the activities. Dr. Marleaux rated Respondent as unacceptable in knowledge of subject matter because she used erroneous terms in her mathematics lessons and did not seem to fully understand the fractions lesson she was teaching. Dr. Marleaux rated Respondent as unacceptable in classroom management because she did not address off-task student behavior. She did not redirect the students either verbally or non-verbally. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction because her demonstrations were all abstract. She did not utilize methodology outlined in the teacher's edition or teaching aides that were recommended. Her instructional methods did not meet the needs or abilities of the students. She blocked the students' view of work that was on the chalkboard. Many students were confused as to the lesson and some did not even try to do the work. She distracted students by talking to them while they were working. Respondent did not examine the students' work at any time during the lesson. Respondent was again prescribed activities to help her in overcoming her unacceptable performance. She was to observe another teacher. She was to work with the competency-based curriculum math facilitator. The grade level chairperson would work with her. She was to observe another teacher for the use of manipulatives. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on March 28, 1994. No findings are made as to the reasonableness of the observations made by Dr. Trausche since Dr. Trausche did not testify at the formal hearing. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On April 1, 1994, the Superintendent notified Respondent by letter that she had not corrected her deficiencies and he was recommending to the School Board that she not be issued a new professional contract. On April 13, 1994, the School Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1994/95 school year. Respondent's annual evaluation for the 1993/94 school year was overall unacceptable and was unacceptable in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent was not recommended for continued employment by Dr. Marleaux. Respondent testified that on the last day she worked in May, 1994, she began to disassociate and was incoherent. Respondent described disassociating as follows: It's where you're physically located close to someone but it's, your perception is that you are some where else. I could hear her voice but it was, sounded as if I was blocks away or something. Like I could barely hear what was being said of people. It was really frightening. (Transcript, page 218, line 22 through page 219, line 2.) Dr. Marleaux notified Respondent of her unacceptable annual evaluation by memorandum dated June 3, 1994, in lieu of a conference-for-the record, due to Respondent's absences. During the 1993/94 school year, Respondent was absent for 70 days. On many occasions, Respondent was informally observed both at Myrtle Grove and at North County by the same principals and assistant principals who had observed her formally. Respondent's students were often severely off-task and disruptive of other classes. Respondent's class was noisy and out of control. Security monitors frequently came to Respondent's class to get the students under control. Respondent seemed oblivious to the class management problems. Respondent was seen crying three different times. There did not seem to be much teaching and learning taking place. During the 1993/94 school year, Respondent failed to correct the deficiencies in performance which had been identified during the 1992/93 school year, despite many attempts to assist her with activities to remediate her deficiencies. Respondent asserts that Dr. Marleaux's refusal to allow her to use a wheelchair constituted a failure to reasonably accommodate her handicapped condition following the fall. Respondent also asserts that the denial of her request for a transfer, for rehabilitation therapy, or for a leave of absence constituted a failure to reasonably accommodate her handicapped condition. While the Respondent's testimony supports that contention, there is no medical evidence to support this self-serving testimony. The testimony of Dr. Marleaux and Dr. Annunziata established that the school reasonably accommodated Respondent's condition and did not ask Respondent to perform any duties that exceeded the medical restrictions that had been set by her doctors. Respondent also testified as to certain statements and comments that Dr. Marleaux made to her. 1/ The undersigned finds, based on the demeanor of the witnesses and the totality of the evidence, that Dr. Marleaux's denial that she ever made these statements is more credible than the testimony of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE AND ENTERED this 11th day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 11th day of August, 1995.
The Issue The issue is whether Respondent, Lowe's Home Centers, Inc. (“Lowes”)1 committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2008),2/ by discriminating against Petitioner based on her gender or national origin (Hispanic) in its allowance of a hostile work environment, or by discharging Petitioner from her employment in retaliation for engaging in protected conduct.
Findings Of Fact Lowes is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. In November 2004, Petitioner, a Mexican-American female, was hired by Lowes to work at store number 2365 in Gainesville as a Commercial Sales Associate (“CSA”) in the Commercial Sales department, which serves contractors and large institutional customers. Petitioner’s primary duty was to assist customers in the selection, demonstration and purchase of products. At the time she was hired, Petitioner received from Lowes copies of the following documents: Lowes' Code of Ethics, Lowes' Equal Employment Opportunity Policy, Lowes' No Harassment Policy, and Lowes' Performance Management Policy 315 setting forth the company’s standards of conduct and discipline. These policies were in effect during the entirety of Petitioner’s employment at Lowes. Lowes' Code of Ethics specifically provides that employees “must maintain the confidentiality of information entrusted to them by Lowes or its suppliers or customers,” unless such disclosure is authorized by the company’s lawyers or is required by law. Lowes' Equal Employment Opportunity Policy provides that all reports and investigations of harassment “will be treated confidentially to the extent possible, and with the utmost discretion.” Lowes' Performance Management Policy 315 provides that unauthorized disclosure of company information is a “Class A violation,” which will normally subject an employee to immediate termination on the first occurrence. Petitioner’s allegations of harassment and hostile work environment center on a single Lowes co-worker, John Wayne Edwards. Mr. Edwards was another CSA in Commercial Sales. He had no supervisory authority over Petitioner and exercised no control over the terms and conditions of Petitioner’s employment. Petitioner has not alleged that Mr. Edwards subjected her to any unwanted sexual comments, sexual touching, or sexual advances. Petitioner’s factual allegations against Mr. Edwards involve three incidents. The first incident, in September 2007, was an argument between Petitioner and Mr. Edwards at work. Petitioner accused Mr. Edwards of taking a customer file from her. Mr. Edwards denied taking the file, pointing out to Petitioner that he had no reason to take her file. If Mr. Edwards wanted the information contained in Petitioner’s customer file, he could simply take it from the Commercial Sales department’s computer. Petitioner called Mr. Edwards a liar. Mr. Edwards denied being a liar. Petitioner said, “I’m going to get you.” Mr. Edwards asked Petitioner what she meant by that statement, and Petitioner called him coward. Mr. Edwards then said to Petitioner, “If you were a man, me and you’d go across the street right now and settle this.” Petitioner reported the incident to Lynette White, the Human Relations (“HR”) manager for Lowes store number 2365, alleging that Mr. Edwards had threatened to beat her up in the parking lot.4/ Ms. White investigated the matter, interviewing Petitioner, Mr. Edwards and two or three other CSAs who witnessed the incident. Ms. White concluded that Mr. Edwards had not threatened any physical harm to Petitioner, but that Mr. Edwards’ statement was nonetheless inappropriate. She counseled Mr. Edwards to take care in his workplace conversations so that no one could construe anything he said as a threat, and to avoid contact with Petitioner whenever possible. The second of the three incidents occurred on or about October 2, 2007. According to Petitioner, she was standing near a filing cabinet in Commercial Sales. Mr. Edwards was “talking and talking and talking,” “bragging about all sorts of stuff.” Petitioner told Mr. Edwards not to talk to her, but he continued in a very loud voice. Then, when he was finished bragging and talking, Mr. Edwards rushed toward the filing cabinet “like a football player” and hit the cabinet hard. Petitioner testified that Mr. Edwards hurt himself and ran and told management. Store managers came running to make sure that Petitioner was not hurt in the incident. Mr. Edwards had no recollection of such an incident. He stated that there are three CSAs and an assistant in an area that is 12 feet long and 42 inches wide, with a filing cabinet that is in use directly behind the computer work stations. It is unavoidable that people moving through such a space will touch or bump one another. Mr. Edwards was positive he would have excused himself if he inadvertently bumped Petitioner, and denied ever doing anything that could be construed as “charging” at the filing cabinet with the intention of hurting or frightening Petitioner. Ms. White investigated this incident, interviewing Petitioner, Mr. Edwards, and other persons who were in the area when the incident allegedly occurred. During her interview with Ms. White, Petitioner conceded that neither Mr. Edwards nor the file cabinet touched her. Ms. White asked Petitioner to show her how the incident occurred, using a file cabinet in Ms. White’s office. Petitioner was unable to show a scenario that, in Ms. White's words, “added up to someone coming towards you to attack you.” The two other employees who had been in the area saw nothing to indicate that Mr. Edwards made contact with or sought to harm Petitioner. Ms. White concluded that, at most, Mr. Edwards accidentally bumped the file cabinet while Petitioner was nearby. As to the third incident, Petitioner alleged that on three or four occasions in early 2008, Mr. Edwards approached her and, apropos of nothing, announced, “We need to build a fence around the Mexican border.” Petitioner testified that these bigoted comments were clearly intended to intimidate her and cast aspersions on her heritage. Petitioner took this complaint to Karla Daubney, then Lowes' HR district manager. Ms. Daubney investigated Petitioner’s complaint by interviewing Petitioner, Mr. Edwards, and other employees in Commercial Sales. Mr. Edwards denied making a comment about “building a fence around the Mexican border.” He testified that the only possible source for Petitioner’s allegation (aside from sheer invention) was a conversation he had with a male co-worker about the Iraq War. Mr. Edwards had stated his opinion that the United States would be better off bringing its soldiers home from Iraq and using the savings to shore up our borders with Mexico and Canada.5/ He had no idea whether Petitioner was within earshot during this conversation, and denied ever making anti-Mexican comments, whether or not they were aimed at Petitioner. Mr. Edwards testified that this allegation was particularly hurtful because he is the adoptive father of two Mexican children, a brother and sister. At the time Mr. Edwards adopted them, the girl was three years old and the boy was nine months old. The children are now adults. Mr. Edwards’ daughter is a surgeon, and his son is in the air-conditioning business. After her investigation, Ms. Daubney concluded that Petitioner’s allegations were unsupported by the evidence. Mr. Edwards was not disciplined for this incident. At the final hearing in this matter, Petitioner and Mr. Edwards testified about all three incidents. Petitioner produced two witnesses, neither of whom witnessed any of these events first-hand or had any clear recollection of the incidents as related by Petitioner. No witness other than Petitioner characterized Mr. Edwards as anything other than a good Lowes employee and a solid citizen. Far from allowing a hostile work environment, Lowes diligently investigated every accusation made by Petitioner. Mr. Edwards was by far the more credible witness, and was genuinely puzzled as to why Petitioner had selected him as the continuing focus of her ire. The evidence indicated that Petitioner had job performance issues that predated her odd vendetta against Mr. Edwards. She received an “Initial Notice” on November 6, 2006, for failure to follow up on various customer orders. On May 2, 2008, Petitioner received a “Final Notice,” the last step in Lowes' progressive discipline system prior to termination. Petitioner had used Lowes' confidential customer contact information to telephone a regular commercial customer, Justice Steele, at his home. Shortly after this conversation, Mr. Steele telephoned Charles Raulerson, the manager of store number 2365, to complain about Petitioner’s unprofessional conduct. Mr. Steele followed up the phone call with a letter, dated April 25, 2008, which stated as follows, verbatim: The evening of April 23, at approximately 6:30 P.M., I received a call from Rosie [Chavez] in Commercial Sales when I answered she proceeded to tell me that, she had heard John and I talking earlier. So I asked her what the problem was? At this point she started to tell me I had no right to critique her work, I tried to explain to her that I was quite unhappy that she had lost one order of mine and had mixed up another one in the same week. And had I known she was there I would have spoken to her face to face, at this point she became very argumentative and started telling me how she was the only person who did her job in commercial sales. And her co-workers where [sic] lazy and stupid that they should not even be there, personally I thought this was very very unprofessional on her part. Not to mention calling me at home considering I am in the store almost daily placing orders, getting estimates, etc. In the years I have been doing business with your company I always found the staff to be quite knowledgeable an courtesy I’m surprised that you would allow an employee to act in this manner. I’m aware you do your best to screen employees but if this issue is not addressed I will not continue doing any further business with your company. Thank you for your attention to this matter. In her meeting with Mr. Raulerson about Mr. Steele’s complaint, Petitioner asserted that her boss could not tell her what to do on her own time, and that Mr. Steele was lying about her phone conversation with him.6/ Mr. Raulerson attempted to explain that Petitioner was conducting Lowes business when she called Mr. Steele, and she was therefore a representative of Lowes whether or not the call was placed from the store. Petitioner continued to assert that she could do anything she wanted if she was not physically at the store. Mr. Raulerson issued the Final Notice and transferred Petitioner to the position of cashier in response to Mr. Steele’s complaint.7/ The transfer was a lateral move, involving no change in Petitioner’s employee status or pay. During the meeting at which the Final Notice was issued, Mr. Raulerson reminded Petitioner of Lowes' confidentiality policies and provided her with another copy of Performance Management Policy 315. The referenced Performance Management Policy would have allowed Mr. Raulerson to terminate Petitioner’s employment for her unauthorized use of confidential customer information. However, Mr. Raulerson decided to give Petitioner another chance to salvage her job, away from the Commercial Sales department.8/ On July 25, 2008, Mr. Raulerson received another complaint about Petitioner from Lowes customer Chris Bayne. Mr. Bayne was a registered nurse working in the emergency room at North Florida Regional Medical Center in Gainesville. On July 24, 2008, Petitioner phoned Mr. Bayne at his private cell phone number, which he had given to Lowes two years previously when buying lumber. Mr. Bayne was without knowledge of Petitioner’s grievances against Mr. Edwards, Mr. Raulerson and/or Lowes. Nonetheless, Petitioner caused Mr. Bayne to leave the emergency room in the middle of a procedure to take her phone call. Petitioner solicited Mr. Bayne to write a letter of character reference for her, to be used in a discrimination lawsuit against Lowes. Mr. Bayne had no idea what Petitioner was talking about. In an effort to get her off the phone and get back to his job, Mr. Bayne gave Petitioner his email address and told her to send any information via that route. After work, with more time to think about the call, Mr. Bayne became increasingly disturbed. He wondered how Petitioner had obtained his private phone number and began to worry about identity theft. The next morning, he telephoned Lowes and complained to Mr. Raulerson. Mr. Bayne later sent Mr. Raulerson a copy of the letter that Petitioner had emailed to Mr. Bayne. The letter read as follows: Hi. As many of you already know, I have been demoted to cashier. Mr. Justice Steele wrote a letter to Lowe's. According to Mr. Charlie Raulerson, store manager and Mr. Tom Bragdon, operation manager, Mr. Steele claimed that I called him on his personal time and that I argued with him. I always follow up on my orders. I overheard Mr. Steele tell someone that I lost his order. So I called him up to find out what happened and what is going on. I had informed Mr. Steele that I will be placing a copy of his estimate in front of his file folder because he had not paid for it yet. The copy was still there in front of his file folder. There was no argument. There were a couple of other things that were mentioned in which not a single word was brought up. I asked Charlie Raulerson the store manager for a copy of the letter and he refused to show me the letter because it was Lowe's property. I am defending myself. There is more than what you know is going on. I have been discriminated based on my national origin and my gender now for over eight months at Lowe's #2365 in Gainesville Florida on 13th Street. You are my fifth proof. I am knowledgeable about construction. I graduated from Building Trades. I loved my job and I loved the people. Please submit a character reference to Emily Davis, EEOC Investigator (Equal Employment Opportunity Commission) at Emily.davis@fchr.myflorida.com. For those who do not have e-mail, please mail reference to 2009 Apalachee Parkway, Suite 200, Tallahassee, FL 32301-4857. Tell her everything you know. Do not fear anything. The reference letter is not going to Lowe's. It is going to Emily Davis only. Everything is strictly confidential. Ms. Davis is currently investigating my case #15D200800721. Please keep me in your prayers. In addition, please give a copy of this letter to the prayer group at your church and ask them to pray for me. Please pass the word around because I did not get everyone’s phone number since I was immediately demoted to cashier on May 2, 2008, on a Final Notice. Please ask everyone to e-mail Emily Davis or write to her. Please help me and thank you for your help. Rosie At the hearing, Petitioner testified that she sent this letter to hundreds of people. As the text indicates, most of the recipients were current or former Lowes employees, but many were customers such as Mr. Bayne. None of the recipients had any personal knowledge of Petitioner’s allegations. Petitioner appeared to have no understanding that her actions were in clear violation of Lowes' confidentiality policies, not to mention common sense. Mr. Raulerson asked Ms. Daubney to investigate Mr. Bayne’s complaint. Ms. Daubney interviewed Petitioner in an attempt to understand why she called Mr. Bayne. Petitioner refused to answer Ms. Daubney’s questions. She insisted that her conversation with Mr. Bayne was none of Lowes' business. Mr. Raulerson testified that Mr. Bayne’s complaint provided more than adequate grounds for terminating Petitioner’s employment, but that he decided to give Petitioner yet another chance to turn her situation around and become a productive employee. Shortly after investigating Mr. Bayne’s complaint and learning that Petitioner had used Lowes' confidential business records to circulate her own complaint to hundreds of people, Ms. Daubney received a copy of a memorandum written by Linda Brown, Records Bureau Chief of the Alachua County Sheriff’s Office. Ms. Brown was the supervisor of Nanci Middleton, the wife of Larry Middleton, one of Petitioner’s co-workers at Lowes. Ms. Brown’s memo stated that she had received a telephone call from Petitioner seeking to discuss “an EEOC issue of discrimination” involving Mr. Middleton, and asking to speak with Ms. Middleton. Ms. Brown told Petitioner that it was inappropriate to contact Ms. Middleton at work about an issue unrelated to the Alachua County Sheriff’s Office. Petitioner testified as to her purpose in phoning Ms. Brown. Petitioner sought permission to eavesdrop on a proposed conversation between the Middletons, during which Mr. Middleton would somehow be urged by his wife to “tell the truth” about Mr. Edwards’ “fence around the Mexican border” statements. Petitioner wanted Ms. Brown to join her in eavesdropping on this conversation in order to serve as Petitioner’s witness in her discrimination case. Not surprisingly, Ms. Brown declined Petitioner’s proposition. Ms. Daubney concluded that Petitioner’s telephone call to Ms. Brown violated Lowes' confidentiality policies. In consultation with Ms. Raulerson, Ms. Daubney decided to terminate Petitioner’s employment with Lowes, effective August 8, 2008. The grounds for Petitioner’s termination were repeated customer complaints about Petitioner’s job performance and intrusions into customers’ privacy, and her repeated violations of Lowes' confidentiality policies despite numerous warnings. Petitioner’s position, repeated in her testimony at the hearing, was that Chapter 760, Florida Statutes, gave her the right to “defend” herself in any way she deemed appropriate, and to contact anyone who might help her, regardless of whether they had any knowledge of or connection to her disputes with Lowes. Petitioner refused to acknowledge that any of her actions had been inappropriate. Petitioner offered no evidence to establish that her employment was terminated because of her gender or national origin. Petitioner testified that her firing was unrelated to her national origin or her gender. Petitioner offered no credible evidence that Lowes discriminated against her because of her national origin or her gender, subjected her to harassment because of her national origin or gender, or retaliated against her in violation of Chapter 760, Florida Statutes. Petitioner offered no credible evidence to support her factual allegations against Mr. Edwards. The evidence did not establish that Mr. Edwards threatened physical harm to Petitioner or made derogatory remarks to Petitioner regarding her national origin. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Lowes for terminating Petitioner’s employment. The evidence established that Petitioner’s First and Second Complaints were devoid of merit. The evidence established that Lowes showed great forbearance in not firing Petitioner well before August 8, 2008.
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 finding that Lowe's Home Centers, Inc., did not commit any unlawful employment practices and dismissing the Petitions for Relief filed in these consolidated cases. DONE AND ENTERED this 31st day of August, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2010.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been employed by Petitioner as a high school teacher assigned to Miami Norland Senior High School. Respondent holds a continuing contract. Respondent began teaching for the Dade County Public Schools during the 1968-69 school year. During that school year, the annual evaluation form utilized by Petitioner provided that a score of below 3.5 indicated unsatisfactory work. During that, his first year of teaching, Respondent received a score of 3.2 on his annual evaluation. For the next 15 years thereafter, Respondent was rated as being acceptable on his annual evaluations for each and every year. During the 1984 summer session, an incident occurred between Respondent and one of his students. As a result of Petitioner's investigation into the allegation that Respondent had committed a battery on that student, conferences were held between Respondent and administrative personnel. Respondent requested a leave of absence for the 1984-85 school year due to personal reasons, and his request for leave of absence was granted. Respondent was required, however, to undergo a psychological evaluation prior to returning to his duties as a classroom teacher. During that school year while Respondent was on leave of absence, he was evaluated by Dr. Gail D. Wainger, a psychiatrist to whom he was referred by Petitioner. Respondent thereafter saw Dr. Albert C. Jaslow, a private psychiatrist, on two occasions. Dr. Jaslow submitted two reports which contained, inter alia, a recommendation that Respondent be transferred to a different school. Dr. Wainger reviewed Dr. Jaslow's reports and her own earlier report and, on May 21, 1985, submitted a report to Petitioner stating, inter alia, that there was no barrier to Respondent's being reinstated into active teaching. Based upon that evaluation, Petitioner permitted Respondent to return to the same teaching position previously held by him for the 1985-86 school year. At the conclusion of that school year, Respondent was rated as being acceptable on his annual evaluation. Respondent again received acceptable annual evaluations for the following two years, i.e., the 1986-87 and the 1987- 88 school years. On his annual evaluation for the 1988-89 school year Respondent was rated as being unacceptable in the area of classroom management, one of the six categories of classroom performance. Pursuant to the rules governing the TADS evaluation system, a rating of unacceptable in any of the categories covered by the annual evaluation instrument requires an overall rating of unacceptable. On his annual evaluation for the 1989-90 school year Respondent was rated as being acceptable in all six categories of classroom performance, including the area of classroom management. It was specifically noted on his annual evaluation form that Respondent had performed satisfactorily during both of the official observations made of his classroom performance. However, Respondent was rated as unacceptable in the non-classroom category entitled professional responsibility. That rating of unacceptable in that one category required that Respondent's overall rating be unacceptable. The basis for the unacceptable rating in the area of professional responsibility involved the determination that Respondent had been disrespectful to students on two separate occasions. On April 16, 1990, one of Respondent's students called another of his students who had an unusual skin pigmentation condition "two-toned." Respondent immediately told the offending student, "do not call the girl two-toned." A conference for the record was conducted with Respondent on April 30, 1990, and Respondent was given a supervisory referral to the Employee Assistance Program. During the week of May 7, 1990, one of Respondent's students was being verbally abusive to the other students, and Respondent told him to stop. That student thereupon began being verbally abusive toward Respondent and using profanity. Respondent then said to that student, "you should talk. You look like Mr. Spock from Star Trek." A conference for the record was conducted with Respondent, and he was issued a formal reprimand. The summary of the conference for the record dated June 1, 1990, prepared by the principal of Miami Norland Senior High School states that the student involved has physically-deformed ears. On his annual evaluation for the 1990-91 school year Respondent was rated as being unacceptable in the areas of classroom management, techniques of instruction, and professional responsibility. Accordingly, he received an overall evaluation of unacceptable. During the 1990-91 school year there were no reported incidents of Respondent allegedly making disrespectful remarks to students. That basis for being rated unacceptable in the area of professional responsibility during the prior academic year was cured. The rating of unacceptable in the area of classroom management was based upon a number of observations of Respondent during the school year wherein the observers noted a lack of control in the classroom, Respondent's failure or inability to re-direct students who were off-task, Respondent's failure or inability to enforce classroom rules, and Respondent's failure or inability to deal with students who were tardy in coming to his class. As to his techniques of instruction, observers during that school year noted that Respondent was teaching from sub-standard books (without noting whether that was a matter within Respondent's control), that the students were confused by Respondent's directions on several occasions, that the students did not understand the lessons being taught, and that on several occasions Respondent made errors in math when writing examples on the board. Some of the observers also noted that Respondent spent too much time on some of the lessons that he was teaching. Numerous prescriptions were given to Respondent during that school year to improve his instruction and to manage his classroom, such as reading sections of the TADS manual and observing other teachers. Respondent complied with each and every prescription given to him. As to being unacceptable in the area of professional responsibility, Respondent failed to properly maintain student folders reflecting their work to justify grades being given to the students, and there were errors in Respondent's gradebook. It also became apparent that Respondent was not making parental contact for students that were performing unsatisfactorily. By March of the 1990-91 school year Respondent was directed in writing to make parental contact as required by Dade County Public School policy. By memorandum dated June 3, 1991, Respondent was notified that he was required to produce within 48 hours a complete up-to-date gradebook, a parent contact log substantiating parent contacts for the entire school year, and all student folders substantiating Respondent's gradebook. He was advised that if he did not do so, he would receive an unsatisfactory rating in the area of professional responsibility. The principal and assistant principal understood the directive to mean that Respondent must produce those documents by noon on June 6, and Respondent understood the directive to mean that he was to produce the documents on June 6. At noon, the principal was not available to Respondent. Respondent did produce many of the documents later that day. There was, of course, no parental log for the entire year since one did not exist. At the end of the 1990-91 school year a recommendation for dismissal was made. Based upon that recommendation, the School Board of Dade County, Florida, suspended Respondent from his employment effective at the close of the workday on July 25, 1991, for incompetency and gross insubordination. In 1984 Respondent filed a grievance against Assistant Principal Wessel and Principal Fowler at Miami Norland Senior High School. The subject of the grievance was that Assistant Principal Wessel had in a loud voice and in a demeaning manner criticized Respondent's lesson plans in front of other teachers, staff and students. The grievance was also filed against Principal Fowler to enlist his assistance in making Wessel refrain from repeated conduct of that nature. The Union considered the grievance to be valid and processed it through the grievance procedures. Thereafter, Respondent was advised by Fowler and Wessel that he had made a big mistake and he would be sorry for having filed that grievance. Respondent began to believe that he had lost the support of the administration and that his job was in jeopardy. When Respondent returned to his teaching duties after his leave of absence during the 1984-85 school year he was moved to a classroom directly across from the main office. Respondent considered that action to be demeaning. He still achieved acceptable evaluations for that year and the following year. During the next school year, in the middle of February, the administration moved Respondent to an old metal shop room and gave his classroom to a new teacher. He still achieved an acceptable annual evaluation that year. For the following school year the administrators assigned Respondent to teach five low-level math classes using five different classrooms. For the last three years of his teaching career, the ones during which he received unacceptable ratings in different categories, Respondent was required to teach all low-level math classes. Although administrative personnel testified that some teachers like low-level classes, Respondent repeatedly made it clear that he did not want that assignment. Further, there is a specific contract provision between the Dade County Schools and the teachers' union prohibiting teachers from being locked into low-level classes year after year, as Respondent was. During the last several years while Respondent was achieving unsatisfactory ratings in some categories, while he was being switched from classroom to classroom, and while he was being required to teach only low-level classes year after year, the administrative staff actively undermined Respondent's authority and demeaned him in front of students and other teachers. They told teachers and students that they were trying to get rid of Respondent and that Respondent was a bad teacher. When Respondent referred disruptive students to the office, the administrative staff laughed or simply refused to take any follow-up action. On one occasion when Respondent referred a student to the office for throwing an eraser at another student, an assistant principal told the misbehaving student that he should have thrown the eraser at Respondent instead. Respondent "lost face" around the school. It became known that the students could misbehave in Respondent's classes with impunity. Even the students understood that Respondent was assigned only the most difficult of students. Although there was a new principal at Miami Norland Senior High School during Respondent's last year of teaching, the new principal, coincidentally, had been the principal for the 1984 summer session at Parkway Junior High School where Respondent had been involved in an incident with a student prior to taking his year's leave of absence from teaching. Under the new principal's administration, Respondent was retained in his assignment of five low-level math classes and was moved to the classroom directly across from the office. No evidence was offered that the new principal understood that efforts had been made to keep Respondent's authority undermined and to make him quit. It is clear, however, that no steps were taken to stop or reverse the damage to Respondent's reputation and ability to teach. In response to Respondent's referral to the Employee Assistance Program, Respondent did make the contact required of him. In fact, there were numerous contacts between Respondent and the personnel involved in that program. Additionally, Respondent was seen by Dr. Goldin, a mental health professional, on four occasions between April and June of 1990. Between June and September of 1990, he also saw an associate of Dr. Goldin eight times in individual sessions and four times in joint sessions with his wife. Respondent repeatedly requested transfers from his teaching assignment at Miami Norland Senior High School. Some of the requests were made to his principals and some of them were sent to the Office of Professional Standards. From the time that Respondent returned to his teaching duties after his leave of absence during the 1984-85 school year, he requested transfers each and every year. He requested a transfer at least twice during his last year of teaching. Some of the requests for transfer were hardship requests and others were normal requests. Additionally, both Dr. Jaslow in 1985 and Dr. Goldin in 1990 recommended to the Office of Professional Standards that Respondent be transferred to a different school. All requests for transfer were ignored. During the last years of Respondent's teaching career, in addition to the stress placed upon him by the administrative staff's efforts to undermine and ridicule him, he experienced additional stress as a result of his wife's serious illness. He told a number of the administrative staff about the problem at home. The difficulty under which that placed him was part of the reason for the referral to the Employee Assistance Program. During those last years, during conferences with administrative staff regarding his performance, Respondent exhibited anxiety and showed signs of stress. He accused the administration of undermining him and of treating him unfairly. He even attributed some of the problems he was experiencing in the classroom to the administrators. Their reaction to Respondent's accusations was to accuse Respondent of being paranoid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered suspending Respondent without pay for the 1990-91 school year and reinstating him as a full-time classroom teacher thereafter at a school other than Miami Norland Senior High School. DONE and ENTERED this 27th day of January, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-4936 Petitioner's proposed findings of fact numbered 1, 4, 33, 35-37, 65, 67, 68, 72, and 74 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2, 3, 8, 11, 19, 32, 38, 58, 71, 75, and 77 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 5-7, 9, 10, 12-18, 20-31, 39-57, 59-64, 66, 69, 70, 73, and 76 have been rejected as being unnecessary in determining the issues involved in this proceeding. Petitioner's proposed finding of fact numbered 34 has been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1, 4-11, 13, and 14 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2, 3, 12, and 15 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Copies furnished: Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Octavio J. Visiedo Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire 1450 N.E. Second Avenue, Suite 301 Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 S.W. Third Avenue, Suite One Miami, Florida 33129
The Issue The issue in this case is whether Respondent, Mary Chung ("Respondent"), committed the alleged conduct and, if so, whether Petitioner, Lee County School Board ("School Board"), has just cause to terminate her employment as a food service worker.
Findings Of Fact Respondent is a food service worker at Lehigh Senior High School ("Lehigh") in Lehigh Acres, Lee County, Florida. She was employed in this capacity for the 2003/2004 school year. Respondent was present for work at Lehigh on May 21, 2004. Respondent was scheduled to work from 6:15 a.m. to 2:15 p.m. on this date. This had been her work schedule all year. On May 21, 2004, Respondent reported for work at least 10 minutes late. She arrived at work at approximately 6:25 a.m. Respondent had not called in to notify anyone that she would be late to work that morning and did not advise or explain to her supervisor the reason for her tardiness. Accordingly, Respondent's tardiness on the morning of May 21, 2004, was not excused by her supervisor, Carol Lewis ("Lewis"), who was the food service manager at Lehigh. Respondent and the other employees in the kitchen are given rotating assignments. They rotate to new assignments every two weeks. During the time period which included May 21, 2004, one of Respondent's responsibilities was to open cans of fruit. In accordance with her assigned duties, upon Respondent's arrival in the kitchen on May 21, 2004, Respondent began opening cans of fruit. Lewis approached Respondent while she was opening the cans and directed her to take two coffee pots to the school's media center for a staff appreciation breakfast. It was not unusual for Lewis to direct workers to stop the tasks they were working on to attend to other tasks that needed to be done. In fact, other food service workers in the kitchen that morning were helping with preparations for the staff breakfast in addition to their other assigned tasks. Respondent first ignored Lewis's request, and when directed again by Lewis to move the coffee pots, Respondent told a fellow employee, Lucy Roan ("Roan"), to move them. Lewis overheard Respondent's remark to Roan and corrected her by saying that she wanted Respondent to move the pots. Respondent then proceeded to where the pots were located and indicated to Lewis that she could not lift them onto the cart that she was to use to take them to the media center. According to Respondent, the reason she could not lift the coffee pots and place them on the cart was because of a problem with her foot. Lewis then put the coffee pots on the cart for Respondent and, again, directed Respondent to take them to the media center. When Lewis came back by the area a few minutes later, Respondent had still not taken the coffee pots to the media center. Lewis then directed Respondent to leave the school and said Respondent was fired. Lewis reported the incident to Ronald E. Davis ("Davis"), the principal of Lehigh during the 2003-2004 school year and at the time of the incident. Davis met with Respondent about the incident and gave her a written reprimand dated May 26, 2004. The reprimand was delivered to her on May 28, 2004. The reprimand indicated that Davis was also recommending that Respondent be dismissed. Davis contacted Georgianna W. McDaniel, director, Personnel Services ("McDaniel"), regarding the May 21, 2004, incident. McDaniel advised the principal to forward documentation regarding the incident to Personnel Services. McDaniel has certain responsibilities with regard to employee discipline. She counsels supervisors and administrators regarding appropriate disciplinary action; she suspends employees (with pay) when recommended by the superintendent; and she acts as the predetermination conference administrator. On or about June 1, 2004, Davis forwarded the May 26, 2004, letter of reprimand that had been given to Respondent to the School District's Personnel Services office. He also sent four written statements from the food service manager and three food service workers who were present in the kitchen when the incident involving Respondent occurred. These statements were written at Davis' direction A predetermination conference was scheduled for July 2, 2004, to give Respondent an opportunity to respond to Davis' recommendation for her dismissal based upon the incident on May 21, 2004. Respondent was notified of the conference by McDaniel by certified letter dated June 23, 2004. Respondent attended the predetermination conference and was given an opportunity to address the complaint filed by Davis. However, the matter was not resolved, and the School District superintendent recommended that Respondent's employment as a food service worker be terminated. The School Board met on August 12, 2004, to consider the Petition. At that meeting, the School Board suspended Respondent without pay and benefits pending receipt of the recommended order of the Administrative Law Judge. Prior to the May 21, 2004, incident, Respondent had experienced work-related problems and/or areas of concern while working as a food service worker. These problems had been discussed with Respondent and documented in her record. On May 9, 2002, Respondent was put on Procedures for Improvement by her then assistant principal, James Buchanan. Procedures for Improvement is a tool used by the School District to notify employees of unacceptable conduct and to give them an opportunity to correct their behavior and desist in any further conduct of that nature. In Respondent's case, the May 9, 2002, Procedures for Improvement noted the following specific deficiencies in Respondent's behavior: "Employee refused to leave area to discuss a problem/situation with the supervisor." The desired improvement in her behavior was: "1) Employee will interact appropriate [sic] with supervisor; 2) Employee when asked to go to an area by a supervisor will go, and follow any other directives by a supervisor; [and] 3) Employee will conduct herself properly with co-workers." Respondent was advised she could achieve this desired result as follows: "Employee will do what is told of her to do by a supervisor. Do the work that is assigned to her and complete it in a timely manner." Her success in reaching the desired result would be judged as follows: "No further incidents of refusing to go to a private area to talk out differences. Employee will have no other incidents with co-workers and supervisors." Respondent was also notified in her 2003-2004 Performance Assessment that she was deficient in certain areas and that she needed to "focus" on the following areas in the future: "6) Is punctual in attendance; 8) Exhibits dependability; 11) Exhibits positive attitude; 14) Has good rapport with others; and 15) Accepts criticism constructively." Her supervisor also noted in the comments section that she: "Calls in sick or late too much. Not dependable at all — Gripes about others or duties." She also noted that as of the date of the Performance Assessment (March 2004), Respondent had been absent for 231 hours (or 33 days) and tardy 15 times. Lewis prepared Respondent's 2003/2004 Performance Assessment. It was her responsibility as the food service manager to prepare an annual Performance Assessment for all the food service workers. Lewis prepared the Performance Assessment on March 24, 2004, and reviewed it with Respondent on March 30, 2004, the same date that Respondent signed the Performance Assessment. As a food service worker, Respondent was considered a "10-month employee." She did not work during the summer months. Her last day of work for the 2003-2004 school year was Friday, May 28, 2004.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's employment as a food service worker with the Lee County School District. DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 November, 2004. COPIES FURNISHED: J. Paul Carland, II, Esquire Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Mary Chung 2147 Gulfside Village Drive Lehigh Acres, Florida 33972 Dr. James W. Browder, III Superintendent of Schools Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Honorable John Winn Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue to be resolved in this proceeding concerns whether the School District of Volusia County has just cause to terminate the Respondent from her position of employment due to insubordinate behavior and unsatisfactory performance of her job duties.
Findings Of Fact The Respondent, Vannesther Smith, was employed at times pertinent hereto by the Board as a custodian. The Respondent was hired as a custodian in 2003 and initially assigned to Hurst Elementary School. While at Hurst she was disciplined for inappropriate behavior. She was issued a record of being counseled for inadequate employee performance by Assistant Principal, Dwayne Copeland. He counseled with Ms. Smith concerning her reporting to work late, repeatedly, without informing her supervisors and for not adhering to proper work procedures concerning repeatedly leaving work early. The Respondent was then disciplined and counseled sometime later by Mr. Copeland for not adequately cleaning her assigned area and for insubordination. Thereafter, on October 12, 2006, less than two months later, the Respondent was disciplined yet again and counseled for poor employee performance, by failing to follow proper directives and again for not cleaning her work area. A report was made to the Board's Office of Professional Standards to the effect that the Respondent was not performing her work duties during her scheduled work time, and was speaking and interacting with supervisors in an unprofessional, inappropriate manner. The Office of Professional Standards conducted an investigation into the allegations regarding unprofessional inappropriate conduct. James Holland, the Director of the Office of Professional Standards, determined that the evidence from his investigation supported the allegations. On April 5, 2007, the Respondent was issued a letter of reprimand and ultimately suspended without pay for 20 days by the Board for failing to follow proper procedures and directives from administrators and for losing her temper and screaming at two administrators. She accused them of being "liars" when she was found sleeping on duty. On June 26, 2007, Principal Maryann Bull observed the Respondent again failing to perform her duties while supposedly on duty. When the Respondent was confronted about this she acted in an inappropriate, unprofessional and insulting manner, mocking the principal and refusing to do as directed, thus committing insubordination. An investigation was again conducted by the Office of Professional Standards and the Respondent was reprimanded for insubordination and inappropriate confrontation with Principal Bull. On July 17, 2007, Mr. Holland informed the Respondent that she would be transferred to Mainland High School. On September 24, 2007, the Respondent went on leave for an extended period of time. The Assistant Principal at Mainland High School, Patricia Corr, asked the Respondent to return the school-issued door keys, while she would be on leave. The Respondent had a key to the front door at Mainland High School. The Respondent told Ms. Corr she would turn them in, but never did return the keys. Ms. Corr repeatedly asked for the keys, but the Respondent never delivered them. The Respondent was informed then that she would be transferred to Seabreeze High School. She was instructed to report there for duty, but failed to do so. The Board did not then terminate the Respondent but instead gave her another chance to reform. On April 8, 2008, the Respondent was assigned to Discovery Elementary School. Just two days after reporting for duty the Respondent engaged in inappropriate behavior and was counseled by Principal Laura Williamson for failure to use School Board chemicals and equipment properly, for failing to complete duties as assigned, as well as for insubordination. On April 14, 2008, the Respondent was found sleeping in her car while supposedly on duty. She was again found not to have cleaned her area properly. Because of that behavior the Respondent was issued a letter or reprimand. Assistant Principal Corr, from Mainland High School, contacted the Professional Standards Office concerning the Respondent's failure to return the keys to Mainland High School. An investigation of this matter was initiated by the Professional Standards Office. On June 9, 2008, Ms. Williamson, from Discovery Elementary School, contacted the Professional Standards Office with a new allegation of unprofessional behavior. Specifically, the Respondent left work on Friday, June 6, 2008, without permission. The Respondent placed her keys in the keyhole of the custodial closet located on the exterior of the building and placed her two-way radio on the floor next to the door. On Monday, June 9, 2008, Yolanda Cintron, the Head Custodian, confronted the Respondent about leaving early. The Respondent became very irate and began yelling and cursing. The other custodians were somewhat frightened by the Respondent's behavior. Upon conclusion of the Professional Standards investigation into the Respondent's behavior, a recommendation was made to the Board that the Respondent be terminated, based on the incidents described at Discovery Elementary School and the extensive history of the Respondent's failure to adhere to Board policies and procedures and insubordination. The recommendation of termination was approved by the Board on June 24, 2008.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Volusia County, Florida, terminating the employment relationship of the Respondent and the School Board of Volusia County, Florida. DONE AND ENTERED this 24th day of March, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2009. COPIES FURNISHED: Erin G Jackson, Esquire Thompson, Sizemore, Gonzalez, & Hearing, P.A. 201 North Franklin Street, Suite 1600 Tampa, Florida 33602 Vannesther Smith Post Office Box 250322 Daytona Beach, Florida 32125 James R. Hollins Director of Professional Standards Volusia County School Board Post Office Box 2118 DeLand, Florida 32721-2118 Dr. Margaret A. Smith Superintendent of School Volusia County School Board Post Office Box 2118 DeLand, Florida 32721-2118
The Issue Whether Respondent's teaching certificate should be revoked, or otherwise disciplined, on grounds that he is guilty of engaging in grossly immoral conduct, as alleged.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: The COUNCIL alleges that, on or about April 3, 1979, PAGE engaged in a lewd, lascivious, immoral, and indecent act in the men's restroom of the St. Johns Marina, Jacksonville, Florida, by touching Officer Michael Legan in an unnatural manner; PAGE denies it. (Pre-trial Stipulation, Petition for Revocation, Testimony of Page.) The men's bathroom where the alleged incident took place is adjacent to the St. Johns Marina. The marina is adjacent to the St. Johns River, and across the street from the Alexander Breast Planetarium. A park area nearby is used by groups of children and other visitors to the planetarium. Prior to the time of the incident in question, the Jacksonville Sheriff's Office had received complaints from people at the planetarium, and nearby park visitors, concerning indecent exposure-type incidents occurring in the Marina's bathroom and surrounding area. (Testimony of Legan.) On April 3, 1979, because of this history of reported indecent exposure incidents, Officer Michael Legan, attached to the Morals Squad of the Jacksonville Sheriff's Office, had the Marina's men's bathroom under surveillance for possible homosexual or indecent exposure-type criminal violations. He was accompanied by his partner, Detective Sam Durden, who remained outside the bathroom. At approximately 3:30 or 4:00 p.m., in the afternoon, Officer Legan was wearing civilian clothes and standing inside the bathroom, alongside the wall directly across from a partition which separates the toilets from the urinals. At the time, he was trying to determine whether an unidentified individual using the toilet was there "for a legitimate purpose or whether or not he was attempting to expose himself." (Tr.20) 2/ Shortly thereafter, PAGE entered the bathroom and walked directly to the urinal closest to the door, located across from where Officer Legan was standing. At the same time, Officer Legan moved toward the door, and stopped alongside the wall almost directly behind PAGE. While standing at the urinal, PAGE made what appeared to be a rubbing motion with his hands in his genital area, and glanced over his shoulder in the direction of Officer Legan. This activity continued for about 30 seconds; then PAGE turned 90 degrees to his left, towards the toilet area and away from the bathroom door, held his penis in his hand and rubbed it with a masturbating-type motion. PAGE continued this activity for approximately 20 seconds, while he looked at Officer Legan, then looked down. While Officer Legan observed this activity at a distance of from seven to eight feet, no conversation took place. PAGE then replaced his penis in his pants, started to walk toward the door, and made a motion with his head which Officer Legan understood as a request to follow. In response to what he discerned as PAGE's nonverbal request, Officer Legan followed PAGE toward the door, with the intent to place him under arrest after exiting the bathroom, where Dective Durden would be available to provide assistance. There is a small alcove in the foyer of the bathroom, which separates an inner bathroom door from another bathroom door leading to the outside. As Officer Legan followed PAGE out of the inner bathroom door into the foyer area, PAGE stopped and said, "How are you doing?" Legan answered "Okay," and started to reach into his pocket for his badge. Simultaneously, PAGE grabbed and squeezed Legan in the groin area, and said, "It looks like you're okay." Officer Legan then identified himself as a police officer, placed PAGE under arrest, searched him, gave him the Miranda warnings, and took him to jail for booking. The findings indicated in paragraphs 4(a) through (c) above are, in the main, determined from the testimony of Officer Legan. Respondent PAGE denied, under oath, engaging in the activity described by Officer Legan. It is concluded that Officer Legan's testimony is more worthy of belief and should be accorded greater weight than the conflicting testimony of PAGE. Officer Legan testified with the detached, unbiased manner of a professional law enforcement officer; his narrative testimony was clear, positive, logical, and internally consistent. His prior testimony, by deposition, introduced into evidence by PAGE, is also consistent with and supports his testimony given at final hearing. No significant defects were shown in his capacity, ability, or opportunity to observe, remember, or recount the matters about which he testified. In comparison, PAGE is a teacher accused of grossly immoral conduct justifying suspension or revocation of his teacher's license. As the accused, he has an obvious bias and interest which affects his credibility. Officer Legan's lack of any discernible bias of interest, coupled with the failure to impeach him or discredit his testimony in any significant way, renders his testimony persuasive. (Testimony of PAGE, Legan; R.E. 3.) All Court and Sheriff's Office records pertaining to PAGE's arrest for the above-described conduct were expunged on August 28, 1979, by order of the County Court of Duval County, Florida. In order to qualify for such statutory expungent, the Court necessarily determined that PAGE had never been convicted of a criminal offense or municipal ordinance violation. The effect of expungent is to restore the accused, in the contemplation of the law, to the status he occupied before the arrest. (R.E. 1.) PAGE'S PERFORMANCE AS A TEACHER PAGE has been a competent and effective elementary school teacher in the Duval County School System since 1972. His area of particular expertise has been teaching disadvantaged children reading skills through structured, federally sponsored, reading programs. He has consistently been rated by his supervisors as a "satisfactory" teacher--the highest rating possible. Principals of the schools where he has taught have commended him for his knowledge and performance in teaching remedial reading, good rapport with students, and his ability to understand deficiencies of disadvantaged children and enhance their self-concept. Because of his skills, he was selected to operate the Hoffman Laboratory, a structured reading program for disadvantaged children, at Oceanway Elementary School, Jacksonville. Under his leadership, the Laboratory has been so effective that teachers from other counties have visited to observe and learn. (Testimony of Baker, Sandberg; R.E. 3,7.) PAGE'S CHARACTER PAGE, honorably discharged from the U.S. Marine Corps in 1960, has been an active and responsible ember of his community and the Baptist religion for many years. His church pastors know him as a moral, honest, and religious man, a person of flawless reputation and integrity. He has been married for 32 years, led a normal family life, and successfully raised three children. The charges against him are not in keeping with his wife's view of his character. (Testimony of Evelyn Page; R.E. 4,5.) The policy of the Duval County School Board is to ensure that teachers accused of sexual misconduct are not left in a position where they have contact with children. The Board perceives that such action, on its parts, is necessary in order to provide assurances to parents that their children will be safe. The ability of PAGE to effectively continue to teach at Oceanway Elementary School has been reduced, due to the expected reaction of parents and staff members to the charges against him. (Testimony of Gary Simmons, Sandberg.) To the extent that proposed findings of fact submitted by the parties have not been incorporated herein, they are rejected as being irrelevant to the decision reached, or unsupported by the evidence.
Recommendation Accordingly, based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent's teacher's Certificate No. 137251, be SUSPENDED for two (2) years commencing upon entry of the Final Order in this case. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of October, 1980. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings 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 October, 1980.
