The Issue Whether Respondent, Volusia County School Board, Florida (Respondent, Volusia County Schools, or the School Board), violated the Florida Civil Rights Act of 1992, sections 760.01 through 760.11, Florida Statutes,1/ by discriminating against Petitioner, Johnnie Lee Canady (Petitioner), based upon Petitioner’s race or disability.
Findings Of Fact The School Board is the duly authorized entity responsible for providing public education in Volusia County, Florida. At all material times, Petitioner was employed by the School Board as a seventh-grade social studies teacher at River Springs Middle School (River Springs). The principal of River Springs was Stacy Gotlib. Petitioner served as the River Springs Professional Learning Community Coordinator (PLCC) during the 2012- 2013 school year. As a PLCC, Petitioner was responsible for organizing staff meetings to collaboratively discuss issues arising in the classrooms. Petitioner testified that he “signed up” for the PLCC supplemental duty position, which was awarded to him by Ms. Gotlib. During the 2013-2014 school year, Don Sarro, who, at the time, was the department chair for River Springs’ social studies department, publicly announced that that he was running for the School Board. Under the circumstances, most employees at River Springs were probably aware that Mr. Sarro would be resigning as department chair, creating a vacancy in the position the following school year. Petitioner claims River Springs discriminated against him on the basis of his race because he “was not told of the vacancy” and “a less qualified white female” was selected for the position. Petitioner did not prove these allegations. At the conclusion of the 2013-2014 school year, Petitioner completed a teaching preference form. Petitioner did not express an interest in serving as the department chair for the social studies department or any other supplemental duty positions. At the conclusion of the 2013-2014 school year, River Springs teacher, Kelly Moore, notified River Springs that she was interested in serving as the department chair for the social studies department. River Springs did not advertise the supplemental duty position, and no teachers made formal applications for the position. Chester Boles, assistant principal intern at River Springs, selected Ms. Moore for the supplemental duty position. She was the only candidate who expressed any interest in the position. She was looking for a leadership position because she was working toward a degree to become an administrator. Petitioner did not offer evidence that he was treated any differently than any other teacher at River Springs regarding the social studies department chair position. In fact, although he alleges that he was discriminated against because he was not told of the vacancy, he admits that he does not know of anyone who was told. He offered no evidence to show how Ms. Moore was informed. In fact, there was no advertisement. And, Petitioner did not show that race was a factor in the hiring decision. Prior to the start of the 2014-2015 school year, Petitioner applied to the School Board for seven teaching positions at four schools outside of River Springs. He interviewed with the principals of those schools for each of those positions, but was not selected. Petitioner believes that he was discriminated against on the basis of his race because the selected applicants “were less qualified” than Petitioner. Petitioner, however, did not prove his claim. In fact, he testified that he does not have specific knowledge of the individuals who were hired for each position, the race of the selected applicants, or the reasons the applicants were chosen for the positions. Petitioner testified, in relevant part, as follows: Q: Do you know what position Brian McClary was hired into? A: No. Q: Do you know his race? A: No. Q: Do you know why he was hired? A: No. Q: Okay. How about Jordan Tager, do you know what position he was hired into? A: No. Q: Do you know who hired him? A: No. Q: Do you know his race? A: No. Q: How about Joseph Martin, do you know what job he was entered – hired into? A: No. Q: Do you know who hired him? A: No. Q: Do you know why he was hired? A: No. Q: Do you know his race? A: No. Q: Amy Tolley, do you know what job she was hired into? A: No. Q: Do you know who hired her? A: No. Q: Do you know why she was hired? A: No. Q: Do you know her race? A: No. Q: How about Elizabeth Stople, do you know what job she was hired into? A: No. Q: Do you know who hired her? A: No. Q: Do you know why she was hired? A: No. Q: Do you know her race? A: No. [...] Q: Do you know Chelsea Ambrose? A: No. Q: Do you know her race? A: No. Q: Do you know what position she was hired into? A: No. Q: Do you know why she was hired? A: No. Q: How about Amanda Muessing, do you know what job she was hired into? A: No. Q: Do you know who hired her? A: No. Q: Do you know why she was hired? A: No. Q: Do you know her race? A: No. Petitioner offered no evidence of the race of the individuals selected for the seven positions. Although he offered the résumés of five of the applicants allegedly hired for five of the positions, he failed to substantiate his claims that he was discriminated against on the basis of his race when he was not selected for one of the seven teaching positions. Petitioner testified that, during the 2013-2014 school year, several teachers were having problems “because the [seventh grade] wing was out of control.” He testified that students were being very “disruptive” and there was a general lack of discipline. According to Petitioner, the situation created a “very difficult and stressful” atmosphere for the teachers. On June 8, 2014, Petitioner emailed the School Board's assistant superintendent, Peromnia Grant. His email stated that the stress from the previous school year may “have aggravated some of [his] Persian Gulf War Syndrome [i]ssues.” The email stated, in relevant part: I have participated in the transfer fair and applied for high schools. If I must return to River Springs or middle school, I might need to take a leave of absence until January, 2015 so the Veterans Administration can conduct a full evaluation of my medical concerns and discuss my retraining for an alternative job. Petitioner sought treatment over the summer with the Veteran Administration Outpatient Clinic (VA). The VA worked “to help stabilize” his condition. He “was in distress” after “a bad [school] year.” He was placed on prescription medication for approximately three months. At the beginning of the 2014-2015 school year, Petitioner had a conversation with Eric Ellis, an eighth-grade teacher at River Springs. Petitioner informed Mr. Ellis that he was admitted to the VA hospital over the summer. Petitioner told Mr. Ellis that the VA had asked him if he had any suicidal thoughts and that he advised the VA that he did not. Petitioner further told Mr. Ellis that when the VA asked him if he had any thoughts of harming or killing anyone else, he responded, “Amanda Wiles.”3/ Amanda Wiles was the assistant principal at River Springs. On or about August 19, 2014, Petitioner attended a pre- planning meeting at River Springs. During the meeting, Petitioner got into a loud verbal exchange with Mr. Sarro. River Springs assistant principal intern, Chester Boles, attended the meeting. Petitioner was upset because he believed Mr. Sarro was using the meeting as a platform to give “a political speech” and to talk about “how wonderful everything” was at the school. Petitioner believed Mr. Sarro was breaking school policy and that he “had to stop him.” Petitioner proceeded to engage in a heated discussion with Mr. Sarro. At some point during the conversation, Petitioner stated something to the effect that, "I better shut my mouth, I'm getting racist,” and shoved a crumpled up piece of paper into his mouth. After the meeting, Mr. Boles informed Ms. Gotlib of the situation. Shortly after the meeting, Mr. Sarro approached Mr. Ellis about Petitioner. Mr. Ellis explained to Mr. Sarro that he too was concerned about Petitioner. Mr. Sarro asked Mr. Ellis if he would like to go with him to the principal’s office to share their concerns about Petitioner with Ms. Gotlib. Mr. Ellis agreed and they both went to the principal's office and spoke to Ms. Gotlib. After speaking with Mr. Sarro and Mr. Ellis, Ms. Gotlib contacted the School Board's director of Professional Standards, Sandy Hovis. Ms. Gotlib informed Mr. Hovis about Petitioner’s reportedly threatening comments and unusual behavior. Mr. Hovis then met with Mr. Ellis and Mr. Sarro to discuss their concerns. Mr. Ellis told Mr. Hovis that Petitioner made a comment to the VA that he would like to hurt or kill the assistant principal at River Springs. On August 19, 2014, Mr. Hovis met with Petitioner and informed Petitioner of the information that was reported to him by administration and his fellow teachers. He advised Petitioner that Petitioner was being administratively assigned to home with pay pending a safety evaluation to be conducted under the School Board’s Employee Assistance Program (EAP). Safety evaluations are requested by the School Board when there are concerns that an employee may be an “imminent risk of danger to [himself] or to others.” Following the meeting, Petitioner sent Mr. Hovis an email, entitled “[a]ccusations from staff at River Springs Middle.” In his email, Petitioner stated that the “first accusation about [him] biting down on folder paper is correct.” Petitioner claimed that it was a heated discussion, which led him to tell Mr. Sarro “a thing or two, or three about himself (about 3 minutes’ worth).” When referring an employee to EAP, the School Board works with Horizon Health, a third-party administrator that contracts with the School Board. Mike Nash with Horizon Health was the liaison between the School Board and independent health care providers. Mr. Nash, who was located in Colorado, was responsible for ensuring that Petitioner met with appropriate healthcare providers to conduct evaluations. In accordance with arrangements made by Mr. Nash, Petitioner met with a licensed mental health counselor, Brianard Hines, PhD, in August and September 2014, for a safety evaluation. Sandy Hovis did not have any conversations with Dr. Hines. Although no contemporaneous written report from Dr. Hines was submitted into evidence, Petitioner introduced a "To whom it may concern" letter from Dr. Hines, dated May 15, 2016, stating: Dr. Johnny Canady was referred to me through the Volusia County Schools Employee Assistance Program as a mandatory referral for three sessions to evaluate current risk to self and others. Mr. Canady had allegedly made statements which other employees believed contained some degree of implicit threat to staff at his school, was suspended from his teaching duties and directed to participate in the assessment sessions with me. Dr. Canady attended sessions at my office in Port Orange Florida on August 24, September 4 and September 11, 2014. On those occasions he participated actively and denied any current or past homicidal or suicidal ideation. He also adamantly denied making any statements which were intended to be or could of been considered to be threatening in any way. He reported some symptoms of Posttraumatic Stress Disorder, which he attributed to his earlier service in the military. After completing his three sessions, the Volusia County School Board apparently decided that he should participate in a fitness for duty evaluation before returning to his job. Fitness for duty evaluations are not performed by Employee Assistance Programs, and it is my understanding that Mr. Canady obtained his evaluation from another provider. Please let me know if I can provide any further information, although complete records are available through the Employee Assistance Program at any time, which were provided through Horizon Health. On or about September 18, 2014, Mr. Nash informed Mr. Hovis that Horizon Health recommended that Petitioner submit to a fitness-for-duty evaluation. Mr. Hovis was not provided with written documentation of Horizon Health's recommendation. Later that day, Mr. Hovis met with Petitioner and directed him to undergo a fitness-for-duty evaluation. Unlike a safety evaluation, a fitness-for-duty evaluation determines whether the employee is capable and able to perform the duties and responsibilities of his or her position. As indicated in the letter from Dr. Hines, Dr. Hines did not perform Petitioner’s fitness-for-duty evaluation. Rather, it was performed by licensed psychologist Dr. William Friedenberg. Petitioner was on placed on paid administrative leave pending the outcome of the evaluation. Dr. Friedenberg’s fitness-for-duty evaluation of Petitioner determined that Petitioner suffered from “Adjustment Disorder with mixed anxiety and depressed mood.” Specifically, Dr. Friedenberg determined: Although it does not appear that Dr. Canady poses a risk of danger to himself or others, he realizes that it is not advisable for him to return to a classroom teaching setting at this time due to the stress associated with this job and his previous reaction to such stressors. It is thus the opinion of this examiner that, within a reasonable degree of psychological certainty, Dr. Canady is not currently fit for return to duty in his previous capacity as a classroom teacher. He will likely, however, be able to return successfully to employment with the Volusia County School system in an administrative capacity. Upon receiving Petitioner's fitness-for-duty- evaluation, the School Board requested further clarification from Dr. Friedenberg. Dr. Friedenberg explained that "administrative capacity" was a non-student contact position. Dr. Friedenberg was unable to provide a timeline as to when Petitioner would be able to return to his previous position as a classroom teacher. Based on Dr. Friedenberg’s assessment, the School Board reviewed its vacancies and determined that there were no vacant positions for which Petitioner was qualified because the positions all involved student interaction. On October 21, 2014, Mr. Hovis met with Petitioner and reviewed Dr. Friedenberg’s evaluation with Petitioner. Because there were no vacant positions available, the School Board, through Mr. Hovis, offered Petitioner the option of resigning, being terminated, or taking a leave of absence in lieu of termination. Petitioner elected to take a leave of absence. During his leave of absence, on May 11, 2015, Petitioner voluntarily resigned from his position. In his Complaint of Discrimination filed with FCHR on April 8, 2015, Petitioner claims that he was discriminated on the basis of his alleged disability. Particularly, Petitioner claims that he was “denied [a] reasonable accommodation” when he was not placed in another position within the school district. Petitioner did not offer any evidence that there were any vacant positions available at the time that he was granted a leave of absence. Since that time, Petitioner has not applied for a single administrative position. At the final hearing, during cross examination, Petitioner testified: Q: [After you received] Dr. Friedenberg’s report, [d]id you apply for any administrative position within the School Board? A: No, because Mr. Hovis said we have nothing for you. [...] Q: Did you ever go on to the Volusia County School Board web site to look to see whether there was any position that you were interested in? A: No. [Mr. Hovis] said they had nothing for me, so there was no reason for me to – in my mind to waste my time doing that. He said they have nothing for me. Q: And to this day you haven’t applied for any other position within the school district, correct. A: No, because they say I’m not fit for duty. I can’t be around – I can’t be in the classroom setting . . . The evidence submitted by Petitioner was insufficient to establish that he was denied a reasonable accommodation or that the School Board otherwise discriminated against him because of his disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 27th day of September, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2016.
The Issue Respondent's alleged violation of Monroe County District School Board Policy Rule 2.5.1 on or about January 8, 1976, by possession of marijuana on school grounds.
Findings Of Fact Respondent is a 16 year old, 11th grade high school student attending Marathon High School, Marathon, Florida. On January 8, 1976, Respondent was found in possession of 32 grams of marijuana on the grounds of Marathon High School. (Stipulation of the Parties) On April 21, 1976, the Circuit Court of Monroe County, Florida, accepted Respondent's plea of guilty to a charge of possession of marijuana, withheld adjudication as a delinquent and placed him on probation for a period of six months under the supervision of a Youth Counselor, State of Florida Youth Services Division. Conditions of probation included a curfew, weekly meetings with the counselor and part-time employment while attending school. (Testimony of Seale) At the time of his apprehension, Respondent admitted possession of marijuana to authorities and cooperated with them by divulging its source. Respondent denies any prior arrests and, in the opinion of the Youth Counselor, he is not likely to commit an offense of this nature in the future. He has evidenced remorse and desires to continue attendance at the high school. The Youth Counselor feels that it would serve no useful purpose to prevent him from further attendance. (Testimony of Seale, Collins) Respondent is not a problem student nor is he considered to be incorrigible or a socially maladjusted child. An alternative to expulsion exists at Marathon High School in the form of a rehabilitative program for socially maladjusted children that is supervised by one instructor who exercises close supervision over the students in the program. A student who is expelled from high school may enter an evening adult education program whereby he can acquire necessary academic credits by attending evening classes. The principal of Marathon High School recommends that Respondent be expelled because of the seriousness of his offense as evidenced by the unusually large amount of marijuana. (Testimony of Gradick)
Recommendation That Respondent, Gordon Collins, be expelled from Marathon High School, Marathon, Florida, effective June 8, 1976, for violation of Monroe County District School Board Policy Rule 2.5.1, by possession of marijuana on the school grounds on or about January 8, 1976. DONE and ENTERED 14th day of May, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1976. COPIES FURNISHED: Glenn Archer, Jr. Assistant Superintendent Post Office Drawer 1430 Key West, Florida 33040 Peter Lenzi, Esquire Post Office Box 938 Marathon, Florida 33050
Findings Of Fact Background Respondent is a teacher certified in English, which he has taught while employed by Petitioner. He was first employed by Petitioner during the 1984-85 school year. In 1987, he was awarded a professional service contract. He has six years' teaching experience outside Highlands County. Principals or assistant principals routinely conduct annual teacher evaluations. The evaluation form contains two sections. Section 1 contains 14 categories that are marked based on one or more classroom observations. Section 2 contains 15 categories that are marked based on classroom observations and experience with the teacher. The back of the evaluation form explains the marks as follows: Mark Description Commendable (C) Indicates exceptional performance of the identified behavior(s). Satisfactory (S) Indicates satisfactory performance of the identified behavior(s) Needs Improvement (NI) Indicates a need for the employee to strengthen/improve performance of the identified behavior(s). Must Improve (MI) Indicates a need for the employee to remediate deficient behavior(s). If the deficiency is not corrected, the employee's contract status could be affected. The back of the evaluation form explains the "NEAT Procedure/Due Process": When an employee is evaluated as Must Improve, remediation procedures must be implemented as follows: Notice--The employee has the right to receive full written notification of the identified deficient behaviors. Explanation--The employee has the right to receive a full explanation for the reason behaviors are considered deficient. Assistance--The employee has the right to receive assistance in remediating the deficient behavior. Time--The employee has the right to a reasonable amount of time to achieve remediation. Various documents exist to normalize the evaluations of teachers. However, a degree of subjectivity necessarily remains in the evaluation process. Petitioner has prepared a booklet entitled, "Performance Appraisal System for Instructional Personnel" (Appraisal Booklet). The Appraisal Booklet introduced into evidence is dated October 5, 1992, but, judging from the cover letter from the superintendent, was in effect for the entire 1992-93 school year. The Appraisal Booklet contains, at page 12, a section describing the assessment process. The booklet states in part: When a competency or behavior is marked "NI-Needs Improvement," the appraiser shall provide counseling and/or resources whereby improvement may occur. For each competency or behavior which is marked "MI--Must Improve," a remediation procedure must be designed and implemented. The procedures will be described in a Professional Development Plan, as called for in the NEAT procedures. Each deficient item shall be addressed in a separate [Professional Development Plan]. The plan shall include the following: Area to be improved: specify the identified problem. Specific desired improvement: write as a measurable goal or objective. Action to be taken: describe action the involved parties will complete to achieve desired improvement. Assistance plan: List and describe who will provide assistance, showing role of each participant. Time line: specify dates for each activity to be completed and evaluated. Evaluation: describe how and when evaluation of progress or success will occur. Consequences: specify consequences if improvement is not achieved satisfactorily. The Appraisal Booklet contains, at page 15, a section entitled, "Use of Assessment Data for Personnel Decisions." This section requires written comments for every C, NI, or MI. Under a subsection entitled, "Unsatisfactory Ratings," the Appraisal Booklet states in its entirety: For every MI assigned, the assessor will conduct a follow-up of the Professional Development Plan to determine if the appraisee accomplished the required improvement and/or when that competency will be reassessed. Failure to improve within the expected time may be grounds for returning to annual contract for an employee holding a Professional Service Contract or a Continuing Contract. If the deficiency is not corrected during the second year, it may be grounds for non-renewal. (See NEAT) If the appraisee receives two consecutive unsatisfactory annual evaluations, the superintendent shall notify the Department of Education as required by statute. On [the evaluation form] three or more ratings of MI . . . will constitute an "unsatisfactory annual evaluation" for purposes of reporting to the DOE. The Appraisal Booklet discusses C's. Nothing in this section of the booklet explicitly addresses NI's except, as noted above, that comments must accompany each NI. The contract between Petitioner and the teachers discusses evaluations, but not in such detail as to address the meaning of NI's and MI's. Concerning remediation, the contract states: Where deficiencies are brought to the teacher's attention by his/her supervisor, the teacher shall be responsible for taking the necessary steps for improving his/her skills to an acceptable level as determined by the principal. Assistance shall be offered the employee and such assistance for improvement shall be noted in writing and a signed copy be retained by the appropriate supervisor and the employee. Following remediation, reassessment shall be accorded the employee in compliance with the procedures of Article XI. If the final assessment report fails to note specific deficiency, it shall be interpreted to mean adequate improvement has taken place. The professional judgment of the evaluator shall not be subject to the grievance procedure. The contract acknowledges that it shall not be interpreted to abridge or in any way usurp the authority or power of [Petitioner] as established by constitutional provisions or state Board of Education regulations or statutes existing at the time of the [contract]. And further, [Petitioner] shall be relieved of compliance with any term or condition of this [contract] if such compliance is contrary to any constitutional provision or state Board of Education regulation or statute in effect or enacted subsequent to the signing of this [contract]. Petitioner has no clear written or unwritten policy regarding whether a performance deficiency evidenced by an MI is corrected by an NI, rather than a C or an S. The determination whether a teacher has corrected performance deficiencies depends on the circumstances. The Lake Placid Teacher Handbook for the 1992-93 school year, a copy of which was given to Respondent at the beginning of the year, notes that teachers are to administer their assertive discipline plan and enforce all school rules. Regarding student control, "teachers must not argue with students, use profanity or sarcasm, and must keep hands off students." Petitioner's Code of Student Conduct for the 1992-93 school year describes the teacher's role in the maintenance of discipline as starting with the preparation of a classroom assertive discipline plan, which outlines a series of increasing consequences for disciplinary problems. Under the first step, the teacher will follow his or her plan, which may contain consequences such as withholding a privilege, isolation, counseling, detention, extra work, task assignment, or a parent conference. Under the second step, if the misconduct is repeated, the teacher shall try to contact the parent and record the result. Under the third step, the teacher will refer the matter to the social worker, school nurse, Guidance Committee, or School Attendance Review Committee for positive intervention. Under the fourth step, if the problem persists or the misconduct becomes a major disruption, the teacher will complete a student disciplinary referral form and a school administrator will determine the appropriate punishment. Evaluations Prior to 1991-92 School Year Respondent's evaluation dated November 13, 1985, contains all S's with the exception of an NI for circulating and assisting students. The evaluation was prepared by Donn Goodwin, an assistant principal at Sebring High School where Respondent was then teaching. Respondent's evaluation dated March 5, 1986, contains all S's except for C's in demonstrating friendly, positive attitude toward all students; maintaining academic focus; using effective questioning techniques; providing for practice; dependability; and punctuality/attendance. The evaluation contains one NI for parent/community relations. The comment accompanying the NI is obscured, but suggests that Respondent did not schedule enough parent conferences, although he did a good job with those that he conducted. The evaluation was prepared by James Bible, the principal of Sebring High School. Respondent's evaluation dated September 4, 1986, contains all S's except for C's in demonstrating effective communication skills, presenting subject matter effectively, maintaining academic focus, arranging physical features of the classroom for a safe learning environment, dependability, work attitude, and commitment. A note at the bottom of the evaluation states that Respondent maintained an "excellent class." The evaluation was prepared by Michael Agner, an assistant principal at Sebring High School. Respondent's evaluation dated February 25, 1987, contains all S's except for C's in maintaining academic focus and maintaining effective classroom control and an NI in using specific academic praise. The evaluation was prepared by Mr. Bible. Respondent's evaluation dated April 6, 1988, contains all S's except for C's in demonstrating effective communication skills, having materials ready, maintaining academic focus, using effective questioning techniques, punctuality/attendance, quantity/quality of work, commitment, and professional behavior/ethics. The evaluation was prepared by Mr. Bible. Respondent's evaluation dated February 28, 1989, contains all S's. A comment under parent/community relations notes: "Need to continue working in this area. Parental support helps your teaching." A comment under student/staff relations adds: "Need to be mindful of backing students in corners with no alternatives." The evaluation was prepared by Mr. Bible. Respondent's evaluation dated October 17, 1989, was obscured in the copying process. It appears to contain all S's with some C's in Section 1. The evaluation was prepared by Thomas Knowles, an assistant principal at Sebring High School. Respondent's evaluation dated October 3, 1990, contains all S's. The evaluation was prepared by Ruth Hatfield, then an assistant principal at Sebring High School. Respondent's evaluation dated February 20, 1991, contains all S's except for C's in having materials ready and circulating and assisting students and NI's in punctuality/attendance, student/staff relations, personal appearance, and receptiveness. Among the comments under Section 1 is that the observer did not see Respondent's assertive discipline rules posted. Section 2 comments are that Respondent was often late and "very defensive--refuses criticism." Under student/staff relations, the comment is: "Alienates students. Backs up kids in corners. Need to be aware of this." Another comment suggests a need to dress more professionally. The final comment states: "Need to work on areas that deal with students and parents." The evaluation was prepared by Mr. Bible. A letter dated May 13, 1991, memorializes a conference that took place on May 9, 1991, between Respondent and Rebecca Clark, another assistant principal at Sebring High School. The letter states that Ms. Clark had noticed Respondent leaving his class while two guest speakers were making a presentation. Upon questioning, Respondent said that he had to run a quick errand and would be right back. Ms. Clark remained in the classroom until the end of the period, at which time Respondent returned. The letter warns Respondent that he must remain with his class and may not leave campus without prior authorization from an administrator. Evaluations During 1991-92 School Year A new principal, Calvin Smith, replaced Mr. Bible at Sebring High School for the 1991-92 school year. Mr. Smith conducted Respondent's next evaluation, which was dated December 2, 1991. Based on an observation taking place during a 50- minute period on November 26, 1991, Respondent received all S's in Section 1 except for a C in presenting the subject matter effectively and an NI in using specific academic praise. In Section 2, Respondent received S's in only five categories: keeping accurate records, punctuality and attendance, initiative, student evaluation, and professional growth. Receiving no C's in Section 2, Respondent received three NI's in personal appearance, receptiveness, and commitment and seven MI's in dependability, work attitude, parent/community relations, student/staff relations, quantity/quality of work, planning, and professional behavior/ethics. The comments for the NI's are brief and in handwriting. Under receptiveness, the comment is: "seem[s] to be afraid of dealing with a problem. I am only trying to make you a better teacher." The comment under commitment states: "dedicate yourself to your job. You have too much talent to waste." Each MI is treated in a separate Professional Development Plan. The Professional Development Plans, which are attached to the December 2 evaluation, consist of several parts: "area to be improved," "desired improvement," "action to be taken," "who will provide assistance," "time line for achieving objectives/goal/improvement," "evaluation process to determine improvement," and "consequences if improvement is not satisfactorily achieved." Under parent/community relations, the desired improvement is: "When dealing with parents you must exhibit an air of professionalism but be understanding." The action to be taken is: "Schedule parent conferences as needed to resolve situations with students. Apologize for your actions if need be and start over with the situation." Under dependability, the desired improvement is: "Should show he is able to be counted on without constant badgering." The action to be taken is: "Submit lesson plans on time. Supply I[n] S[chool] S[uspension] students with work when requested. Meet with parents without being directed to do so. Learn to deal with students as an adult rather than getting into shouting matches, etc." Under student/staff relations, the desired improvement is: "Show you understand students by working with them in correcting deficiencies." The action to be taken is: "Don't get in students['] faces and yell at them. Don't allow things to go on and then establish a rule of the next one goes to the office. Learn to deal with student problems rather than expecting the office to handle the problem." Under work attitude, the desired improvement is: "Show that you like what you do. Turn students on to your subject. Work on faculty relations." The action to be taken is: "Be cooperative in dealing with parents, students, and faculty members. Present an atmosphere of enthusiasm that is contagious and infectious to those around you." Each Professional Development Plan states that assistance or training would be provided if requested by Respondent. For student/staff relations, the plan states: "Inservice will be provided by administrators as requested and a workshop may be recommended." Similar language is contained in the plan for work attitude. Under time line for achieving objectives/goal, improvement, each Professional Development Plan states: "Should show some immediate improvement but enough improvement must be shown prior to evaluation in 92/93 school year to remove the MI." Each Professional Development Plan describes the evaluation process to determine improvement as: "List kept of ineffective behaviors. [Respondent] will be given a copy of each item placed in folder." Each Professional Development Plan warns that, "if improvement is not satisfactorily achieved," there will be a "recommendation to place [Respondent] back on annual contract." By letter dated December 16, 1991, Mr. Smith refers to the evaluation and the evaluation conference that took place on December 5, 1991. The letter notes that one of the Professional Development Plans required Respondent to supply in-school suspension students with work when requested. The letter acknowledges that Respondent had said at the conference that he would take care of all of the MI's. The December 16 letter notes that Respondent had already failed to provide make-up work for five named students who had been sent to in-school suspension. Students punished by in-school suspension are prohibited from attending their classes, but are sent to another part of the school. It is important for their teachers to provide their assignments, so the students can study the same materials that the teacher is presenting to their classes. The December 16 letter concludes: "Repeated cases of this problem will lead to my recommendation to the superintendent that you be suspended without pay for five (5) days for gross insubordination." Respondent received a second evaluation from Mr. Smith during the 1991-92 school year. Dated March 3, 1992, the second evaluation is slightly worse than the first. Section 1 contains the same C for the presentation of the subject matter and NI for using specific academic praise. A new NI appears in Section 1 for demonstrating friendly attitude toward all students, and a new MI appears for maintaining effective classroom control. The new MI rating appears to be based in part on Respondent's allowing several students to have food and drink in the classroom after telling one student to dispose of his food or drink. In Section 2, Respondent received five S's, as he did in the first evaluation, as planning went from MI to S and punctuality/attendance went from S to NI. Work attitude improved from MI to NI, but personal appearance and receptiveness went from NI to MI. A written comment states that dependability improved some, but not enough to remove the MI. The MI's on the March 3 evaluation are again the subject of attached Professional Development Plans. Under dependability, the desired improvement is: "Show you are able to be counted on without constant badgering." The action to be taken is: "Learn to deal with students without being sarcastic or getting into shouting matches. Student and parent complaints are numerous." Under parent/community relations, the desired improvement is: "Exhibit an air of professionalism in meetings with parents." The action to be taken is: "Schedule parent conferences as needed to resolve situations with students. Apologize for your actions if need be and start over. Show parents you care about their child." Under student/staff relations, the desired improvement is: "Work with students in correcting deficiencies." The action to be taken is: "Learn to deal with student problems. Be more friendly. Be consistent in your discipline but be fair." Under receptiveness, the desired improvement is: "Be able to listen to constructive criticism and follow suggestions made by administration." the action to be taken is: "Follow rules and regulations established for personnel and students at Sebring High School rather than defying directions given by an administrator." Each of the Professional Development Plans states that the administration will provide assistance or training if requested to do so by Respondent. The time line for achieving objectives/goal/improvement is now "immediate" for the cited areas. There is no longer any mention of the removal of MI's, except that the Professional Development Plan for student/staff relations requires: "Immediate improvement--MI must be removed prior to October 92 visitation." The consequence of Respondent's failure to remove the MI's remains returning him to annual contract. The March 3 evaluation is followed by a letter dated March 9, 1992, from Mr. Smith to the superintendent. Mr. Smith writes that Respondent has not improved since the December 2 evaluation and recommends that Respondent be placed on annual contract for the following school year. The Grievance Process On March 13, 1992, Respondent filed a grievance seeking a list of specific remedies for each MI in the March 3 evaluation, adherence to the NEAT procedure, a reconfirmation of the deadline stated in the December 2 evaluation of 1992-93 "for remediation," withdrawal of the recommendation that Respondent be returned to annual contract, and transfer of Respondent to another position where he could be evaluated by someone not part of the current Sebring High School administration. Mr. Smith responded to the grievance with two documents, both dated April 7, 1992. In a three-page memorandum, Mr. Smith recounted the December 2 evaluation, noting that Respondent's "statement to all of this (as he signed the assessment and the PDP's) was, 'You mean all I have to do is correct these and I will get satisfactories?'" The April 7 memorandum notes that the March 3 evaluation was worse than the December 2 evaluation. Despite the fact that, with one exception, the March 3 evaluation did not equate correction with the removal of MI's, the April 7 memorandum states: "[Respondent] still has until the 1992-93 assessment to remove the MI's from his assessment. However, if he does not, he will be notified of non-renewal of a contract for 1993-94." Attached to the April 7 memorandum are "Specific Remedies for Must Improve." These remedies track the areas receiving MI's in the evaluations and discussion in the Professional Development Plans. Under maintaining effective classroom control, the April 7 attachment informs Respondent that he is to ensure that his students follow the rules. Under dependability, the April 7 attachment gives 12 examples of assignments that Respondent must perform. These include timely providing grades for meetings of the School Attendance Review Committee, remaining current with printed attendance sheets, submitting in-school suspension assignments when requested, arriving and leaving on time, not leaving the classroom unattended, and not allowing the students to break the rules. Under parent/community relations, the April 7 attachment states that Respondent should meet with parents at his initiative rather than waiting until irate parents demand a conference after hearing their child's complaints. Also, the attachment advises Respondent to be "gentle" with parents and not be negative. The attachment suggests that Respondent return parents' telephone calls. Under student/staff relations, the April 7 attachment warns Respondent not to back students into a corner. The attachment notes that many reports indicate that Respondent uses sarcasm with students and then disciplines them when they reciprocate with sarcasm. The attachment recommends, "Work on your personality to be more accepting and understanding of students." Under quantity/quality of work, the April 7 attachment suggests that Respondent spend more time on grammar rather than literature alone. The attachment suggests that Respondent should become involved with students' activities so that they know that he cares about them, as well as about what they learn. Under receptiveness, the April 7 attachment notes a lack of desire by Respondent to change his attitude about the providing in-school suspension assignments. Under professional behavior/ethics, the April 7 attachment recommends that Respondent not retaliate against students. It is unclear exactly what Mr. Smith means by "retaliate"; it may mean confront the students in class or respond to the students' sarcasm with sarcasm. By letter dated May 13, 1992, Deputy Superintendent John Martin decided the grievance by determining that Petitioner would grant Respondent a subsequent year of employment, under a subsequent year or annual contract, to correct the indicated deficiencies, and, if Respondent "corrects the indicated deficiencies," he would be given a new professional service contract. The May 13 letter also states that Respondent would be transferred, as he had requested. Respondent chose not to pursue additional grievance procedures available to him, so the grievance was resolved at this point. On May 15, 1992, Petitioner informed Respondent that he had been appointed for a "subsequent year of employment . . . on annual contract pursuant to Florida Statute 231.26(3)(e)." On June 23, 1992, Petitioner and Respondent executed a contract for a "'subsequent year of employment,' as that term is used in 231.36(3)(e), Florida Statutes . . .," for the 1992-93 school year. The 1991-92 School Year During the 1991-92 school year at Sebring High School, Respondent experienced problems in his relationship with the students and parents and in his inability to fulfill certain important responsibilities imposed on each teacher. With students, Respondent was often sarcastic. When the students returned in like kind, Respondent took offense and disciplined them, often with a disciplinary referral to the office. Mr. Smith witnessed a half dozen confrontations between Respondent and students in the main office where Respondent made derogatory remarks to the students. With parents, Respondent often failed to behave professionally in parent/teacher conferences. He walked out on one conference involving a parent who was also a teacher at Sebring High School. He often responded negatively to parents and sometimes failed to follow through on conferences or even return parents' telephone calls. Respondent was often late in fulfilling his duties. He was frequently late in getting his grades or attendance sheets to the Student Attendance Review Committee, which consisted of a guidance counsellor, an administrator, student's teachers, and student's parents who met periodically to discuss a student's attendance problems. Respondent consistently failed to submit assignments for students who had been assigned to in-school suspension. Each of the deficiencies described in the preceding paragraph interfered materially with Respondent's performance as a teacher. With respect to each of these deficiencies, Respondent was materially worse than his fellow teachers at Sebring High School. The resulting evaluations were the worst ever given by Mr. Smith, who describes himself as a hard evaluator. Evaluations During the 1992-93 School Year As Respondent demanded in the grievance, Petitioner transferred Respondent to Lake Placid High School for the 1992- 93 school year. He was assigned to teach English to all of the ninth grade students except those in honors and dropout prevention. On November 3, 1992, Respondent received his first evaluation at Lake Placid High School. He received all S's except for C's in demonstrating effective communication skills, and student evaluations and NI's in maintaining academic focus and maintaining effective classroom control. The evaluation was prepared by David Robinson, who was an assistant principal. On February 25, 1993, Respondent received a second evaluation for the 1992-93 school year. This evaluation, which was prepared by the principal, Roger Goddard, was worse than the first. There were no C's, and there were NI's in demonstrating friendly attitude toward all students, maintaining academic focus, parent/community relations, student/staff relations, receptiveness, and professional behavior/ethics. Under the comments in Section 1 of the February 25 evaluation, a note reads: "Needs skills in [knowing] when to use in-class discipline or office referral." The handwritten comments under Section 2 note that Respondent "had difficulty dealing with parents in conferences an/or returning phone calls" and "lack[s] rapport with students, staff, and administration." The handwritten comments state that Respondent is "many times defensive during conferences with administrators" and "needs a better procedure with make-up work utilizing school policy." By letter dated March 19, 1993, Dr. Goddard informed Respondent that he would be unable to reappoint Respondent for employment at Lake Placid High School for the following school year. Respondent asked Dr. Goddard to perform another evaluation, and Dr. Goddard did so on April 23, 1993. There were fewer NI's than in the February 25 evaluation, but the evaluation was not much better. Under Section 1, Respondent received all S's except for an NI in demonstrating a friendly attitude toward all students. An anecdotal comment adds: "There have been over 70 referrals for discipline during the year. This is as many as 20 other teachers combined." Under Section 2, Respondent received all S's except for three NI's in parent/community relations, student/staff relations, and receptiveness. Accompanying handwritten notes state that Respondent "still shows difficulty in dealing with parent conferences," "still lacks understanding of role of assistant principal [and] staff," and "many times still defensive regarding suggestions from administration." By letter dated April 26, 1993, Dr. Goddard advised Respondent that he could not change his original recommendation given on March 19. The letter states that the recommendation is based on the need for a change in the ability to handle discipline effectively within the classroom, handle parent conferences without conflict, and be receptive to administrative suggestions without a defensive attitude. By letter dated April 30, 1993, to Dr. Goddard, Respondent states, in part: . . . Some administrators are possessed by a sort of spectral indifference, and look at their fellow beings as ghosts. For them, teachers and other staff members are often merely vague shadowy forms, hardly distinct from the nebulous background of such a life, and easily blended with the invisible. But you, Dr. Goddard, are an honorable man and I believe, from our conversations, that you really care about the parents, staff, and students of our school. . . . Respondent's letter to Dr. Goddard discusses the preceding evaluation and asks for an opportunity to continue teaching. By letter dated May 25, 1993, Superintendent Richard Farmer states that Dr. Goddard had informed Mr. Farmer that Respondent had not successfully removed all deficiencies from his evaluation. The letter advises Respondent that his annual contract was expiring, Dr. Goddard had decided not to issue Respondent another annual contract, and, according to Section 231.36(4), Florida Statutes, Petitioner would not issue him a new professional service contract. By notice to the Florida Department of Education dated June 2, 1993, Dr. Goddard advised that, after two consecutive unsatisfactory annual evaluations, Respondent's employment with Petitioner was being terminated or not renewed. The 1992-93 School Year Despite the absence of MI's on the 1992-93 evaluations, the problems Respondent had experienced with students, parents, and administrators in 1991-92 worsened in 1992-93. With respect to relations with students, the basic problem is that Respondent reverted to sarcasm at Lake Placid High School, and his students reciprocated, just as his students at Sebring High School had done the prior year. Sarcasm bred sarcasm, which bred disciplinary referrals--125 of them in fact. Respondent outdistanced his nearest competitor in disciplinary referrals by 2.5 times. On two separate days, Respondent submitted more than 10 disciplinary referrals--more than most teachers submitted all year. As Dr. Goddard's comment notes, Respondent issued more disciplinary referrals than a score of his colleagues. The huge number of disciplinary referrals did not mean that Respondent was maintaining firm control of his classes. To the contrary, he was not able to maintain firm control of his classes, partly due to the atmosphere of mutual disrespect that his sarcasm engendered. The number of disciplinary referrals indicated that Respondent had lost control of the situation and tried to shift to the administrators the job of regaining control of his classroom. A major part of the problem, in addition to Respondent's sarcasm, was his inability to adhere to his own assertive discipline plan. Respondent's assertive discipline plan, which was duly posted in his classroom, contains the following consequences in increasing order of severity: warning, contact parents, detention, and office referral. Sometime during the school year, Respondent switched the second and third consequences, so that he would place a student on detention before he would contact the parents. This change was duly posted in the classroom. Respondent's assertive discipline plan is satisfactory, but he never adhered to it. Sometimes he gave detentions, but then failed to appear at the location where the students were to serve the detentions. Sometimes Respondent simply placed the offending students in the hall where they remained, unsupervised, in violation of school rules. Sometimes Respondent gave warnings, and often he gave disciplinary referrals. But he displayed an aversion to parent/teacher conferences by almost invariably omitting the step that required him to contact a parent. Nearly all disciplinary referrals were made prior to this step taking place, and many were made prior to giving the student a detention. Respondent clung doggedly to his sarcasm despite all efforts to free him from this habitual behavior. Dr. Goddard intervened at one point during a parent/teacher conference and prevailed upon Respondent to stop using sarcasm against the student who was the subject of the conference. Respondent's response was to post a sign in his room indicating a "moratorium" in the use of sarcasm--intentionally implying that the cessation in sarcasm would be temporary. At times, Respondent lashed out at students with hurtful remarks lacking even the thin veneer of humor. He told one student that he would be a serial killer. He told another student that he would never be rich and successful. He repeatedly referred publicly to one student as a witch and asked if she had taken her Midol. In front of another student's mother, as well as other teachers and Mr. Robinson during a parent/teacher conference, Respondent referred to a girl as "bitchy." Respondent refused to accommodate valid student needs, such as the unusual demands placed on one child by a disabled brother. The regressive effect on students of Respondent's embittered and embittering classroom presence was unwittingly reflected in another student's class journal. His early entries demonstrated an emotional vulnerability as he depicted his simple, rural lifestyle; his later entries were defiantly copied out of textbooks, magazines, or encyclopedias. As a result of Respondent's poor relations with students, more than one student quit Respondent's class, even if it meant taking English in summer school or another school or dropping out of high school altogether. One parent checked her son out of school just long enough that he would not have to attend Respondent's class. By the end of the 1992-93 school year, morale among Respondent's students and their parents was a very serious problem. Respondent's relationship with parents was, if possible, even worse than his relationship with students, although his contact with parents was less frequent. During one meeting with a father in the main office, the parent and Respondent had a heated exchange. Mr. Robinson intervened and diplomatically tried to end the conference. After the parent had started to walk away, Respondent restarted the argument and approached the parent until their noses were touching. Mr. Robinson again broke up what had transformed from a conference into a confrontation, and again Respondent reinitiated the engagement. Again, Mr. Robinson had to break up the argument. Mr. Robinson attended another parent/teacher conference in which the mother, according to Respondent, looked at him with "eyes . . . like daggers." (Tr 541) The mother observed that her daughter had no problems in any other classes but Respondent's class. The parent charged that Respondent's class was out of control. Respondent saw that Mr. Robinson was not "going to fulfil his role as mediator," so Respondent got up, announced that "I'm not going to take this damn stuff anymore," and walked out of the conference. (Tr 542) At first glance, Respondent's relationship with the administrators seems better than his relationships with the students and parents, but this is due to the professionalism of Dr. Goddard, inexperience of Mr. Robertson, and uninvolvement of Ms. Hatfield. For different reasons, each administrator at the school responded differently to Respondent's increasingly bizarre behavior and in no case did any administrator at the school ever lose his or her composure in dealing with Respondent. Respondent believes that he has been unfairly treated by every administrator at Lake Placid High School, and at least two at Sebring High School. Interestingly, Ms. Hatfield had given Respondent his last evaluation-- in October, 1990--without an NI or MI. However, without any evident provocation, Respondent demanded that the other assistant principal, Mr. Robinson, handle Respondent's evaluations and disciplinary referrals. Respondent was apprehensive that Ms. Hatfield might be biased due to her past service at Sebring High School. In November, 1992, Ms. Hatfield had a conference with Respondent and cautioned him that she was receiving a number of student complaints about his use of sarcasm. Respondent's reaction was to request that he be evaluated by Mr. Robinson, who was in his first year of service as an assistant principal. In retrospect, Respondent's demand proved unwise. As evidenced by his treatment of another teacher, Mr. Robinson displayed a heightened sensitivity toward humor directed at students, even if the humor did not seem sarcastic at all. Thus, Mr. Robinson's concern about Respondent's sarcasm was not due to bias against Respondent, but was due to Mr. Robinson's concern that students be treated with dignity and respect. But, as noted above, even without Mr. Robinson's heightened concern about humor, Respondent's sarcasm exceeded the wildest imaginable limits. Dr. Goddard intervened after the first evaluation. Respondent's concern about bias defies reason and logic when applied to Dr. Goddard, who counselled Respondent and gave him an opportunity to discover for himself the shortcomings of his defensive style of dealing with students, parents, and administrators. To imply that Dr. Goddard's evaluations were orchestrated by individuals at Sebring High School or the district office is to ignore reality. As discussed in the Conclusions of Law, the very lack of coordination presents legal problems that could have easily been avoided with the smallest amount of coordination. Respondent had trouble with nearly every administrator. And Respondent consistently found himself the blameless target of unwarranted persecution. His paranoia interfered with his ability to do his job. This fact is best illustrated by the time that Dr. Goddard instructed the teachers to clean up their rooms in preparation for a visit that night by the school board. Respondent wrote the following on his chalkboard to be read by the school board members: "The fact that you're paranoid doesn't mean that they are not out to get you." In addition to problems with students, parents, and administrators, Respondent continued to display an inability to fulfill his important responsibilities. He failed to appear at ninth grade orientation at the beginning of the school year, despite the fact that he was a new teacher at the school and taught most of the ninth graders. Respondent routinely failed to supply grades to students for whom guidance counsellors were trying to prepare weekly progress reports in order to monitor the students' progress more closely than is possible with report cards. Respondent was routinely resistant to assigning make- up work. Students would have to pursue him for days to get assignments, until finally Respondent decided to write these up on the chalkboard. On more than one occasion, Respondent's solution--when pushed by parents or administrators--was to avoid the extra work imposed upon him by grading additional materials; rather than assign make-up work or tests, Respondent would simply not penalize the student for the missed assignment, such as by doubling the weight of the next grade. There is no evidence that the administration at Lake Placid High School learned of Respondent's 1991-92 evaluations at Sebring High School until Respondent mentioned them when he received his first evaluation at Lake Placid High School. There is no evidence that the actions taken by the administration at Lake Placid High School were influenced by anything except the Respondent's performance during the 1992-93 school year. Respondent was warned about his problems in evaluations going as far back as the 1980's when Respondent was evaluated by Mr. Bible. The March, 1986 evaluation identifies Respondent's reluctance to deal with parents. The February, 1989 evaluation suggests that Respondent lacked the support of parents and was placing students on the defensive. In the February, 1991 evaluation, Mr. Bible warned Respondent that he needed to improve in several areas, including student/staff relations and receptiveness to criticism from administrators. Again, Mr. Bible pointed out that Respondent was alienating students. Respondent's problems, which culminated in the exceptionally bad evaluations during the 1991-92 school year, largely represented a continuation of problems that had been identified in one manner or another for the preceding five years. But instead of correcting the problems, Respondent had allowed them to get worse. These problems were described in greater detail in the 1991-92 and 1992-93 evaluations due to the deterioration of Respondent's behavior. Petitioner provided Respondent with reasonable assistance in remediating his performance deficiencies. Dr. Goddard made numerous additional visits to Respondent's classroom, and he and other administrators routinely talked to Respondent. After the first evaluation in November, 1992, Mr. Robinson twice recommended to Respondent that he rely on his assertive discipline plan because he was referring too many students to the office. After discovering how poorly Respondent handled parent conferences, administrators ensured that appropriate persons participated in Respondent's conferences to model suitable behavior. In early February, 1993, Mr. Robinson gave Respondent a set of assertive discipline tapes to view to assist in imposing proper discipline in his class. This intervention preceded the February 25 evaluation by almost three weeks. About one week prior to the February 25 evaluation, Mr. Robinson suggested that Respondent attend a workshop on parent/teacher conferences. Respondent attended the workshop. Evidently arranged prior to the February 25 evaluation, Respondent went to a high school in another district to observe a ninth-grade English teacher. The practical effect of this assistance is attenuated by the fact that the February 25 evaluation preceded the visit, although the visit preceded the March 19 non-appointment letter, April 23 follow-up evaluation, and April 26 follow-up letter. The extent of the assistance effectively offered Respondent must be evaluated in the context of Respondent's problems. He was not an ineffective teacher due to an inadequate grasp of the course material or inability to present material imaginatively. To the contrary, Respondent is a highly intelligent, literate individual who is intellectual capable of being an outstanding teacher. If his problems were in his understanding of the material or an inability to find the methods to convey the material to his students, a program of assistance and inservice workshops probably could be designed to provide meaningful help. Instead, Respondent needed to stop disparaging students. He needed to stop confronting parents. He needed to stop ignoring administrators who were trying to stop Respondent from disparaging students and confronting parents. But Respondent simply refused to change his ways, and no amount of videotapes, inservice workshops, school visits, evaluation follow-ups, and informal discussions were going to help. Respondent was given a second chance when he was transferred to Lake Placid High School. But instead of addressing the source of the problem-- himself--he attacked students, parents, and administrators. He avoided performing rigorously all of his teaching duties, such as enforcing his assertive disciplinary plan and its graduated response to misbehavior, promptly providing make-up work, and sending interim grades when needed. Instead, he inexplicably continued to bicker with the students, provoke the parents, and defy the legitimate demands of the administrators.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Highlands County enter a final order not issuing Respondent a new professional service contract. ENTERED on January 13, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 13, 1993. APPENDIX Rulings on Petitioner's Proposed Findings 1-6: adopted or adopted in substance. 7-8: rejected as irrelevant. 9-18: adopted or adopted in substance. 19: rejected as irrelevant. 20-35: adopted or adopted in substance. 36: rejected as irrelevant. 37-39: adopted or adopted in substance. 40: rejected as irrelevant. Nothing requires that Petitioner make "every effort" to help Respondent through the means cited. 41: adopted or adopted in substance. 42: rejected as subordinate. 43-44: adopted or adopted in substance. 45: rejected as irrelevant. 46: adopted or adopted in substance. 47-48 (first three sentences): rejected as irrelevant. 48 (last sentence)-53: adopted or adopted in substance. 54-56: rejected as irrelevant. 57-59: adopted or adopted in substance. 60-61: rejected as irrelevant. 62: adopted or adopted in substance. 63: rejected as irrelevant. 64-65: adopted or adopted in substance. 66: rejected as subordinate. 67-69: adopted or adopted in substance. 70: rejected as subordinate. 71-74: adopted or adopted in substance. 75-76: rejected as subordinate. 77-78: adopted or adopted in substance. 79: rejected as hearsay. 80-85: adopted or adopted in substance. 86: rejected as irrelevant. 87-92: adopted or adopted in substance. 93: rejected as subordinate. 94: rejected as irrelevant. 95-100: adopted or adopted in substance. 101: rejected as irrelevant. In fact, to permit either student to leave the classroom would violate Paragraph 11 of the Classroom Management section of the Teacher Handbook. 102: rejected as irrelevant. Mr. Smith wore sunglasses indoors during part of the hearing. 103-04: rejected as irrelevant. 105: rejected as subordinate. 106-17 (first sentence): adopted or adopted in substance. 117 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 118: rejected as irrelevant and subordinate. 119: rejected as hearsay. 120-34: adopted or adopted in substance. 135-37: rejected as irrelevant. 138: adopted or adopted in substance. 139: rejected as irrelevant. 140: adopted or adopted in substance. 141: rejected as irrelevant. 142-43: adopted or adopted in substance. 144: rejected as subordinate. 145-46: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-7: adopted or adopted in substance. 8-10: rejected as irrelevant. 11-14: adopted or adopted in substance. 15-17 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 17 (second sentence): adopted or adopted in substance. 18-19: rejected as unsupported by the appropriate weight of the evidence. 20: adopted or adopted in substance. 21-22: rejected as subordinate. 23-24: rejected as unsupported by the appropriate weight of the evidence. 25-26: rejected as subordinate. 27-28 (first sentence): adopted or adopted in substance. 28 (second sentence)-29: rejected as unsupported by the appropriate weight of the evidence. 30: adopted or adopted in substance. 31: rejected as unsupported by the appropriate weight of the evidence. 32: rejected as subordinate. 33: rejected as unsupported by the appropriate weight of the evidence. 34: rejected as unsupported by the appropriate weight of the evidence. This provision governs only when Petitioner must refer matters to the Department of Education. 35: rejected as subordinate. 36: rejected as unsupported by the appropriate weight of the evidence. 37-39: adopted or adopted in substance except as to meaningful follow-up conferences. 40-41: rejected as unsupported by the appropriate weight of the evidence. 42: rejected as irrelevant. COPIES FURNISHED: Superintendent Richard Farmer Highlands County School District 426 School St. Sebring, FL 33870-4048 Commissioner Doug Jamerson Department of Education The Capitol Tallahassee, FL 32399-0400 James F. McCollum James F. McCollum, P.A. 129 S. Commerce Ave. Sebring, FL 33870-3698 Anthony D. Demma Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302
The Issue The issue is whether Respondent should be terminated from her position as an instructional employee for gross insubordination and being willfully absent from duty.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this termination case, Petitioner, Lake County School Board (Board), seeks to terminate Respondent, Brenda Armstead, an instructional employee, on the ground that she was willfully absent from duty without leave and guilty of gross insubordination by virtue of having repeatedly refused to report to her job assignment. In a letter dated May 26, 2000, Respondent asked for a hearing "as soon as possible," contending that the "termination was illegal." In school year 1999-2000, Respondent was employed as a teacher at Lake Hills School in Eustis, Florida, where she taught 3 to 5-year-old children with severe emotional disabilities. In September 1999, Respondent was arrested for stalking. However, the criminal charges were later dropped or reduced to a lesser charge. Pending the disposition of the matter, Respondent continued working in the classroom. In January 2000, Respondent reported to her supervisor that she had been exposed to "CMV," an infectious viral disease. Despite being tested as negative, Respondent continued to have concerns with her health and began to exhibit unusual or bizarre behavior in the classroom. Among other things, Respondent constantly wore gloves in the classroom, avoided physical or close contact with her aides, and exhibited other unusual habits or practices. She also began sending "unusual" correspondence to the Superintendent. Because of this, she met with her principal and the Board's Assistant Superintendent on February 14, 2000. At that meeting, Respondent was orally directed to report to the Board's MIS Copy Center (Copy Center) effective immediately until she "could meet with a medical doctor." This action was authorized by School Board Policy 6.171(4), which allows the Board to "require a physical, psychological, and/or psychiatric examination by a physician licensed in the state of Florida when in the School Board's judgment such an examination is relevant to the teaching performance or employment status or a School Board employee." Given Respondent's behavior, the transfer to a non-teaching position was also appropriate and necessary since Respondent was working with emotionally handicapped children. Accordingly, the Board arranged for an evaluation of Respondent by a Dr. Kendall on February 17, 2000; that physician recommended that Respondent be further examined by a psychiatrist. By letter dated February 24, 2000, the Board's Superintendent again directed Respondent to report to the Copy Center for temporary duty pending the results of the examination. The letter was hand-delivered to Respondent on February 25, 2000. Despite both orders, Respondent never reported to work at the Copy Center. Although she "came on campus" a couple of times, she never returned to work. She was later given another oral instruction by telephone on March 16, 2000, by the Board's Assistant Superintendent. By certified mail sent on April 13, 2000, the Board's Superintendent again directed Respondent to report to work, and he warned that if she did not do so by April 19, 2000, she would be subject to being terminated for being absent without leave, gross insubordination, and willful neglect of duties. Respondent received the letter the following day. Even so, she never reported to work. It is fair to infer from the evidence that Respondent was willfully absent from work without leave. On April 21, 2000, the Superintendent recommended to the Board that Respondent be terminated because of her "continuing intentional refusal to report to work despite repeated direct orders, reasonable in nature, and given by and with proper authority to do so." This recommendation was accepted by the Board at its meeting on May 8, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order determining that Respondent is guilty of gross insubordination and being willfully absent without leave, and that she be terminated as an instructional employee for just cause. DONE AND ENTERED this 16th day of August, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2000. COPIES FURNISHED: Dr. R. Jerry Smith, Superintendent Lake County School Board 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Stephen W. Johnson, Esquire McLin, Burnsed, Morrison, Johnson, Newman & Roy, P.A. Post Office Box 491357 Leesburg, Florida 34749-1357 Brenda Armstead 32412 Crystal Breeze Lane Leesburg, Florida 34788 Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Petitioner has just cause to terminate Respondent's employment as an educational support employee, on the basis that Respondent failed to satisfactorily and efficiently perform his assigned job duties, and/or he committed gross insubordination and willful neglect of duties.
Findings Of Fact The allegations against Respondent are set forth in the Petition for Termination of Employment (the Petition), dated August 7, 2008, and filed with DOAH on September 12, 2008. Respondent was employed as a custodian with the Lee County School Board (Petitioner) since January 12, 2000. He currently is assigned to Riverdale High School. The position of custodian is an educational support employee. Carl Steven Adams (Adams) is assistant principal for administration at Riverdale High School. He was responsible for all matters relating to the school maintenance, including supervision of custodians. Adams prepared Respondent's annual performance assessment for each of the 2005-2006, 2006-2007, and 2007-2008 school years. Adams scored Respondent's performance in the 2005-2006 year as achieving an effective level of performance, the highest possible score, in all 28 areas targeted for assessment. For the 2006-2007 and 2007-2008 school years, Respondent worked the evening shift and was assigned to clean the gym, the boys' locker rooms, the band room, the chorus room, three portable classrooms, the agricultural hallway, the football restrooms, and a portion of the cafeteria. During the 2007-2008 school year, after Respondent requested assistance, he was relieved of cleaning the boys' locker rooms and was assigned eight additional portable classrooms. For the 2006-2007 school year, Adams scored Respondent as achieving an effective level of performance in 18 of the 28 areas targeted for assessment, including "completes requests and directives in a timely manner," "begins tasks with minimum of direction," "maintains continuous workflow," and "takes advantage of available training opportunities." Respondent received a lower score of "focus for development/feedback" in ten areas targeted for assessment. Those areas that needed improvement included "effectively plans, schedules and controls work"; "completes a reasonable amount of work in a timely manner"; and "seeks to improve quality and efficiency of work." Adams testified that he did not score Respondent as performing at an "unacceptable level of performance observed," because he did not have any written documentation to that effect. On September 4, 2007, Respondent was issued a "letter of warning regarding allegations of incompetence in reference to your job," which "directed [him] to pay closer attention to [his] assigned job duties, ask for assistance when needed, and ask for instructions and guidance in defining [his] job duties." No evidence of documented performance deficiencies relating to Respondent was offered in evidence for the first semester of the 2007-2008 school year. The Petition and Joint Pre-hearing Stipulation listed only alleged performance deficiencies commencing on or after January 7, 2008. On January 7, 2008, Respondent was charged with failing to perform his duties as instructed after allegedly being instructed by his supervisor to clean the restrooms at the football field. Respondent's immediate supervisors were the building supervisor and head custodian, neither of whom testified at the hearing. Respondent testified that he indeed had cleaned the restrooms twice that day, but the attendees at a swimming meet on that date used the facilities and "messed" them up. Respondent's testimony was credible. On January 10, 2008, Respondent is alleged to have been instructed to clean the cafeteria, in preparation for an open house that evening, and failed to perform the duties as instructed. Upon entering the main building after cleaning his assigned portable classrooms, Respondent was notified of the open house. Respondent testified that he and the other custodians were informed of the open house only one hour before the commencement of the event. The lunch tables had been pushed into his designated area so the other custodians could complete cleaning their respective sections of the cafeteria. He therefore had to wait for the removal of the tables before he could attend to his section. He hurriedly attempted to clean his area, but was not afforded sufficient time to properly clean the area before the entry of the public. On January 25, 2008, Respondent was charged with failing to perform his duties as instructed after the school athletic director allegedly instructed Respondent to clean the gymnasium, locker rooms, and lobby restrooms in preparation for a wrestling tournament. As with the building supervisor and head custodian, the athletic director did not testify at the hearing. Respondent, however, testified that he had cleaned the gym, locker rooms, and lobby restrooms. However, participants and others at a dance and/or choir event remained past the end of Respondent's shift at 11:00 p.m. and left the lobby and restrooms a mess. This resulted in the restrooms not being presentable to the public. On March 18, 2008, Respondent was charged with having failed to clean one of his regularly assigned areas: the agricultural hallway. Respondent testified that it is difficult to keep this hallway clean, because it has a door at the end that opens to the outdoors and leaves and debris blow into the hallway when there is a draft. The hallway also is located by the varsity athletes' locker room; foot traffic from the locker room to and from the playing fields can contribute to the hallway appearing messy even after its been cleaned. Respondent testified that he was only responsible for the tiled section of the hallway and that he regularly cleaned it. Adams conceded that he was only told of Respondent's alleged failure to clean the hallway and did not independently verify the charge. Adams also acknowledged that March 18, 2008, was a Tuesday night. Tuesday nights are usually very active at the school, during that time of year. It was entirely possible that Respondent had cleaned the hallway and that foot traffic from the varsity athletes' locker room could have caused it to become dirty. On March 19, 2008, Adams personally found the restrooms on the south end of the football field "too disgusting to be opened for the lacrosse game." Respondent testified that these restrooms are supposed to remain locked and be cleaned only as needed. However, periodically people access them and leave the facilities dirty. Respondent discussed the problem with Adams, and he was assured the restrooms would remain locked. On March 19, 2008, Respondent had not been informed that there was a scheduled lacrosse game, and, thus, was unaware of the need to check on the condition of the restrooms. Adams did not know whether anyone had, in fact, notified Respondent of the scheduled lacrosse game. On March 24, 2008, Respondent received a letter of reprimand from Adams recounting the foregoing alleged performance deficiencies on January 7, 10, and 25; and March 18 and 19, 2008. The following day, Adams presented Respondent with his 2007-2008 annual performance assessment, scoring Respondent as unacceptable in four areas targeted for assessment. It included: "begins tasks with minimum direction," "seeks to improve quality and efficiency of work," and "inconsistently practiced" in ten areas targeted for assessment. It also included: "completes a reasonable amount of work in a timely manner," "achieves expected results with few errors," and "completes requests and directives in a timely manner." The letter of reprimand, issued the previous day, furnished the requisite documentation for Adams to give Respondent a poor performance assessment for the year. Adams' testified that Respondent's letter of reprimand, delivered to Respondent one day before the negative performance assessment, was "coincidental." The letter of reprimand Respondent received March 24, 2008, cautioned Respondent that "[f]rom this point forward, you are to follow all directives given to you by your supervisors. Failure to comply with these directives will result in disciplinary action up to and including dismissal." Adams failed to contemporaneously notify Respondent of the now documented performance deficiencies, thus, preventing Respondent a timely opportunity to rebut the charges or remediate his performance. In the second semester of the 2007-2008 school year, Nancy Bell (Bell) sent Adams a total of six e-mails complaining about Respondent's work performance in her room, two of which were on successive days regarding the same complaint and three of which were in the course of one week in March. Bell directed her e-mail complaints about Respondent's performance solely to Adams and did not notify Respondent or his immediate supervisors about her complaints. Bell testified that she was instructed by Adams to follow this protocol. On April 24, 2008, Respondent was provided a letter of reprimand dated April 23, 2008, that outlined the following issues with his performance: Bell's classroom was not cleaned; Respondent was sleeping in the custodial room on April 16, 2008, at 9:15 a.m.; and Respondent's job performance has been below the standards required by the school and Petitioner. In this letter of reprimand, Adams wrote that he had "received six e-mails from one of the teachers in a classroom in your area of responsibility that describe unclean conditions and unsatisfactory work being done by you." Adams previously instructed the teachers at the school that if they had any concerns regarding the cleanliness of their room, they were to e-mail him. Bell is the only teacher to register a complaint with Adams about Respondent's work performance in her classroom, even though Respondent had the responsibility for cleaning three classrooms initially during the 2007-2008 school year and eight additional classrooms when he was relieved of cleaning the boys' locker rooms. Adams never spoke with Respondent about Bell's complaints until he presented the letter to Respondent on April 24, 2008. Although two of Bell's complaints predated his delivery of the first letter of reprimand to Respondent, Adams neglected to reference either of those complaints in the initial letter of reprimand. At the time, Adams simply referred Bell's complaints to the building supervisor and head custodian and relied on those individuals to address the matter with Respondent. Adams does not know when, or if, they did so; nor does he know whether Respondent was ever shown the e-mails prior to April 24, 2008, and, thus, had an opportunity to address her concerns. The evidence presented by Respondent satisfactorily explained the complaints received by Adams in regard to Respondent's performance of his duties on February 12, March 24, March 26, March 28, and April 10, 2008. The April 23, 2008, letter of reprimand also accused Respondent of having been discovered by his supervisor sleeping at 9:15 a.m. during spring break in 2008 when he was working daytime hours. Petitioner did not present any evidence to substantiate this charge, and Respondent vehemently denied ever sleeping on the job. Petitioner failed to prove this charge. There were occasions when upwards of three custodians would be absent from work. The custodians reporting for duty would have to clean the absent custodians' areas. Consequently, they would have less time to devote to their regularly assigned areas. Petitioner did not establish whether the custodial staff was always at full strength on the occasions when Respondent is accused of performing less than an adequate job of cleaning. Petitioner's investigator, Craig Baker (Baker), conducted a tour of the areas assigned to Respondent. He testified that he performed his inspection on Tuesday, May 20, 2008, at approximately 5:30 a.m., when the school was first opened and there had not been any activity in the school following the conclusion of the custodians' shift from the night before. He documented Respondent's alleged performance deficiencies with a digital camera. Due to his unfamiliarity with the operation of the camera, the photographs were of poor quality, and Petitioner elected not to introduce them into evidence. Baker detailed the results of Respondent's assigned work area. Baker testified that there was loose dirt and paper along the baseboard in the gym and that "it appeared that it had not been swept or cleaned from the evening or the day before." In the restrooms adjacent to the gym he noted "there was one toilet that had unflushed feces. It had not been flushed from the night before." Baker testified that, although the band room "looked adequately clean," he observed that in Bell's classroom there was "paper underneath one of the desks," "old gum stuck on the back of a desk," and "dust along the area adjacent to a computer that had not been dusted in some time, it appeared to me." Baker testified that, in the lunchroom, he observed "[s]everal trash cans that had not been emptied from the day before. They had trash in it, paper from food goods, things like that." Finally, Baker testified that he saw, "primarily in the hallway where the lockers were, one particular area there was [sic] loose screws where a maintenance worker had been doing some work that had not been cleaned for several hours, students could trip on them." Based on this inspection, Baker concluded that Respondent's work performance had not improved from the year before. However, Baker admitted on cross-examination that, based on the date stamped on the photographs he took while conducting his tour of Respondent's areas, the actual date of his inspection was Monday, May 19, 2008, at 5:30 a.m. He acknowledged that Respondent's last work shift preceeding the inspection was Friday, May 16, 2008. Baker did not know what athletic events or activities occurred at the school over the weekend. He admitted that the feces in the toilet could have been placed there after Respondent completed his shift on Friday and before Baker conducted his tour. He was unable to state whether the other deficiencies he noted were the consequence of people being in the building or activities occurring over the weekend. Charles Drayton, a custodian at the school for six or seven years, testified that, during the 2007-2008 school year, he stood in as acting head custodian when Floyd Davison, the head custodian, was absent. He explained that when he was acting head custodian, and it was necessary to clean the area of another custodian who was sick or absent, he would have all the custodians assemble at the absent custodian's assigned area and clean it en masse before returning to their individual job assignments. He testified that on those occasions Respondent did a good job and that he performed with the same level of professionalism as every other custodian. Charles Drayton's testimony was credible. Respondent was assigned to clean the large areas in the school that had a lot of foot traffic. In regard to the difficulties Respondent experienced cleaning the boys' locker rooms, it is not uncommon for a custodian to clean the locker room, complete his shift, and leave only to have the athletes return from a game and "make a mess of it" resulting in his supervisor accusing him of not cleaning the area. There are a number of athletic events and other activities at the school that extend past the 11:00 p.m. termination of the custodians' shift. For both the 2006-2007 and 2007-2008 school years, Respondent was responsible for cleaning the agricultural hallway, cleaning the bleachers, as well as cleaning the locker rooms. These are high foot traffic areas. With athletic events not concluding until 10:00 p.m. or later, and athletes returning from away games following the conclusion of Respondent's shift, Respondent would be pressed for time to thoroughly clean those areas or would have already cleaned them only to have them appear to be messy, even after they have been cleaned. Since Respondent commenced working for Petitioner, he received one probationary performance assessment and nine annual performance assessments. With the exception of his last two years at Riverdale High School, i.e., the 2006-2007 and 2007-2008 school years and one year at Franklin Park Elementary School in the 2004-2005 school year, Respondent scored at an "effective level of performance" in all areas targeted for assessment. There was no probable cause for disciplinary action against Respondent for alleged incompetence in the 2004-2005 school year at Franklin Park Elementary School. Petitioner rescinded Respondent's dismissal and placed Respondent at Riverdale High School for the 2005-2006 school year. In Respondent's probationary and 1999-2000 annual performance assessments, Respondent's supervisor wrote favorable comments in the comments section regarding Respondent's performance. In his succeeding three years at Bayshore Elementary, his supervisor also wrote favorable comments on his 2000-2001, 2001-2002, and 2002-2003 annual assessments. Two classroom teachers at Riverdale High School, Michael Skocik and Christy Danielson, testified that they were very satisfied with Respondent's work performance during the 2006-2007 and 2007-2008 school years, and that he kept their classrooms clean. The evidence is insufficient to constitute just cause to terminate Respondent's employment. Petitioner did not call as witnesses Respondent's supervisors, the building supervisor, and head custodian, nor did it call the athletic director, to refute Respondent's testimony that he complied with their directives and satisfactorily performed his assigned job duties within the constraints presented by the unique nature of his job assignment. The greater weight of evidence established that Respondent satisfactorily and efficiently performed the large majority of his assigned job duties and that Respondent had a reasonable explanation and justification for those of his admitted deficiencies. Petitioner did not prove by a preponderance of evidence its charge that Respondent committed gross insubordination and willful neglect of duties, as those terms are defined in Florida Administrative Code Rule 6B-4.009(4), by continuously refusing to perform the custodial tasks assigned to him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the Petition for Termination of Employment, reinstating the employment of Respondent, and awarding Respondent full back pay and benefits to September 10, 2008. DONE AND ENTERED this 13th day of February, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2009. COPIES FURNISHED: James W. Browder, Ed.D. Superintendent of Schools The School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert J. Coleman, Esquire Coleman & Coleman Post Office Box 2089 Fort Myers, Florida 33902-2089 Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966
The Issue Whether Respondent violated sections 1012.795(1)(g), and (j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(c)1.,1 as alleged in the Administrative Complaint and, if so, the appropriate penalty. 1 Unless otherwise noted, all citations to the Florida Statutes and the Florida Administrative Code are to the 2017 versions in effect at the time of the alleged violations.
Findings Of Fact Respondent holds Florida Educator’s Certificate 784361, covering the areas of Educational Leadership, Emotionally Handicapped, English for Speakers of Other Languages (ESOL), Physical Education, School Principal, and Specific Learning Disabilities, which is valid through June 30, 2021. Since 2001, Respondent has held a number of positions with Citrus County Schools, including positions as an ESE teacher, dean of students, assistant principal, and principal. At the time of the hearing, Respondent was working as an ESE teacher at Citrus Springs Middle School. During the time period pertinent to the allegations in the Administrative Complaint (the 2016-2017 school year), Respondent was employed as an assistant principal at Crystal River Middle in Citrus County Schools. Respondent began as an assistant principal at Crystal River Middle in 2015. At Crystal River Middle, Respondent worked closely with the ESE department, the ESE teachers, aides, paraprofessionals, and Cori Boney, who was the ESE specialist for Crystal River Middle. Ms. Boney had worked throughout Citrus County in a number of ESE- related positions before starting at Crystal River Middle in 2011 or 2012 as the ESE specialist. As the ESE specialist, Ms. Boney was responsible for preparing the individual education plan (IEP) paperwork for ESE students, mentoring the ESE teachers, preparing schedules for the ESE paraprofessionals, and working with the families of ESE students. According to Respondent, Ms. Boney was the “go-to” person to find out whether the proper educational and behavioral strategies were being appropriately carried out for ESE students in accordance with their IEPs. Respondent described Ms. Boney as “a guru professionalist, the know-it-all, that tells us when these things [IEP requirements] are happening and when they’re not.” Ms. Boney was considered part of the administrative team. Respondent did not supervise Ms. Boney. At the beginning of the 2016- 2017 schoolyear, administrators were provided a list of employees they supervised and evaluated. On that list, the principal of Crystal River Middle, Inge Frederick, was listed as Ms. Boney’s supervisor. Respondent never evaluated Ms. Boney’s performance, did not provide input on her evaluations, and did not collaborate with the principal on Ms. Boney’s evaluations. Respondent had no authority to discipline Ms. Boney and was not responsible for recommending whether Ms. Boney’s employment contract should be renewed each year. 2 In 2016, Respondent’s relationship with Ms. Boney became more than just a professional relationship. In May 2016, Respondent had double knee surgery. Ms. Boney called him and asked how he was doing. During school administrative meetings held in the early part of the 2016-2017 school year, the subjects of conversation between Respondent and Ms. Boney, as well as other school administrators and staff, would stray away from the business of education to television shows and other casual conversations that were not related to the business of education. Afterwards, Respondent and Ms. Boney would sometimes exchange text messages regarding TV shows. In some of those text messages Ms. Boney would give her opinion as to whether certain actors were handsome, and comment on other non-education related subjects. Over time, the texting and conversations between Respondent and Ms. Boney became more personal, involving subjects regarding Ms. Boney’s former husband, the people she was dating, and clothing she would wear. Respondent also gave Ms. Boney advice regarding her son, who was having trouble at school. Respondent talked to Ms. Boney’s son about how to make better decisions and, at least once, at Ms. Boney’s request, stopped by Ms. Boney’s house to talk to her son. 2 Section 1012.34(3)(c) provides in pertinent part, “The individual responsible for supervising the employee must evaluate the employee’s performance.” Having become somewhat familiar, on one occasion, Respondent told Ms. Boney while they were at school that he knew “her secret.” When he explained to her that he meant he could see her underwear under her clothing, she was embarrassed. But it did not cause an argument or disagreement between them. Respondent and Ms. Boney’s relationship became intimate in the fall of 2016. At the time, Ms. Boney was in a relationship with someone else and Respondent was married. In September 2016, Respondent stopped by Ms. Boney’s house, and while there, he gave her a kiss. It surprised Ms. Boney, but she did not protest. Later, after initially resisting suggestions from Respondent that they should lay together and that nothing would happen, Ms. Boney finally gave in. Contrary to Respondent’s suggestions that nothing would happen, they ended up having sex. After that, Respondent and Ms. Boney met and engaged in sexual intercourse on a number of occasions. Traveling in separate cars, they spent the night together at a motel in Tallahassee on November 23, 2016, and again during the weekend of April 7 through 9, 2017. They also met for two afternoons at a Quality Inn in Crystal River. On another occasion, they met at Respondent’s house. On Valentine’s Day, February 14, 2017, Respondent gave Ms. Boney a tanzanite bracelet. Their affair lasted until sometime in April 2017, when Ms. Boney decided to end it. Their relationship was consensual. While Ms. Boney testified that Respondent was resistant to Ms. Boney’s decision to end the affair and thwarted her attempts to limit contact with him, that testimony, in light of their continued relationship, is unpersuasive. Moreover, the evidence does not show that Respondent used his position as an assistant principal to either begin the affair or resist its end. Ms. Boney and Respondent continued to be friends after the affair. Ms. Boney sought a job in Marion County because she wanted a leadership position. Her application for the position in May 2017 lists Respondent as a reference. In approximately July 2017, Ms. Boney was hired for a new administrative position in Marion County as an ESE coordinator. Around the same time, Respondent was promoted to assistant principal at Crystal River High. Ms. Boney continued her friendship with Respondent. In July 2017, she stopped by Respondent’s office at Crystal River High and brought Respondent a gift. She visited him on more than one occasion at Crystal River High that year. When, in August 2017, Ms. Boney decided to move to Marion County, she asked Respondent for his assistance and Respondent helped her pack for the move. Throughout the 2017-2018 school year, Respondent and Ms. Boney remained friends and exchanged e-mails. On August 24, 2018, Ms. Boney sent a message to Respondent that said, “You can call my office anytime.” Less than 30 days later, in September 2018, Ms. Boney’s boyfriend, Josheau Fairchild, used an application on Ms. Boney’s cell phone and extracted text messages exchanged between Ms. Boney and Respondent evidencing their affair during the 2016-2017 school year. Mr. Fairchild angrily confronted Ms. Boney and demanded that she explain the relationship. When confronted, and at the final hearing, Ms. Boney portrayed her relationship with Respondent in a light most favorable to her. Although admitting her relationship with Respondent was consensual, she portrayed herself as always being uncomfortable with the relationship and trying to end it. Specifically, Ms. Boney testified that she repeatedly tried to stop the relationship, blocked Respondent on her cell phone, and texted Respondent to stop texting her. Ms. Boney further testified that she left Citrus County Schools for a position with the Marion County School District because Respondent made her feel alienated from other staff. Ms. Boney’s testimony in that regard is not credible and inconsistent with evidence clearly showing that Respondent and Ms. Boney had a friendly and cordial relationship before Mr. Fairchild extracted the text messages in question. Those text messages demonstrate that the relationship between Respondent and Ms. Boney was mutual and consensual. They provide no evidence that Ms. Boney was uncomfortable with their relationship or attempted to block off communications with Respondent prior to Mr. Fairchild’s discovery of the text messages. Notably, it was Ms. Boney’s boyfriend, Mr. Fairchild, who, after discovering the text messages, first contacted Citrus County School’s human resources department to complain about Respondent. At the time, Ms. Boney was no longer working for Citrus County Schools and her affair with Respondent had ended well over a year before the complaint. Although the evidence clearly showed that Respondent and Ms. Boney had an affair, it was insufficient to show that Respondent’s past relationship with Ms. Boney during the 2016-2017 school year reduced his effectiveness or ability to perform his duties. Rather, the evidence demonstrated that Respondent satisfactorily performed all of his job duties during the 2016-2017 school year. Both Respondent and Ms. Boney received final summative performance ratings of “Effective” and “Highly Effective,” respectively. The following year, Respondent was promoted to the position of assistant principal at Crystal River High for the 2017-2018 school year. Respondent received an “Effective” final summative performance evaluation for the 2017-2018 school year. Subsequently, Respondent was promoted to the position of principal at Crystal River Middle, the position he held when Ms. Boney’s boyfriend extracted the subject texts in the fall of 2018, which revealed Ms. Boney’s affair with Respondent that had ended over a year before. In addition to the allegation of the affair itself, the Administrative Complaint alleges, “When questioned about the incident, Respondent first admitted to the sexual relationship with the teacher. During the same interview, Respondent lied, and denied having a sexual relationship with the teacher.” Respondent was first questioned by the school district regarding his affair with Ms. Boney during a meeting held at the school district’s office on October 5, 2018, between Respondent, Suzanne Swain, and Brendan Bonomo. Respondent believed the meeting was going to be about an unrelated matter. Ms. Swain instead advised Respondent that complaints had been filed against him by both Joshua Fairchild and Cori Boney. At the time, not believing he would need representation, Respondent waived his right to representation. When told of Ms. Boney’s accusations at the onset of the meeting, Respondent became angry and hurt. He thought about the injustice of Ms. Boney’s allegations and how hard he had worked to obtain his position as a principal. He was upset and “not with it,” during the meeting. The evidence is unclear whether, during that meeting on October 5, 2018, Respondent was provided with the text messages that Ms. Boney’s boyfriend had extracted. According to Respondent, during that meeting, he admitted sending text messages to Ms. Boney of a sexual nature, but denied having sexual intercourse with her. In contrast, according to the testimonies and written statements signed by both Ms. Swain and Mr. Bonomo, Respondent first admitted and then denied having a sexual relationship with Ms. Boney. The interview was not recorded. At that October 5, 2018, meeting, Mr. Bonomo typed up a statement for Respondent stating: During the time that Cori Boney was under my supervision there was no sexual intercourse but there were inappropriate text messages. Respondent signed the typed statement under an acknowledgement stating that “I find the above statement to be true and correct. I certify that I have read it or it has been read to me.” Both Ms. Swain and Mr. Bonomo signed the typed statement as witnesses. On November 2, 2018, Respondent attended another meeting with Ms. Swain and Mr. Bonomo during which Respondent was given an opportunity to respond to evidence gathered during the school district’s investigation. At that meeting, Respondent was allowed to review the text messages extracted from Ms. Boney’s phone. The school district’s attorney, Tom Gonzalez, was also at the meeting. During the meeting, Respondent denied having a sexual relationship with Ms. Boney, denied giving her a tanzanite bracelet, and denied meeting her at hotels. Respondent reiterated these denials during his testimony at the final hearing. Then, at a later meeting with Ms. Swain and Mr. Bonomo held on November 14, 2018, Respondent was told that his employment as principal of Crystal River Middle was going to be terminated. To that, Respondent said something to the effect of, “After 20 years that’s it, I’m done?” Ms. Swain responded by asking Respondent whether he was requesting a position. When Respondent said yes, Ms. Swain left the room. When Ms. Swain returned, she told Respondent that he would be able to secure a position with Citrus County Schools if he drafted a written admission statement. Ms. Swain influenced the content of Respondent’s statement. She told Respondent that the statement would have to say that he had an inappropriate sexual relationship with Ms. Boney while he supervised Ms. Boney at Crystal River Middle. Respondent dictated a statement to Mr. Bonomo and Mr. Bonomo typed the statement for Respondent to sign. The statement, which was dated and signed by Respondent on November 14, 2018, states: Ms. Himmel and the Executive Team, I am formally requesting an instructional position with Citrus County Schools. I acknowledge that I had an inappropriate relationship with Cori Boney during the time she was an ESE Specialist at Crystal River Middle School while I was the Assistant Principal at Crystal River Middle School and I supervised Ms. Boney. I am remorseful for my actions and I want to extend my heartfelt apologies to Mrs. Himmel and the entire Crystal River Community. I appreciate Mrs. Himmel consideration with this request. Sincerely, /s/ Charles Brooks, Jr. After submitting his written statement, Respondent was offered, and he accepted, a position as an ESE teacher at Citrus Springs Middle. Respondent received an “Effective” final summative performance evaluation for his position as an ESE teacher for the 2018-2019 school year. Despite the fact that Respondent, in essence, was demoted from his position as a school principal to a classroom teacher, the Commissioner seeks a two-year suspension of Respondent’s educator’s certificate. A two-year suspension would result in Respondent’s loss of his current position and cause him significant hardship.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued finding that Respondent did not violate section 1012.795(1)(g), Florida Statutes, and dismissing the allegations of the Administrative Complaint in that regard, and further finding that Respondent violated section 1012.795(1)(j), Florida Statutes, by failing to maintain honesty in all professional dealings as required by Florida Administrative Code Rule 6A-10.081(2)(c), but not imposing any further discipline against Respondent or his educator’s certificate, other than the demotion he has already received from the Citrus County School District. DONE AND ENTERED this 20th day of October, 2020, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 20th day of October, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Lisa Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
