The Issue Whether Respondent violated sections 1012.795(1)(g) and 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(2)(a)1. and 6A-10.081(2)(c)1., as alleged in the Administrative Complaint; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Based on the evidence, testimony, and stipulated facts, the following Findings of Fact are made. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is then responsible for filing a formal complaint and prosecuting the complaint pursuant to chapter 120, if the educator disputes the allegations in the complaint. Respondent holds Florida Educator Certificate No. 834897, covering the areas of elementary education, English for Speakers of Other Languages (“ESOL”), and varying exceptionalities, which is valid through June 30, 2023. At the time of the allegations in the Administrative Complaint, Respondent was employed as an exceptional student education (“ESE”) teacher at Wyomina Park Elementary School (“WPES”) in the Marion County School District (“MCSD”). Ms. Miller has served as an elementary education teacher since the 2000-01 school year. Thus, she has a 20-year career with MCSD. From 2008 to 2018, Respondent taught third, fourth, and fifth grades at Reddick Collier Elementary (“Reddick Collier”’). Since she holds certification in ESE, she also taught ESE inclusion students in her general education classrooms. However, she has never taught a classroom of only ESE students. In 2018, Respondent’s value-added model (commonly referred to as VAM) scores rendered her ineligible to continue teaching at Reddick Collier because it was one of the District’s lowest performing schools. As a result, she was involuntarily transferred to WPES. Ms. Baxley testified that Respondent was initially assigned to teach students with academic issues, not behavioral issues. The initial assignment was consistent with her experience and previous work with ESE inclusion students. Respondent had maintained certification in ESE so that she could better serve academically low-performing ESE students in a general education inclusion environment. While Respondent had training in an inclusion environment, she did not have training or certification in Treatment and Education of Autistic and Communication Handicapped Children (“TEACCH”) or Crisis Prevention Intervention de-escalation techniques for use with students with behavioral issues. Ms. Baxley believed that Respondent had been trained to work with children with behavioral issues. After the initial assignment, students were reassigned between Ms. Miller and Patricia Poag. Respondent became responsible for only students with behavioral issues. Some of the students assigned to Respondent had extensive behavioral issues to the extent they required medication treatment. Respondent’s new assignment was a kindergarten through second grade self-contained ESE class of 12 to 13 students. Generally, a self- contained ESE classroom is a group environment with students who have special needs. Respondent’s students required increased supervision, structure, visuals, and very specific direct instruction. Respondent, Ms. Davis, and Ms. Poag testified that the classroom assignment was very “challenging, overwhelming, and distressing.” The new classroom structure included six or seven more students than previously assigned. Respondent had one paraprofessional to assist with supervision of the students. Respondent requested additional staff support, but never received it. In addition to learning to navigate the struggles with the student’s behavioral issues, Respondent was struggling with paperwork. Respondent made the effort to get help with completing necessary documents and learning how to complete IEP’s and behavior plans. She had no experience in completing these documents, or in working with “severe maladaptive behaviors” before being assigned to WPES. Allegations Involving Classroom Management As an ESE instructor, Ms. Miller’s primary responsibility was to ensure compliance with services or accommodations required for ESE students assigned to her classroom. Gina Gazzaniga is the MCSD ESE specialist. Her primary responsibility is to ensure compliance with services/accommodations required for all ESE students. Ms. Gazzaniga visited Respondent’s classroom. While in Respondent’s classroom, Ms. Gazzaniga observed students run on tables, throw items, and elope from the classroom unsupervised. Ms. Gazzaniga testified that while students were engaged in this conduct, Respondent did not intervene. Ms. Gazzaniga also testified that when students eloped from the classroom, they would typically go to the Guidance office or the Dean’s office. Ms. Gazzaniga had the Behavior Team (behavior tech, behavior specialist and analyst, and school academic coaches) assist with structure and behavior/classroom management strategies in Respondent’s classroom. The team implemented procedures to help prevent students from eloping. However, Respondent would change the practices the behavior team implemented. Respondent testified that some of the practices put into place were not effective. For example, when tables were lowered, the students increased their jumping from table to table. In addition, the assistance button was not within the reach of the teachers in the classroom. Ms. Gazzaniga’s overall assessment was that she saw “limited improvement, or refusal to follow taught strategies.” Other members of the WPES administration expressed concerns about Respondent’s classroom management. While visiting Respondent’s classroom, Ms. Baxley, along with Kendra Hamby, saw student W.H. pulling the hair of M.D. W.H., a male student, dragged M.D., a female student, by her hair as she screamed. Ms. Baxley testified that she heard Respondent say “stop.” Ms. Baxley then approached the students and removed W.H.’s hand from M.D. so that he would “stop pulling M.D. around like a caveman on the floor.” Ms. Baxley testified that Respondent did not intervene to help M.D., but rather “she just stood there.” Ms. Hamby testified that “Ms. Miller was standing there, not intervening, not saying or doing anything. So that was extremely concerning.” On another occasion, while in Respondent’s classroom, Ms. Baxley saw students hitting each other with containers. Ms. Baxley testified that Respondent did nothing to intervene. Respondent testified that she approached the students and instructed them to return the containers. Jennifer Foster was a paraprofessional assigned to Respondent’s classroom. On one occasion two students were running around the room, fighting, and chasing each other. Ms. Foster tried to “get in the middle to separate them and they both ran behind the big solid wooden table.” When Ms. Foster went in front of the table in an effort to separate them, the two students picked up the table and tossed it over on the side. Ms. Foster was able to move one foot out of the way, but the table landed on her other foot. Ms. Foster testified “I eventually got up and hobbled over to push the panic button and asked for assistance.” Her foot was injured as a result of the incident involving the students. Ms. Foster indicated that Respondent did not assist her. Allegations Involving Failure to Supervise Students In addition to concerns about classroom management, the Administrative Complaint alleged Respondent failed to supervise students. One of those incidents involved K.C. K.C. was one of Respondent’s kindergarten students. He is an ESE student with a medical condition. On September 6, 2018, a teacher informed Assistant Principal Troy Sanford that Respondent’s student, K.C., was found standing at the exit door of a hallway that opens to the playground. Mr. Sanford saw K.C. approaching the exit doors to the playground alone at 11:24 a.m. K.C. stood there alone until 11:29 a.m., at which time the teacher spoke to K.C. After consulting with another teacher, Ms. Hawthorne, about where K.C. belonged, the teacher took him to Respondent’s classroom. Respondent denied allowing K.C. to stand alone in the hallway for several minutes. She testified that while standing at her classroom door, awaiting the arrival of students coming from the restroom, K.C. began to walk from Ms. Davis toward her. This was customary for her students if children needed additional time in the restroom. As K.C. got close to Respondent, L.G.R. began climbing on the top shelf of a bookcase in the classroom. Since their routine was for the students to come into the classroom, she assumed K.C. would follow the customary practice and enter the classroom. Respondent testified that she made a judgment call to turn her attention to L.G.R. to ensure his safety and prevent harm to him. Instead of entering the classroom, K.C. walked down the hallway. Based on the totality of the circumstances, Respondent’s actions were reasonable. A second incident involved a different student. Two first-grade teachers, Nancy P. Neal and Ireina Hawthorne, were outside on the playground with their students. When recess was over, they were gathering their students and doing a head count to go back inside to their classrooms when they noticed there was “an extra child” in line. The student did not belong in their classroom. The student was nonverbal so they could not determine to which classroom he belonged. Ms. Hawthorne assumed that he belonged in Respondent’s class and took the student to Respondent’s classroom. When Ms. Hawthorne took the student to Respondent’s classroom, Respondent “ushered him into the classroom.” Respondent testified that she was in the hallway, counting her students before going to her classroom. She explained that she had a substitute paraprofessional, Ms. Foster, who did not know all of her students. In addition, this was the first time she had Ms. Foster serve as a substitute. To help remedy the issue regarding the student left outside, Respondent asked her assigned paraprofessional not to take breaks or lunch during recess. Whether Respondent was in her classroom (as stated by Ms. Hawthorne) or in the hallway, the student was left outside without her supervision, which could be harmful to the student’s safety. A third incident related to supervision involved student L.G.R. On October 19, 2019, L.G.R. entered Ms. Gazzaniga’s office and hid under a table. The evidence offered at hearing demonstrated that when the student eloped from the classroom, Respondent immediately followed the student into the guidance office. However, she did not see the L.G.R., so she continued to search for him. A minute or so later, Ms. Gazzaniga saw Respondent walk down the hallway towards the main office. Respondent later learned the student was in the guidance office at the time she initially searched that location. However, Ms. Gazzaniga did not alert Respondent that L.G.R. was in her office. Ms. Gazzaniga testified that she “kept an eye on him while he was there.” After a short time, Ms. Gazzaniga went over to L.G.R. and spoke to him. He came from under the table and went to the doorway of the office. At the same time, Respondent was walking back down the hallway and saw L.G.R. and took him back to her classroom. The credible evidence demonstrates that Respondent made reasonable efforts to locate the student by searching for him immediately after his elopement from the room. DP-3 Assessment On September 10, 2018, Ms. Scott gave Respondent a Developmental Profile Third Edition (“DP-3”) to complete for student A.M.S. Students who are developmentally delayed must have a DP-3 completed for re-evaluation to determine what ESE services need to be continued. A DP-3 is an assessment tool used to evaluate nonverbal or low achieving students that have not reached the cognitive level to take an IQ test. MCSD uses the DP-3 to assess the student’s level of achievement. The DP-3 assesses five areas of development, including the child’s cognitive functioning, physical development, communication skills, social, emotional, and adaptive skills. The assessment is completed by completing a series of questions on whether a student can or cannot perform a particular task. Respondent returned the DP-3 to Ms. Scott on September 25, 2018. Respondent circled items indicating a “yes” response. During the hearing, however, Respondent acknowledged the student would not be capable of performing the tasks. In addition, Ms. Scott did not believe A.M.S. could perform the skills for which Respondent answered yes. Based on the evidence offered at hearing, some of the responses Respondent provided on the DP-3 were inaccurate. Performance Assessments Throughout her career, Respondent had been assessed as progressing or effective related to instructional practice as an educator. For the 2018 informal classroom teacher instructional assessment performed by Ms. Baxley, Ms. Cino, and Mr. Sanford, Ms. Miller was assessed as unsatisfactory in multiple areas.1 However, in the areas of criticism, it was also noted that Ms. Miller was engaged in instruction of students. Interestingly, she was criticized for a child wandering to her desk, and then, criticized for leaving the group of students she was working with to redirect the wandering student. In another instance, the observers were critical of a Positive Behavioral Interventions Support plan but Ms. Miller was never trained in the area of behavioral management. For the 2019 informal classroom teacher evaluation, Ms. Miller was assessed effective in each category, including areas where she was assessed unsatisfactory in 2018. Disciplinary Action at WPES For the first time in her career, Respondent received disciplinary action while working at WPES. On or about September 10, 2018, Respondent was issued an oral reprimand for purported failure to supervise the students assigned to her. On or about September 26, 2018, Respondent was issued a written reprimand for misconduct for purported falsification of documents. On or about October 26, 2018, Respondent was issued a written reprimand for alleged failure to supervise a student assigned to her. On or about November 26, 2018, Respondent was issued Step One progressive discipline for substandard performance due to behavioral concerns in her classroom and failure to report grades. On or about December 11, 2018, Respondent was issued a Step Two verbal reprimand regarding substandard performance. 1 In 2018, Ms. Miller was assessed unsatisfactory in the following areas: 2b. establishing a culture for learning, managing student behavior; 3b. using questioning and discussion techniques; and 3c. engaging students in learning. On or about December 18, 2018, Respondent was issued a Step Three progressive discipline written reprimand regarding substandard performance. Respondent’s educator certificate has no prior discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that: Respondent violated the statues and rules as referenced above; Respondent be placed on probation for a period of two years, with conditions to be determined by the Education Practices Commission. DONE AND ENTERED this 31st day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2021. Emily Moore, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Lisa M. Forbess Interim Executive Director Education Practices Commission 325 West Gaines Street, Room 316 Tallahassee, Florida 32399 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 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
The Issue Whether Respondent's educator's certificate should be subject to discipline for the violations alleged in the Administrative Complaint dated May 7, 2003.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record of this proceeding, the following Findings of Fact are made: Respondent, Raymond J. Agostino, holds Florida Educator Certificate No. 385460, covering the areas of educational leadership, elementary education, and English to Speakers of Other Languages, which is valid through June 30, 2005. At all times relevant to this proceeding, Mr. Agostino was employed as an assistant principal at North Fort Myers High School in the Lee County School District. On the morning of May 16, 2003, at about 5:34 a.m., a 911 emergency call was received by the Cape Coral Police Department. A female voice could be heard screaming on the line. The 911 operator asked the caller to state the nature of the emergency. The caller did not identify herself but could be heard screaming, "Get the fuck off of me! Get the fuck off of me!" Michael Carroll, the 911 operator who received the call, testified that when he answers an emergency call, his equipment provides a readout of the caller's phone number and address. Mr. Carroll relays the call to the police department's dispatcher, who in turn dispatches officers to the indicated address. In this instance, the caller identification equipment indicated that the call came from a telephone with the number "458-5077." At the time, this was the phone number of Mr. Agostino and his wife, Pamela Agostino. They resided at 1943 Northeast Fifth Terrace in Cape Coral. Officers Don Donakowski and Jason Matyas of the Cape Coral Police Department were dispatched to the Agostino house at about 5:35 a.m. on May 16, 2003, and arrived in separate cars at about 5:39 a.m. From outside the house, they observed a shirtless male, later identified as Mr. Agostino, in the living room area. They did not see Mrs. Agostino. They knocked on the front door, and Mr. Agostino answered. The officers identified themselves, told Mr. Agostino why they had been sent to the house, and asked him what happened. Mr. Agostino told the officers that he and his wife had been arguing over financial matters but denied that there had been any kind of physical confrontation. Officer Matyas noted that Mr. Agostino was reluctant to provide details of the incident. The officers noted no visible injuries on Mr. Agostino. While talking to Mr. Agostino in the doorway, they observed Mrs. Agostino emerge from the master bedroom. Officer Donakowski went inside the house to speak with Mrs. Agostino, who appeared very emotional, scared, and crying. Officer Donakowski observed that she appeared to have been in a physical altercation. There were scratches and a lump over her right eye and dried blood in her hair. Mrs. Agostino told Officer Donakowski that she and her husband had an argument. She told Officer Donakowski that her husband was bipolar and sometimes would go on binges, including spending money he didn't have. Mrs. Agostino told Officer Donakowski that her husband asked her for a $500 check to pay the mortgage. She told him she didn't have the money, and he became angry and began screaming at her. Fearing for her safety, she ran into the bedroom and locked the door. When Mr. Agostino broke down the door to get to her, Mrs. Agostino grabbed the bedroom telephone and dialed 911. Mrs. Agostino told Officer Donakowski that when her husband saw her dialing 911, he threw her down, knocked the phone out of her hand, gouged at her eyes, and pulled out a handful of her hair. It was during this attack that she screamed at her husband to get off of her. Mrs. Agostino told Officer Donakowski that she was then able to escape her husband's grasp and run into another room. She also told Officer Donakowski that her husband had attempted to strangle her in a confrontation on the previous day. Mrs. Agostino told Officer Donakowski that she would not give a written statement because she feared retaliation from her husband. After he interviewed Mrs. Agostino, Officer Donakowski went outside and spoke with Mr. Agostino, while Officer Matyas conducted his interview with Mrs. Agostino. Mr. Agostino told Officer Donakowski that the only thing that happened was an argument, though he did admit to breaking down the bedroom door. Mr. Agostino stated that he had never physically abused his wife in seven years of marriage. Officer Matyas noted that Mrs. Agostino was visibly upset and shaken. He observed fresh bloody scratches and swelling around her right eye, as well as blood in her hair near the scratches. Officer Matyas also noted several broken panels in the master bedroom door. When Officer Matyas asked Mrs. Agostino what had happened, she told him that she and her husband had been in the living room. Mr. Agostino asked her for a $500 check to pay the mortgage, because he had spent $600 on a sprinkler system. She told him that she could not give him the money because she needed it for a car payment. Mr. Agostino became angry and verbally abusive. Mrs. Agostino became fearful and locked herself in the bedroom. Mr. Agostino began banging on the bedroom door. As Mrs. Agostino picked up the phone to call 911, Mr. Agostino broke through the door and entered the bedroom. He forced Mrs. Agostino's head down to the floor while gouging at her eyes with his fingers and thumbs. She agreed to give him the money and he let her up. Mrs. Agostino told Officer Matyas that there had been a physical confrontation on the previous day in which her husband attempted to strangle her. She believed her husband was bipolar, though he had not been medically diagnosed. She told Officer Matyas that she did not want to press charges because her husband could be fired from his job. Based on the physical evidence and witness statements, the officers arrested Mr. Agostino and charged him with Battery--Domestic Violence. Officer Donakowski took photographs of Mrs. Agostino's injuries, the broken door, and a clump of hair that Mrs. Agostino stated had been pulled from her head by Mr. Agostino. The photographs were admitted into evidence at this proceeding. The charges against Mr. Agostino were subsequently dismissed. The Lee County School District investigated allegations of misconduct against Mr. Agostino arising from his arrest. At his predetermination conference, Mr. Agostino denied that any physical confrontation took place between his wife and him. The school district concluded that there was no probable cause to impose discipline on Mr. Agostino. At the hearing in this matter, Mrs. Agostino testified that on the morning of May 16, 2003, it was, in fact, she, who attacked her husband. She testified that at the time, she was taking medication for petit mal seizures that made her very agitated, violent, and confused. She stated that the medication also caused her hair to fall out in clumps, accounting for the hair observed by the police officer. The medication named by Mrs. Agostino was Keflex. In fact, Keflex is a marketing name for cephalexin, a cephalosporin antibiotic unrelated to treatment of seizures. However, the symptoms described by Mrs. Agostino are consistent with common reactions to seizure medications. It is within reason that Mrs. Agostino, who is not a medical professional, simply confused Keflex with another medication she was taking for seizures. Mrs. Agostino testified that on the morning of May 16, 2003, she was attempting to confront Mr. Agostino about their finances, but he would not talk to her. Mrs. Agostino testified that his silence infuriated her, and she became violent. Mr. Agostino retreated into the bedroom. She broke through the door and attacked him, hitting him with the telephone, then throwing the telephone at him. Mrs. Agostino testified that she did not know how the 911 call was made. She theorized that the speed-dial may have been activated when she threw the phone at Mr. Agostino. She also had no idea how the scratches appeared around her eye, unless she hit her head on the bedroom door as she broke it down. Mrs. Agostino testified that she told the police officers that her husband attacked her because she was mad at him. At the hearing, Mr. Agostino testified that he and his wife were arguing about money. Mrs. Agostino became very agitated and started to become violent. Mr. Agostino retreated to the bedroom, closing and locking the door behind him. Mrs. Agostino "came through the door" and attacked Mr. Agostino, who put out his hands to fend her off. Mrs. Agostino started hitting him with the telephone. Mr. Agostino tried to get away, and she threw the phone at him. Mr. Agostino went into the living room. Mrs. Agostino followed and continued screaming at him. Mr. Agostino kept the couch between himself and his wife. At that point, the police knocked at the front door. Steven DeShazo, the principal of North Fort Myers High School, testified that he has worked with Mr. Agostino for eight years. Mr. DeShazo has had conversations with Mr. Agostino about scratches and abrasions on the latter's arms, presumably caused by Mrs. Agostino. Mr. DeShazo testified that he has had conversations with both Agostinos about their need for counseling, but that Mr. Agostino did not want to discuss his family problems. Mr. DeShazo discussed the May 16, 2003, incident with Mr. Agostino a few days after the events. Mr. Agostino told him that Mrs. Agostino had attacked him, and he had tried to fend her off. Mr. DeShazo had no personal knowledge of the events of May 16, 2003. The testimony of the Agostinos at the hearing completely contradicted the statements that Mrs. Agostino gave to the police on the morning of May 16, 2003, as well as Mr. Agostino’s admission to Officer Donakowski that he broke down the bedroom door. Only one version of these events can be true. It is found that the version of events related by Mrs. Agostino to the police officers was the truth. The police officers were at the Agostino house within four minutes of the 911 call. They observed that Mr. Agostino was pacing the living room floor and was out of breath. Both officers observed that Mrs. Agostino was very emotional, crying, scared, and upset. These observations lead to the finding that Mrs. Agostino was still suffering under the stress of the attack, and in her emotional state did not have time to contrive a false story. This finding is supported by the fact that Mrs. Agostino's statements to the police officers were consistent with all the other evidence: the 911 call, the broken door, the clump of hair, her own physical injuries, and the fact that she was in the bedroom when the police arrived. At the hearing, Mrs. Agostino attempted to make her new story comport with the physical evidence but was far from convincing. The clump of hair was plausibly explained as a reaction to medication, but she had no explanation at all for the scratches above her eye. Mr. Agostino's testimony hinted that he might have scratched her eye while trying to fend her off. Mrs. Agostino theorized that throwing the telephone might somehow have caused it to speed-dial 911. Even if the undersigned accepted the phone-throwing theory, there is no explanation for why the female voice on the 911 call was screaming, "Get the fuck off of me," if Mrs. Agostino was the aggressor and Mr. Agostino's only physical reaction was to fend her off. There is also no explanation for why Mrs. Agostino was in the bedroom when the police arrived. Mr. Agostino testified that she was in the living room when the police knocked on the front door, directly contradicting the testimony of both police officers. At the hearing, Mr. Agostino testified that he told the police and school officials that there was no physical confrontation in order to protect his wife, who is also an employee of the Lee County School District. He feared that she would lose her job if it became known that she attacked him. Given the evidence presented at the hearing, it is far more likely that Mrs. Agostino changed her story in order to protect her husband’s job. The evidence presented is sufficient to establish that Mr. Agostino committed an act of moral turpitude when he broke down the bedroom door, forced his wife's head down to the floor and gouged her eyes, releasing her only when she agreed to give him the money he wanted. This was an act of serious misconduct in flagrant disregard of society's condemnation of violence by men against women. The evidence presented is not sufficient to establish that Mr. Agostino attempted to strangle his wife on May 15, 2003. In this instance, there was no physical or other evidence to corroborate Mrs. Agostino’s hearsay statement to the police officers that her husband had attempted to strangle her. Although the evidence establishes that Mr. Agostino committed an act of moral turpitude, the only evidence offered regarding any notoriety arising from the May 16, 2003, incident was Mr. DeShazo's testimony that there was news coverage of the arrest. Mr. DeShazo stated that several students approached him expressing concern about Mr. Agostino and their hope that he would be allowed to remain at the school. Mr. DeShazo testified that no parents came to him expressing concern about the incident. There was no evidence to prove that Mr. Agostino's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Agostino's service in the community. There was insufficient evidence presented to establish that Mr. Agostino's performance as a teacher and an employee of the Lee County School District was diminished as a result of the May 16, 2003, incident and its aftermath. Mr. DeShazo testified that Mr. Agostino is the assistant principal for student affairs, which he described as the most high pressure, stressful job at the school. Mr. Agostino has never lost his temper at work, even in situations in which he has been hit and spat upon by unruly students. Mr. DeShazo testified that Mr. Agostino has been at work every day and has handled this uncomfortable situation with complete professionalism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated the provisions of Section 1012.795(1)(c), Florida Statutes (2003). It is further RECOMMENDED that a final order be issued placing Respondent on a two-year period of probation, subject to such conditions as the Commission may specify, including the requirement that Mr. Agostino undergo a full psychological evaluation and receive any necessary counseling to ensure that he is fully capable of performing his assigned duties with no further incidents such as those of May 16, 2003. DONE AND ENTERED this 19th day of February, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2004. COPIES FURNISHED: Robert B. Burandt, Esquire Roosa, Sutton, Burandt, Adamski & Roland, LLP 1714 Cape Coral Parkway, East Cape Coral, Florida 33904-9620 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731-0131 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact Petitioner is a Caucasian male born December 30, 1952. At present he is 54 years old. Petitioner holds a bachelor's degree in criminology from Florida State University, which he obtained in 1976. He also holds a juris doctorate from Florida Coastal School of Law, obtained in December 1999. In between these two degrees, Petitioner's employment history, included with his application for employment with the School District, indicates that in 1976 he worked at Graham's Dairy farm; from 1979-1980, he worked in telephone communications doing telephone installation, repair, and telephone cable splicing for an unknown employer; and in 1981 he worked for GTE of Florida performing telephone installation and repair. In 1985 Petitioner was the operations manager for Ocala Mack Sales, handling small claims and tag and title work. In 1989, he returned to the telephone industry, splicing cable. There is no indication of the time frame or duration of each job. No credible explanation was given for the significant gaps in his work history, or the reasons for leaving the various jobs listed. Beginning in 1993, Petitioner substituted for a three- month period at Fort King Middle School in Ocala, Florida. This three-month period is the only experience in the education field that Petitioner possesses. That same year, Petitioner began taking additional classes at the community college level part time in an effort to go to medical school. He also stayed home caring for his children. When he was unsuccessful in getting admitted to medical school, he turned his efforts to law school. Beginning in 2001, after graduating from law school and passing the bar exam, Petitioner worked as an attorney for the Department of Children and Families. In April 2004, he resigned in lieu of termination.1/ After an eight-month period of unemployment, he was hired in November 2004 as a corrections officer with the Florida Department of Corrections, and remains in that position today. In 2004, Petitioner began applying for teaching positions in Marion County. To that end, he has applied for and received Statements of Status of Eligibility from the Florida Department of Education indicating that he is eligible for a temporary certificate in the areas of chemistry and biology, grades 6-12, for the period June 22, 2004, through June 22, 2007. The job description for a teaching position in the School District indicates that a candidate must have a bachelor's degree from an accredited institution and be certified by the State of Florida or have district vocational certification. School District Policy 6.10 requires that all personnel be appointed as prescribed by Florida Statutes and applicable rules of the School Board and the State Board of Education. The job description also lists the following in terms of required knowledge, skills and abilities: Knowledge of child growth and development, especially of characteristics of children in the age group assigned. Knowledge of prescribed curriculum. Knowledge of current educational research. Basic understanding and knowledge of use of current technology. Knowledge of learning styles and skill in using varied teaching methods to address student learning styles. Skill in oral and written communication with students, parents, and others. Ability to plan and implement activities for maximum effectiveness. Ability to effectively assess levels of student achievement, analyze test results, and prescribe actions for improvement. Ability to maintain appropriate student supervision so that students have a safe and orderly environment in which to learn. Ability to work effectively with peers, administrators, and others. Certification by the Department of Education in the subject matter to be taught is generally required. The School District may waive certification in a particular area only when there is a critical need for teachers in that area and there are no certified teachers available. Even in that instance, the School District usually looks for a closely related certification area. For example, when trying to fill special education positions, the School District will look first for applicants certified in reading if no one certified in special education is available. In addition to certification for individual subject areas, a teacher may obtain what is referred to as a middle grades integrated certification. Someone with this certification is preferred over other applicants in a middle school setting, because they can teach science, social studies, language arts and math, giving principals more flexibility in filling positions that might include teaching in more than one area. Petitioner does not hold a middle grades integrated certification. Petitioner has applied for 32 science teaching positions, two biology positions and one chemistry position in the School District. In addition to these 35 science-related positions, Petitioner has applied for 47 additional teaching positions in the reading and exceptional education, areas for which he understands there is a critical need, and in criminology and legal systems, areas where he believes he has practical experience. Because he is not certified in these areas, they would be considered out-of-field. Petitioner could only be considered for those positions in the event that there was no qualified and appropriately certified candidate available. He has also applied for approximately 50 other positions for which he is not certified. Petitioner has received five interviews for positions within the Marion County School District. He has received no offers of employment. The School District fills vacancies for teachers in several different ways. A person already working as a teacher in the School District may request a transfer, for example, to a different subject area for which they are qualified or to a different school. Under the teachers' collective bargaining agreement with the School District, that teacher is automatically considered as the preferred candidate for any vacancy consistent with their request, unless the principal at the hiring school presents a compelling reason why they should not be hired. Under these circumstances, no vacancy would be advertised. The School District also encourages applicants to participate at an annual district-wide Job Fair. At that Job Fair, principals at different levels (high school, middle school, elementary school) are available to conduct interviews. Candidates do not necessarily interview for particular positions; they interview with whatever principals are available. Finally, applicants may be called to interview with principals for openings at individual schools, should there not be a qualified applicant requesting a transfer or under "conditional contract" with the District. Conditional contracts will be discussed in more detail below. During interviews at the Job Fair, principals use standardized interview questions that have been approved by the School District. The standardized interview questions have eight categories of questions based upon qualities one would expect to find in a teacher: 1) likes kids; 2) dependable; 3) content knowledge; 4) ability to manage; 5) motivation; 6) positive attitude; 7) team player; and 8) communication. The interviewer selects a question from each category to ask the applicant, and awards one to three points per question, based on whether the answer exceeds expectations, meets expectations or does not meet expectations. The highest total score an applicant can receive based on his or her answers to these questions is 24. Principals may only choose from the questions provided. They may clarify a question should an applicant ask them to, but they may not ask other questions. If the principal is favorably impressed by an applicant and has a vacancy at his or her school in the area for which the applicant is certified, the principal may offer that applicant a position at the interview. If they have no such position available but think the candidate would be a good hire for the School District, they may offer what is referred to as a conditional contract. A conditional contract does not entitle the applicant to a job. However, as vacancies arise within the School District, if there are individuals with conditional contracts that are qualified for the vacancies, those individuals are referred to the hiring principal for consideration. The hiring principal chooses from among those candidates with conditional contracts, and if there is only one such candidate, he or she would, absent extraordinary circumstances, get the job. Petitioner participated in the School District's Job Fair in June 2006. He was interviewed by Lisa Krysalka, the principal at Belleview Middle School. When Petitioner appeared for his interview at the Job Fair, he was not wearing a suit and did not bring a resume. Ms. Krysalka's notes reflect that he did tell her he had served as a substitute 10 years before. Based on his answers to the standardized questions, Ms. Krysalka gave Petitioner an overall score of nine. She ranked his answers as not meeting expectations for eight out of nine questions. Her scoring was reasonable in light of the answers he gave. For example, when asked to describe his classroom management plan, Petitioner indicated that he had no plan because he did not have problems with discipline. When Petitioner was asked how he would get his students excited about entering the classroom, he stated that most kids are excited already, and he would have a plan (although unspecified) and stick to it. Other answers he gave were either not responsive to the questions asked or did not relate to a school setting or to work with children. Ms. Krysalka felt some of Petitioner's responses were unrealistic and showed that he was unprepared to teach middle school in today's climate. Ms. Krysalka's assessment is reasonable. Petitioner's answers to these standardized questions do not demonstrate that he possessed the knowledge, skills and abilities required to perform as a teacher in the Marion County School District. Petitioner interviewed at individual schools outside the purview of the Job Fair. None of those interviews resulted in offers for a teaching position. While Petitioner testified that he has applied for dozens of positions, he presented evidence regarding only seven of those positions. The qualifications for the successful candidates for the positions are listed below. Petitioner admitted at hearing that he had no personal knowledge as to the qualifications of any of these candidates. He simply felt that, given the number of positions for which he applied, the only reasonable explanation for his not getting a teaching position was his age. Matthew Bates was born in 1981, and is younger than Petitioner. He has a B.A. in history and is working on his master's degree in educational leadership. He has passed the M/J Integrated Certification exam. Bates was originally hired in September 2005 at Dunellen Middle School for a "split" position, teaching both seventh grade science and language arts. Mr. Bates requested and was granted a transfer within the School District under the collective bargaining agreement to fill a vacant seventh grade science position at the same school. Consistent with the School District's collective bargaining agreement, no other candidate was considered or interviewed. Petitioner has not established that he is equally qualified or more qualified than Mr. Bates for the position sought. Ronald Long was born in February 1981, and is younger than Petitioner. Mr. Long was selected for a science position at Forest High School. He holds a B.S. degree in biology; served as a substitute teacher for the School District during the 2003-2004 school year, and was an assistant and junior varsity basketball coach at Trinity Catholic High School during that time. Mr. Long's resume also indicates that he has worked with the Boy Scouts and several basketball teams at both the high school and college level. Based on his interview and experience, Milford Lankford, the principal at Forest High School, believed Long to be the better qualified candidate. Petitioner was interviewed for the position at Forest High School. At the time of his interview, Mr. Lankford was filling two positions in the science department. The first position was filled by Mr. Downs, who was 63 years old at the time he was hired. However, based on his interview, Mr. Lankford did not feel that Petitioner had the skills necessary to be successful in the classroom. His impression was confirmed after Petitioner interviewed with his assistant principal, Ms. Bounds. Mr. Lankford had eliminated Petitioner from consideration by the time he offered the second position to Mr. Long. In any event, his determination that Mr. Long was better qualified for the position is reasonable. David Mahfood, was born in 1983 and is younger than Petitioner. He was selected for a physics position at one of the high schools in the School District. The position required that the applicant be highly qualified in and certified to teach physics, and Mr. Mahfood met those qualifications. Petitioner is not certified in physics, as required for this position. Bret Mills, born in 1982, is also younger than Petitioner. He has a middle grades integrated certification. Mr. Mills holds a B.S. in animal biology and while his resume does not reflect any teaching experience, it does reflect experience working with children in church and little league, as well as working as a literacy program leader while at the University of Florida. Mr. Mills' certification was preferable for the position being advertised. Petitioner did not establish that he was equally or more qualified than the successful candidate for this position. Michael Orloff was hired for a seventh grade science position at West Port Middle School. Mr. Orloff was born in 1958, and is four years younger than Petitioner. He has a B.S. in marketing with a minor in chemistry. He was interviewed by Greg Dudley, the principal of West Port Middle School during the Job Fair. Based upon a favorable interview, he was offered a position at that school in accordance with School District policy. There is no evidence that Mr. Dudley even knew of Toms' application at the time that he offered Mr. Orloff the job. Mr. Richard Williams was born in 1971, and is younger than Petitioner. He was offered a position teaching science at Howard Middle School. Mr. Williams holds a B.S. degree in biology and a master's degree in environmental management. He also has experience as a resource teacher with Eckerd's Youth Alternatives and served in the Peace Corps as a forestry extension agent. Mr. Williams originally worked beginning in September 2005 as a substitute teacher at Howard Middle School. He participated in the 2006 Job Fair and interviewed with the incoming principal at Howard Middle School. Based on his outstanding scores on the Job Fair Interview, he was offered a job immediately. Petitioner was not a candidate brought to the attention of the hiring principal at the time of the Job Fair. As previously indicated, Petitioner's interview scores at the same Job Fair were not impressive. Unlike Petitioner, Mr. Williams' degrees and experience are in fields related to the area he was hired to teach. Mr. Williams was the more qualified candidate for the position for which he was hired. Finally, Kristen Wood was born in 1982 and is younger than Petitioner. She was hired to teach agriculture and biology. Ms. Wood graduated from the University of Florida with a major in agricultural education and had a teaching internship in agriculture. She was also certified to teach in both biology and agriculture, and had significant experience with the Florida Future Farmers of America Association. Petitioner is not certified in agriculture and had less experience related to education. Ms. Wood was the more qualified applicant for the position sought.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint and denying Respondent's request for attorney's fees and costs. DONE AND ENTERED this 17th day of August, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 17th day of August, 2007.
