Findings Of Fact Mary Benekin holds teaching certificate No. 478252 and is certified to teach at the elementary and secondary levels in the areas of mental retardation and specific learning disabilities. Benekin was employed on annual contract as an exceptional education teacher in the Duval County School District at the Matthew W. Gilbert Seventh Grade Center. She began employment there in 1984 and continued to teach in that position until approximately February 20, 1987, when she left her position and did not return. The Petitioner seeks to revoke or otherwise penalize Benekin's teaching certificate for misconduct involving moral turpitude in violation of Section 231.28(1)(c), Florida Statutes; for misconduct which seriously reduces her effectiveness as an employee of the school board in violation of Section 231.28(1)(f); for misconduct which violated the provisions of law or rules of the State Board of Education in violation of Section 231.28(1)(h); and for misconduct which intentionally exposed a student to unnecessary embarrassment or disparagement in violation of Rule 6B-1.006(3)(e), Florida Administrative Code. These charges were based on 6 specific factual allegations against Benekin: use of sexually explicit language and terms in the classroom; recounting to students various sex acts she and her boyfriends performed and discussing other sex- related matters; sitting in front of students with her feet on her desk and her legs spread apart, sometimes scratching her vaginal area; making reference on numerous occasions to drugs and asking students if they knew where to buy drugs; repeatedly borrowing money from students, having students buy food for her, and asking students for some of their food; and making derogatory statements about students in the presence of other students, including statements that they smelled bad. Sexual Language and Discussions On direct examination, Ray Cummings, a student in Benekin's 4th period science class, stated that Benekin talked about sex to Tom Tom (Thomas Jones) on one occasion and that she said she "sucked men's dicks." On cross examination, Ray said that either Benekin or Racheal Ashley made the statements. Then on redirect examination, Ray said that Benekin talked "nasty," but did not say "suck men's dicks." Instead, she said something else regarding sex acts, about not allowing a man to "put his thing in her, that she would let him feel all over her." Ray then testified that he heard Benekin make these statements to Thomas. Finally, on recross examination, Ray said Benekin made these statements to "Racheal and them." By contrast, the report of the principal, Curtis Randolph, shows that Ray told the investigator there that he did not know of anything going on in Benekin's class. Also, Ray's testimony is contradicted by Thomas' statement. (See Findings of Fact 11 and 12). Kathy Jessup testified on direct that she overheard Benekin say, in a conversation with someone who Kathy cannot identify, that she would "suck men's dicks." Kathy testified that her friends told her Benekin said this in other classes, too. Kathy also said that she heard Benekin talk about sex, but she can't remember what was said or to whom. On cross examination, Kathy testified that Benekin told the whole class that she "sucked men's dicks." By contrast, the principal's report again shows that Kathy made no mention in that investigation of the alleged sexual discussions or the specific statement regarding "sucking men's dicks." Several sworn statements from students who were not present to testify were submitted "only for the purpose of corroboration." Regrettably, these statements do not corroborate much of the direct evidence. The statement of Kenyatta Brown says essentially that Benekin talked about sex to Tom Tom and Ray everyday and that Racheal told her that Benekin said she "sucked men's dicks." This is contrary to Ray's testimony and Thomas' statement and to the story she told to the principal's investigator. (See Finding of Fact 14). Racheal Ashley's statement says Benekin told "us" about specific sex acts and that she "suck's men's things." However when this is compared to other students' testimony and statements, it begins to become apparent that Racheal is probably the source of these alleged statements. Racheal's statement is directly contrary to the story she told the principal's investigator. (See Finding of Fact 13). Antinette Phillips' statement states that Benekin told the class all about her sex life and goes into great detail. No other students' recall of the events agree with Antinette's and no other student related the details stated by Antinette. Antinette's statement also differs from what she told the principal's investigator. (See Finding of Fact 15) Thomas Jones' statement indicates that Ray and Racheal told him that Benekin said she sucked her boyfriend's dick and that she let him fondle her. Thomas specifically stated that other students told him about Benekin's alleged discussions about sexual acts between her and her boyfriend. Finally Thomas stated that Benekin said what she does at home, she leaves at home. Thomas never heard any sex talk from Benekin. Clearly Thomas' statement is directly contrary to Ray's testimony and Racheal's statement and the report of the principal's investigator. The principal made a report of the information related by students in the course of his investigation. This information is contrary to the later statements of most of these students. For example, Racheal attributed the descriptions of sexual acts and the statement about sucking men's dicks to a Mrs. Sowell, another teacher. Racheal never said anything about Benekin in relation to these sexual discussions. Kenyatta Brown told the investigator that Benekin said in class that she and her boyfriend sucked each others privates and that Benekin asked Thomas and Antinette about their sex lives. This is directly contrary to her written statement. (See Finding of Fact 8) Antinette Phillips told the principal's investigator that Benekin told her, Thomas, Ray and Antinette about various details of her sex acts with her boyfriend. Again, these details are not consistent with the details given in her statement. It appears from all of these conflicting statements that a rumor circulated that Benekin made these statements; however, the testimony of Ray and of Kathy is specifically found to lack credibility and no weight is given to the student's statements because they contradict, not corroborate, the allegations. Accordingly, insufficient evidence exists to support a finding that these sexual discussions and use of sexual terms occurred. Inappropriate Sitting and Scratching The direct testimony of Ray Cummings again is that Benekin sat with her feet on her desk and that on one occasion she scratched her fresh appendectomy scar. The direct testimony of Kathy Jessup was that Benekin put her feet up on her desk while wearing pants. Kathy never saw Benekin scratch herself. Various of the sworn statements alleged that Benekin put her feet on her desk with her legs open and her underwear showing and scratched her vaginal area. These statements were admitted only to corroborate other admissible evidence. Here, there was no direct evidence to be corroborated by these statements. The only evidence entitled to any weight or consideration is that Benekin put her feet on her desk and on another occasion, while standing, scratched in the area of her fresh appendectomy scar. Neither of these acts can be construed to be misconduct as alleged in the Administrative Complaint. Reference to Drugs The only direct testimony was that of Ray and Kathy. Ray never mentioned drugs in relationship to Benekin and Kathy specifically testified that she never heard of or saw Benekin discuss, mention or use drugs. Kathy did testify that other of her "friends" told her that Benekin told them that she used drugs. The only mention of drugs and drug use by Benekin came from the sworn statements which were admissible only to corroborate direct evidence. There being no direct evidence regarding any statements Benekin made to students regarding drugs, no finding can be made in regard to this alleged misconduct. Borrowing Money and Taking Food Ray Cummings testified that when students brought candy or food to class, they had to share it with everyone, including Benekin. He gave candy to her. Benekin would collect money from students to get snacks from the food machine in the teachers' lounge. When a student did not have money, the others would chip in. On one occasion, Benekin gave 15 pennies to Kathy for 3 nickels to be used in the food machine. Kathy testified that Benekin borrowed 15 cents from her and did not pay it back. Benekin also borrowed from other students. Kathy did not recall Benekin using the borrowed money for snacks for the whole class. On cross examination, Kathy could not remember receiving 15 pennies from Benekin, but agreed that it probably happened. Kathy also could not remember a student from whom Benekin borrowed money, but thought it may have happened with Thomas and Antinette. Kathy also recalled Benekin getting snack cookies from the teachers lounge for the students. Finally, on redirect examination, Kathy could remember only two times that Benekin borrowed money: the 15 cents from her and some money from Thomas. The sworn statement of Racheal corroborates that Benekin took candy from the students and asked them to buy her lunch. The sworn statement of Antinette corroborates that Benekin borrowed a quarter from Thomas. Thomas' sworn statement indicates that Benekin borrowed money from him and other students and that she never repaid him. Thomas also states that one day he had a Snickers bar and he refused to give any to Benekin. Later she saw him take a quarter from her desk and wrote a referral (disciplinary slip) for taking it. When he gave her a piece of candy, she let him throw away the referral. Based on this direct evidence and corroborative evidence, it is found that Benekin did borrow money from Kathy and Thomas and that she did take candy or food from students. Derogatory Statements Ray testified on direct that one time it stunk in the classroom and Benekin said that probably one of the girls was on her period. On cross examination, Ray acknowledged that Benekin explained to the class that if a student has a body odor, they are to come to her and she will let them go wash their body and apply a deodorant and that they are all human. Kathy remembered Benekin saying on one occasion something about someone smelling in the classroom. Benekin simply said something about an odor in the classroom. Kathy never heard Benekin put students down in class. If she had something to say to them, she would call them over to her desk and tell them. Kathy never heard her say it out loud in class. The only corroborative evidence in this regard is the principal's report which states that Kenyatta told the investigator that "Benekin made her feel bad in class by telling her that she (Kenyatta) smelled like she had been having sex." Kenyatta's sworn statement makes no mention of this and there is no showing that if statement was even made, whether it occurred in the hearing of other students. Thomas also told the investigator that one time he told Benekin that it smelled bad in the classroom and Benekin replied, "It must be one of my girls on their period." The allegation in the Administrative Complaint is that Benekin made derogatory statements about students in the presence of other students, including statements that they smelled bad. The evidence does not support this allegation. At worst, Benekin on one occasion made a general statement that a bad odor in the classroom must be the result of one of the girls being on her period. This is not a derogatory statement about a particular student and did not expose a student to unnecessary embarrassment or disparagement. A finding cannot be made based on the hearsay statement of the principal which reported the hearsay statement of Kenyatta since neither hearsay statement corroborates admissible evidence. Benekin's Use of Drugs While there is insufficient evidence to support a finding that Benekin asked students where to buy drugs, Benekin's own testimony is that she discussed drugs with students as part of a class project on drugs. In cross examination, Benekin acknowledged that she entered a hospital for treatment of chemical dependency on cocaine. She entered this hospital on approximately February 20, 1987, when she became aware of the principal's investigation. During the conference with the principal on that day, Benekin asked Mr. Randolph for help and asked for the necessary papers to request a medical leave of absence. Randolph understood that Benekin was referring to medical assistance for a drug problem. The medical program which Benekin entered is a two-year program with a 30-day inpatient component. Benekin completed the 30-day component and remains involved in the after care component. Effect of the Investigation As a result of the rumors and accusations made by students against Benekin, as revealed in the principal's investigation, Randolph expressed the opinion that Benekin was no longer effective as a teacher, that her effectiveness in the school had diminished and that her presence was a detriment to the faculty and the student body. No opinion was expressed regarding loss of effectiveness if the allegations were not true.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Education, Education Practices Commission, enter a Final Order dismissing the Administrative Complaint filed against Mary C. Benekin. DONE and ENTERED this 16th day of May, 1988, in Tallahassee Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-5658 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Education Proposed finding of fact 1 is adopted in substance as modified in Findings of Fact 1 and 2. Proposed finding of fact 2 is adopted in substance as modified in Finding of Fact 2. Proposed finding of fact 7 is adopted in substance as modified in Finding of Fact 33. Proposed findings of fact 3 and 4 are unnecessary. Proposed finding of fact 6 is irrelevant. Proposed findings of fact 5 and 8-21 are subordinate to the facts actually found in this Recommended Order. While each contains one or more statements which are true, the contents of each, taken as a whole, do not agree with the facts found herein. Additionally, there is an element of argument contained bin these paragraphs which are not adopted herein. Proposed findings of fact 22 and 23 are argument and are therefore rejected as findings of fact. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Mary C. Benekin The proposed findings of fact filed by Respondent are intermixed with conclusions of law and argument. Further, extensive additional facts, not made a part of the record, are presented. Accordingly, Respondent's proposed findings of fact are subordinate to the facts actually found in this Recommended Order, except to the extent that they are unsupported by the competent substantial evidence or that they are argument. COPIES FURNISHED: Betty Steffens Attorney at Law 106 South Monroe Street Tallahassee, Florida 32301 Ms. Mary C. Benekin Route l, Box 249-E Pineville, South Carolina 29468 Martin Schaap, Administrator Professional Practices Services 319 W. Madison St., Room 3 Tallahassee, Florida 32399 Karen Barr Wilde, Executive Director Room 418, Knott Building Tallahassee, Florida 32399 =================================================================
The Issue The issue posed for decision herein is whether or not the Respondent, Henry L. Penia, engaged in acts of immorality or immoral conduct, in that during the month of July, 1978, he improperly touched a female student in an indecent or improper manner on school grounds during school hours in violation of Sections and 231.09, Florida Statutes, and Section 6B-1, Rules of the State Board of Education. Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the documentary evidence received and the entire record compiled herein, I hereby make the following:
Findings Of Fact Respondent, Henry L. Penia, holds Florida Teaching Certificate No. 044411, Graduate, Rank III, which by its terms is valid through June 30, 1981, for the areas of elementary education, history and political science. Respondent began his employment with the Hillsborough County School Board in February, 1952, and continued to be so employed until he was discharged on May 10, 1979. Respondent was assigned to LaVoy Elementary School (LaVoy) in 1974, where he taught nursery operations for the trainable mentally retarded (TMR) classified students. By way of background, the Florida Professional Practices Council, Petitioner, received a report from Hillsborough County school officials on May 24, 1979, indicating that Respondent had been charged with immoral conduct with a female student. Pursuant thereto, and under authority contained in Section 6A-4.37, Rules of the State Board of Education, staff of the Department of Education conducted a professional inquiry into the matter, and on September 10, 1979, reported the matter to the Petitioner's Executive Committee. The Executive Committee found that probable cause existed to believe that Respondent is guilty of acts which provide grounds for revocation of his teaching certificate. The Commissioner of Education found probable cause on October 1, 1979, and directed that Petitioner file a petition to revoke Respondent's teaching certificate pursuant to the authority contained in Rule 6A-4.37 of the State Board of Education and the guiding authority in Section 231.28, Florida Statutes. The material allegations of the Petition as filed by Petitioner are that during the month of July, 1978, Respondent committed an act of immorality in that he improperly touched a female student in an indecent manner during school hours on the school grounds of LaVoy. Concluding, the Petition alleged that the Respondent had violated Sections 231.28 and .231.09, Florida Statutes, and Rule 6B-1, Rules of the State Board of Education, in that based on the above-cited alleged conduct by Respondent, he committed acts of immorality which were inconsistent with good morals and the public conscience and failed to set a proper example for students. The Petition adds that Respondent's conduct as alleged was sufficiently notorious to bring the education profession into public disgrace and disrespect and seriously reduced his (Respondent's) effectiveness as a School Board employee. Michael Sails, presently the head custodian at Foster Elementary School, Hillsborough County, was, during times relevant herein, a custodian at LaVoy. During a school day in July of 1978, Mr. Sails, while standing at the rear of Mrs. Evans', a teacher at LaVoy, portable observed Respondent's arm around the neck of Irene (last name unknown) while Respondent and the other students were standing around the agricultural area at LaVoy. Kennedy Watson, the head custodian at Dickinson Elementary School, was, during times material herein, employed as a custodian at LaVoy. During July of 1978, Messrs. Watson and Sails were seated in Mrs. Evans' portable where they could view the agricultural area at LaVoy. Mr. Watson was situated a distance of approximately seven feet from Respondent and Miss Martin when he observed Respondent with his hands and arms around student Irene Martin's breast and crotch areas. Student Martin, according to Watson, is a "very developed teenager". Watson's view was not obstructed when he observed Respondent's hands draped around Miss Martin's crotch and breast. (See location "X" on Petitioner's Exhibit 1.) Mr. Watson, to get a better view of the acts by Respondent toward student Martin, situated himself at the rear of Mrs. Bennett's pod. Mr. Watson observed Respondent and student Martin for approximately ten minutes. Mrs. Bennett, who was in her classroom at the time, observed that something unusual was happening outside her classroom and inquired of Mr. Watson as to what was occurring. Mr. Watson declined to discuss the incident then but agreed to do so later since he was, at that time, very upset about what he had observed. On July 13, 1978, Mrs. Sandra Kilpatrick, a staffing specialist for exceptional education for the Hillsborough County School System and formerly a teacher at LaVoy, sent Mrs. Bennett a message that student Irene Martin was in Respondent's class. Mrs. Kilpatrick confirmed that Irene Martin is a TMR student with an I.Q. of less than 50. Mary Bennett, an employee of the Hillsborough County School System for approximately thirteen years, is presently the Director of the Mentally and Profoundly Handicapped Program for students. Mrs. Bennett serves as diagnostician for student placement. Mrs. Bennett knows Kennedy Watson and recalled the day that Mr. Watson entered her room in July, 1978, when he appeared to be upset. Mrs. Bennett observed Respondent from a distance of approximately sixty feet from her pod with his body closely against Miss Martin in a "bumping, grinding manner" which lasted approximately several minutes. She observed Respondent touch Miss Martin in a few places in the breast area with one of his hands down along side Miss Martin's. Mrs. Bennett emphasized that no training was taking place while Respondent and student Martin were engaged in the conduct as described herein. When questioned specifically about the incident, Mrs. Bennett made certain the fact that no instructional activity was taking place and that Respondent made no attempt to free himself of Miss Martin if indeed that was his claim. She also indicated that no shovel was being used by Respondent for a training activity. After observing the incident, Mrs. Bennett discussed it with Mrs. Kilpatrick later that afternoon and made an attempt to contact Ms. Davidson, the Principal at LaVoy. Mrs. Bennett was sure that the date was July 13 because she left for Ohio to celebrate her parents' fiftieth wedding anniversary on Friday, July 14, 1978. Mrs. Bennett has great distance vision and was not mistaken as to what she observed by Respondent relative to student Martin. Conceding that she was not an expert on guessing distances and that she could be mistaken as to the exact distance that her pod is situated from the area in which she observed Respondent and Miss Martin, Mrs. Bennett was unequivocal in her testimony charging that what she witnessed was not any attempt by Respondent to train or otherwise instruct student Martin. Millicent Davidson, the Principal at LaVoy, is familiar with student Irene Martin. Principal Davidson was formerly a teacher at LaVoy and noted that student Martin has an I.Q. range of a four year old. Student Martin is unable to judge "right" from "wrong" and reacts to physical stimuli differently than a person with a normal I.Q. Principal Davidson also confirmed that student Martin has a habit of grabbing the wrists or hands of persons to gain their attention. (Testimony of Millicent Davidson.) On July 24, 1978, Principal Davidson contacted school security as she observed Respondent in the agricultural area from portable No. 371. (See Petitioner's Exhibit 2.) On that date, while she observed Respondent and Miss Martin, Principal Davidson's view was not obstructed. Irene Martin and the other students were potting plants with Respondent when Respondent grabbed one female student on her buttocks. Principal Davidson observed Respondent's arm draped around student Martin from the time that they left the agricultural area until they reached the portables, at which time the hugging ceased. Principal Davidson related (during the hearing) that physical contact with students was banned at LaVoy. On that day, July 24, 1978, Principal Davidson had a conference with Respondent and security employees Dossinger and Tyrie, wherein Respondent denied that he engaged in any physical touching of students. He was at that time suspended pending the outcome of the School Board hearings which ultimately resulted in Respondent's dismissal from employment. Based on Principal Davidson's observance of Respondent on July 24, and subsequent unfavorable press accounts of the incident relative to the school, she would not want Respondent to return as a teacher at LaVoy. S. E. Dobbins, the Personnel Services Director for the School Board, read several newspaper articles in the "Tampa Times", the "Florida Sentinel Bulletin" and other local newspapers respecting the subject incident between Respondent and student Irene Martin. Veda Bird, the former Principal at LaVoy and a teaching professional for more than forty-seven years, retired from the Hillsborough County School System during 1978. Principal Bird recommended Respondent for employment by the School Board. She observed him on a daily basis and was unaware of any character charges having been leveled against Respondent during his tenure of employment. Principal Bird is also familiar with student Irene Martin. She recalled that student Martin had a habit of grabbing teachers and was generally very vocal and hyperactive while at school. Principal Bird remembered student Martin as being a very strong student who constantly had to be counselled about grabbing instructors and other students to gain their attention. Finally, Principal Bird recalled that Respondent and Mr. Kennedy Watson had personality clashes and that she considered that Mr. Watson thought that Respondent was "out to get his (Watson's) job." RESPONDENT'S DEFENSE Respondent appeared on his own behalf and generally denied all of the material allegations of the Petition for Revocation filed herein. Specifically, Respondent denied that student Irene Martin attended his class on the date of July 13, 1979. He related his policy of not permitting students to attend his classes when they were not assigned to be there. Respondent recalled one occasion wherein he was showing a student how to dig with a shovel. At that time, he stood in front of the student and demonstrated how to dig a hole with a shovel. Respondent denied that there was any body contact between himself and the female student while he gave the digging instructions. Respondent also denied that there was any body contact between himself and a female student during July of 1978, as testified by Mrs. Davidson and Mrs. Bennett. He related that on one occasion he struggled to get Irene Martin back to the classroom area and that he had to, in essence, pull her back from the agricultural area to the class pod. Respondent believed that Mr. Watson's testimony herein was motivated and stemmed from a disagreement he had with Watson concerning the disappearance of approximately two hundred azalea plants that Respondent had given Watson to plant for the school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's Teaching Certificate No. 044411, be REVOKED. RECOMMENDED this 28th day of August, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1980.
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges filed October 28, 2011, and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent has been on a contract that is subject to a collective bargaining agreement between Petitioner and the United Teachers of Dade, applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Near the end of the 2009-2010 school year, Respondent was placed on a 25-day suspension without pay for having inappropriate communications with students. Prior to serving her suspension, Respondent was issued directives that she was not to make personal comments to students and she was not to communicate with students via text and personal letters at any time. For the 2010-2011 school year, Ms. Yassin was assigned to South Miami Community Middle School (SMCMS), where she taught language arts to five classes. Ms. Alvarez was the principal of SMCMS for the 2010-2011 school year. Ms. Yassin's suspension ended in October 2010, at which time she reported for duty at SMCMS. Shortly after Ms. Yassin reported for duty at SMCMS, Ms. Alvarez received a complaint from a parent that Respondent had requested that students bring school supplies into class in exchange for receiving extra academic credit. Ms. Alvarez held a conference with Respondent. Ms. Alvarez instructed Ms. Yassin that School Board rules prohibit a teacher from giving extra academic credit in exchange for a student providing school supplies. Ms. Alvarez specifically told Ms. Yassin to cease and desist that practice. Ms. Yassin admitted that she had given extra academic credit to students who had brought in school supplies and told Ms. Alvarez that it would not happen again. In January 2011, Ms. Alvarez received a complaint from a student in one of Ms. Yassin's classes that Ms. Yassin had offered the students in the class assistance on a test in exchange for students bringing items of food to Ms. Yassin. There was a conflict in the evidence as to whether Ms. Yassin offered her students assistance on tests if they brought candy and other food items such as pastries to her. The greater weight of the credible evidence established that during the 2010-2011 school year, Ms. Yassin made such an offer to students in one or more of her classes on one or more occasions. Ms. Alvarez verbally informed Ms. Yassin of the allegations and told her that an investigation would be initiated. There was also a conflict as to whether Ms. Yassin quizzed her students as to the investigation and as to whether she made inappropriate comments to students about the investigation. The conflict is resolved by finding that Ms. Yassin made inappropriate comments to one or more students to lie about Ms. Yassin's conduct and told other students "to watch her back." Ms. Yassin also quizzed one or more students as to the discussion the student(s) had had with the investigator. On January 12, 2011, Respondent was removed from MSCMS and placed on alternative assignment. Respondent was specifically informed that she "must not contact, visit or exchange in any type of communications with faculty/staff/students/family of students from the work location to which you were assigned at the time of the incident leading to this administrative placement." Ms. Yassin violated that clear and unequivocal directive by communicating with parents and students by text and email between January 12 and February 3, 2011.1/ Respondent's misconduct, as described herein, has impaired her effectiveness in the school system. Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay and terminate that employment based on misconduct in office and gross insubordination. DONE AND ENTERED this 17th day of May, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2012.
The Issue The issues in this case are whether Respondent, Debra E. West, a middle school teacher, made inappropriate or disparaging remarks to her students or exposed them to unnecessary embarrassment or disparagement; whether she failed to correct performance deficiencies; and, if so, whether the proposed penalty of dismissal is reasonable.
Findings Of Fact Respondent has been employed as a teacher in the Pinellas County School District since August 20, 1991. The allegations which are the subject of this case arose while Respondent was teaching sixth-grade physical education and health at Azalea Middle School (Azalea). Most of Respondent's students at Azalea are 12 years old. Before becoming a teacher at Azalea, Respondent was a physical education teacher at Gibbs High School. In 2001, the School Board administratively transferred Respondent to Azalea from Gibbs High School to provide Respondent a "fresh start," following numerous complaints from parents beginning in 1997 about Respondent's making inappropriate remarks to students and disclosing student grades at Gibbs High School. In 2003, the commissioner of education brought disciplinary action against Respondent for her alleged violations of state statutes and rules governing teachers during the time she was a teacher at Gibbs High School. On March 2, 2004, following an evidentiary hearing conducted by DOAH, the Education Practices Commission issued a Final Order suspending Respondent's educator's certificate for the 2004 summer session and placing Respondent on probation for two years. In his Recommended Order in the earlier case against Respondent, the Administrative Law Judge made the following findings: Respondent made derogatory comments to students during the [2000-2001] school year. The derogatory comments included terms such as: fat, little slacker, stupid, sorry bunch of kids, Gomer Pyle, and Dutch Boy. Respondent asked one of her students, "What's a black boy doing with a Dutch last name?" Respondent asked another student if the student was tired from walking the streets at night and called her "sleeping booty." * * * Respondent has made derogatory comments to students in previous school years. * * * Respondent read student grades aloud in class without the permission of the affected student in violation of District policy. Respondent also read the names of students receiving a grade of "A," "B," or "C" thereby disclosing the [identity] of students with lower grades. * * * Respondent has a history of disclosing student grades in class. * * * Respondent read to the class the grades of [five students]. Each had failing grades. Respondent passed a test completed by A.S. down a row of students so that each student could see the test score on the front of the test and stated audibly that the only thing A.S. "got right" on the test was the date. The comment embarrassed, upset, and humiliated A.S. At Azalea, parents continued to complain that Respondent was making disparaging remarks that upset and embarrassed their children. The complaints resulted in multiple conferences between Respondent and Azalea administrators and, ultimately, to her receipt of poor performance evaluations and official reprimands. Numerous students were transferred out of Respondent's classes at the request of parents whose children had complained to them about Respondent. On November 28, 2005, Superintendent Wilcox notified Respondent by letter of his intent to recommend to the School Board that Respondent be dismissed. At the School Board's meeting of December 13, 2005, the School Board accepted the superintendent's recommendation for dismissal. Respondent was suspended without pay beginning December 13, 2005, pending the outcome of this administrative proceeding to review the School Board's action. "Tiny Tot," "Shrimphead," and "Dumbo" T.J., who is small for his age, stated that Respondent called him "tiny tot" and "shrimphead," which embarrassed and upset him. T.J. also said Respondent called him "dumbo." Respondent denies calling T.J. by these names. No other student who testified at the final hearing said they heard Respondent call T.J. "tiny tot," "shrimphead," or "dumbo." No other student claimed that Respondent called him or her by one of these names. The evidence was insufficient to prove that Respondent called any student by another derogatory name. The only corroborating evidence presented by the School Board was the hearsay testimony of T.J.'s stepmother who said T.J. told her that Respondent called him by these names. Although T.J. might have been telling the truth,1 his testimony with regard to these insults, standing alone and taking into account his demeanor, was not persuasive. The School Board, therefore, failed to meet its burden to prove that Respondent called T.J. "tiny tot," "shrimphead," or "dumbo." "You must have studied in the dark." Respondent admits that she made the comment, "You must have studied in the dark," to T.J. and to other students on occasion, but denies that it was ever meant to disparage or to embarrass the students to whom the comment was directed. Of all the disparaging comments that Respondent is alleged to have made, this one is the most innocuous. It is difficult to imagine how teachers could be held to a standard of refraining from any comment of this kind or risk dismissal. However, many otherwise innocuous comments, if made in a disrespectful tone of voice, can be disparaging and can embarrass a student. The testimony from the parents of several students was hearsay with regard to what Respondent said to their children, but it was not hearsay with regard to the parents' observations of the emotional distress that Respondent caused to their children. The emotional distress reported by the parents and which resulted in numerous complaints made to Azalea administrators about Respondent's comments, therefore, is persuasive evidence that Respondent's comments were often made in a tone of voice and under circumstances that caused the students to feel disparaged and embarrassed. "Take your grow up pill." T.J. also stated that Respondent told him in front of his classmates to “Take your grow-up pill.” He took this comment to be a reference to his small size, and he said the comment upset and embarrassed him. Respondent concedes that she told T.J. that he "needed to grow up" because he was acting immaturely by frequently failing to bring his folder to class, but that she did not intend to belittle T.J. because of his size. Respondent, herself, is of small stature. Respondent told other students to "Grow up" from time to time when she thought they were acting immaturely. The preponderance of the evidence supports Respondent's contention that her comment to T.J. was not intended to belittle him for his small size. A teacher's comment to "Grow up," or even to "Take a grow up pill," is a relatively innocuous comment that under ordinary circumstances should not cause a student to feel disparaged unless they are particularly sensitive. However, like the comment "You must have studied in the dark," the tone of voice used and other circumstances could make any student perceive the comment as disparaging and cause them to be embarrassed. "Dumb boys make dumb babies." Several students testified that Respondent made the comment “Dumb boys make dumb babies” during her health class in the fall of 2005. Respondent admits making this comment and explained that it was intended to make her students think about the consequences of the choices they make in life. Respondent denies directing the comment to T.J. or to any other student in her class to indicate that she thought the student was dumb. This comment is another example of Respondent's habit of making a comment by which she intends to convey a legitimate message with humor, but using words that also convey disparagement. The School Board's evidence was not persuasive that Respondent directed this comment to T.J. or any other student in her class to indicate she thought that student was dumb. However, the comment, even as explained by Respondent, was inappropriate because it indicated that Respondent had a low opinion of certain boys that "hung out" in the lunch room. Although Respondent's intended message was a good one, it is never appropriate for a teacher to refer to any student as being dumb. Respondent presented the testimony of other teachers and school employees who said they sometimes observed Respondent's classes and never heard Respondent make inappropriate comments to her students. That evidence was not sufficient to rebut the School Board's evidence that Respondent made the inappropriate comments discussed above because the comments could have been made, and evidently were made, at times when Respondent was not observed by these other teachers and school employees. There was other evidence presented by Respondent to show that she has a number of good teaching skills and is appreciated and even loved by many of her students. That evidence is accepted as credible, but is not inconsistent with the charge that she made inappropriate and disparaging comments to some of her students. Telephone Calls to Parents During Class While teaching at Gibbs High School, Respondent would occasionally make a telephone call to parents during class, which Respondent considered to be an effective "classroom management technique," in the presence of students Connie Kolosey, an assistant principal at Azalea and Respondent's supervisor, said that when she discovered that Respondent had called a parent from the classroom, she directed Respondent not to do it anymore. Respondent admits that Ms. Kolosey told her that making calls to parents during class was "not done at Azalea," but Respondent claims she was not told to stop. The School Board presented evidence to prove that Respondent continued to call parents from her classroom to discuss their children's low grades or misbehavior in a manner that allowed students to hear the conversations or, at least, to know which students were the subject of the conversations. Respondent said she never called parents during class time. She said that she sometimes called parents from the telephone in her classroom, but not during class time. Respondent also denied ever divulging confidential information about a student in front of other students. However, there appeared to be agreement that, on one occasion, a student, J.T., called his mother during class and then handed the telephone to Respondent so she could talk to his mother. Even under Respondent's version of the event, having the telephone conversation with J.T.'s mother during class and within sight and hearing of the other students was inappropriate and reasonably calculated to embarrass J.T. In another incident in which the mother of a student complained that she was called by Respondent about her child during class, Respondent told Theresa Anderson, the principal of Azalea, that the call was not made during class. However, Ms. Anderson later discovered that Respondent had not made the call from a certain school phone as Respondent had claimed, but from Respondent's own cell phone. Respondent's version of the event, therefore, is discredited, and the more persuasive evidence establishes this as a second instance in which Respondent called a parent during class, which exposed the student to unnecessary embarrassment. Respondent admitted that she would occasionally pretend to call a parent from the classroom as a classroom management technique. According to Respondent, instead of actually calling a parent, she would dial her own mother's phone number or no number at all and then pretend to have a conversation about the low grade or misbehavior of a student. Although Respondent did this in a manner that purposely allowed her students to see her make the call and to hear enough to know that Respondent was having a serious discussion with a parent about a student, Respondent denies that any student in her class knew whose parent she was pretending to call. That claim is not credible because, unless Respondent made these pretend calls in conjunction with an event related to a student's low grade or misbehavior, it would not serve its purpose as a classroom management technique. In other words, it is more likely that when Respondent made a pretend call to a parent, the students in her class had some idea which student was in trouble and why.2 This practice of Respondent, therefore, was inappropriate and exposed students to unnecessary embarrassment. Discussing Low Grades in the Classroom Respondent denied ever divulging student grades in class but admitted that she rewarded students who received A's and B's by calling them to the front of the class and awarding them “Azalea bucks.” Students who received A’s were given two Azalea bucks, and students who received B’s were given one Azalea buck. Azalea bucks could be redeemed for ice cream. By calling up the A and B students, Respondent created a situation in which the students who made lower grades were also identified. No evidence was presented by the School Board about its policies regarding the recognition given to students who make good grades. The School Board did not dispute that Azalea identifies honor roll students. Any time that a school recognizes students for their academic achievement, that recognition will necessarily have the effect of identifying the students who have not done as well. That is a reasonable consequence and does not cause the recognition of the best students to be an act of disparagement against all the other students. Students N.R. and J.G. said Respondent read student grades out loud in class. J.G. said Respondent read the grades of students who received D’s and F’s. N.R. said Respondent would line students up according to the grades they got. Their testimony was persuasive to prove that Respondent conducted her classes in such a way that student grades, including low grades, were sometimes made known to other students. Failure to Correct Performance Deficiencies Administrative officials at Azalea spent a considerable amount of time responding to complaints from parents about Respondent, investigating allegations against her, as well as counseling and disciplining Respondent. Three consecutive "success plans" were developed for Respondent in an attempt to change her style of speaking to students to eliminate the disparaging remarks and to prevent any further disclosure of a student's low grade. When the findings of the prior administrative hearing involving Respondent's problems at Gibbs High School are compared to the findings set forth above regarding Respondent's problems at Azalea, it appears that Respondent's latest infractions are less egregious. However, Respondent's deficiencies have not been corrected. It is significant that Respondent's deficiencies have been moderated only a small degree from the past despite her being on probation and repeatedly disciplined. Although slightly moderated, Respondent's deficiencies continue to upset students, cause numerous complaints to be made by parents, and create considerable inconveniences for school administrators. Two assistant principals at Azalea and an administrator in the Pinellas County School District's Office of Professional Standards were all of the opinion that Respondent is ineffective as a teacher due to her performance deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County School Board issue a final order finding that Respondent violated School Board policies set forth in Sections 8.25(1)(n), (t), and (x) and dismissing her from her employment with the School Board. DONE AND ENTERED this 13th day of December, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 13th day of December, 2006.
Findings Of Fact The School Board is charged with the duty to operate, control and supervise free public schools within the School District of Duval County, Florida, pursuant to article IX, section 4(b) of the Florida Constitution, and section 1012.22, Florida Statutes.1/ Respondent was a teacher at Kernan Middle School during the 2017-2018 school year. He had been employed with Duval County Schools for six years and had never been disciplined regarding his employment with the School Board. As an instructional employee, Respondent’s employment is governed by the 2017-2020 collective bargaining agreement between the School Board and the Duval Teachers United (Collective Bargaining Agreement). Respondent taught pre-algebra during the 2017-2018 school year for students who had not performed well on the state standardized test. In order to improve those scores, the students were placed in two math classes with Respondent, instead of just one. On October 11, 2017, a member of the School Board advised the principal of Kernan Middle School, Julie Hemphill, that a parent of one of Respondent’s students had made a complaint against Respondent. Prior to receiving word of the complaint, Ms. Hemphill had never heard any complaints about Respondent from any parent, student, or other school staff. There is no evidence that any other administrator at Kernan Middle School had received a complaint about Respondent prior to October 11, 2017. Shortly after hearing about it, Ms. Hemphill reached out to the parent who had made the complaint. The parent told Ms. Hemphill that Respondent had yelled and waved his hands in students’ faces, told his students that they were in his class because they had failed the standardized tests, called his students idiots, and used racial slurs in his classroom in front of students. Ms. Hemphill’s understanding after speaking with the parent was that the alleged racial slurs were made sometime at the end of August 2017. Ms. Hemphill reported the allegations to the School Board’s Office of Equity and Inclusion. An investigator for the School Board, Reginald Johnson, was assigned the case. Mr. Johnson came to Kernan Middle School and spoke with some of Respondent’s students. Mr. Johnson first contacted Respondent in the second week of October 2017, and advised Respondent that there were allegations against him. After that, during the investigation, Respondent continued teaching his same classes and students at Kernan Middle School for approximately five months until his suspension was approved by the School Board on March 6, 2018. After his suspension was over, Respondent was not allowed to return to his classroom for the remainder of the year. He was not reappointed for another teaching position. In support of its case against Respondent, the School Board presented the testimony of two former students2/ of Respondent who were in Respondent’s classroom at the time that he allegedly made the derogatory and racial statements. The testimony from those two students presented different accounts of the allegations and were not persuasive in proving the allegations against Respondent. The first student called as a witness by the School Board, E.C., had gotten into trouble, and did not receive good grades while in Respondent’s class. According to E.C., Respondent had used racial slurs against a particular student and used the n-word in front of the whole class many times during the school year. When confronted with his written statement, which stated that he “thought” he heard Respondent use the n-word, E.C. said, “It might have been, but I’m pretty sure that’s what I heard because everybody around me was saying the same thing, and we wouldn’t all be hearing different things.” E.C.’s testimony did not support the allegation that Respondent called his students “dumb.” E.C. did not recall that Respondent called him “dumb,” but rather testified that Respondent would not tell him that he did a good job. The other student presented as a witness by the School Board was J.B. According to J.B., he heard Respondent say the n-word in November or December, near the Christmas break, during an alleged discussion in class by Respondent about interracial dating, Respondent’s daughter, and religion. J.B. testified that he only heard Respondent say the n-word one time, and that he believed that Respondent said it “on accident.” As J.B. explained in his testimony: Like I guess he was like--I don’t think he like knew he said it, but he said it-- I guess he was just going off, and in between those words he said the n-word. * * * He didn’t--he didn’t realize he said the n-word, but the class heard he said the n-word. So after he said it, I guess the conversation, like the whole conversation ended, and we just went back to doing work. Regarding the allegation that Respondent told students that they were “dumb,” J.B. testified: When we’re not getting a question right and like, let’s say if we didn’t get the question right, he would tell the whole class stop acting dumb and get the question right. And it would just frustrate me exactly. I don’t know about the entire class, but it would frustrate me because, of course, I’m in intense math and I don’t know what I’m doing and I’m here to figure out how I can improve and be good at mathematics. Respondent gave credible testimony refuting the allegations. He testified that he never referred to a student as “dumb,” and understood that many of the students had low self-esteems. He would often encourage them and say “guys, look, you’re not dumb. You can achieve and you’re going to do great and amazing things if you work at it.” The students in Respondent’s class had discipline issues involving the use of profanity. There was a specific incident during the pertinent time frame during the 2017-2018 school year when two students in Respondent’s class were speaking to each other aggressively using the n-word. Respondent intervened and told the students, by spelling out the words, that they were not to use the terms “n-i-g-g-a or n-i-g- g-e-r.” As soon as Respondent spelled g-e-r, a student yelled out, “Did you hear what he said?” After that, the students in the class began to act with exuberance, smiling and laughing. Respondent had been trying to give a quiz and the class came off task. At the time, a student asked Respondent whether he had said the n-word. Although Respondent told the class that he did not say that word, the off-task behavior continued. Respondent then told the class, “I didn’t say it, but for those you who think I did, I deeply apologize, but we need to get things going.” Respondent described another incident that happened when coming back from lunch one day and hearing a student using the f-word towards his girlfriend several times. Upon returning to the classroom, Respondent said, “Girls, upon no circumstances should you allow a young man to disrespect you like that.” Respondent further told the class that if he “had a daughter and a young man spoke to her like that he would tell her to break up with him because he is not worth your time.” Mr. Swinyar does not have a daughter. In addition to his own testimony refuting the allegations, Respondent presented testimony of three of his former students who were in his classroom during the time that he allegedly made the derogatory and racial statements. All three of those students testified that they had never heard Respondent use the n-word and did not hear Respondent say anything inappropriate. S.B, one of the three students who testified on Respondent’s behalf, related the incident where a fellow student in Respondent’s class had said the n-word. When Respondent told the student not to use that term, most of the students in the room thought that Respondent, himself, said the n-word. However, according to S.B., who assured that he had been listening, testified that Respondent did not say it. Regarding Respondent’s alleged comment about his students’ test scores, S.B. testified that Respondent told his class that their scores were just a little low so they were in his class to improve them. S.B.’s testimony is credited. C.A., another student giving testimony for Respondent who was in Respondent’s class during the 2017-2018 school year, testified that he was concerned because he was not very good at math, but that he improved with Respondent’s help. C.A. never heard Respondent use bad words or say anything inappropriate. The third student testifying on behalf of Respondent, C.M., testified that she never heard Respondent say anything rude, never heard him say curse words, and never heard him say anything racist. Sonita Young, the School Board’s assistant superintendent for Human Resources Services, is responsible for making recommendations to the superintendent as to disciplinary matters, investigates complaints against teachers, and was responsible for the recommendations set forth in the Step III Discipline against Respondent in this case. Article V, section C, of the Collective Bargaining Agreement provides for progressive discipline for teachers. Pursuant to that policy, the progressive discipline policy starts at verbal reprimand and escalates up through termination. The Collective Bargaining Agreement allows for the steps to be skipped for acts of severe misconduct. In addition, there must be just cause to suspend a teacher without pay. Ms. Young stated that her decision to skip lower level disciplinary steps, and instead to suspend Respondent without pay, was based on the severity of the alleged inappropriate term, the alleged multiple times the term was used, that it was allegedly used in front of a classroom full of students, and that the students were allegedly very troubled by the comments. She also stated that other comments attributed to Respondent regarding the reason for the students being in the class, their lack of academic performance, and comments regarding whom students should date, justified her recommendation for Respondent’s suspension. However, based on the insufficiency of the evidence, it is found that the School Board did not prove the allegations against Respondent, and that the Step III Discipline was unwarranted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Duval County School Board: Dismissing the allegations against Respondent set forth in the Step III Discipline and rescinding any discipline imposed thereby; and Reimbursing Respondent for any pay or benefits that he did not receive as a result of the School Board’s actions in this case, plus interest from the date that any such pay or benefit was withheld, as appropriate under applicable law. DONE AND ENTERED this 7th day of December, 2018, 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 7th day of December, 2018.
Findings Of Fact Kralik's denial that she was culpable in any of the past incidents that resulted in discipline is not credible. Kralik's denial that she touched Q.P. is not credible given the testimony of Q.P. and D.L. The evidence is, however, insufficient to determine exactly what Kralik did to Q.P. other than calling her some kind of "baby," as described in Findings of Fact 7 through 17. That factual evidence is also insufficient to prove that her touching Q.P. constituted physical force that was rough, hard, or inappropriate. Based on the failure of the School Board's proof to establish the truth of the mother's allegations, it is determined therefore, that Kralik is not guilty of the offenses of misconduct in office, immorality, and incapacity as charged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order dismissing the charges brought against Kralik in this proceeding. DONE AND ENTERED this 6th day of December, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 6th day of December, 2010.
The Issue Whether just cause exists for Petitioner, Broward County School Board (“BCSB”), to suspend Respondent, Karleef Jamel Kebreau (“Respondent”), from his employment as a teacher for ten days without pay.
Findings Of Fact The Parties BCSB is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. Respondent was employed by BCSB as a math teacher at Miramar. Respondent has taught for BCSB for 17 years. Respondent is working pursuant to a professional services contract. Respondent’s Prior Discipline and Summary Memoranda On or about December 14, 2011, Respondent received a Letter of Reprimand from BCSB and was required to attend Equal Employment Opportunity (“EEO”) Overview Training for inappropriate conduct concerning his violation of both the Code of Ethics and Principles of Professional Conduct of the Education Profession. Respondent received this Letter of Reprimand because of an investigation into inappropriate conduct regarding allegations that he repeatedly approached students to take modeling photos of them in their bikinis. The investigation also concerned allegations that Respondent was watching movies with female students in his classroom after school hours. On or about November 28, 2012, Respondent received a Summary Memo addressing the following concerns: his failure to attend mandatory proctor training; his failure to pick up interim reports; his failure to follow proper procedures; his failure to notify a student that he had her iPod; his intentional use of embarrassing and disparaging remarks to a student by calling her a “shone” (slang for prostitute) in class; and his lack of professional judgment and integrity. On or about May 14, 2015, Respondent received a Summary Memo addressing the following concerns: his use of embarrassing and disparaging remarks to a student and his lack of professional judgment and integrity. He received this Summary Memo after an email from a concerned parent was received by Miramar administration concerning Respondent’s behavior. The email referred to Respondent participating in making a list of the prettiest to the ugliest girl in his class and calling a student stupid. Respondent denies that he created the list, but admits that he knew about the list, that he should have addressed the issue to end it, and further that he commented on it. Allegations Giving Rise to the Suspension On October 11, 2018, Miramar Principal Maria D. Formoso (“Formoso”) received an email from someone who identified himself as “Captain Alex.” Captain Alex wrote that his girlfriend was a student at Miramar, and that he was in fear for her safety while she was in Respondent’s class. Attached to his email, Captain Alex provided copies of cell phone text messages between him and his girlfriend describing how Respondent had approached her and began hugging and touching her hair. Captain Alex’s email also indicated that this was happening to other female students at Miramar. Formoso advised John Murray, Assistant Principal (“AP Murray”), who helped identify Captain Alex’s girlfriend as C.G. C.G., who was in 12th grade during the 2018-2019 school year, advised Formoso, that on October 11, 2018, she was “face-timing” with her boyfriend on her cell phone, prior to the start of class, and as she entered Respondent’s classroom, Respondent walked up to her and gave her a full-frontal hug. As Respondent was hugging her, he was also manipulating her hair on the back of her head without her consent. C.G. stated that Respondent regularly gave her unwanted hugs and that the hugs made her feel uncomfortable. He also gave her compliments, played with her hair, and rubbed her shoulders. According to C.G., since the beginning of the school year (i.e., 2018-2019), she has received several unwanted hugs from Respondent prior to entering his classroom. C.G. stated that the hugs would last 30 seconds and that Respondent would play with her hair as well as rub her shoulders. During one of the hugging incidents, Respondent whispered into her ear “[y]ou give thick a whole other meaning.” Statements from Other Students After obtaining C.G.’s statement, Formoso interviewed and obtained statements from other female students identified by C.G. to have also received unsolicited hugs from Respondent. Those students were identified as S.N., N.O., and D.J. After obtaining these additional statements, Formoso contacted the BCSB Special Investigative Unit (“SIU”) to initiate an investigation. Detective Bernard Canellas of SIU arrived at Miramar to conduct an investigation concerning Respondent’s conduct. As part of the investigation, he obtained several handwritten statements and conducted recorded interviews under penalty of perjury. After the investigation was completed, Respondent was given a copy of the report of the investigation and was advised that BCSB will move forward to bring the investigative findings to the Professional Standards Committee. Detective Canellas obtained a written statement and sworn recorded statement of S.N. S.N. also provided testimony at a deposition, which the parties agreed to submit in lieu of an appearance at the final hearing. According to S.N., who was an 11th grade student during the 2018-2019 school year, Respondent was her math teacher during her freshman year. S.N. testified during her deposition that during her first encounter with Respondent, he approached her and gave her an unwanted hug as she entered his classroom. On one occasion during her freshman year, as Respondent proceeded to hug her, he whispered in her ear “[h]ow would you feel if I told you I wanted to be your boyfriend.” S.N. said the statement made her feel weird and creeped out. S.N. stated that Respondent continued to give her unwanted hugs over the next three years, but he never made any more statements to her while hugging her. S.N. testified at her deposition that she has been approached and teased by her girlfriends about the hugs she received from Respondent. S.N. also testified that one day while Respondent was hugging her, his hand brushed against her breast as he pulled away. When this happened, she told Respondent, “I don’t want you hugging me anymore.” Respondent neither responded to her nor did he try to hug her again. D.J. provided a written statement and sworn recorded statement to SIU. She also provided deposition testimony, which the parties agreed to submit in lieu of an appearance at the final hearing. D.J. was a student in Respondent’s class during the 2017-2018 school year. D.J. stated that Respondent asks for hugs from the female students. She testified that one day when he asked her for a hug, D.J. told him no. Respondent admitted in his deposition testimony that D.J. told him not to hug her. Thereafter, D.J. testified that Respondent negatively affected her grades. D.J. also testified that Respondent has hugged her more than 30 times. In September 2019, two more students, L.M. and T.K., came forward to AP Murray with similar allegations against Respondent. These students came forward when AP Murray was handing out letters to students in Respondent’s class to obtain their contact information in the event they were witnesses for the instant matter. Their allegations were included in the Amended Complaint. L.M. was a student in Respondent’s geometry class. She provided a written statement to AP Murray and testified at a deposition which the parties agreed to be used in lieu of her appearance at the final hearing. She testified that Respondent was too “touchy” and personal with students. Respondent would flirt with female students and make them uncomfortable. She also testified Respondent would hug the female students as they walked into class and call them “cutie” or “sweetie.” L.M. found Respondent’s behavior annoying and disappointing. T.K. also testified that one day during the 2018-2019 school year, when she was in his class, Respondent called her up to his desk and asked her about her dating status. T.K. responded that she was single. Respondent told her that there were male students in the class eyeing her. T.K. responded that she was not interested in guys her age. Respondent then asked T.K. if she liked guys in their fifties or his age. This made T.K. feel uncomfortable. T.K. also testified that, on another occasion in his class, he talked about his grey sweat pants. Respondent told the class that a woman he had been dating told him that she did not want him wearing grey sweat pants, but he did not know why. Respondent stated that all the girls at the mall were staring at him in his grey sweat pants. Respondent said that when he looked in the mirror, his “junk” looked huge. When he said this to the class, he pointed at his pelvic area. T.K. alleges that it is disturbing that a teacher feels comfortable enough to tell the students in his class, who range in age from 14 to 18, this story. Respondent’s Response to the Allegations S.M. gave a sworn recorded statement to SIU. She also provided deposition testimony, which the parties agreed to submit in lieu of an appearance at the final hearing. S.M., who was a 12th grade student in the 2018-2019 school year, was also never a student of Respondent’s, but she started getting unwanted hugs from Respondent at the beginning of her junior year. S.M. would receive unwanted hugs from Respondent while in the hallway. S.M. testified during her deposition that Respondent would call her “[m]y Haitian Queen” and that the hugs made her feel uncomfortable. S.M. also testified that one day while Respondent was hugging her, his hand brushed against her breast as he pulled away. When this happened, she told Respondent, “I don’t want you hugging me anymore.” Respondent did not respond to her, nor did he try to hug her again. Respondent admits that he would stand in the doorway to the classroom and give students, including females, hugs as they entered. Respondent claims this is consistent with the behavior of other teachers at Miramar. When asked not to hug a particular student, Respondent immediately stopped. Respondent denies making inappropriate or flirtatious comments to students, touching their hair, or propositioning any female student. Respondent specifically denied ever hugging C.G. in an inappropriate manner or touching her hair. He first became aware of the allegation when notified by the School Board’s investigator. Respondent further denied complimenting C.G. inappropriately, or ever rubbing her shoulders. At the time of the allegation, C.G. was failing Respondent’s class and transferred to a different class soon after. Respondent noted that student D.J. also failed his class and transferred to another class. Respondent offered and filed the deposition transcript of K.S., which the parties agreed to be used in lieu of testimony at the final hearing. K.S. testified that she was in Respondent’s class in 9th grade and that she was now in the 12th grade. She testified that Respondent hugs everyone, including her, in either a full-frontal hug or side hug at the entry way of the classroom if Respondent was holding the door. She witnessed Respondent hug T.M. The Amended Administrative Complaint makes reference to similar allegations allegedly made by students N.O, S.M., B.S., T.M., and T.K. However, they did not testify in this matter and the only evidence presented related to them is uncorroborated hearsay.1 Respondent testified he no longer hugs his students since these allegations arose. Some students have tried to hug him and were confused when Respondent declined. He now shakes their hand or gives them a “dab.” BCSB Response to the Investigation Based on the SIU investigation, the Professional Standards Committee found probable cause to recommend a one-day suspension without pay and EEO sensitivity training for Respondent. This was later changed to a ten-day suspension without pay by BCSB, which was also adopted on July 10, 2019. Formoso testified that BCSB increased the one-day suspension to a ten- day suspension because Respondent’s conduct amounted to sexual harassment. BCSB provided all notice and process that was due as it pertains to the investigation and procedural requirements from the time the investigation was commenced through BCSB’s adoption of the 1 Although the statements of these students contain descriptions of Respondent providing unwanted hugs and making inappropriate flirtatious comments to other female students, they were not relied upon for the decision of this Recommended Order. The deposition testimony of the other students was credible and enough to prove the allegations against Respondent in the Amended Complaint. Superintendent’s recommendation for a ten-day suspension in relation to this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a Final Order upholding Respondent’s suspension for ten days without pay. DONE AND ENTERED this 15th day of March, 2021, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 15th day of March, 2021. COPIES FURNISHED: Denise Marie Heekin, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert W. Runcie, Superintendent Broward County Public Schools 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 Melissa C. Mihok, Esquire Melissa C. Mihok, P.A. 201 East Pine Street, Suite 445 Orlando, Florida 32801 Elizabeth W. Neiberger, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
