The Issue The issue posed herein is whether or not the Respondent's recommendation received by the Superintendent made to the School Board that George H. Steel, Petitioner, be terminated for "gross insubordination and willful neglect of duty", as more particularly set forth hereinafter, should be upheld.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the documentary evidence received during the course of the proceedings, the following relevant facts are found. The School Board of Hendry County is the governing body of the school district of Hendry County, and as such, is the employer of all personnel within the school system. Section 230.23, Florida Statutes (1977). James C. Edwards, as the Superintendent of Schools for Hendry County, Florida, is the Chief Executive Officer for the entire school system. (TR. I-20). The Superintendent is charged with the responsibility for controlling and directing all employees of the school system. Subsection 230.33(7)(i), Florida Statutes, (1977). The position of Superintendent of Schools of Hendry County is an elected position. In the November, 1976, general election, George H. Steele, the Petitioner herein, was the incumbent Superintendent. The other candidate in that election was James C. Edwards, who was, at that time, principal in the Hendry County School System under Mr. Steele. Edwards defeated Steel in the election and assumed the office of Superintendent in January, 1977. Upon leaving office as Superintendent, the defeated Mr. Steele was re- employed by the Hendry County School Board and placed in the position of Director of Pupil Personnel Services for the remainder of the school year. The basis of the charge of gross insubordination was as follows: From the months of August through November, 1977, Steele failed to follow specific directives of the Superintendent and School Board policies concerning submitting payrolls through the sub-office. From the months of August through November, 1977, Steele failed to follow procedures for ordering textbooks and other items through the sub-office. During the months of September and October, 1977, Steele failed to secure all doors and gates of the school before going off duty each night as he was directed by the Superintendent and his job description. Steele attempted to undermine the programs of the adult community school by prematurely cancelling classes without proper authorization; improperly discouraging students from registering in the program of the adult community school; complaining about the organization and operation of the school in the presence of students; and being openly hostile and antagonistic toward the coordinator of the community schools. On November 3, 1977, Steele closed the school without authorization and without following the prescribed procedures as set forth in School Board policy. The basis of the charge of willful neglect of duty was as follows: During the months of June through November, 1977, Steele was absent from his assigned work location during the times that he should have been present, such absences not being authorized by duly approved leave. During the month of September, 1977, Steele failed to secure a teacher for a scheduled class and did not inform the coordinator of the unavailability of the teacher. On September 29, 1977, Steele was absent from his assigned work location and was not performing his assigned duties while watching a junior varsity football game with students in the night classes. On December 6, 1977, the School Board suspended Steele without pay pending a hearing on the charges, if requested. On November 29, 1977, prior to the School Board action suspending him without pay, Steele requested a hearing under the Administrative Procedures Act. On April 18, 1977, Mr. Edwards, the new Superintendent, called Mr. Steele in for a conference regarding his assignment for the next school year. Also present at that conference were William Perry (Director of Vocational, Technical, and Adult Education) and Thomas Conner (Community School Coordinator). Steele's attitude at that meeting has been characterized as belligerent. (TR I-44-46; TR II-231-234.) He started off the meeting by telling the Superintendent which assignments he would refuse to accept. (TR I- 45; TR II-232.) When the Superintendent informed Steele that he was going to be recommended as principal of the Adult Community School, Steele's reaction was openly hostile. (TR I-46.) Steele appeared at the next School Board meeting to protest his new assignment. At that meeting, he read a prepared statement to the School Board accusing the new Superintendent of "political hatchery". (TR I-49; Petitioner's Exhibit No. 3.) While Steele's right to speak directly to his public employer regarding the operation of the school system is unquestioned, his choice of works and his quarrelsome tone exceeded the bounds of propriety. Although Steel's conduct at this meeting is not cited as grounds for his termination, it is indicative of his attitude, which was repeatedly displayed thereafter, until the Superintendent recommended his dismissal. In August of 1977, when Steele assumed the position of principal of the Adult Community School, his immediate supervisor was Clarence Jones, the new Community School Coordinator. Jones' supervisor was William Perry, Director of Vocational, Technical and Adult Education. Perry's supervisor, in turn, was Mr. Edwards, the Superintendent. (TR-I-62, 131, 132; TR II-229.) As a result of Steele's desiring a clarification of his duties in his new position, a meeting was held on August 18, 1977, between the Superintendent and Steele. (TR I-52, 174, 175; TR II-236.) Perry and Jones were also present at this meeting. The Superintendent reviewed Steele's job description explaining, item by item, what he expected of Steele in his new assignment. Steele had a copy of the job description before him during this discussion. (TR I-56, 175; TR II-236.) Superintendent Edwards reminded Steele that his office hours were to be from 3:30 p.m. to 10:30 p.m., and that he must not leave the campus under any circumstances, except in an emergency. (TR I-63, 175, 176; TR II-237.) Whenever it became necessary for Steele to leave the campus--either for emergencies or because he was ill--he was instructed to call Jones, Perry, or the Superintendent before leaving. (TR I-63, 175, 176; TR II-237.) On August 31, 1977, Jones received a call from the Superintendent asking him to meet the Superintendent at the Adult Community School, Clewiston. Jones went to the school and arrived there at approximately 9:58 p.m. Jones and the Superintendent inspected the campus and did not find Steele present. Steele's car was not present. They remained there until approximately 10:30 p.m. (TR I-181.) On September 15, 1977, Jones went to the school at 10:17 p.m. and found all the lights off and nobody there. Steele's car was not present. He stayed there until 10:30 p.m. Steele had not called Jones to tell him that he was leaving that night. (TR I-187 and 188.) On September 19, 1977, Jones went tot he office of the Adult Community School, Clewiston, during the first night of classes to assist in registration. He noticed that on the first night eleven classes had been cancelled. Some of the classes cancelled were some of the most important ones that were offered, such as English, GED, mathematics and drivers education. (TR I-190 and 191.) The proper procedure and the procedure that has always been followed since the beginning of the program under Steele as Superintendent was that registration was to be held open for two weeks. At the end of two weeks, if the class was under the fifteen students that were needed to continue the class, the class would be cancelled after a conference between Perry and Jones. There was no conference to cancel any of the classes, and if any cancellations occurred, they were done without going through Perry and without following the proper procedures. (TR I-194 and 196; TR II-241, 244, 245 and 247.) In September, 1977, Steele changed the course offering of shorthand to speedwriting. (TR II-247 and 247; TR III-18.) The proper procedure for changing a course that had been scheduled would be for the principal, Mr. Steele, to consult with the Coordinator of Community Schools, Mr. Jones, and then consult with the Director of Vocational, Technical and Adult Education, Mr. Perry, and then change the course from what had been offered. Perry had not been consulted before the course was changed from shorthand to speedwriting, but subsequently approved the change after the fact. (TR II-247, 248, 249 and 250.) During the night of registration for the fall term of 1977, Steele was complaining to the students that he did not know what was going on around the adult school and did not have the authority to do anything and did not know what was happening. Steele's attitude toward Jones that night in front of the students was belligerent. (TR I-191 and 201.) On September 20, 1977, the first night that the class of bookkeeping was scheduled to begin, Steele called Jones about 3:40 p.m. and informed Jones that Steele did not have a teacher for the bookkeeping course that was to begin at 7:00 p.m. that night. There were twenty people enrolled in the class. It is the principal's responsibility to be sure that each class that is to be taught has a teacher and it is unusual for a class to start without a teacher, particularly when there are twenty people enrolled in it. Jones had to secure the person to teach the class. (TR I-203, 206; TR II-245.) On September 21, 1977, Jones went to Steele's work location at 10:00 p.m. and found that Steele was not present. Jones called the Superintendent and the Superintendent arrived at the school at approximately 10:12 p.m. and remained until about 10:30 p.m. During that period of time Steele was not present. (TR I-66 and 213.) On September 22, 1977, Jones went to Steele's work location at 10:05 p.m. and Steele was not present. Jones and Phifer, the principal of Clewiston High School, walked around the campus to see if they could find Steele, but could not find him. Jones remained there until approximately 10:30 p.m. and Steele was not present. Steele had not called him to inform him that he would not be there. (TR II-9 and 10.) On October 11, 1977, at 10:05 p.m. Jones went to Steele's work location and found that Steele was not on duty. He found the gates were not locked and that both access gates on the north side of the campus were standing open and unlocked. Jones secured the campus and inspected the entire campus, but could not find Steele. There were no cars present at the campus. He was there until around 10:30 p.m. and did not see Steele the entire time. Steele had not called in to say that he would not be there. (TR II-56, 57 and 58.) On October 14, 1977, Jones went to Steele's work location at approximately 9:30 p.m. and all the lights were out and doors were locked. Steele was not on campus and had not called Jones to say that he would not be there. Jones inspected the campus and did not find Steele. There were no cars on the campus. Jones stayed there for about twenty minutes and Steele did not return. (TR II-59.) On October 21, 1977, Jones went to Steele's work location at 8:30 p.m. and found that Steele was not there. All the doors were locked and lights were out. Steele had not called him about leaving. Jones discovered that Steele had filed a leave form for October 21, 1977, but it was filed in the county office in LaBelle and did not come through the suboffice as instructed by the Superintendent. (TRII-60 and 61.) On November 2, 1977, at 9:55 p.m. Jones went to Steele's work location and Steele was not present. The lights in the office were out and all doors were locked. Jones searched the entire campus and Steele was not there. Jones remained there for about forty minutes. Steele had not called him to say that he would not be there. (TR II-65, 66 and 67.) The Superintendent also directed Steele to send his payrolls through the county sub-office in Clewiston, where Jones maintained an office, rather than directly to the district office in LaBelle. Similarly, the Superintendent directed Steele to send all purchase orders for materials, books and supplies through the county sub0office in Clewiston for Jones' review, rather than directly to the supplier. The Superintendent also directed Steele to send all sick leave forms, whether for himself or his employees, through Jones in the county sub0office in Clewiston. In short, the Superintendent re-emphasized that Jones was Steele's supervisor. Finally, the Superintendent directed Steele to insure that the school plant was secure each night before he left campus. (TR I-64.) At the conclusion of this August 18, 1977, meeting, the Superintendent requested Steele to conform to all School Board policies and all of the orders that he had been given at the conference. There can be little doubt that Steele fully understood the Superintendent's orders. After each item, the Superintendent asked Steele if he understood what he had just been told; on each occasion, Steel acknowledged that he understood his instruction. (TR I-65, 177; TR II-239, 240.) In closing, the Superintendent warned Mr. Steele that if he did not follow each and every directive of the Superintendent and adhere to School Board policy, the Superintendent would consider each breach an act of gross insubordination. (TR I-65, 177; TR II-239.) Steele indicated that he understood the import of the Superintendent's orders. (TR I-65, 177; TR II-239, 240.) The tone of the meeting was very serious and the other administrators present testified that they had no problem understanding exactly what the Superintendent had directed Steele to do. (TR I-178.) Following that August meeting, Steele, based on the acts and conduct set forth above, failed or refused to follow the standards of conduct laid down by the Superintendent, ultimately resulting in the Superintendent's recommendation to the School Board that Steele be terminated for gross insubordination and willful neglect of duty. The particular conduct by Steel is detailed below. On numerous occasions after the August meeting, Steele left school early without informing Jones, Perry or the Superintendent. (TR I-66, 97, 181, 188, 213; TR II-9, 10, 56-61, 65-67.) He refused to send his payrolls through Jones at the sub-office, but persisted in sending them directly to the county office in LaBelle (TR II-11, 65; Respondent's Exhibit Nos. 2 & 4), in clear violation of the Superintendent's express orders. He also refused to send his book orders and his requisitions for materials and supplies through Jones, choosing instead to send them directly to the suppliers. (TR II-13, 14,15, 17, 18; Respondent's Exhibit Nos. 3 & 4.) He consistently failed to send his sick leave forms through Jones in the sub-office (TR II-60, 61), as he had been specifically instructed to do. On several occasions, he failed to secure the school plant before leaving the campus. (TR II-56, 57 &58.) In addition to repeatedly disobeying various lawful orders of the Superintendent, Steele openly displayed a hostile and contemptuous attitude toward his supervisors. From the first meeting between Jones and Steele, Steele was contemptuous and hostile toward Jones. (TR I-51.) Jones, as was his practice, recorded those encounters with Steele which he considered out of the ordinary, either favorable or unfavorable. (TR I-141.) Steele's attitude towards his immediate supervisor, Clarence Jones, was particularly disrespectful, discourteous, and belligerent -- not only in private, but in public. On occasion, he would totally ignore Jones in the presence of others, under circumstances where his refusal to acknowledge Jones' presence could reasonably be considered as an attempt to demonstrate his contempt for Jones. On other occasions, Steele displayed open hostility toward his supervisor. For example, he angrily slammed a handful of papers down on his desk and invited Jones outside to settle the matter of who was going to be principal of the school. (TR I-288.) In view of the circumstances, Jones perceived Steel's statement as an invitation to fight; however, Steele -- further displaying his contemptuous attitude toward Jones -- claimed he would never challenge Jones to a fight because he did not feel Jones was a man. (TR III-104, 170.) On another occasion, Steele told Jones' supervisor, Mr. Perry, that he thought Jones was a "pip squeak" and that he "would like to bust him in the mouth" (TR II-260.) Steele's insolent attitude toward Jones became apparent to others, as well. In September, 1977, a student, Margaret DeCastro, wrote a letter to Perry commenting on the rude and disrespectful attitude Steele had displayed toward Jones in her presence. Upon receiving Ms. DeCastro's letter, Perry requested a report from Jones about his relationship with Steel. In response, Jones detailed all the problems he had with Steele up to that point. Perry, in turn, reported this matter to the Superintendent. However, Clarence Jones was not the only administrator to face Mr. Steele's wrath: Steele also acted in a disrespectful manner toward William Perry, who was director of all adult and vocational-technical programs in Hendry County. For example, in the latter part of September, 1977, Steele upbraided Perry in front of several staff members. (TR II 256-260.) Mr. Perry was sufficiently upset by the incident that he wrote a letter to Steele directing him to change his attitude. (TR II-261; Respondent's Exhibit No. 7.) Finally, Steele's hostile, belligerent, and insubordinate attitude extended directly to the Superintendent. In a meeting with Steele on November 7, 1977, in the presence of Perry and Jones, the Superintendent informed Steele that he and Clarence Jones had, on several occasions as set forth above, discovered that Steele was absent from his assigned work location during duty hours. Steele angrily responded that anybody who said that he had not been at his work location when he was supposed to be was "a damn liar and full of shit." (TR II-267.) At that same November meeting, the Superintendent also questioned Steele about closing the adult school on the evening of November 3, 1977, without prior permission from Jones, Perry or Edwards. District policy prohibits principals from closing their schools without first receiving approval from the County office. (TR I-101.) Mr. Steele had been instructed to comply with all School Board policies at the August 18, 1977, meeting between Steele, Edwards, Perry and Jones. (TR I-65, 177; TR II-239.) Steele admitted that he had closed the school that evening; however, he claimed the weather was extremely bad and contended that he was justified in closing the school. (TR I- 102; TR II-73, 266.) While Steele's decision to close the school may have been sound, in view of the weather, he had once again failed to follow School Board policy, and the Superintendent's direct orders that he advise Jones, Perry or the Superintendent of the conditions so that they could make the decision. School Board policy did not give a principal, such as Steele, the discretion to close a school without first consulting with the Superintendent or his delegate. The mere fact that his decision may have ultimately proved proper does not excuse Steele from his obligation to follow the procedures set down by the Superintendent. ANALYSIS AND DISCUSSION A Principal with continuing contract status may be dismissed for gross insubordination or willful neglect of duty. Subsection 231.36(5), Florida Statutes (1977). The harmful effect of an administrator's insubordinate attitude on the operation of the school system has long been recognized. For example, in Board of Education of the City of Los Angeles v. Swan, 250 P.2d 305 (Cal. 2d DCA 1952) the Court, citing precedent, noted: A teacher, and more particularly a principal, in the public school system is regarded by the public and pupils in the light of exemplar, whose words and conduct are likely to be followed by the children taught. An important part of the education of any child is the instilling of a proper respect for authority and obedience to necessary discipline. Lessons are learned from example as well as from percept. The example of a teacher who is continually insubordinate and who refuses to recognize constituted authority may seriously affect the discipline in a school, impairs efficiency and teach children lessons they should not learn. Such conduct may unfit a teacher for service in a school even though her other qualifications may be sufficient. Johnson v. Taft School District, 19 Cal.App. 2d 912, 913; Voorhees, Law of Public Schools, p. 136. Id. at 309 (emphasis added). Unfortunately, the term "gross insubordination" has not yet been defined by Florida courts. However, in conformity with a fundamental rule of statutory construction, the term should be accorded its plain and ordinary meaning. Pederson v. Green, 105 So.2d 1 (Fla. 1958). Webster's Seventh New Collegiate Dictionary (1976 Ed.) defines "insubordination" as "unwilling to submit to authority." In the context of public education, the term has been defined as: "A constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority." Ray v. Minneapolis Board of Education, 202 N.W. 375, 378 (Minn. 1972). Another Court has stated: Insubordination imports a willful disregard of express or implied directions of the employer, and a refusal to obey reasonable orders. McIntosh v. Abbot, 231 Mass. 180, 120 N.E. 383. A practically indentical definition is found at 21A, Words and Phrases, Insubordination, 554, and was applied to uphold the dismissal of a teacher in Ellenburg v. Hartselle City Board of Education, 349 So.2d 605, 509, n. 2d (Ala.Civ.Appl1977): Insubordination imports willful disregard of express or implied directions or such defiant attitude as to be the equivalent thereto. (emphasis supplied) In the single Florida case construing the term, a teacher's dismissal for insubordination was upheld where he displayed "a disobedience of orders, infractions of rules, or a generally disaffected attitude toward authority." Muldow v. Board of Public Instruction of Duval County, 189 So.2d 415 (Fla. 1st DCA 1966). Lack of cooperation has been considered "a subtle species of insubordination." School District No. 8 v. Superior Court of Pinal County, 433 P.2d 28, 30 (Ariz. 1977). However, Florida Statutes requires something more than "a subtle species of insubordination" in order to terminate a continuing contract. The Continuing Contract Law says that the attitude or conduct of the educator must be "gross insubordination." Subsection 231.36(6), Florida Statutes (1977). The modifier "gross" when used with the term "insubordination" may also be interpreted in its common sense: "glaringly noticeable." Webster's Seventh New Collegiate Dictionary (1976 Ed.). One Federal Circuit Court, in Horton v. Orange County Board of Education, 464 F.2d 536 (4th Cir. 1972) affirming 342 F.Supp. 1244, construed the following actions as "downright" subordination: A teacher required her students to purchase two paperback books, despite a district policy which prohibited teachers from buying books for use in class or selling books to students, or collecting any fee from students, without first obtaining approval from the local Board of Education. When told of her violation, and informed that she must refund student monies, the teacher allowed a student to sell the book, in an apparent effort to avoid the regulation. 342 F.Supp. at 124. In Delaware, the statutory term analogous to "gross insubordination" is "willful or persistent insubordination", 14 Del. C. Subsection 1411. That term has been judicially defined as: "A constant or continuing intentional refusal to obey a direct or implied order which is reasonable in nature and has been given by and with proper authority." Shockley v. Board of Education, 149 A.2d 331, 334 (Del. Superior Ct., 1959). Although not dealing in those terms, a sensible and workable distinction between simple insubordination and "gross" insubordination is suggested by the Court in Fernald v. City of Ellsworth Superintending School Committee, 342 A.2d 704 (Me. 1975): In short, we are not dealing here with a teacher's ephemeral bad mood, minor clerical omission, or arguable negligence or inattention concerning an incidental matter. Rather, Plaintiff's conduct has the marks of a persistent, sustained, and unreasonable course of defiance. Such an attitude, over a course of time, breaches harmonious relations among colleagues and administrators. Id. at 708 (emphasis added). 1/ In other words, an occasional lapse of decorum or failure to follow orders may not be "gross" insubordination, since it may merely reflect an "ephemeral bad mood" rather than a disaffected attitude toward authority. But, when the misconduct is repeated, the breaches are more likely to be the result of persistent defiance rather than an "ephemeral bad mood." In order to flesh out the concept of insubordination as it applies in the context of public schools, a brief review of the manner in which the term has been applied in several specific cases is helpful. In Ray v. Minneapolis Board of Education, 202 N.W.2d, 375 (Minn. 1972) a "well-qualified Minneapolis high school teacher" (Id. at 377) was discharged for insubordination based upon his refusal to fill out an eight-page form which was part of the curriculum evaluation study conducted by an independent professional group, the North Central Association of Colleges and Secondary Schools. 1. In Fernald, a teacher had notified the Superintendent that she intended to take leave. When he denied her request, she absented herself from class for two days. Her termination for insubordination was affirmed by the Supreme Court of Maine. When Mr. Ray finally completed the form, he failed to answer several questions. A month later, when his principal asked him to fill out a second form, Mr. Ray again left several questions blank and answered some of the questions in an unresponsive fashion. At that point, he told his supervisor to quit harrassing him. Thereafter, Mr. Ray was advised by the Associate Superintendent that his failure to complete the form would be regarded as an act of insubordination. When, in April, Mr. Ray once again refused to complete the from, he was dismissed for insubordination. Even though Mr. Ray had contended that he had a First Amendment right to refuse to fill out the form, the Court found that he was discharged because he deliberately failed to cooperate in a program which was within the scope of his duties as an educator. (Id.) After reviewing the evidence, the Minnesota Supreme Court affirmed, ruling that Mr. Ray's refusal to complete the form was insubordinate (Id. at 378). In Calvin v. Rupp, 334 F.Supp. 358 (E.D. Mo., 1971), the Court rejected Mr. Calvin's contention that the true reason for his dismissal was his union organization activities (Id. at 359). Instead, the Corut--after taking testimony--found that Mr. Calvin "was guilty of undermining the school administration and of insubordination." (Id. at 362.) The specific acts of misconduct which the Court found constituted insubordination were his repeated failure to comply with the District policy regarding the report of drug use by students, coupled with his directing the publications class to cease working on the school newspaper. 2/ 2. The specific acts which were cited were: failure to report evidence of student drug activity, an omission which Mr. Calvin knew violated school policy (Id. at 361); notifying the Federal Narcotics Bureau about the suspected drug activity without first notifying the school officials (Id.); conferring with a narcotics agent on school property, without first notifying the school administration (Id.); discussing his suspicions with a student, after having been ordered by Superintendent Rupp "to say nothing further about the incident to anyone." (ID.); and directing his publications class to cease work on the student newspaper (Id. at 362). In Barnes v. Fair Dismissal Appeals Board, 548 P.2d. 988 (Oregon Court of Appeals, 1976), a tenured teacher was dismissed for insubordination where, on three separate occasions, he violated district procedures relating to corporal punishment of students. After the first incident, Mr. Barnes was warned by the principal that his conduct did not conform to the district policies. Nevertheless, some three years later, MR. Barnes again violated the district policies. A year later, in May, 1975, Mr. Barnes again punished a student without following the proper procedures. Two weeks later, the Superintendent notified Mr. Barnes that he was recommending his dismissal or insubordination. One other event which occurred between the second and third disciplinary incidents was cited by the Superintendent as evidence of Barnes' insubordination: On or about August 28, 1974, while attending the first day of in-service as a teacher *** you were asked to sign a roster of the record of your attendance. When you were advised it necessary that you do so, you did sign it by scrawling your name completely across the paper and making the remark, 'Give me that thing, and I will sign it for the son-of-a-bitch.' 548 P.2d at 990 n. 4. The Fair Dismissal Appeals Board concurred with the Superintendent and the School Board of Scappoose School District that Mr. Barnes' actions constituted insubordination, and upheld his dismissal. The Court of Appeals of Oregon, in the Opinion cited, affirmed the Appeals Board's action. Id. at 991. In view of the foregoing cases, and the misconduct of Steele cited herein, it is evident that Steele had engaged in a willful and persistent defiance of his duties as laid down by the Superintendent of Schools at the August 18 meeting. Steele's misconduct was exacerbated by his openly hostile and contemptuous attitude toward his immediate supervisor, Clarence Jones, whom he subjected to verbal abuse, snubbing, and even threatened with physical harm. Despite the express orders of the Superintendent, Steele often left school early, occasionally failing to even secure the campus. Apparently, Mr. Steele's defeat at the polls festered within him, and made him unwilling to graciously accept the fact that he was now subject to the direction and control of other administrators, whom he held in contempt. Steele's behavior during the period August through November, 1977, clearly constitutes gross insubordination and justifies his dismissal. As with "gross insubordination", the Florida Legislature failed to define "willful neglect of duty", which is another ground for dismissal under Section 231.36, Florida Statutes (1977). However, the term "neglect of duty", as used in Art. IV, Subsection 7, Fla. Const. (1968) and its predecessor, Art. IV, Subsection 15, Fla Const. (1885), was defined in State, ex rel Hardie v. Coleman, 115 Fla. 119, 155 So. 129 (1934): Failure on the part of a public officer to do and perform some duty or duties laid on him as such by virtue of his office or which is required of him by law. 155 So. at 132 Although both "gross insubordination" and "willful neglect of duty" involve failure to obey orders, the Legislature must have intended some distinction between the terms, or its use of the two terms in Section 231.36 would be redundant. Since the Superintendent of Schools has lawful authority to supervise or provide for the supervision and management of all school district personnel, Subsection 230.33(7), Florida Statutes' failure to abide by his orders would constitute willful neglect, if the failure to obey the orders was intentional, and gross insubordination if the disobedience was attended by disrespect. To avoid the redundancy, then, one must assume that breach of even minor rules could constitute "gross insubordination" where it is repeated, and where the breach is attended by overt defiance or hostility toward one's superiors. For willful neglect of duty, the contemptuous attitude may be lacking, but the rule or order violated must be somewhat more important to the efficient operation of the schools. Thus, for neglect of duty, one should look for the actual harm done; for insubordination, one should look to the attitude displayed towards the employer or supervisor. Statistical evidence is useful in gauging the extent of the harm Steele caused the Hendry County School System, generally, and the adult evening program, particularly, because of his persistent refusal to follow orders. The most telling statistic in this regard is the enrollment of the school before, during, and after Steele's tenure as principal. While Steele was principal of the adult evening school, enrollment in October, 1977, was down 40% from the previous year. The following October, after Steele had departed, enrollment was up over 100% above the level of enrollment for October, 1977. (TR II-84, 85, 88; Respondent's Exhibit No. 5). Thus, there was a severe dip in enrollment under Steele, followed by a significant rise after he left. The loss in enrollment under Steele, which is evidence of his neglect of duties, could logically be attributed to incidents such as the following: On August 17, 1977, Steele displayed his distaste for his new assignment by stating to Jones that he did not intend to be a "flunky" for the Adult Community School Program (TR I-149, 153, 159, 161-162). On September 19, 1977, the first night of registration for the Adult Community School, eleven classes had already been cancelled by Steele, including ones which Jones considered important, such as driver's education, GED, English and mathematics (TR. I-190-191). Even when Steele was Superintendent, classes were not normally cancelled until two weeks after registration night, (TR I-194, 196; TR II-241, 244, 245, 247). Steele changed a course in shorthand to speedwriting without first consulting with Jones or Petty, which was the proper procedure. (TR II-247- 250). More damaging was Steele's apathetic attitude towards the program: On registration night, he openly complained to students that he did not know what was going on around the school and that, in any event, he had no authority to do anything. (TR I-191, 201). Late in the afternoon of the day the bookkeeping class was to begin, Steele informed Jones that he had not yet secured a teacher for the class, even though it turned out that twenty students had already registered. (TR I-203, 206; TR. II-245.) As noted earlier, Steele was absent from school during assigned hours on numerous occasions during the fall of 1977. This, in spite of the Superintendent's direct order that he not leave campus without authorization, even to get a newspaper. (TR I-63, 175, 176; TR II-237.) On October 11, 1977, Steele not only left campus early, he failed to secure the building, as he had been specifically instructed to do. (TR II-59.) In summary, Steele's persistent failure to follow the rules of conduct laid down by the School Board, the Superintendent, or which are obvious requisites of his job as principal constitute willful neglect of duty and justifies his termination under Section 231.36, Florida Statutes. The statutory penalty for "gross insubordination" or "willful neglect of duty" is dismissal. For lesser offenses, lesser penalties may be authorized. However, where a continuing contract principal's misconduct constitutes gross insubordination or willful neglect of duty, as it has in the instant case, dismissal is appropriate. I shall so recommend
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, is is hereby, RECOMMENDED: That the Respondent, District School Board of Hendry County's recommendation that the Petitioner, George H. Steele, be terminated be UPHELD. RECOMMENDED this 14th day of September, 1979, in Tallahassee, Florida JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. Leonard Fleet, Esq. 4001 Hollywood Boulevard Hollywood, Florida 33021 John W. Bowen, Esq. and Andrew B. Thomas, Esq. Rowland, Bowen & Thomas Post Office Box 305 Orlando, Florida 32802 Owen Luckey, Jr., Esq. Post Office Box 865 LaBelle, Florida 33935
The Issue Whether the Respondent should be dismissed from her employment with the Miami-Dade County School District.
Findings Of Fact The Petitioner is responsible for the administration and operation of the public schools within the Miami-Dade County Public School District. Such responsibility includes the discipline of teachers employed to work in the public schools of the district. At all times material to the allegations of this case, the Respondent, Iman Abd Al-Quddus, was employed as a math teacher by the Petitioner. The Respondent was assigned to Allapattah Middle School for the 1997-1998 school year pursuant to a professional service contract. On January 15, 1998, the Respondent grabbed a sixth grade student in her class named Raymond White. According to Raymond the Respondent pushed him against the wall and attempted to choke him. Raymond started crying and was upset. He immediately went to the office to report the incident and spoke with the Assistant Principal, Mr. Bonce. As a result of the foregoing incident, the student's neck became swollen. He was later taken to a hospital and examined. After the incident described above, Raymond's mother filed a complaint with the School Board. The complaint prompted a school police investigation of the incident. On May 13, 1998, during a conference for the record (CFR) with the Respondent, the school principal directed the Respondent to refrain from any conduct which could be perceived as inappropriate and from discussing the choking incident with others. Unrelated to the foregoing, on May 6, 1998, a parent complained that the Respondent used profanity in the presence of students. School administrators heard the Respondent use profanity in her classroom. They were able to overhear the Respondent's inappropriate language from the hallway outside her classroom. On May 18, 1998, Raymond's mother complained to school officials that the Respondent had announced that Raymond would receive a failing grade in the class. On another occasion, the parent advised the school officials that the Respondent had threatened to punish students who reported the Respondent's use of profanity. Given the number of incidents between the Respondent and students in Raymond's class, Mrs. White became concerned that the Respondent was not exhibiting appropriate professional conduct in the class. Delicia Johnson was a sixth grade math student in the Respondent's class during the 1997-1998 school year. According to this student, the Respondent used profanity on numerous occasions in the classroom. Delicia described the Respondent's treatment of students as "very bad." She observed the Respondent hit students and heard her describe them as "stupid," "dumb," "idiots," or "morons." Delicia earned an "A" grade but was given a "C" by the Respondent. Later the grade was changed to reflect the correct grade. According to Delicia, the Respondent's use of derogatory terms made the students feel uncomfortable. Delicia's mother filed letters with the Petitioner to complain of the Respondent's treatment of the class. She was concerned about the Respondent's use of profanity and demeaning treatment of students. Gilberto Bonce was the assistant principal at Allapattah during the 1997-1998 school year. Mr. Bonce counseled the Respondent on more than one occasion regarding her language in the classroom. Mr. Bonce also advised the Respondent to not speak with students regarding an ongoing investigation. According to Mr. Bonce the Respondent did not comply with these directives. On one occasion, the Respondent started screaming at Mr. Bonce and refused to calm down. He requested that she return to her classroom which had been left unsupervised. Mr. Bonce conceded that the Respondent knows her subject matter but failed as a teacher because she was unable to maintain discipline in the class, reverted to the use of derogatory names and profanity toward the students, and could not be effective in the classroom setting. Based upon the notoriety of the Respondent's classroom behavior, her demeaning treatment of students, and her physical attack on Raymond White, the Respondent's effectiveness as a teacher in the Miami-Dade County Public School District has been seriously impaired. Official recognition has been taken of the following provisions: School Board Rules 6Gx13-4A-1.21, 6Gx13-4-1.08, 6Gx13-5D-1.07, and 6Gx13-5B-1.04; and Rules 6B-1.006, 6B-1.001, and 6B-4.009, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade School Board enter a final order affirming the suspension and dismissal of the Respondent from her position as a teacher with the School District. DONE AND ENTERED this 28th day of June, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish 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 28th day of June, 2000. COPIES FURNISHED: Luis M. Garcia, Esquire School Board of Miami-Dade County, Florida 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Iman Abd Al-Quddus 181 Chafin Avenue Ewing, New Jersey 08638 Roger C. Cuevas, Superintendent Dade County Schools 1450 Northeast Second Avenue Room 912 Miami, Florida 33132-1308 Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
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 The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f)1, 1012.795(1)(i), and 1012.795(1)(k), Florida Statutes (2002-2005),2 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(g), and 6B-1.006(3)(i), and, if so, what discipline should be imposed.
Findings Of Fact Ms. West holds Florida Educator’s Certificate 666407, which covers the area of physical education and is valid through June 30, 2012. She began her teaching career in 1990. At all times pertinent to this case, Ms. West was employed as a physical education teacher at Azalea Middle School in the Pinellas County School District. By Final Order dated February 20, 2004, the Education Practices Commission found Ms. West guilty of violating Subsection 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), by, among other things, making derogatory remarks to students and disclosing students’ grades without their permission. The Education Practices Commission suspended Ms. West’s educator certificate for the summer session for 2004 and placed her on probation for two years, effective February 20, 2004. The violations for which Ms. West was disciplined occurred while Ms. West was a teacher at Gibbs High School. In an effort to give Ms. West a fresh start, she was administratively transferred from Gibbs High School to Azalea Middle School beginning August 2001. Ms. West was assigned to teach seventh-grade physical education. Connie Kolosey was the seventh-grade assistant principal at Azalea Middle School who was responsible for supervising everything having to do with the seventh grade, including the seventh-grade teachers. The principal at Azalea Middle School received an anonymous letter early in the 2001- 2002 school year complaining that Ms. West was using offensive language and making derogatory remarks to students. About the same time as the arrival of the anonymous letter, Ms. Kolosey became aware that Ms. West was using her cell phone in class to call parents to talk about students’ behavior. Ms. Kolosey met with Ms. West on September 7, 2001, to discuss these issues. Ms. West felt that the anonymous letter came from individuals who were involved in Ms. West’s problems at Gibbs High School. The use of the cell phone was discussed during the conference. Ms. West stated that when she was at Bay Pointe Middle School she had used the cell phone to call parents during class and found it to be an effective way to curb student misbehavior. Ms. West indicated that she would leave the gymnasium and make the cell phone calls in the hallway. Ms. Kolosey explained to Ms. West that the use of cell phones to call parents during class was not appropriate. Students could be embarrassed by having Ms. West discuss their discipline issues in front of the class or in the hallways. Additionally, it was not a safe practice to leave the students in the gymnasium while she went into the hall to make telephone calls. On February 8, 2002, Ms. Kolosey had another conference with Ms. West to discuss accusations which had been made by several students that Ms. West had been making derogatory remarks to them about their physical appearance. Ms. West denied making the comments. During the spring of 2002, the parents of one of Ms. West’s students demanded that their child be removed from Ms. West’s class for comments which Ms. West allegedly made to their child, S.B. Ms. Kolosey investigated the matter and could find no one to corroborate the allegations made by S.B. and her parents. Thus, Ms. Kolosey refused to remove the student from Ms. West’s class. The parents of S.B. continued to request that their child be removed from Ms. West’s class because S.B. had skipped Ms. West’s class, and they felt it was a result of the child having been traumatized by Ms. West’s actions. Ms. Kolosey discussed the issues concerning S.B. She specifically told Ms. West not to bring the issues up to S.B. in a negative way but to attempt to mend her relationship with S.B. On March 12, 2002, Ms. Kolosey received a telephone call from S.B.’s mother again demanding that S.B. be removed from Ms. West’s class. Ms. West had told S.B. in front of S.B.’s classmates that S.B. could not run to Ms. Kolosey about things that were said in private because she was saying it in front of the whole class. Ms. West admitted to Ms. Kolosey that she had made the remarks to S.B. Ms. Kolosey agreed to remove S.B. from Ms. West’s class. On May 16, 2002, Ms. Kolosey; Ms. West; Ms. Andrews, the principal at Azalea Middle School; and Mr. McNeil, a union representative, had a conference to discuss more allegations that Ms. West had made belittling remarks to some of her students. It was suggested to Ms. West that if she needed to discuss a student’s performance or behavior that she take the student aside rather than do it in front of other students. Ms. West was warned that her attitude needed to change and that she could not always say the first thing that came to her mind. During the last semester of the 2001-2002 school year, Ms. West’s daughter was seriously ill, and Ms. West missed a great deal of work because of her parenting responsibilities. The first semester of the 2002-2003 school year, Ms. West was absent most of the time because of her daughter’s illness. Ms. West returned to teach at Azalea Middle School in January 2003. After Ms. West’s return, complaints began to be made to the administration about inappropriate comments that Ms. West was alleged to have made during class. Ms. West denied making the comments. Again, Ms. West was cautioned to think about what she says to the students before she says it. Ms. West was under a great deal of stress during the early part of the second semester of the 2002-2003 school year because of her daughter’s illness. Her daughter passed away in March 2003. In March 2003, Ms. West received a written reprimand from the principal at Azalea Middle School for “failing to interact appropriately with students and making inappropriate remarks to students, and for insubordination in failing to follow a previous directive to refrain from such remarks.” Again, Ms. West was directed to refrain from making inappropriate remarks to students. Ms. Kolosey evaluated Ms. West for the 2002-2003 school year. Ms. West was rated ineffective for her instructional and non-instructional performance. It was noted that Ms. West’s judgment was a serious concern and that the numerous complaints which had been received regarding Ms. West’s negative interactions with students overshadowed an otherwise knowledgeable and organized classroom presentation. Ms. West appealed the evaluation, but the evaluation was upheld. Ms. West felt that Ms. Kolosey was being unfair to her and that she was taking the word of students over Ms. West’s denials. Ms. West felt that because Ms. Kolosey believed the allegations of some of the students, the students somehow felt they were empowered and made even more accusations. In order to give Ms. West another fresh start, Ms. West was transferred to sixth-grade classes for the 2003- 2004 school year. Dan Stevens was assigned as her supervisor, and Ms. Kolosey had no further dealings with complaints regarding Ms. West. Because of the evaluation which Ms. West received at the end of the 2002-2003 school year, she was given a performance improvement plan on August 12, 2003. Among other things, the plan called for Ms. West to “[a]void use of inappropriate comments to students that they may find humiliating or demeaning in nature.” Ms. West was told to “[u]se wait time before responding to students[’] inappropriate behavior” and to “[r]emember to always praise student publicly and to correct them privately.” On August 25, 2003, Mr. Stevens received an email from the Azalea Middle School sixth-grade guidance counselor, advising him that there had been a complaint by a student that Ms. West had disclosed his grade in class without his permission and that the parent of another student, E.M., had called to complain that her daughter’s grade had been revealed to the other students. E.M.’s mother also wrote a letter to Mr. Stevens regarding her allegations that Ms. West was disclosing her daughter’s grades to the class. Because E.M.’s mother felt that Ms. West was acting inappropriately, she refused to allow E.M. to attend Ms. West’s class. On October 7, 2003, a conference was held with Ms. West to discuss the allegations made by E.M.’s mother. Ms. West denied disclosing E.M.’s grade. E.M. was transferred from Ms. West’s class to another class. In late August 2005, J.T., a sixth-grader at Azalea Middle School, was transferred to Ms. West’s health class. On September 2, 2005, J.T. called his stepmother during class and handed the telephone to Ms. West so that she could talk to his stepmother. Ms. West discussed with the stepmother that J.T. had failed a test and that he had not returned the test to her with a signature of one of his parents. This conversation was held during class time and in a manner that the other students could hear Ms. West. Ms. West called L.D. about her son, T.D., during class hours to complain that T.D. was making a failing grade. L.D. could hear students in the background. Ms. West made remarks to students which were disparaging and embarrassing. One remark made by Ms. West to T.J. was, “You must have studied in the dark.” Ms. West had been talking to T.J. about his low grade on a test. T.J. said that he had studied for the test, and Ms. West responded that he must have studied in the dark. Ms. West has also made this comment to other students who had made low grades on tests. Ms. West also told T.J. in front of other classmates to “Take your grow-up pill.” T.J. is small in stature and sensitive about his size. Ms. West denied that she was making a reference to his small size and contends that she was just trying to tell him that he was acting immaturely. Although Ms. West did not intend to make fun of T.J.’s small size, she should have known that such comments could embarrass him. Ms. West made the comment, “Dumb boys make dumb babies” during her health class in the fall of 2005. She contends that she was trying to make the students aware that they should think about the consequences of the decisions that they make in life. Although Ms. West was trying to convey an appropriate message, she chose an inappropriate means to do so. At the final hearing, Ms. West stated that she had made the remark to two girls, who were discussing a particular student. In essence, she referred to the young man as being dumb, which was not appropriate. Based on the numerous complaints that the administration received about Ms. West’s behavior, the Pinellas County School Board made investigations and terminated Ms. West’s employment with the Pinellas County School Board. Both administrators and parents found that Ms. West was an ineffective teacher. Based on the numerous complaints from parents and the necessity to transfer students from Ms. West’s classes to other classes, Ms. West was an ineffective teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Ms. West guilty of violating Subsections 1012.795(1)(f), 1012.795(1)(i), and 1012.795(1)(k), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(g), and 6B-1.006(3)(i) and suspending Ms. West’s educator’s certificate for three years, followed by a two-year probationary period under terms and conditions set by the Education Practices Commission. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2009.
The Issue The issue in this case is whether the Florida teaching certificate of Respondent, Edith E. Gonzalez, should be revoked, suspended or otherwise disciplined for the alleged violations set forth in an Administrative Complaint entered on September 21, 1992.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent hereto, Respondent has been a certified teacher in Florida holding Certificate No. 194394. Respondent is certified in the areas of administrative supervision, elementary education, varying exceptionalities, French, Spanish, gifted and special learning disabilities. Her certificate is valid through June 30, 1996. At all times pertinent hereto, Respondent was employed as a teacher at Miami Carol City High School (the "School") in the Dade County School District. The students enrolled in the Dade County Public School System hail from a variety of ethnic and cultural backgrounds. Miami Carol City High School has a student population that is predominantly black. Respondent is 62 years old and will be 63 in December. She is an immigrant from Lima, Peru and Spanish is her native language. Respondent has been a teacher for the School Board for 24 years. She also taught for 5 years in Catholic schools. In addition, she has taught in Korea and Ecuador. The evidence indicates that from 1985 through 1992, the School Board received various complaints regarding Respondent and/or her conduct in the classroom. Except as set forth below, the specific nature of those complaints was not established in this proceeding. In 1987, Respondent was investigated by the Professional Practices Services of the Education Practices Commission for inappropriate discipline techniques. As a result of that investigation, Respondent entered into a settlement agreement pursuant to which Respondent was placed on probation for one and a half years and issued a letter of reprimand. During the 1991/92 school year, the School Board was requested by the School to investigate allegations of inappropriate and derogatory comments purportedly made by Respondent. A formal fact finding investigation was conducted by the School Board. After the investigation was completed, a "conference for the record" was held between Respondent and School Board officials during which the investigative report was reviewed and Respondent's entire record with the School Board was discussed and considered. Respondent did not have an opportunity to review or provide input into the investigation until the conference for the record. During the conference, the School Board advised Respondent that the investigative unit concluded that the allegations of inappropriate and derogatory comments were true. Respondent was further advised that the Regional Supervisor for the School Board was going to initiate the steps necessary to suspend and dismiss her from employment. The evidence established that the School Board's decision to seek termination of Respondent's employment was based upon a review of her entire employment record with the School Board. The School Board investigation was completed on February 10, 1992, and the School Board moved to suspend Respondent and terminate her employment on or about April 1, 1992. While Respondent initially challenged the termination of her employment, on or about June 4, 1992, she decided to resign her position without a hearing. As a result, she never had an opportunity to confront the witnesses and/or challenge the investigation conducted by the School Board. The only direct evidence presented in this case regarding racial slurs and/or inappropriate and derogatory comments by Respondent was testimony from D. P., who was a student in Respondent's fourth period Spanish Class during the 1991/92 school year, and from Roxanne Mendez, who worked as a Media Specialist at the School. Their testimony was insufficient to establish that Respondent was racially prejudiced, or that she intentionally belittled, degraded, or made fun of students. The evidence established that Respondent's fourth period Spanish class was very difficult to control and included many students who misbehaved on a regular basis. Respondent admittedly had a difficult time in dealing with the class. On a couple of occasions, out of frustration, she told the students they were acting like "animals" or "savages" and told them they needed to be locked in a cage. While these comments may have been insensitive, they were not intended as racial slurs. The only student in the class who testified admitted that the comments were only made when the class was acting up and he was not personally offended by them. The evidence also established that, on some occasions when Respondent could not remember the name of a student, she would refer to them as "boy" or "girl". These comments were made to both black and white students and were not intended to be racially disparaging. While Petitioner contends that Respondent advised her students that she was prejudiced against blacks, the evidence established that any such comments were made sarcastically and/or in jest and were not taken seriously by the students. On one occasion when the students were particularly rambunctious, Respondent reprimanded them and told them they were acting "like a bunch of Haitians just off the boat." The exact circumstances surrounding this comment were not clearly established. Apparently, the aunt of one of the students was present when this remark was made and took great offense. As a result of this incident, Respondent's effectiveness as a teacher at the School was reduced. No evidence was presented of any other incidents which would justify discipline or revocation of Respondent's teaching certificate. Respondent clearly had a difficult time dealing with the serious discipline problems that existed at the School. Many of the students made virtually no effort to learn. On several occasions, students deliberately disrupted classes and Respondent's class in particular. Some of the students referred to Respondent as "Taco Bell." Based upon the evidence presented, it is concluded that Respondent was a dedicated teacher who was trying her best in a difficult situation. Respondent often emphasized to her class the need to be tolerant and overlook cultural differences with other individuals. R. W. was one of Respondent's students during the 1991/92 school year. Even though she was not in the fourth period class, her testimony was very persuasive and is given great weight. She testified that at no time during that year did she ever feel uncomfortable in any way by what the Respondent said or did in the classroom. She also testified that the Respondent never showed disrespect toward her or the class and that the Respondent never referred to students in any way which would indicate that she was prejudiced against black children. The only other student who testified, D. P., confirmed that Respondent did not make him feel ill at ease or uncomfortable or hurt or sad or offended in any way. According to him, the only critical comments made by Respondent were directed to students who were misbehaving. While on some occasions Respondent's comments may have been insensitive and ill- advised, the evidence was insufficient to establish that Respondent was racially prejudiced, and/or that she intentionally embarrassed students or deliberately made racial slurs or disparaging comments. The evidence presented regarding Respondent's personal life confirmed that she harbors no racial prejudices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 231.28(1)(f), Florida Statutes, as alleged in Count I of the Administrative Complaint, but dismissing the remaining Counts. As a result of her violation of Section 231.28(1)(f), Florida Statutes, Respondent should be reprimanded and placed on probation for one year. DONE and ENTERED this 18th day of August 1993, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1993.
The Issue The issues in this case are: Whether Respondent, County of Osceola School Board (the "Board"), discriminated against Petitioner, Valmyr Vilbrun ("Vilbrun"), on the basis of his race (African-American) in violation of the Florida Civil Rights Act; and Whether the Board retaliated against Vilbrun when he filed a discrimination claim.
Findings Of Fact Vilbrun is an African-American male who, at all times relevant hereto, was teaching an exceptional student education (ESE) class at the School. Vilbrun is currently employed at Alternatives Unlimited, a school in Polk County, Florida. He also works as a dispatcher for the St. Cloud Police Department, a position he has held for several years. The Board is the agency responsible for hiring and supervising all teachers in Osceola County, including those employed at the School. The Board is further responsible for determining whether teachers working under annual contracts are to be renewed at the end of their contract term. Vilbrun was a teacher at the School during the 2008-2009 school year. He was working under an annual contract for that school year only. Vilbrun had been hired by Tapley to teach an ESE class at the School. At the end of the school year, Tapley recommended non-renewal of Vilbrun's contract based, in large part, upon her evaluation of Vilbrun's teaching skills, her concerns about his tardiness, and his negative interaction with a fellow teacher. Vilbrun maintains that the reason for the recommendation of non-renewal was racial discrimination. While citing no direct evidence of discrimination by anyone at the School or the Board, Vilbrun provided circumstantial evidence as to three incidents that had occurred in furtherance of his claim: Vilbrun had a confrontation with a Caucasian, female teacher (Reyes) at the School; Vilbrun had a negative relationship with the dean of students (Andrea Beckel); and There was an issuance of disciplinary letters to four African-American teachers on the same day. Each of those incidents will be discussed more fully below. Incident Involving Fellow Teacher When Vilbrun began teaching at the School, he approached Reyes, a fellow ESE teacher, to help him prepare Individual Education Plans ("IEPs") for his students. IEPs are an integral part of the ESE program, and each teacher is expected to develop IEPs for their students. After a period of assistance from Reyes, Vilbrun began preparing the IEPs for his students by himself. Reyes remembers telling Vilbrun that it was time for him to do the IEPs on his own. Vilbrun remembers deciding to do the IEPs independently after seeing that the extra time spent with Reyes might be misconstrued by others as improper. Reyes is a young, Caucasian woman. In December 2008, about halfway through the school year, one of Reyes' students approached her and asked if she wanted to buy some items that he was selling "for Mr. V's class." Reyes was taken aback because her class was in the midst of a fundraiser at that time, and the School only allows limited fundraisers to be going on at any one time. Reyes telephoned Vilbrun to inquire about his fundraiser, but he did not answer the call. Reyes then emailed the person responsible for coordinating fundraisers at the School to make sure that she (Reyes) was not violating the policy by carrying out her class's fundraiser at that time. She was advised that her fundraiser was authorized. The fundraising coordinator apparently then went to Vilbrun to inquire about his fundraising project. A day or two later, Vilbrun approached Reyes in another teacher's classroom and said, "I can't believe it's in your character to do that." Vilbrun was upset that Reyes had contacted the School office about his alleged fundraiser. He told Reyes that it was not a fundraiser per se and that "the money was going to someone else." The conversation escalated into an argument, and Reyes, a small woman, became uncomfortable and intimidated by Vilbrun's behavior. Reyes was also concerned that because her child and Vilbrun's child both attended the same day care, she would potentially have to confront Vilbrun away from the School grounds. Reyes was upset enough by the incident to contact the principal to discuss her version of what had transpired. The principal spoke with Reyes and asked for a written statement, which Reyes submitted. Coincidentally, Reyes had submitted a typed letter to the office that very morning complaining about another issue she had with Vilbrun, namely, that he was often late to class and that she would have to monitor his students until he arrived. Her hand-written statement about the fundraiser incident was submitted in the afternoon of the day she sent in the tardiness letter. Tapley then issued a letter to Vilbrun advising him that a complaint had been filed against him by another teacher. The letter did not make a determination of whether the complaint was founded, and Vilbrun was given the opportunity to submit a written response prior to meeting with the principal. There is no evidence that a written response was prepared by Vilbrun. Tapley then conducted an investigation to determine whether there were grounds for discipline against either of the teachers involved. As a result of Tapley's investigation into the matter, Tapley verbally advised Vilbrun to keep his distance from Reyes. Tapley then issued a letter of guidance to Vilbrun directing him to follow procedures for all fundraising activities. The letter also addressed Vilbrun's failure to report to work on time. The letter did not provide any sanction or direction concerning interaction with Reyes or other colleagues. As far as Vilbrun knew, no action was taken against Reyes. Relationship With Dean of Students For unknown or unstated reasons, Vilbrun did not have a good working relationship with Beckel, the dean of students at the School. Vilbrun believed Beckel was not adequately performing her role, that she was not able to handle unruly or disruptive students, and that she failed to provide Vilbrun with sufficient support. In April 2009, Vilbrun submitted a memorandum to Tapley addressing his concerns about the relationship between him and Beckel. The memorandum discussed Vilbrun's perception of his interactions with Beckel, but without benefit of Beckel's version of the facts, it is impossible to make a finding as to the exact nature of the relationship between the two individuals. However, the gist of Vilbrun's complaint against Beckel is professional in nature and relates to differences between the two concerning the handling of student discipline. There is one peripheral comment about an "outright discriminative" email received from Beckel in the memorandum. However, the emails presented into evidence by Vilbrun do not substantiate that claim. As a matter of fact, Vilbrun, when asked whether race was a motivating factor for the way Beckel interacted with him, stated, "I can't speculate on that" and "As far as what was causing that, I can't really say." [Transcript, pp. 296-297.] Vilbrun had a general perception that Caucasian teachers did not seem to have the same difficulties with Beckel that he was experiencing. Adverse Action Towards Four African-American Teachers On the day before he received the letter from Tapley concerning the Reyes matter, Vilbrun was the recipient of a letter from Tapley concerning his attendance and punctuality. In fact, all four ESE teachers, all of whom are African-American, received letters on that same day, March 10, 2009. Vilbrun views that fact as evidence of discrimination against him and the other African-American teachers. Tapley generated each of the letters, but states they were based on alleged violations by each teacher and were not based on reference to the recipient's race. Tapley's testimony in this regard is credible. The letters are known as "9.02 letters," based on the section of the Union Agreement in which such letters are described. The 9.02 letters advise teachers of perceived or alleged violations that have been reported and give the teacher an opportunity to respond before further action is taken by administration. The letters are not final and do not establish fault. Rather, they are merely a preliminary step that may either result in a sanction or may be dismissed entirely. One of the recipients of one of the four 9.02 letters, Sweeney, adamantly defended Tapley as non-racist. In fact, Tapley assisted Sweeney and helped her find a new position when Sweeney's class at the School had to be eliminated due to loss of students. Other than the fact that each of the four recipients of a 9.02 letter from Tapley on that date was African-American, there is no evidence that race had anything to do with the letters. A former ESE teacher at the School testified that ESE teachers were sometimes discriminated against as a group, i.e., as ESE teachers, but there was no racial discrimination at the School to her knowledge. Other Factors for Consideration At the end of the 2008-2009 school year, Tapley made a recommendation to the Board for non-renewal of the annual contracts for 17 teachers from the School. Of that group, 11 were Caucasian, three were African-American, and three were Hispanic. Tapley was described by almost every teacher, except Vilbrun, as acting responsibly and without regard to race when dealing with issues at the School. There is no evidence that Tapley engaged in any racist behavior. To the contrary, her demeanor and fairly universal support from staff indicates just the opposite. Andrea Beckel, with whom Vilbrun alleges a strained relationship and who Vilbrun suggests made statements with racist undertones, did not testify. It is impossible to make a finding of fact concerning her behavior or demeanor. The union representative at the School, Patty Minor, described Tapley as decidedly non-racist. Vilbrun never went to Minor with a complaint about Tapley acting in a discriminatory fashion based on race or anything else. One of Tapley's "hot buttons" for her teachers was timely arrival at school. Vilbrun had some issues with timeliness during his tenure at the School. Reyes testified that she had to cover Vilbrun's students on many occasions. Minor, as the union representative, counseled Vilbrun about the necessity for timely arrival. No documentary evidence was presented, however, to substantiate that Vilbrun was habitually tardy. During the 2008-2009 school year, Vilbrun received two "annual" reviews, performed by assistant principal Neves. The reviews indicate satisfactory performance of most of his required tasks and that improvements were being made. However, Vilbrun was viewed by his principal and other administrators as deficient in the classroom. His students were observed to be unfocused and lacking in clear direction as to their studies. Vilbrun rejects those allegations on the basis that Tapley was not his direct supervisor and did not perform regular reviews of his classroom. Tapley, however, viewed Vilbrun on numerous occasions and relied upon reports from other teachers and administrators as the basis for her actions. Of the six teachers hired for the ESE department at the School for the 2009-2010 school year, five had less experience than Vilbrun. However, Tapley testified that she considers qualifications, rather than experience, as the deciding factor for hiring teachers. Vilbrun claims retaliation by the School and/or the Board because of his complaint to the Commission. One of the purported retaliatory actions was a phone reference check form evidencing that Tapley told Ana Smith, a Board employee, she would not rehire Vilbrun or recommend him for employment. Vilbrun also applied for numerous jobs, and he believes that someone at the School or Board was sabotaging his applications or blackballing him in some fashion because he could not get any interviews. However, the phone call and Vilbrun's applications occurred in May 2009; his complaint to the Commission was filed in December of that year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Petitioner, Valmyr Vilbrun, in its entirety. DONE AND ENTERED this 27th day of July, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gary M. Glassman, Esquire Brown, Garganese, Weiss & D'Agresta, P.A. 111 North Orange Avenue, Suite 2000 Orlando, Florida 32801 Candance N. Vilbrun Post Office Box 701975 St. Cloud, Florida 34770
The Issue Whether Respondent discriminated against Petitioner on the basis of marital status or sex.
Findings Of Fact In August, 1992, two special learning disabilities (SLD) teaching positions were available at Key Largo Elementary School. Petitioner, Steve J. Longariello (Longariello), a single male, applied for a SLD position with the Monroe County School Board. At the time he applied, Longariello was certified to teach a SLD class. In addition to Longariello, twelve other candidates, including five men, applied for the two available SLD teaching positions at Key Largo Elementary School. On August 7, 1992, Longariello interviewed for a SLD position at Key Largo Elementary School. The interview was conducted by the principal of the school, Frances McCormick-St. James, and Annette Hall. At the time of the interview Ms. McCormick-St. James was unmarried. The interview lasted approximately 20 to 25 minutes. No questions were asked concerning Longariello's marital status, and Longariello did not volunteer any information concerning his marital status. The application did not indicate Longariello's marital status. Longariello has no information available to him to make him believe that either Ms. McCormick-St. James or Ms. Hall was aware of his marital status at the time of the interview. No evidence has been presented to show that either Ms. McCormick-St. James or Ms. Hall knew that Longariello was single. Longariello recalls that during the interview that Ms. McCormick-St. James had two statues on her desk with comments concerning men on the statues. He does not recall what the comments were or what the statues looked like. Neither Ms. Hall nor Ms. McCormick-St. James asked him any questions which he considered offensive based on gender. A couple of days after the interview, Longariello called the school and was told that the position had been filled. The position was filled by a married female, Katherine Walker. The parties have stipulated that Ms. Walker was as qualified as Longariello. Gregory Kickasola, a single male, submitted an application dated September 4, 1992 to Key Largo Elementary School. He was hired for one of the SLD teaching positions for which Longariello applied. During the 1992-1993 school year, Longariello called the Monroe County School Board to see if any positions were available. He considered his telephoning to be equivalent to applying for whatever positions were available at the time. In November, 1993, Longariello was offered a teaching position by the Monroe County School Board at Marathon High School. It was a seven-month position. Longariello declined the position because he felt that it would cost him too much money to take the position and not be assured of being rehired the following year. There were no guarantees for a rehire for the next year for any position for which Longariello could have applied. Longariello did not renew his teaching certificate with the State of Florida in October, 1993, and presently does not have a teaching certificate. For the 1991-1992 school year, Monroe County School Board hired 30 single teachers and 33 married teachers. Of the single teachers, nine were male. Of the married teachers, 5 were male. During the same school year, six single teachers and five married teachers were hired at Key Largo Elementary. Two of the single teachers were male and two of the married teachers were male. For the 1992-1993 school year, Monroe County School Board hired 45 single teachers and 55 married teachers. Fourteen of the single teachers were male and nine of the married teachers were male. During the same school year, six single teachers and twelve married teachers were hired at Key Largo Elementary. One of the single teachers was male and one of the married teachers was male. For the 1993-1994 school year, Monroe County School Board hired 55 single teachers and 49 married teachers. Twenty-five of the single teachers were male and 7 of the married teachers were male. During the same school year, 8 single teachers and 6 married teachers were hired at Key Largo Elementary. Six of the single teachers were male and none of the married teachers were male. At the beginning of the 92-93 school year, the total number of instructional staff in Florida public schools consisted of 92,402 females and 26,467 males. Thus, 22.27 percent of the total instructional staff were male. At the beginning of the 93-94 school year, the total number of instructional staff in Florida public schools (excluding Monroe County) 1/ consisted of 96,010 females and 27,512 males. Thus, 22.27 percent of the total instructional staff, excluding Monroe County, were male. At the beginning of the 94-95 school year, the total number of instructional staff in Florida public schools consisted of 100,346 females and 28,883 males. Thus, 22.35 percent of the total instructional staff were male. On July 8, 1993, Longariello filed a complaint with the Florida Commission on Human Relations, alleging that Respondent had discriminated against him on the basis of sex and marital status. On August 8, 1993, Longariello filed complaint with the U.S. Equal Employment Opportunity Commission (EEOC), alleging Respondent discriminated against him based on sex and marital status. On May 23, 1995, the EEOC issued a Letter of Determination, stating that the investigation failed to reveal evidence which would support a case of discrimination based either on sex or marital status. Longariello was advised that he could file suit against the Respondent in Federal District Court within 90 days of the receipt of the Letter of Determination. On August 4, 1995, Longariello wrote to the Commission and requested an administrative hearing on his complaint. In his letter to the Commission, Longariello stated: To date, I have not received a registered letter that would indicate a determination has been made. From what I understand of Title XLIV, Civil Rights, Chapter 760, I can proceed in one of two ways: (1) Bring Civil Action, or (2) Request an Administrative Hearing under Section 120.57. * * * Because a EEOC investigation has found no violation of T. VII, the main focus of this hearing should be MARITAL STATUS DISCRIMINATION. This is because marital status is not a protected class under T. VII. If I decide to proceed with my sex discrimination claims in Federal District Court, it may not be necessary to pursue sex disc. at the State level. On August 17, 1995, Longariello filed a civil action in the United States District Court for the Southern District of Florida against Respondents alleging sex discrimination based on the same facts which are the subject of this administrative proceeding. Steve J. Longariello v. School Board of Monroe County, Florida, Monroe County Public Schools, Case No. 95-10055.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Longariello's claims for discrimination based on sex and marital status against Monroe County Public Schools, Florida. DONE AND ENTERED this 23rd day of January, 1997, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1997.
