The Issue Whether the Respondent should be dismissed from her employment as a teacher because of incompetency, as alleged in the Petitioner's letter to the Respondent dated November 16, 1999, and in the Notice of Specific Charges filed with the Division of Administrative Hearings on December 22, 1999.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). At the times material to this proceeding, Ms. Weinstein was an elementary school teacher employed under a continuing contract by the School Board and assigned to Miami Heights Elementary School ("Miami Heights Elementary"). Ms. Weinstein has been employed by the School Board since 1968. Ms. Weinstein is a member of United Teachers of Dade and is governed by the Contract Between the Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). During the 1998-1999 school year, Ms. Weinstein taught a second grade class at Miami Heights Elementary. She was placed on alternate assignment on February 9, 1999, and, in March 1999, she took medical leave, which was approved by the School Board. On October 13, 1999, Ms. Weinstein was advised that she must either resign or retire from her position as a teacher with the School Board by October 20, 1999, and that, if she did not do so, a recommendation would be made to the School Board at its November 17, 1999, meeting that she be dismissed from her employment. The decision that Ms. Weinstein could no longer teach in the Miami-Dade County public school system was based on two grounds. First, she had received an unacceptable evaluation for the 1998-1999 school year based on the determination that her teaching performance was not acceptable and that she had failed to remediate the deficiencies identified in the TADS formal observations conducted in September and November 1998 and in January 1999. Second, two psychologists had found Ms. Weinstein medically unfit for duty as an elementary school teacher as a result of psychological evaluations conducted in January 1999 and August 1999. Performance as a teacher Parent and teacher complaints Blanca M. Valle became principal of Miami Heights Elementary in June 1997. Soon after she assumed her duties, Ms. Valle received a letter from a parent complaining that Ms. Weinstein allegedly told her son he was "stupid"; the parent requested that her son not be assigned to Ms. Weinstein's class for the upcoming school year. At the time, Ms. Weinstein was teaching in a summer program at South Miami Heights Elementary School. Although the charge made by the parent was not substantiated, 1/ the child was assigned to a different teacher for the summer program, and Ms. Valle made sure that the child was not assigned to Ms. Weinstein's class for the 1997- 1998 school year. Ms. Valle assigned Ms. Weinstein to teach a kindergarten class during the 1997-1998 school year. Ms. Valle received several letters from parents in September 1997 complaining about Ms. Weinstein's treatment of their children. One parent complained that Ms. Weinstein ignored her son when he raised his hand to participate in class; another parent asked that his child be assigned to another kindergarten class because the child felt intimidated and frightened in Ms. Weinstein's class; another parent complained that Ms. Weinstein was not aware that her daughter was lost in the cafeteria for 45 minutes after lunch; another parent complained that her son's school supplies were stolen from the classroom, his homework was not collected by Ms. Weinstein, and his shirt was cut in several places by another student during the time he was under Ms. Weinstein's supervision. As a result of the complaints, Ms. Valle assigned Ms. Weinstein in October 1997 to teach a third grade class that had just been created at Miami Heights Elementary to accommodate a greater-than-expected number of students. In addition to re- assigning Ms. Weinstein, Ms. Valle assigned another teacher to act as her mentor, assigned the grade level chairperson to work closely with her, and referred her to the School Board's Employee Assistance Program. 2/ After Ms. Weinstein was transferred, Ms. Valle received several letters from parents of third grade students complaining about Ms. Weinstein and asking that their children be transferred to another class. One parent complained that, during a field trip the parent was chaperoning, Ms. Weinstein spent an inordinate amount of time berating students for misbehavior, to no effect; she lacked control of the class, and she was disorganized; another parent complained that, during a conference with Ms. Weinstein and Ms. Clayton, Ms. Weinstein lied about sending progress reports home to the parent and said that her daughter was crazy. During the 1998-1999 school year, Ms. Weinstein was assigned to teach a second grade class. Ms. Valle received several letters from parents complaining about Ms. Weinstein and requesting that their children be transferred to another class. Several parents stated that they wanted their children transferred to another class because they had received negative reports from other parents regarding Ms. Weinstein. One parent complained that her son cried every morning and did not want to go to school, that Ms. Weinstein told the parent that her son lied to the parent and to himself, and that Ms. Weinstein did not have a professional appearance; another parent complained that Ms. Weinstein ignored her daughter when she raised her hand to turn in her homework. Crystal Coffey was the assistant principal at Miami Heights Elementary during the 1998-1999 school year, which was her first year in the position at Miami Heights Elementary. It was not unusual for parents to approach her and ask that their child be transferred out of Ms. Weinstein's class. At the end of the 1998-1999 school year, when Ms. Weinstein was on medical leave, Ms. Valle received letters from three teachers complaining about Ms. Weinstein. The second grade level chairperson during the 1998-1999 school year complained that Ms. Weinstein was very difficult to work with and did not grasp the curriculum or understand how to present lessons. Another teacher commented that she had observed Ms. Weinstein engage in a pattern of unprofessional and often bizarre behavior over the years. A teacher who team-taught language arts with Ms. Weinstein wrote that, among other things, Ms. Weinstein would not let students go to the rest room, that on two occasions Ms. Weinstein sat at her desk during class and ate a chef salad and a tuna salad with her hands, and that Ms. Weinstein would put a "bad behavior" check mark beside children's names for the most minor offenses. Observations of Ms. Weinstein's teaching performance Ms. Weinstein's performance as a teacher was rated acceptable overall and acceptable in every performance category in each annual evaluation from the 1978-1979 school year 3/ through the 1997-1998 school year. Ms. Valle signed Ms. Weinstein's Teacher Assessment and Development System ("TADS") 4/ Annual Evaluation for the 1997-1998 school year based on a formal TADS observation conducted on April 13, 1998, by the then-assistant principal of Miami Heights Elementary, Alice Clayton. Ms. Clayton prepared a CAI-Post Observation Report for the April 13, 1998, TADS observation rating Ms. Weinstein's performance acceptable in each category assessed. She also rated Ms. Weinstein's performance acceptable for each indicator in each category. Ms. Valle conducted informal observations of the classroom performance of each of the teachers in Miami Heights Elementary; it was her practice to visit all of the classrooms in the school at least once a day. During her informal observations of Ms. Weinstein's classroom performance, she observed students who were not on task, discipline problems, and a general lack of teaching and learning in the classroom. Ms. Coffey made it a practice to informally observe each teacher's classroom at least three times each week. Ms. Coffey informally observed Ms. Weinstein's classroom an average of three times each week during the 1998-1999 school year. At the beginning of the school day, Ms. Coffey would often find Ms. Weinstein sitting at her desk in the classroom eating her breakfast or looking "spacey," apparently unaware that the classroom door was open and that a number of parents were trying to talk with her and/or trying to get their children organized for the day. On September 18, 1998, Ms. Valle, who was trained in the use of TADS, conducted a formal TADS observation of Ms. Weinstein's classroom performance and completed both a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement with respect to the observation. Ms. Valle rated Ms. Weinstein's classroom performance acceptable in three categories listed on the CAI Post-Observation Report: knowledge of subject matter, teacher-student relationships, and assessment techniques. Ms. Valle rated Ms. Weinstein unacceptable in three categories on the CAI Post-Observation Report: preparation and planning, classroom management, and techniques of instruction. The Record of Observed Deficiencies contains numerous references to Ms. Weinstein's failure to use verbal or non-verbal techniques to redirect students who were off task; rather, Ms. Valle observed that Ms. Weinstein ignored students who were talking and playing and generally behaving poorly, and she seemed to be unaware of the students' behavior in her classroom. Ms. Valle also observed that Ms. Weinstein ignored students who raised their hands with questions or to contribute to the class discussion, did not provide background information for her lesson or any explanation of how to do the problems assigned, did not acknowledge that many of the children were confused by the lesson, and did not provide closure to the lesson. On November 16, 1999, Ms. Coffey, who was trained in the use of TADS, conducted a formal TADS observation of Ms. Weinstein's classroom performance and completed both a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement with respect to the observation. Ms. Coffey rated Ms. Weinstein's classroom performance acceptable in two categories listed on the CAI Post-Observation Report: knowledge of subject matter and assessment techniques. Ms. Coffey rated Ms. Weinstein unacceptable in four categories on the CAI Post-Observation Report: preparation and planning, classroom management, techniques of instruction, and teacher-student relationships. Ms. Coffey observed that Ms. Weinstein did not follow her lesson plan and went beyond the time allotted for the lesson, leaving the teacher who was to teach the next lesson knocking at the classroom door for over five minutes. Ms. Coffey noticed that students already had completed the workbook page for the lesson, and, in Ms. Coffey's opinion, Ms. Weinstein was not teaching a new lesson during the observation but one she had already taught. Ms. Coffey observed that Ms. Weinstein did not use any verbal or non-verbal techniques to redirect the many students who were off task and that she put check marks for bad behavior and stars for good behavior beside students' names, which she had written on the chalk board, without providing any explanation to the students and often for no discernable reason. Ms. Coffey also observed that Ms. Weinstein often ignored students' inappropriate behavior, did not monitor whether the students were learning the lesson, did not provide feedback to the students, and did not respond to students who had questions. A Conference-for-the-Record was held on December 8, 1998, to discuss Ms. Weinstein's September and November performance assessments and related matters and her future employment status with the School Board. Ms. Valle and Ms. Coffey attended the conference, as well as Ms. Weinstein and two union stewards. Ms. Valle discussed the two TADS formal observations with Ms. Weinstein, as well as the prescriptive activities assigned in the observation reports and ways in which Ms. Valle and Ms. Coffey would assist her to improve her teaching performance. Ms. Weinstein was advised that disciplinary action would be considered if her performance did not improve. On January 25, 2000, Ms. Valle conducted her second formal observation of Ms. Weinstein's classroom performance, and she completed both a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement with respect to the observation. Ms. Valle rated Ms. Weinstein's classroom performance acceptable in three categories listed on the CAI Post-Observation Report: preparation and planning, knowledge of subject matter, and teacher-student relationships. Ms. Valle rated Ms. Weinstein unacceptable in three categories on the CAI Post-Observation Report: classroom management, techniques of instruction, and assessment techniques. At the time of the second observation, Ms. Weinstein had not remedied many of the unsatisfactory teaching behaviors Ms. Valle had observed in her formal observation in September 1998. The lesson observed by Ms. Valle on January 25, 1999, was on the concepts of solid, liquid, and gas, but Ms. Valle observed that Ms. Weinstein did not use any supplemental materials or hands-on activities to teach the students, nor did she provide necessary background information or closure for the lesson. Ms. Valle observed that Ms. Weinstein did not call on students who had raised their hands with questions or to contribute to the class discussion, did not provide feedback to help students who were confused by the lesson, failed to use verbal or non-verbal techniques to redirect students who were off task, and ignored students who were off task, seemingly unaware of their behavior. In addition, Ms. Valle found that Ms. Weinstein had virtually no documentation to support grades for the students: As of January 25, 1999, the most recent grade recorded in Ms. Weinstein's grade book was for December 9, 1998, and there were no assessments and very little work contained in the students' folders. On June 8, 1999, Ms. Valle prepared a memorandum regarding Ms. Weinstein's TADS Annual Evaluation for the 1998- 1999 school year, in which Ms. Valle rated Ms. Weinstein unacceptable in every category of classroom assessment; Ms. Valle rated Ms. Weinstein acceptable in professional responsibilities. The memorandum was prepared in lieu of conducting a conference-for-the-record because Ms. Weinstein was on extended medical leave. In the memorandum, Ms. Valle advised Ms. Weinstein that her performance was unacceptable because the deficiencies identified in the formal TADS observations in September and November 1998 and January 1999 had not been remediated. Ms. Valle advised Ms. Weinstein that the assessment process would continue when she returned to Miami Heights Elementary. Had Ms. Weinstein not gone on medical leave in March 1999, she would have been entitled to at least one, and perhaps two, formal TADS observations conducted by a School Board administrator other than Ms. Valle and Ms. Coffey. As it was, no external TADS observation was conducted, and the TADS assessment process was not completed. Fitness for duty as a teacher In a memorandum to the Office of Professional Standards dated January 13, 1999, Ms. Valle requested that Ms. Weinstein be given a fitness evaluation because she had observed Ms. Weinstein engage in behavior during the 1998-1999 school year that Ms. Valle considered unusual. Ms. Valle attached to the memorandum letters that Ms. Weinstein had prepared requesting that the parents of various students sign a statement "for her autograph book" to the effect that "Ms. Weinstein is a good teacher"; Ms. Weinstein passed the letters out to students and parents and disrupted classes when she took letters to other teachers and asked that they give them to the students whose names she had written on the letters. Both parents and teachers complained to Ms. Valle about these letters. Ms. Valle observed Ms. Weinstein engage in other behavior that Ms. Valle considered unusual: Ms. Weinstein came to school dressed in a manner that Ms. Valle considered inappropriate, and her hair was often untidy; during the winter, Ms. Weinstein sometimes wore a hat pulled down to her eyes the entire day; during a meeting with Ms. Valle and others, Ms. Weinstein took a pair of leopard-print gloves out of a box she carried and put on the gloves; Ms. Weinstein attended a PTA meeting wearing a black see-through skirt and blouse; Ms. Weinstein gobbled her food and ate food such as tuna salad with her hands; Ms. Weinstein walked in the school halls with a blank look on her face. In addition, Ms. Valle noted that Ms. Weinstein had excessive absences from school. Ms. Coffey observed Ms. Weinstein engage in behavior she considered unusual: When she had conferences with Ms. Weinstein, Ms. Weinstein would not look at her or respond to questions or statements except to say that "it's not true"; Ms. Weinstein wore a fur-like hat and long leopard gloves on hot days and sometimes walked around school under an umbrella when it was not raining; and Ms. Weinstein often had a "spacey" look and seemed not to understand what was being said to her. In response to Ms. Valle's request that Ms. Weinstein be referred for a fitness evaluation, a Conference-for-the- Record was held in the Office of Professional Standards on January 27, 1999, to consider, among other things, Ms. Weinstein's performance assessment and her medical fitness to perform her assigned duties. The Summary of the Conference- for-the-Record reflected that Ms. Weinstein was advised that her absences were considered excessive because she used more sick leave than she had accrued, and the two formal TADS observations completed in September and November 1998 were discussed. Ms. Weinstein acknowledged that the School Board had the right to require that she be evaluated to determine her fitness for duty, and she chose to be evaluated by Dr. Larry Harmon, whose name appeared on a list of psychologists approved by the School Board. Ms. Weinstein appended a two-page response to the Summary of the Conference-for-the-Record in which she admitted to some of the behaviors identified by Ms. Valle and Ms. Coffey but disputed the conclusion that these behaviors were unusual. Dr. Harmon's evaluation - January 1999 At the request of the School Board's Office of Professional Standards, Larry Harmon, who is a licensed clinical psychologist, performed a fitness-for-duty evaluation of Ms. Weinstein on January 28, 1999. In evaluating Ms. Weinstein, Dr. Harmon conducted a clinical interview and a mental status examination, administered several psychological tests, consulted with other mental health professionals, and reviewed materials provided to him by the School Board. Dr. Harmon issued a report dated March 10, 1999, in which he deferred his diagnosis with respect to Axis I "Clinical Disorders and Conditions." 5/ He diagnosed Ms. Weinstein with "Personality Disorder, Not Otherwise Specified" with respect to Axis II "Personality Disorders," 6/ commenting that she exhibited moderate to severe patterns of defensiveness, denial, projection, blame, rationalization, distorted thinking, suspiciousness, selective listening, inability to process and accept feedback, poor judgement, and lack of insight. Dr. Harmon deferred his diagnosis with respect to Axis III "Physical Disorders and Conditions" to her physician. Dr. Harmon concluded that Ms. Weinstein was not fit for duty as an elementary school teacher. This conclusion was based on his assessment that [h]er impaired interpersonal behavior and unacceptable work performance in Preparation and Planning, Classroom Management, Techniques of Instruction, and Teacher- Student Relationships is likely to continue and be considered below acceptable standards. Based on this assessment, there is insufficient supporting information to clear her to return to work. . . . Dr. Harmon's assessment that her interpersonal behavior was impaired was based on his observations that Ms. Weinstein was extremely defensive and almost in a state of denial that there were any problems with her interactions and performance; that she had difficulty processing information conveyed to her during the clinical interview and mental status examination; that her judgment was impaired and her problem-solving ability reduced; and that she had a low level of insight into the effect of her behavior on others. Dr. Harmon found that Ms. Weinstein generally had serious difficulties with job tasks requiring interpersonal interactions and stated that individuals with her [Ms. Weinstein's] level of defensiveness, distorted thinking, suspiciousness, denial, selective listening, inability to engage feedback, poor judgement, and lack of insight are likely to evidence significant work difficulties, especially if she is under stress. . . . [T]here appears to be a probability of significant risk that her inadequate interpersonal skills and inability to benefit from feedback will adversely affect her work performance . . . . Among other things, Dr. Harmon recommended in his report that Ms. Weinstein be placed on medical leave for at least one month to allow her to receive intensive mental health treatment to help her improve her interpersonal skills and work performance and that she participate in psychotherapy sessions and follow the recommendations of her psychotherapist. Another Conference-for-the Record was held in the Office of Professional Standards on March 17, 1999, for the purpose of discussing Ms. Weinstein's medical fitness to perform her assigned duties. At the time, Ms. Weinstein was temporarily assigned to the Region VI Office, where she had been placed in early February 1999. Dr. Harmon's report was reviewed at the conference with Ms. Weinstein and the union representative, and the recommendations in his report were accepted by the School Board as conditions for Ms. Weinstein's continued employment as follows: Obtain medical clearance from the Board approved evaluator to return to work within 29 working days of this conference or implement procedures for Board approved medical leave. Participate in psychotherapeutic sessions on a regular basis to be monitored by personnel from the District's support agency. Follow all recommendations of the health care professionals. Sign a limited Release and Exchange of Information for all of your mental health professionals which restricts the release and exchange of information to those symptoms, behavioral patterns, and treatment compliance issues directly relevant to your fitness for duty determination. Upon the recommendation of the District's support agency, which will be based upon discussions with your treating mental health professionals, a re-evaluation will be scheduled for you with Dr. Harmon. Ms. Weinstein was advised that, if she did not comply with Dr. Harmon's recommendations, the School Board would be compelled to take disciplinary measures against her including suspension, demotion, or dismissal. In the School Board's opinion, Ms. Weinstein was not ready to assume her duties after 30 days, and she subsequently took School Board-approved medical leave through the end of the 1998-1999 school year. Dr. Feazell's evaluation - March 1999 After the School Board received Dr. Harmon's evaluation report, Ms. Weinstein sought a second opinion on her fitness to carry out her duties as a second grade teacher with the Miami-Dade County school system. David A. Feazell, a licensed psychologist, conducted a psychological evaluation of Ms. Weinstein on March 22 and 26, 1999, and prepared a report summarizing his findings. Dr. Feazell spent approximately two hours with Ms. Weinstein in a clinical interview and another two hours administering psychological tests, which included personality and intelligence tests. Ms. Weinstein provided Dr. Feazell a copy of Dr. Harmon's report; he did not have access to the information provided to Dr. Harmon by the School Board, although he had access to the summary of the information contained in Dr. Harmon's report. Dr. Feazell noted in his evaluation report that, during the clinical interview, Ms. Weinstein's account of her employment situation was relevant and detailed and consisted of explanations for her behavior and rebuttal of the complaints made about her. Ms. Weinstein believed that she had made an unduly negative impression on Dr. Harmon because she was ill at ease and defensive in answering his questions. The psychological tests given by Dr. Feazell revealed that Ms. Weinstein's MMPI-2 [Minnesota Multiphasic Personality Inventory-2] profile is defensive, going beyond that which is commonly seen in fitness for duty evaluations. She denies emotional discomfort and vulnerability, as well as common place human faults and frailties. She presents an unusually positive self-image, describes herself as self-controlled and quite socially responsible, and reports unusually low levels of depression or anxiety. In MMPI-2 item responses, she admits minimal social anxiety and characterizes herself as very outgoing, despite describing herself in the interview as shy. Individuals with Ms. Weinstein's MMPI-2 and Rorschach profiles are typically inclined to deny problems and not to have a high level of introspection or insight into their own feelings. They can be simplistic or inflexible into [sic] their approach to problems and tend to see things too much in terms of how others do not understand them or treat them unfairly. Ms. Weinstein actually shows several signs of a particular need for the approval and affection of others, so that she may find situations quite disconcerting in which others evaluate, criticize, or take a demanding, skeptical view of her. In terms of judgment, Ms. Weinstein is capable of thoughtful, perceptive analysis of situations. However, she also appears likely to overlook or misinterpret important details. Her judgment can be inconsistent, especially under conditions of emotional stress. She seems to react strongly to emotional stimuli. She could benefit from the support or guidance of others in learning to stop and to look at a situation from other points of view before she draws unwarranted or inaccurate conclusions. It is noted that testing shows no bizarre thinking or major distortion of judgment. Based on his clinical interview and testing of Ms. Weinstein, Dr. Feazell diagnosed her with an Axis I clinical diagnosis of "Adjustment Disorder with Mixed Disturbance of Emotions and Conduct in the face of occupational and personal stress." Dr. Feazell did not make an Axis II diagnosis, noting that "[a]lthough personality patterns predispose her to respond with some defensive inflexibility to certain interpersonal stresses, there may not be sufficient evidence of a formal personality disorder." Dr. Feazell did note, however, that, at the time of his evaluation, Ms. Weinstein was inclined to overreact to stress and to misunderstand things and form incomplete conclusions when she was under stress. Dr. Feazell finally observed that Ms. Weinstein needs continuing psychotherapy to develop better ways to recognize and deal with uncomfortable feelings, to learn better skills for hearing and taking in feedback and information without over-reacting and selectively misunderstanding it, and to learn better awareness of how her won style of judgment and interaction can hinder her problem solving under pressure. In Dr. Feazell's opinion, Ms. Weinstein was fit for duty at the time he evaluated her in March 1999 "as long as she has the support of treatment while working out her job issues with her principal. It is recommended that Ms. Weinstein return to work with continuing treatment." According to Dr. Feazell, Ms. Weinstein's prognosis is fairly good if she continues in treatment. Dr. Gibb's evaluation - August 1999 Ms. Weinstein was referred by the School Board for a follow-up fitness-for-duty evaluation, which was performed by Charles C. Gibbs on August 13, 1999. Dr. Gibbs conducted a clinical interview with Ms. Weinstein, administered several psychological tests, reviewed records provided by the School Board, and reviewed the evaluations of Ms. Weinstein performed by Dr. Harmon, Dr. Feazell, and Dr. Maurer, a psychologist who evaluated Ms. Weinstein at her request in June and July 1999. Dr. Gibbs tried to contact Ms. Weinstein's psychotherapist, Tyrone Lewis, but Mr. Lewis did not return several telephone calls. In Dr. Gibbs' opinion, Ms. Weinstein's most likely diagnosis would be an Axis I clinical disorder, such as depression, anxiety, or an adjustment disorder. Dr. Gibbs concluded that Ms. Weinstein was not fit to return to her job duties as an elementary school teacher as of August 1999, observing in the report of his psychological evaluation that [c]urrent test results and clinical data indicate that Ms. Weinstein is excessively defensive, guarded, substitutes fantasy for reality in stressful situations and she is plagued with poor judgment given her tendency to make decisions based on inadequate information. Furthermore she is not introspective and lacks insight into her behavior. As such she tends to project blame onto others and minimize the effects of her behavior on those in her environment. The aforementioned summary of the data in my professional opinion would make it difficult for Ms. Weinstein to counsel students when adjustment and/or academic problems arise. Further concern is raised in that she tends to make poor decisions based on inadequate information. Working with children requires a great deal of patience and as noted by results from Dr. Maurer with which I concur she is in a constant state of stimulus overload. Thus such typical stressors such as managing classroom rules and behavior of students will likely result in Ms. Weinstein becoming overwhelmed. Additionally, her unconventional and egocentric style will not allow her to meet the changing and challenging emotional needs of elementary children. I am further concerned that her defensiveness will prevent her from benefiting from constractive [sic] criticism which will impair her participating in professional meetings and being able to put into action new information obtained from conferences and inservice classes. Dr. Gibbs noted in his report that Dr. Feazell and Dr. Maurer had both concluded that Ms. Weinstein was fit for duty but that they had not reviewed the materials he received from the School Board. Dr. Gibbs also was concerned that Ms. Weinstein had some mild organic impairment, and he recommended that she have a full neuropsychological evaluation. He further recommended that Ms. Weinstein continue in therapy for at least three months before having another evaluation of her fitness for duty and that, if she were at some point allowed to resume her duties as an elementary school teacher, she "team teach with another professional for 3 months prior to teaching on her own." Ms. Weinstein's psychotherapy treatment Ms. Weinstein has been in treatment with Tyrone Lewis, a psychotherapist, since January 1999. Mr. Lewis sees Ms. Weinstein once a week and sometimes once every two weeks; he engages in what he describes as "supportive psychotherapy" with Ms. Weinstein, which is designed to provide her with insight into her current situation and to help relieve her depression and anxiety. Currently, he is working with Ms. Weinstein to help her deal with the uncertainty about her job and the possibility that she will not work as a teacher. At the time of the hearing, Mr. Lewis was of the opinion that Ms. Weinstein was much improved, specifically with respect to her cognitive skills, her depression, her anxiety, and her awareness of her current life situation. Final Conference-for-the Record A Conference-for-the-Record was held at the Office of Professional Standards on October 13, 1999, to review Ms. Weinstein's performance assessment and her medical fitness to perform assigned duties. Ms. Weinstein had been working in her alternate assignment in the Region VI Office since the beginning of the 1999-2000 school year. With respect to Ms. Weinstein's performance assessment, the results of the observations done by Ms. Valle and Ms. Coffey in September and November 1998 and in January 1999 were reviewed, and it was noted that her 1998-1999 TADS Annual Evaluation was unacceptable. Ms. Weinstein was advised that her teaching performance was not acceptable and that she had not remediated the cited deficiencies. With respect to Ms. Weinstein's medical fitness to perform her duties, the report of Dr. Gibbs was reviewed with Ms. Weinstein and her union representative. The School Board personnel acknowledged that Dr. Feazell and Dr. Maurer both concluded that Ms. Weinstein was able to return to work, while Dr. Harmon and Dr. Gibbs concluded that Ms. Weinstein was not able to return to work. The School Board accepted the assessment of Dr. Gibbs. Ms. Weinstein requested that she be evaluated by a fifth doctor, as a "tie breaker"; this request was denied, as were Ms. Weinstein's requests that she be transferred from Miami Heights Elementary and that the School Board authorize additional leave to allow time for her to have the neurological examination recommended by Dr. Gibbs. Ms. Weinstein was advised that she must either resign her job or retire because she had been unable to obtain medical clearance to return to her teaching duties and was not eligible for additional leave. Ms. Weinstein did not choose to resign or retire by the October 20, 1999, deadline, and the School Board suspended her and recommended her dismissal from employment at its November 17, 1999, meeting. Summary The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Ms. Weinstein is incompetent as a teacher because she failed to communicate with or relate to her students to such a degree that the students were denied a minimum educational experience. Based on the formal and informal observations of Ms. Valle and Ms. Coffey during the fall of 1998 and in January 1999, Ms. Weinstein exercised virtually no control over the students in her classroom and either indiscriminately reprimanded the students or ignored their inappropriate behavior. Ms. Weinstein did not present her lessons in a coherent fashion, did not respond to students who were either confused or wanted to participate in the class, and was seemingly indifferent to whether the students learned in her classroom. No improvement of Ms. Weinstein's classroom performance was noted by Ms. Valle in her formal observation in January 1999 even though Ms. Weinstein had completed the activities prescribed by Ms. Valle and Ms. Coffey with respect to the September and November 1999 observations. The School Board has shown by the greater weight of the persuasive evidence that Ms. Weinstein is unable to perform her responsibilities as an elementary school teacher as a result of inefficiency in the classroom. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Ms. Weinstein is incompetent as a teacher because she is not emotionally stable. Dr. Harmon, Dr. Gibbs, and Dr. Feazell reached virtually the same conclusions regarding Ms. Weinstein's psychological profile and personality traits. All three psychologists found that Ms. Weinstein is extremely defensive, shows little insight into her own behavior, is unable to accept and benefit from feedback, makes judgments based on incomplete or incorrect information, and processes information poorly when she is in a stressful situation. On the basis of their assessments, Dr. Harmon and Dr. Gibbs concluded that Ms. Weinstein is unfit to carry out the duties as a teacher of elementary school children; Dr. Feazell concluded that Ms. Weinstein was fit to return to her teaching duties as of July 1999, as long as she continued in treatment to resolve the issues he identified in his evaluation report. The psychotherapy treatment Ms. Weinstein is receiving is not, however, focused on developing her ability to interact with others, to process and benefit from feedback, or to improve her judgment and ability to react properly in stressful situations, and Mr. Lewis supported his opinion that Ms. Weinstein was fit for duty as an elementary school teacher with nothing more than the observation that she was "much improved." The School Board has shown by the greater weight of the persuasive evidence that Ms. Weinstein is not fit to discharge her duties as a teacher at Miami Heights Elementary as a result of emotional instability.
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 sustaining the suspension without pay of Yvonne M. Weinstein and dismissing her as an employee of the School Board of Miami-Dade County, Florida, for incompetency. DONE AND ENTERED this 11th day of September, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 11th day of September, 2000.
The Issue Whether the Respondent's employment with the School Board of Dade County should be terminated.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Dade County School Board is responsible for operating, controlling, and supervising all public schools within the school district of Miami-Dade County, Florida. Section 4(b), Article IX, Florida Constitution; Section 230.03, Florida Statutes (1997). Ms. Scott is employed by the School Board as a custodian. She began working for the School Board in 1990 as a part-time food service worker at South Dade, and, in early 1992, she began working at South Dade as a full-time custodian. Custodians are classified by the School Board as maintenance workers, and Ms. Scott was a member of AFSCME at all times material to this action. The school's head custodian is responsible for overseeing the day-to-day performance of the custodians, which includes assigning duties to each custodian and developing a schedule for each custodian identifying the tasks that must be accomplished during specified blocks of time. The schedule is approved by the principal of the school. John Alexander is, and was at all material times, the head custodian at South Dade and Ms. Scott's immediate supervisor. Ms. Scott's job responsibilities and duties included "policing" 2/ all ten girls' restrooms after each class change; policing the girls' locker room; policing certain other areas, including designated corridors, the auditorium lobby, the clinic, and the band area; cleaning five girls' restrooms after 2:00 p.m.; cleaning designated cafeteria windows; removing graffiti from walls, mirrors, and corridors as needed; cleaning and disinfecting the drinking fountains in all corridors; cleaning graffiti off walls and doors in the ten girls' restrooms; and cleaning, dusting, and mopping the audio-visual room. Ms. Scott was also expected to respond to emergencies. These duties were the same as those assigned to the female custodian whom Ms. Scott replaced and as those currently being performed by the woman who replaced Ms. Scott at South Dade. Ms. Scott's training consisted, first, of working for several weeks with the female custodian she was hired to replace. Then, after Ms. Scott's predecessor retired, Mr. Alexander worked with her for approximately two weeks. Mr. Alexander noticed problems in her job performance shortly after Ms. Scott began working as a custodian. In a memorandum dated May 12, 1992, Mr. Alexander identified two specific incidents when Ms. Scott refused to follow his instructions. He notified Ms. Scott in the memorandum that he would recommend her termination as of May 19, 1992, during her probationary period, for lack of motivation and failure to perform her job responsibilities. As a result of this memorandum, on May 19, 1992, Ms. Scott, Mr. Alexander and Dr. Paul Redlhammer, the principal of South Dade at that time, met to discuss Ms. Scott's job performance. After this meeting, Dr. Redlhammer sent Ms. Scott a "Memo of Understanding: Job Performance," in which he summarized the reasons for the concern about her job performance and notified her that Mr. Alexander would work with her for two weeks to help her improve her job performance. Mr. Alexander did not notice any improvement in Ms. Scott's work during the two-week period or thereafter. On February 3, 1993, Mr. Alexander had a discussion with Ms. Scott about leaving work early, failing to empty the trash cans in her areas, and failing to clean the floor in the audio- visual room. On May 21, 1993, Mr. Alexander issued a Notification of Written Warning to Ms. Scott regarding her unsatisfactory performance, which included insubordination, disrespect, and improper behavior. Mr. Alexander proposed that Ms. Scott's file be reviewed and that she be given an opportunity to explain her performance. Mr. Alexander intended to recommend her termination from employment. From September 24, 1993, through October 27, 1993, Mr. Alexander kept a log of the time Ms. Scott reported for work and left work each day. The log reflected that Ms. Scott left work thirty to forty-five minutes early on fifteen days during that period, that she took a forty-minute morning break one day, and that she reported for work between one hour and forty minutes and two and one-half hours late on three days. In Ms. Scott's November 15, 1993, annual evaluation, Mr. Alexander rated Ms. Scott poor in the categories of taking lunch and breaks at the proper times, cleaning bathrooms, washing windows, following orders, following work schedules, and working well with other custodians. Mr. Alexander discussed the evaluation and her deficiencies with Ms. Scott, and she acknowledged by her signature that she had seen the written evaluation. Ms. Scott's job performance did not improve during the 1994-1995 school year. Despite being told repeatedly not to do so, Ms. Scott spent inordinate amounts of time talking with school security monitors in the school's corridors and in the school's north parking lot, sometimes spending an hour or more a day in these conversations. During most of that time, Ms. Scott was not on authorized breaks or lunch period. At the same time, Ms. Scott often did not properly police the girls' bathrooms or clean the areas for which she was responsible, and, on several occasions, she refused to obey direct orders from Mr. Alexander. In September 1994, Orlando Gonzalez, the assistant principal at South Dade, scheduled an informal conference with Ms. Scott to discuss the deficiencies in her work performance, including an incident in which Mr. Gonzalez observed Ms. Scott watching television at 9:30 a.m. in the audio visual room. Ms. Scott left the school before the scheduled conference without permission. As a result of this behavior, Mr. Gonzalez requested that Donald Hoecherl, the new principal at South Dade, schedule a formal conference for the record to discuss "serious deficiencies in her job performance." Mr. Gonzalez later withdrew the request for the conference on the record because he thought he could accomplish more by counseling with Ms. Scott informally to help her improve her job performance. Nonetheless, a conference for the record was held by Mr. Hoecherl in November 1994 for the stated purpose of addressing "continuous incidents of insubordination, failure to complete assigned work, and leaving work early." Ms. Scott was advised by Mr. Hoecherl that, if the problems were not resolved, another conference for the record would be held and that he would formally request her dismissal. Ms. Scott refused to sign the conference summary. Ms. Scott's job performance did not improve after the November 1994 conference for the record. Mr. Hoecherl tried to work with Ms. Scott on an informal basis, but his efforts to improve her job performance were not successful. In April 1995, Mr. Gonzalez received complaints from two parents about the lack of cleanliness in the ladies' restroom in an area which Ms. Scott was responsible for cleaning. Mr. Gonzalez told Mr. Alexander to direct Ms. Scott to clean that restroom. The next day, Mr. Gonzalez found that the restroom had not been cleaned. Mr. Gonzalez prepared a memorandum to Ms. Scott directing her to clean the restroom. In June 1995, a Notification of Written Warning was directed to Ms. Scott because she refused to obey direct orders from Mr. Alexander. Ms. Scott's job performance deteriorated during the 1995-1996 school year. On October 5, 1995, a Notification of Written Warning was issued for "[f]ailure to follow and complete assigned work." On November 8, 1995, a conference for the record was held and was attended by Ms. Scott and two representatives of AFSCME, as well as by Mr. Hoecherl, and Mr. Gonzalez. Three issues were discussed: Ms. Scott's direct and implied insubordination when she refused an order by Mr. Alexander to clean up the clinic area after a student became ill and when she twice refused to comply with Mr. Hoecherl's request that she step into his office to discuss the incident; Ms. Scott's pattern of failing to complete her job assignments; and her pattern of loitering on the job by talking to the security monitors in the corridors and in the north parking lot. The written summary of the conference for the record, dated November 13, 1996, included the following: In an effort to resolve these issues the following directives were outlined: Comply with all requests and directives issued by your immediate supervisor or administrator. . . . In regard to this issue failure to comply with the direction of an administrator or immediate supervisor constitutes insubordination and will result in additional disciplinary action. Follow your job assignments as given to you prior to this conference and again at this conference. The cleaning must be performed in a satisfactory manner meeting the requirements to maintain a clean and healthy school setting. Failure to complete your job assignments will result in additional disciplinary action. Refrain from loitering while on the job. You are reminded that you may spend your break and lunch time in dialog with others if you wish. You are not entitled to spend an inordinate amount of time talking and not performing your job assignments. Failure to meet this condition will result in additional disciplinary action. Ms. Scott refused to sign the written summary of the conference. Ms. Scott's job performance did not improve after the conference, and she did not follow the directives outlined for her. She continued to talk with other employees at times when she had no scheduled break; she failed to perform or inadequately performed her assigned tasks; and she engaged in a pattern of arriving at work late without authorization, taking time off during her shift without authorization, and leaving work before the end of her shift without authorization. On or about February 16, 1996, Mr. Alexander attempted to discuss these problems with Ms. Scott. She became angry and belligerent. Mr. Alexander stood in front of his office door to prevent Ms. Scott from going out into the corridor because the students were changing classes and he felt it would not be appropriate for them to see her in that frame of mind, but she left his office anyway. Ms. Scott was immediately summoned for a meeting with Mr. Hoecherl and Mr. Alexander. During the meeting, a school police officer arrived in response to a 911 call, which Ms. Scott had made, accusing Mr. Alexander of restraining her against her will. The police officer determined that there was no basis for this charge, and Ms. Scott left the meeting in an angry and belligerent manner. Mr. Hoecherl referred this incident to the School Board's Office of Professional Standards. An administrative review was ordered, and Mr. Hoecherl was assigned to investigate the February 16 incident. On March 25, 1996, at Mr. Hoecherl's request, he and Ms. Scott met in his office. Mr. Hoecherl explained to Ms. Scott that he was trying to learn what had happened and wanted her to tell him her version of the incident. Ms. Scott became very agitated and left Mr. Hoecherl's office, slamming the door behind her. Her behavior as she left his office was very disruptive, but he nonetheless followed her to her car and asked that she return to his office to discuss the February 16 incident. Her response was belligerent and defiant, and Mr. Hoecherl told her to go home and not return to South Dade for the rest of the day. On the morning of March 26, Ms. Scott reported to work at South Dade. She was told that she had been reassigned to the Region VI administrative office and that she was not to return to the South Dade campus. In accordance with directions he received from the School Board's Office of Professional Standards, Mr. Hoecherl instructed Ms. Scott to report to the personnel director at the Region VI office. At approximately 8:00 a.m. on March 27, Ms. Scott appeared at the custodial office at South Dade. Mr. Hoecherl again told her to report to the Region VI office and provided her with written notification of her reassignment. Ms. Scott reported to the Region VI office, but, a short time later, she left and returned to South Dade. Ms. Scott was again told to leave the school grounds and informed that failure to do so would be considered gross insubordination; she refused to leave South Dade despite repeated orders from Mr. Hoecherl and the school police. Ms. Scott was belligerent and disruptive, and she was placed under arrest by the School Board police. She was escorted out of the school building in handcuffs; Mr. Hoecherl covered her shoulders with a jacket to hide the handcuffs from the students, but Ms. Scott attempted to shrug it off. In a memorandum dated March 28, 1996, to the Office of Professional Standards, Mr. Hoecherl detailed Ms. Scott's poor job performance from January 12, 1996, through March 25, 1996. A conference for the record was scheduled for March 29 at 2:00 p.m. by James Monroe, the Executive Director of the School Board's Office of Professional Standards. Ms. Scott failed to report for the conference even though she was contacted at her home by telephone shortly after 2:00 p.m. and told that they would wait for her for one hour. The conference for the record was rescheduled for April 4, 1996, and the topics to be discussed were identified in the notice as follows: "[Y]our failure to report for a conference on March 29, 1996, at 2:00 p.m., as previously directed . . .; failure to comply with site directives; unauthorized departure from the work site; attendance/performance related issues; medical fitness for continued employment and your future employment status with Dade County Public Schools." During the conference, Ms. Scott was advised that her employment status would be reviewed in light of the facts discussed at the conference, and she was directed to report to the Region VI office pending formal notification of the decision of the Superintendent of Schools and to perform all tasks and duties assigned to her. During the time she was assigned to the Region VI office, from April 1996 until September 1996, Ms. Scott disregarded instructions and directives from her supervisors, she failed to perform her job responsibilities or performed them inadequately, and she was absent from work a number of times without authorization. From September 1995 to September 1996, Ms. Scott was absent from her job without authorization for 20 days. She was absent from her job without authorization for three consecutive workdays from March 28 through April 1, August 23 through September 5, 1996. 3/ Ms. Scott was suspended by the School Board at its September 11, 1996, meeting. Mr. Alexander, Mr. Gonzalez, and Mr. Hoecherl tried for several years, through numerous informal memoranda and discussions, to help Ms. Scott bring her job performance up to an acceptable level. Ms. Scott was given several formal written notifications and warnings about the deficiencies in her job performance, and three formal conferences for the record were held to put Ms. Scott on notice of the perceived job deficiencies and of the complaints about her work and to allow her to explain the situation from her perspective. Ms. Scott did not comply with the directives for corrective action developed during the conferences for the record, and her attitude and job performance generally deteriorated from 1992 until September 1996, when she was suspended and dismissal proceedings instituted. The evidence presented by the School Board is sufficient to establish that Ms. Scott's job performance was deficient in that she failed to perform or inadequately performed her assigned job responsibilities; that on numerous occasions she refused to comply with requests and direct orders from the head custodian, from the assistant principal, and from the principal of South Dade; that she accumulated excessive unauthorized absences; and that she abandoned her position with the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County issue a final order terminating Gale Scott's employment. DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998.
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(3)(a) and 6A-10.081(5)(d), as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke, suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2016). Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2016). Respondent holds Florida Educator's Certificate 829054, covering the areas of Education, Leadership, Physical Education, Social Science, and Exceptional Student Education, which is valid through June 30, 2018. At all times pertinent hereto, Respondent was employed as an Exceptional Student Education Teacher at Holly Hill School in the Volusia County School District. Holly Hill School is a combined K-8 school. During the time in question, Respondent shared a small office with Ms. Pollok and Mr. Edwards. The office was formerly a teachers’ lounge/lunchroom. It still had a counter, sink, and refrigerator, and had bathrooms that continued to be used on occasion by other teachers. Each of the three teachers who shared the office had their own desk. The office also included two smaller tables at which the teachers could provide service to their ESE students when necessary. At the start of the 2013-2014 school year, Ms. Pollok knew Mr. Edwards, who had been in the ESE program, but did not know Respondent. The incidents described herein occurred between the start of the 2013-2014 school year on August 13, 2013, through late November, 2013, when Respondent was removed from the classroom. Racial Comments Over the period of time in question, Respondent made numerous statements of a racial nature. While on hall duty between classes, Respondent would occasionally call African-American children “Bebe’s kids.” The reference was to an animated television show in which “Bebe’s kids” were unruly and ill-mannered African-American children. Mr. Edwards understood the comment to be derogatory, and noted that the children hearing the comment would occasionally react, even to the point of commenting that they did not want to be referred to as such. Respondent’s statements were also heard by Ms. Burnam-Hoyt, who likewise understood the term to be derogatory, and observed that the children at the receiving end of the comment looked shocked. She advised Respondent that he should not call them that name. Ms. Pollok testified that Respondent routinely called children “nappy” during hall duty when students transition from one period to the next. The comments were directed to middle school students, whose reactions were perceived by her as being ones of humiliation or embarrassment.1/ Mr. Edwards testified that he heard Respondent refer to African-American children as “nappy,” though not with the frequency with which he called them “Bebe’s kids.” Respondent testified that he only called one child “nappy” at the request of the child, an ESE student -- though not one of his students -- who wanted to be called “napster” or “nappy.” There was no competent, substantial evidence to support that claim. No other teacher substantiated such a request, and Mr. Edwards and Ms. Burnam-Hoyt testified credibly that the term was used more broadly. In any event, as stated by Ms. Fisher, there would be no reason to address any student by that type of obviously inappropriate term, even if requested. Mr. Edwards perceived Respondent’s comments as inappropriate, and they made him uncomfortable. He believed, rightfully, that the comments made Ms. Pollok uncomfortable as well. There was no evidence that any student’s learning ability or mental health was actually adversely affected by Respondent’s racially-demeaning statements. Nonetheless, under the circumstances described herein, Petitioner proved that Respondent failed to make reasonable effort to protect students at Holly Hill School from humiliation and embarrassment, conditions reasonably understood to be harmful to their learning environment and their mental health. Sexual Comments Over the period of time in question, Respondent repeatedly made statements of a sexual nature. On occasion, when Ms. Pollok arrived to work in less than a cheerful mood, Respondent would state to the effect of “What's the matter, Pollo[]k, why are you grumpy? Am I going to have to go downstairs and talk to your husband about how to wake you up properly?” The first time he made the comment, he accompanied it with hip thrusts and grunts, i.e., sounds that people make when they're having sex, thus accentuating the sexual nature of the comment. The first time Respondent made the statement, Ms. Pollok felt awkward, left the office, and went to her husband’s classroom (he was also a teacher at Holly Hill School) where she stayed until the school day started. When he continued to make such statements on a more regular basis, it made her uncomfortable. Mr. Edwards heard Respondent make the statement to Ms. Pollok on one or two occasions. Respondent denied having ever made the comments, attributing them to Mr. Anderson, who laughingly took credit. Regardless of whether Mr. Anderson may have also made comparable statements, the testimony of Ms. Pollok and Mr. Edwards that Respondent made the statements at issue is more credible, and is accepted. Ms. Burnam-Hoyt, who enjoys a well-known and long-term relationship with her wife, would occasionally visit the office. On one occasion, while in the presence of Mr. Edwards, Respondent told Ms. Burnam-Hoyt that she looked nice that day and said “I wish you would switch teams.” Though she gave an off-hand reply, Ms. Burnam-Hoyt did not discuss her sexuality, especially in the workplace, and was offended by the comment. On several other occasions, when Ms. Burnam-Hoyt was not in the room, Respondent commented in the presence of both Ms. Pollok and Mr. Edwards that he wished “she didn’t bat for the other team.” On one occasion, when Ms. Pollok had returned from ESE training and asked Respondent about his day, he replied that “it was pretty boring until your old boss, what's her name, Mandy [Elzy], bent over and showed me her boobs.” Respondent commented, with regard to Anna Garces, that “she was spicy and he'd like to make her his consuela.” When Donna Mounts, a P.E. instructor, would come to the office, Respondent’s favorite phrase was that he “would like to mount Coach Mounts.” Respondent did not make the statement directly to Ms. Mounts, but he made it in the office on a routine basis. Respondent commented regarding Marcie Lockamy, an African-American assistant principal, that “I don’t normally do black ladies, but she’s pretty hot . . . I’d get at that.” Respondent’s denial that he made the statement, or that he even knew who Ms. Lockamy was, was not convincing. Respondent’s comments were repetitive, and he would make some statement every day. Ms. Pollok and Mr. Edwards told Respondent that he should “tone it down.” In particular, Mr. Edwards testified credibly that he advised Respondent “at different points” that his comments about women were not appropriate, not only because of his own view of the matter, but because he believed them to be disturbing to Ms. Pollok. The requests and recommendations had no identifiable effect. Mr. Anderson’s testimony in this case, apparently designed to exonerate Respondent and transfer responsibility for many of the statements to himself, was not persuasive, and in several instances, conflicted with the more credible testimony of other witnesses.2/ Respondent’s general defense to his sexual comments was that he was just “joking around,” that they occurred when he and the target of his comments “were talking and laughing and having a good time in between classes,” that they were a “jovial gesture,” and the like. He denied that they were perceived as offensive by any the persons within earshot, a statement denied by the persons exposed to his comments. Individually, Respondent’s comments could be categorized as puerile. Collectively, and over time, they rose to the degree that they created a hostile, abusive, offensive, and oppressive environment in the small office that constituted the workplace for the three teachers. Threatening Comments The Administrative Complaint alleges that, over the period of time in question, Respondent made “threatening comments to or around [Ms. Pollok].” As to comments regarding Respondent’s prior work- history as a police officer, Mr. Edwards testified credibly that they were nothing more than “experiences that people have or wanted to share.” Mr. Edwards did not take those statements as threatening. When Respondent discovered that he was being investigated by Holly Hill School, he was understandably upset. He made some comments that expressed his frustration. However, Mr. Edwards testified that Respondent did not threaten him or Ms. Pollok. Respondent admitted to being upset and frustrated, but denied either expressing, or having the intent to harm anyone. The comments, under the circumstances, were not so out of line as to objectively constitute a threat to one’s safety or welfare. Under the circumstances described herein, Petitioner did not prove that Respondent’s allegedly threatening statements created a hostile, intimidating, abusive, offensive, or oppressive environment in violation of rule 6A-10.081(5)(d). Holly Hill School’s Response Ms. Pollok complained of Respondent’s behavior to various administrators at Holly Hill School, including Mr. Strother, and went so far as to request a reassignment of her duties so as to avoid Respondent. On November 1, 2013, Mr. Strother spoke with Respondent. The conversation was “short and brief,” and non-specific, with Mr. Strother generally advising Respondent to “be cognizant of conversations you're having and what you're saying around other people.” On or about November 4, 2013, Ms. Pollok renewed her complaint to Mr. Strother about Respondent’s comments about “the ladies,” and their looks and sexual preferences. Mr. Strother could tell that the comments made Ms. Pollok uncomfortable. Mr. Edwards had also spoken to Mr. Strother regarding Respondent’s comments. As a result of those complaints, Mr. Strother sent out an email directing all teachers to have “professional conversations,” and to lead “by example with appropriate conversation.” Though the email was not specific, included other topics, and was sent to a number of Holly Hill School employees, it nonetheless should have placed Respondent on notice to heed not only Mr. Strother’s earlier advice, but also the earlier admonitions from Mr. Edwards and Ms. Pollok to “tone it down.” It did not have the intended effect. On November 20, 2013, Ms. Pollok reported Respondent’s unabated comments about women and those made towards students to Ms. Fisher. Ms. Pollok was upset and crying during their discussion. Ms. Fisher then spoke with Mr. Strother to confirm Ms. Pollok’s earlier complaints. Ms. Fisher reported the allegations to the school district, and on November 21, 2013, an investigation of Respondent’s conduct was initiated. The investigation delved into the sexually-inappropriate comments, and extended into areas that are not the subject of this proceeding, for which Respondent received a reprimand. As to the comments directed to students, which were determined to be violative of principles of professional conduct and school board policy for failing to protect students or exposing them to excessive embarrassment or disparagement, Respondent was suspended without pay for five days, and transferred from Holly Hill School.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rules 6A-10.081(3)(a) and 6A-10.081(5)(d). It is further recommended that the Education Practices Commission impose a suspension of the Respondent's educator certificate for a period of one year, and a probationary period of one year upon his return to teaching in any public or private school in Florida on such reasonable terms and conditions as the Educational Practices Commission determines are necessary to prevent recurrences of the conduct proven in this case. DONE AND ENTERED this 23rd day of January, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 23rd day of January, 2017.
