Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record complied herein, the following relevant facts are found. By letter dated October 1, 1980, Respondent, David K. Witherspoon, and his parents were advised by the Pinellas County Superintendent of Schools, Gus Sakkis, that he was being suspended from the public schools of Pinellas County for the remainder of the 1980/81 and 1981/82 school years based on an allegation that Respondent committed a battery while on school grounds on September 19, 1980, following a high school football game. (Joint Exhibit 1) Respondent is scheduled to graduate from high school at the end of the 1981/82 school year. Following the expulsion, Respondent has been assigned and is attending an evening alternative education school program sponsored by the Pinellas County School System. According to testimony, that a system provides two hours of instruction each week day evening. Respondent appealed the Superintendent's expulsion and the parties stipulated that the Division of Administrative Hearings has jurisdiction to resolve this controversy. According to the Code of Student Conduct, students are expected to conduct themselves at all times in a manner that "shall [not] infringe on the rights of others. A battery, according to the Code of Student Conduct, is the unlawful, intentional touching . . . or force to another person, done in a rude, insolent and angry manner shall subject a student to disciplinary action which may include suspension or expulsion from school." Paragraph 3(a)2, Code of Student Conduct. The material allegations of this controversy are that following the football game at Gibbs Senior High School (Gibbs) on September 19, 1980, Respondent while in the company of four other black males struck Anthony Scott Taylor, a seventeen year old senior at Gibbs, his mother and his fiancee in the school's parking lot. Anthony Taylor charged that Respondent kicked him across his eye; struck him with his fist, bruising his nose and caused his eye to bleed. Taylor has know Respondent for more than two years and has had no prior run-ins or altercations with Respondent. Taylor alleges that approximately 20 or more black students encircled him during the altercation with Respondent. Taylor, while on his knees in a slouched position when he was allegedly hit an kicked by Respondent, glanced up to identify Respondent. Taylor admitted that he was preoccupied with ensuring that his fiancee and mother could leave the parking area without difficulty. He also commented that blood was streaming from his right eye from the blow he received. Ann Taylor, Anthony Taylor's mother, was also struck by a black male as she was leaving the September 19, 1980, football game at Gibbs. Mrs. Taylor testified that her son was knocked down he (Anthony) told one of the black males "that's my mother you knocked down." Mrs. Taylor testified that she was unable to identify any of the students involved in the altercation and noted that her son was dazed when he left the area where the fight occurred. Lori Bush, Respondent's fiancee, also accompanied the Taylors following the football game. Ms. Bush also could not identify any of the students involved in the altercation with them. Ms. Bush and Anthony Taylor's mother picked him up and carried him to their car. Ms. Bush did not recall having seen Respondent prior to the hearing in this cause. Paula Sitzelberger, a detective with the St. Petersburg Police Department investigated the subject incident which occurred at Gibbs on September 19, 1980. Detective Sitzelberger spoke to Respondent at school on September 23, 1980, and after questioning him, reported that Respondent denied striking Anthony Taylor following the game. Detective Sitzelberger noted that Respondent admitted to having shoved another white male whose identity is unknown in another area of the parking lot after the white male allegedly pulled or struck Respondent. Detective Sitzelberger was unable to locate any independent witnesses to the subject incident. Jerry Young, a witness called on behalf of Respondent, recalled the numerous fights which occurred following the September 19, 1980, football game at Gibbs. Young followed Respondent throughout the school ground area and denied that Respondent had any involvement in the subject incident. He corroborated Respondent's testimony to the effect that Respondent's hand was injured in another incident in another area of the school's parking area after Respondent was first enmeshed in an altercation with another white male. Respondent related the incident following the September 19, 1980, football game at Gibbs. Respondent has been attending evening sessions at Mirror Lake Adult High School since his expulsion from the regular public schools of Pinellas County. According to Respondent, Tony Taylor was struck by a group of other blacks and Respondent denied any involvement on his part in that incident. Respondent surmised that Tony Taylor shouted that he recognized him while he was being struck in an effort to gain some sympathy from the group that was striking him. Respondent, after hearing Tony Taylor shouted that he recognized him while he was being struck in an effort to gain some sympathy from the group that was striking him. Respondent, after hearing Tony Taylor repeatedly shout that he knew him, left the area with companion Young although he got involved in another altercation with another white male which resulted in an injury to his hand. Respondent first became aware of his alleged involvement in the Anthony Taylor incident the following Monday when he was questioned by Dean Jones and Detective Sitzelberger. 2/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent be reinstated in the Pinellas County School System; that the suspension be revoked and that the student be permitted to make up the school work missed as provided in Chapter 4(b)1(h) of the Code of Student Conduct adopted by the Pinellas County School System. RECOMMENDED this 14th day of January, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1981.
Findings Of Fact Anthony Granger is 14 years old and lives with his mother, Mrs. Betty Granger. Anthony began the 1982-83 school year at Mays Junior High School. On September 8, 1982, Anthony was disciplined for shouting obscenities in class. On September 10, he struck another student and was suspended for five days. On September 24, he was involved in a fight and was suspended for ten days. Mays Junior High School administrators thereafter sought to transfer Anthony to the Douglas MacArthur School because of his disruptive behavior. In the meantime, Mrs. Granger sought to have Anthony transferred to Cutler Ridge Junior High School, where she is a full-time employee. Mrs. Granger was aware of the ten day suspension, but did not know of the earlier incidents or the proposed assignment to the Douglas MacArthur School. Notices of these matters were apparently sent to Mr. Granger, who is separated from Mrs. Granger. The transfer to Cutler Ridge was approved under the majority-minority transfer program. Anthony attended classes at Cutler Ridge for three days in October, after which the transfer was withdrawn. Following a period of confusion and communication breakdown among the three schools, the area school board office and Mrs. Granger, the latter withdrew Anthony from school and has arranged for private tutoring pending outcome of this review. Mrs. Granger's testimony established her sincerity in seeking an appropriate placement for Anthony. Although his behavior was unacceptable at Mays Junior High School, Mrs. Granger's availability at the Cutler Ridge School should preclude further behavioral problems if this placement is reinstated by Petitioner.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner authorize the student, Anthony Granger, to enroll in its Cutler Ridge Junior High School effective immediately. DONE and ENTERED this 14th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Betty Granger 11361 Southwest 227th Street Miami, Florida 33170 Mr. Walter Granger 11361 Southwest 227th Street Miami, Florida 33170 Dr. Leonard M. Britton, Superintendent Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issues to be resolved in this proceeding concern whether there is just cause to terminate the employment of the Respondent based upon purported misconduct involving failing to complete a work assignment, absence from work without authorization, providing untruthful information to his employer and directing a racial epithet toward a school district official.
Findings Of Fact The Respondent, Rickey Joe Henderson, is a non- instructional employee of the Okaloosa County School Board. He has been employed by the Petitioner as an electrician in the maintenance department. Board facilities in the north-end of Okaloosa County are maintained through a maintenance facility located in Crestview, Florida. Phillip Hutcheson serves as the Supervisor of the "north end maintenance facility." Typically maintenance workers under the supervision of Mr. Hutcheson report to the maintenance building in Crestview around 7:00 a.m., each work day to receive their maintenance assignments. They then depart to the particular school locations where they have repair work assigned to be performed. When a maintenance worker receives a directive or work order to go to a school to perform maintenance work, that employee typically reports to the administration of that school. They are required to report or "check in" with that school's administration, as are any adults who visit public schools. When maintenance work is completed at a particular location, usually a school, the maintenance worker responsible for the job will complete a form reflecting that the work is done, the time that was expended and that the work has been completed. The Respondent reported to work at 7:00 a.m., on January 14, 2000, in accordance with his normal assigned duties. Mr. Henderson, and co-worker Lloyd Lanier, thereupon received a work order and were directed to go to the Laurel Hill School to fix a commode in the girls' restroom in the gymnasium. Mr. Lanier and Mr. Henderson therefore left the maintenance building bound for the Laurel Hill School at approximately 7:25 a.m., that day. The normal driving time to Laurel Hill School is approximately 15 minutes. Amy Holloway is the secretary to the maintenance supervisor, Phillip Hutcheson. She reviews work orders and receives phone calls from maintenance department employees and sometimes distributes work orders to maintenance workers. She received a telephone call from Mr. Henderson at approximately 9:28 a.m., that day. Mr. Henderson informed her that they were on their way back from Laurel Hill. Ms. Holloway noted, however, on the "caller I.D." feature on her telephone system, that the phone number from which Mr. Henderson was calling was that of co-worker Lloyd Lanier at his residence. He resides just north of Baker, Florida. That location is several miles from the Laurel Hill School and is not on the route between Laurel Hill School and the maintenance department in Crestview. Ms. Holloway reported that information to Mr. Hutcheson who also observed the caller I.D. indication showing that Mr. Henderson was not enroute from Laurel Hill back to the maintenance department location, but in fact was calling from Lanier's home north of Baker, Florida. Ms. Holloway was therefore directed by Mr. Hutcheson to check with the Laurel Hill School personnel to see if Mr. Henderson and Mr. Lanier had been there to complete the required repairs. She did so, and was informed that no one at the school had seen them. It was also determined that the work had not been completed at that time. Upon learning this information Dale Walker, the foreman, was directed by Mr. Hutcheson to go to Laurel Hill School and inquire further. Mr. Walker determined that the work had not been completed and that no one at the school had seen Mr. Lanier or Mr. Henderson thus far that day. On Wednesday, January 19, 2000, Mr. Hutcheson requested foreman Dale Walker to send the Respondent to his office for a meeting. Mr. Hutcheson asked Mr. Henderson, at the meeting, if he had made the phone call on Friday from Laurel Hill School and Mr. Henderson stated that he had. He was then asked the same question in the presence of Ms. Holloway, and again admitted that he had made the phone call. Thereafter on that same afternoon Wednesday, January 19, 2000, the Respondent came back to Mr. Hutcheson's office and apologized on his own volition, stating that he should not have lied about the location he was calling from on the morning in question. He did continue to insist that he had been to the Laurel Hill School that morning and had been seen by Dale Willis, the principal, as well as a school employee, Marilyn Coon. Mr. Hutcheson therefore investigated Mr. Henderson's story to see if it could be corroborated and learned that Mr. Willis had not seen Mr. Henderson on January 14, 2000. Mr. Hutcheson also checked with Ms. Coon and learned that she could not have seen Mr. Henderson on Friday, January 14, 2000, because she had a doctor's appointment in Pensacola, Florida and was not at school at all on that date. On January 25, 2000, Mr. Hutcheson met with Mr. Henderson, Mr. Lanier, Dale Walker the foreman and Mike DelPozo, a supervisor. Ms. Holloway took notes of the meeting. Mr. Hutcheson gave Mr. Henderson and Mr. Lanier a copy of a memo documenting the chain of events that occurred on January 14, 2000, as Mr. Hutcheson then understood them. Mr. Hutcheson advised both Mr. Henderson and Mr. Lanier that they should meet with Arden Farley, the school district's equity coordinator. This would provide him an opportunity to discuss their side of the situation and whether they had been treated properly with regard to any proposed discipline. Upon being told that he should meet with Mr. Farley, who is a black, the Respondent uttered a racial epithet. as part of a statement spontaneously uttered by him, to the general effect that he thought it would be of little use to meet with Mr. Farley. Mr. Hutcheson had apparently determined to recommend a suspension of Mr. Henderson for a period of one to three days without pay as a disciplinary measure based upon Mr. Henderson's misconduct involving failure to complete the assigned work at Laurel Hill School on the day in question, and then lying about having been on the job when he was at Mr. Lanier's home. After Mr. Henderson made the statement containing the racially derogatory reference to Mr. Farley (who was not present at that meeting), Mr. Hutcheson concluded that termination was the appropriate discipline. On February 1, 2000, Mr. Hutcheson met with the Respondent again for the purpose of apprising him of his recommendation for discipline based upon the events that began occurring January 14, 2000. Mr. Henderson admitted that he had lied about where he had called from but still contended that he and Mr. Lanier were told to go to Laurel Hill School and fix a commode in the gymnasium and that they had done so. The Respondent maintained that he and Mr. Lanier did in fact go to the school that day but were unable to repair the commode in question because they did not have the appropriate parts. In fact, Board records introduced by the Petitioner do show that parts were later purchased for the commode. The testimony of Coach Hurlburt corroborates that they did actually go to the school for the purpose of making the repairs. The Coach could not remember which specific day, but it was within a three or four-day period in the week in question that he recalled seeing the Respondent and "his partner" in the gym early in the morning for the purpose of making repairs. Whether or not the Respondent went to Laurel Hill School the day in question to make the repairs, the evidence shows that he could not make them on that day because the parts were not available. Thus, the evidence does not preponderantly show that he failed to perform or complete a job through any fault of his own. The evidence just as readily would show that he did not complete the job that day for lack of parts. Be that as it may, the fact remains that the Respondent admittedly misrepresented his whereabouts upon deviating from the route between Laurel Hill School and the maintenance shop in Crestview. Indeed he was at the residence of Mr. Lanier and misrepresented that fact to his supervisor. In fairness to the Respondent, it must be also found that the stop at Mr. Lanier's residence was of an emergency nature because Mr. Lanier had soiled his clothes due to his being ill at the time with an intestinal virus. The Respondent had had a previous experience with Mr. Farley. He was referred to Mr. Farley when he received a reprimand following an altercation with another employee. The Respondent was apparently little at fault in that altercation and the other employee was responsible for an assault on the Respondent with a chair. That employee apparently had a problem with uncontrolled violence and was placed on medical retirement after another incident later. The Respondent had an unsatisfactory experience, in his view, with Mr. Farley's purported assistance with regard to that past disciplinary matter and did not feel that Mr. Farley had helped him. When he made the racially derogatory comment concerning Mr. Farley, Mr. Farley was 40 miles away. Thus the epithet involved was not directed at him, in person or otherwise. The Respondent was very angry because he had just learned that he was about to be disciplined or that his job was in jeopardy and he had had a previous unsatisfactory experience with Mr. Farley. It is clear from the circumstances that, unfortunate, and inappropriate as its utterance was, the racial epithet used in question was uttered in the heat of the moment when the Respondent was very angry, having just learned from his supervisor that his job was at risk. The Respondent, regretted that incident and went on his own volition to Mr. Farley, in person, and, apologized to him because he was remorseful about such a mistake and wanted to rectify it. The Petitioner took the position that the Respondent was recommended for termination for not following his work assignment he had been given; lying about it and his whereabouts; and lastly making the racially derogatory statement about another school district employee. Mr. Henderson's supervisor conceded that he would not have been fired for using the racial epithet alone, and the charged misconduct involving not following his work assignment and then lying about it standing alone would have warranted up to a three-day suspension. These offenses, taken together, when balanced with the showing by the Respondent, through Coach Hurlburt's testimony, that indeed he did go to the work assignment that day but could not complete it because he did not have the necessary parts; that the utterance of the racial epithet in question was in a moment of heated anger and that he later voluntarily and remorsefully apologized directly to Mr. Farley for uttering it, render the offensive conduct committed by the Respondent to be less than that which would justify termination. In making this recommendation, an additional circumstance the undersigned takes into account is that in essence the Respondent had an unblemished work record prior to the occasion in question. Thus, under all of the above-found circumstances, termination is too severe a penalty.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties it is, therefore, Recommended that a final order be entered by the Okaloosa County School Board suspending the Respondent from February 15, 2000, through the date of the hearing herein and that effective the day following the hearing date in this case that he be reinstated to his employment and that his pay and attendant benefits, if any, be commenced effective that date, with his suspension being co-extensive with the time from the date of his termination by the Board through the date of the hearing. DONE AND ENTERED this 8th day of September, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 8th day of September, 2000. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Glenn M. Swiatek, Esquire 315 "B" Northeast Racetrack Road Fort Walton Beach, Florida 32547 Walter Gordon, Superintendent Okaloosa County School Board 120 Lowery Place, Southeast Fort Walton Beach, Florida 32548 Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 232399-0400
The Issue Whether respondent's suspension without pay should be upheld and whether he should be dismissed from employment for the reasons alleged in the administrative complaint?
Findings Of Fact Until his suspension on the strength of allegations like those in the administrative complaint, Ronald Wesley Landen taught horticulture at Rosenwald Junior High School, which operates in Panama City, Florida, under petitioner's aegis. Suzi, who turned 15 in April of 1983, met Mr. Landen as a pupil in one of his classes. She spoke highly of her teacher all year. Mr. and Mrs. Landen took her to Tallahassee to see a play once. Mrs. Landen had not originally planned to make the trip. Mr. Landen worked at the school last summer administering a grant, with moneys from which he hired students, including Suzi, who had graduated in the spring, to assist him in caring for plants. A routine emerged in the summer of 1983. Mr. Landen called for Suzi mornings on his motorcycle. After work, he drove her to the resort on Panama City Beach where Suzi's mother worked, and where he sometimes lingered for long walks on the beach, hand in hand with Suzi. Suzi's mother grew suspicious, but her stepfather wasn't sure anything was amiss. Rifling through Suzi's effects one day, her parents came upon a letter respondent had written her. On lined, blue stationery, respondent, who was born May 20, 1944, had written: To Suzi I love you very much-I am lieing (spelling) here writing this by flashlight. I wanted to tell you-you have made me very-very happy this week-I hope I have made you just as happy. Somethings are working against me-such as like-lights, water-etc but all in all it is working out. I am very happy- just watch out for the bat in the back of the head. I love you-I hope you are feeling better. I don't want you sick. I hate weekends. I can't see you-I can't wait to see you in the morning & I hate to take you home in the afternoon. I want to be able to tell the world how I care about you. I wish you would not worry so much-Wes & Robert will learn to except everything in time. So much worring-is not good for you. I love both of my sons-I love you. They will love you in time. Any way they will be-with us very little. I do want us to do things together-I love you. Well I am going to close now Thank for happenist- (spelling) I love you Ronald Wesley. Petitioner's Exhibit No. 2. Printed script at the top of the stationery proclaims: "Happiness means sharing bright new days, and happy thoughts with a friend." In the lower left corner a bouquet is depicted. The first time Suzi's stepfather saw Mr. Landen after reading this letter, they had a lengthy discussion. Mr. Landen explained, "Well, things just got carried away too far." (T. 20) Suzi's stepfather told Landen to stay away from her, which Landen agreed to do. At her parents' insistence, Suzi quit her job at school. Toward the end of the summer, Suzi and her family moved to Ohio, as they had planned to do for some time. In Ohio, Suzi received mail from school friends in Florida. Her parents noticed Cheryl Lynn's return address, but never spotted respondent's. Nevertheless, an unsigned letter from Landen to Suzi, dated "8/18/83" turned up: Suzi I sure was glad to hear you got to Ohio safe & sound. I prayed for my guardian angle to look out for you. Cheryl Lynn has been up here every day to help me. I am glad. She let me read your letter- hope you did not mine. There is a lot of things I want to say in this but I don't want to get you into trouble. I wrote you a lot of letters in Va. but I can not mail them till I am sure you & you only will get them. I love you & miss you. lots, lots, lots. I will be glad when I get a letter of my own. School will start Monday. 7th graders come tomorrow. They still do not have schedules for them & this is Thursday. I am not ready for school to start. It will be great if you come back in Sept. I hope so. I really don't want to wait till March. In fact I would pay your way here Thanksgiving & Christmas if your Mom would let you come stay with Cheryl Lynn. In fact all you got to do is call. You know what I mean. I can not tell you how much I love you & miss you & want you here with me because I don't really know if you could believe that much. I do hope you write me soon. There are a lot of people pulling for this to work out-we need a chance to work it out. Does your Mom & Dad still hate me? Do you believe it would do any good to talk to them? Suzi I want it to be right. I know it can be right & great. I pray a lot for it to work out. I even pray that your Mom & Dad will understand & let us be together. They must have be young "once" & had a real love-true feeling for each other. I really don't know how much to write. I don't want to get you into trouble. Gosh I wish they understood. Call me- Everybody hear is waiting. They know to get me to the phone as soon as possible. Like I say everybody I know except your Mom & Dad is hoping this work out for us. We are going to have a letter opening party when I get one. Cheryl Lynn-Faye Burles- Melissa Spear's mother. Melissa, Tommy Setliff I mean every body-they all are pulling for us. So write me soon. I love you & miss you----- Petitioner's Exhibit No. 3. This was on white stationery, unlined but bordered in grey and featuring a cat, in the lower right corner, holding a teddy bear and a cluster of balloons. This proved the last straw for Suzi's stepfather, who contacted school authorities. The photograph he found did not help, either. On back of a likeness of himself, respondent had inscribed, "To Suzi With all the love one man can have for someone--3+=18, 42--all dreams are worth waiting for. It is & will be rough & tough. I love you Ronald Wesley." In three years she would have attained the age of consent and he would have been a mere 42 years old. Superintendent Holman suspended respondent Landen with pay until the School Board met, voted a suspension without pay, and proposed dismissal. Mr. Holman's testimony that respondent's relationship with Suzi seriously reduced his effectiveness as a school board employee was uncontroverted.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner uphold respondent's suspension without pay. That petitioner dismiss Ronald W. Landen as an employee of the school board. DONE and ENTERED this 19th day of September, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1984. COPIES FURNISHED: Franklin R. Harrison, Esquire Post Office Box 1579 Panama City, Florida 32401 Philip J. Padovano, Esquire 1020 East Lafayette Street Suite 201 Tallahassee, Florida 32301 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Pete Holman, Superintendent School District of Bay County, Florida 5205 W. Highway 98 Panama City, Florida 32401
The Issue The issue in this case is whether the school Board of Pinellas County (Petitioner) should dismiss its employee, Clarence Davis (Respondent), from continuing contract for misconduct in office and gross insubordination based upon matters alleged in the Superintendent's letters of March 13 and April 24, 1989.
Findings Of Fact Respondent holds a teaching certificate from the State of Florida, and has been employed by continuing contract with the Petitioner since April 21, 1971. In 1986, he was assigned to Azalea Middle School, where he has since been employed. The parties stipulated that during a prior assignment at Riviera Middle School, the principal of that school had warned Respondent to refrain from aggressively touching students. During April, 1986, Dr. Scott N. Rose, Superintendent of the Pinellas County school system, removed Respondent from a counseling assignment at Pinellas Park Middle school, and transferred him to Azalea Park Middle school as a physical education teacher. The Superintendent issued a warning at the time of this transfer that he would recommend a suspension without pay or termination if Respondent's future actions at Azalea Middle school constituted insubordination. During the 1987-1988 school year, Respondent was assigned to a guidance counselor position at Azalea Middle School, but he again had to be removed by the Superintendent. He was warned again that future problems would result in a suspension without pay or a termination. John Leanes became principal of Azalea Middle School in January, 1988, and in October, 1988, he warned Respondent to avoid touching students. In December, 1988, senior administrative officials and representatives of the Petitioner met with the Respondent, and warned him not to touch students. They told him that if he could not meet the standards and expectations of the Petitioner for teachers in the Pinellas County school system, he would be recommended for termination of his continuing contract. The Code of Student Conduct in effect in the Pinellas County school system at all times material hereto provides, in part, that: No form of physical punishment, other that paddling with a paddle is authorized. Corporal punishment may be used only after careful consideration of the facts by the principal, or designee. In no case shall such punishment be degrading or unduly severe in nature. Around the time of the winter holiday during the 1988-1989 school year, Respondent became involved in an incident with a twelve year old female student named M.S. The student was not feeling well, and did not dress out for physical education class. She was lying down in the bleachers. Respondent yelled at M.S. to come down from the bleachers when he observed her talking to other students at the top of the bleachers. When she complied and approached him, he appeared to the student to be very angry, and threatening. He yelled at her so closely that saliva from his mouth struck her in the face. After yelling at her, he pushed M.S. with both hands, throwing her back onto the bleachers. This incident caused the student, M.S., to be frightened and intimidated by the Respondent. Other students observed the incident, and confirmed the testimony of M.S. at hearing. Respondent's actions in this incident reasonably caused M.S. to feel embarrassment, fear, and the threat of physical punishment. On or about March 7, 1989, Respondent yelled at a male student, J.S., and pushed him in the chest with his finger while yelling at him. It appeared to the student that Respondent was trying to provoke him into a physical confrontation. Respondent testified that he was trying to protect another student, K.W., whom he felt was being bullied by J.S. However, K.W. testified that J.S. was not bullying him on this day, and that he and J.S. are friends. Other students witnessed the incident, which reasonably caused the student, J.S., embarrassment, and fear. It is alleged that on March 8, 1989, Respondent also grabbed a student, R.L., by the shoulders, shook him, and yelled at him. R.L. is classified as an emotionally handicapped student, who has been suspended. Students who testified characterized R.L. as someone who talks alot, says bad things about, and fights with, other students, and is generally a trouble maker. Based upon his demeanor at hearing, as well as the testimony of other students about his character, it is found that the testimony of R.L. is not credible. It is reasonable to infer that R.L. heard about the incident the day before with J.S. and the Respondent, and fabricated his allegations to gain attention. Based upon the testimony of Dr. Scott N. Rose and John Leanes, who were accepted as experts in education, as well as the testimony of Stephen Crosby, director of personnel services for Petitioner, incidents such as those between the Respondent and M.S. and J.S. diminish a teacher's effectiveness by creating an improper role model, teaching students that violence is a way to resolve disputes, frightening students, and causing them to be afraid of school and teachers. This creates a negative educational atmosphere, and could potentially increase the school system's liability. In November and December, 1988, the Respondent was suspended without pay on two occasions based upon allegations similar to the ones at issue in this case. The period of these suspensions was three and five days, respectively. The Respondent requested an administrative hearing concerning these suspensions, and following that hearing, Hearing Officer Don W. Davis issued a Recommended Order on April 21, 1989, in DOAH Cases Numbered 88-5720 and 89-0344, recommending that the proposed suspensions be dismissed. A Final Order in this prior case has not yet been entered by the Petitioner.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order dismissing Respondent from continuing contract with the Pinellas County school system. DONE AND ENTERED this 14th day of June, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1546 Rulings on Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding 1. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 4. Rejected as irrelevant. 7-8. Adopted in Finding 11. 9-12. Adopted in Finding 5. Rejected as not a finding of fact but a conclusion of law. Adopted in Finding 6. 15-19. Adopted in Finding 7. 20-24. Adopted in Finding 8. 25-28. Rejected and adopted in part in Finding 9. Adopted in Finding 10. Rejected as not based on competent substantial evidence. The Respondent did not file specific Proposed Findings of Fact, but incorporated argument in a proposed recommended order. Therefore, it is not possible to address specific findings of fact on behalf of the Respondent. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Lawrence D. Black, Esquire 152 Eighth Avenue, Southwest Largo, Florida 34640 Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the notice of charges; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received, the following findings of fact are made: The Board is the appropriate agency authorized to operate, control and supervise the public school system for the Dade County school district. As such, it is responsible for the discipline of teachers employed by the public schools. At all times material to the allegations of this case, Respondent, Lester Johnson, was employed as a continuing contract teacher with the Dade County public schools. Respondent began his employment in August, 1975, and remained on contract until his suspension, August 23, 1989. The Respondent completed his undergraduate studies at Bethune-Cookman College and received a masters degree in administration from Nova University. Throughout his teaching career, the Respondent has taught social studies at the high school or middle school levels. On December 11, 1984, Respondent was observed for evaluation by Lois A. Lindahl, an assistant principal at Norland Junior High School. Subsequent to that observation, Ms. Lindahl conducted a conference with the Respondent to advise him of the three areas in which he had been rated unacceptable. Those categories were: preparation and planning, classroom management, and teacher- student relationships. Specifically, the administrator outlined complaints that had been received from students and parents concerning the Respondent's behavior. Among those complaints were the following: "picking on certain students in each class; ridiculing students; looking strangely at girls; challenging students." Respondent received a written summary of the foregoing conference on December 18, 1984, and, at that time, indicated he understood the concerns and would seek to improve his performance. On February 27, 1985, John Gilbert, principal at Norland, met with Respondent to review complaints which had been received concerning his performance. At that time, Respondent was warned that the administration had received complaints that Respondent was "too familiar looking at girls." Several students had alleged that Respondent had stood behind a female student while she gave a report and "looked her up and down." Additionally, Respondent was advised that his manner of observing the girls in shorts at basketball games was inappropriate. Respondent acknowledged the comments and indicated his willingness to correct the situation. Following that conference, there were no similar complaints through the end of that school year. At the conclusion of the 1984/85 school year, Respondent received an acceptable rating and was recommended for employment for the next year. During the 1985/86 school year Respondent was employed at Highland Oaks Junior High School. Harold Blitman was principal at Highland Oaks at that time and met with Respondent regarding "rumblings" he had received concerning Respondent's treatment of students. Respondent was advised that a mutual respect with students needed to be established and that students should not be subjected to disparaging remarks. Respondent was formally observed on February 18, 1986, and, as a result, received an acceptable overall rating with a recommendation for employment on June 3, 1986. During the next school year at Highland Oaks, Respondent was observed on two dates, September 15, 1986 and January 27, 1987. As a result of those evaluations, Respondent received an overall rating of acceptable with a recommendation for employment. Respondent's performance during the 1987/88 school year deteriorated. Consequently, Respondent was given a prescription for performance improvement to correct the deficiency noted by the school administration. Specifically, Respondent was instructed to comply with School Board rules regarding the treatment of students and was cautioned regarding his conduct toward female students. Incidents of Respondent staring at female students, looking at them "up and down," and requiring females to approach him more closely than they wished to, were deemed inappropriate conduct. Respondent was advised that familiar conduct between himself and female students caused embarrassment and made them feel uncomfortable. In February, 1988, a female student, Milissa Wege, complained that Respondent had called her "scum," had grabbed her forcefully by the arm, and ejected her from the classroom. A secretary observed a red welt on Ms. Wege's arm where Respondent had purportedly grabbed her. Respondent denied grabbing Ms. Wege, but a verbal confrontation did occur between them. The exact language of that conversation is not known. In April, 1988, Respondent approached a student named Sherri Goldenberg. In addition to the conduct described in paragraph 8 which was displayed toward Ms. Goldenberg, Respondent approached Ms. Goldenberg during a movie and placed his hand on her shoulder. Respondent then rubbed her shoulder in a caressing motion which made Ms. Goldenberg very uncomfortable. Subsequent to the events with Ms. Wege and Ms. Goldenberg, an investigation was completed and resulted in a letter of reprimand being issued to Respondent. He was instructed not to touch students, not to say demeaning things to students, and not to give female students any reason to believe he had some kind of sexual interest in them as that made them uncomfortable. Consequently, Respondent was given an unacceptable evaluation in category seven, professional responsibility. In May, 1988, Respondent met with Raymond Fontana, assistant principal at Highland Oaks, regarding an incident involving Cory Smith. Cory's mother had registered a complaint against the Respondent because he had allegedly used demeaning terms ("stupid," "boy") toward her son. Respondent admitted that he had said the words but claimed that he had not intended to demean the student. Respondent was advised to refrain from such conduct in the future. During Respondent's time at Highland Oaks, Mr. Fontana had a number of conferences with him, both formally and informally, to attempt to correct Respondent's treatment of students. Mr. Fontana urged Respondent to not touch students and to cease using derogatory or demeaning language toward students. During the school year 1988/89, Respondent was observed on three dates: October 5, 1988; November 22, 1988; and November 28, 1988. On May 30, 1989, Respondent received an acceptable overall evaluation and was recommended for employment. However, in June, 1989, an incident occurred which resulted in the Respondent being recommended for suspension with termination proceedings to follow. That incident involved a student named Roscoe Phillips. Respondent's class was in the library because his usual classroom, the auditorium, was being used for an assembly. Mr. Phillips was talking and being disruptive. Consequently, Respondent moved him to another seat to limit the student's interaction with the class. Mr. Phillips' poor conduct continued. Finally, Respondent told the student to be quiet, grabbed his mouth by pinching his lips together, and shoved his head backward. Incidental to the shoving motion, Respondent stepped on Mr. Phillips' foot. Right after the incident occurred, the student reported Respondent's conduct to the office. On August 23, 1989, the Board suspended Respondent from his employment with the Dade County public schools.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County, Florida enter a final order suspending the Respondent from his employment with the Dade County public school system for a period of one school year. Further, it is recommended that Respondent be required to participate in a continuing education program geared specifically to developing strategies for classroom management and the professional treatment of students. DONE and ENTERED this 27 day of July, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of July, 1990. APPENDIX TO CASE NO. 89-4860 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE SCHOOL BOARD: Paragraphs 1 and 2 are accepted. With the exception of the last sentence of paragraph 3, that paragraph is accepted. The last sentence is rejected as hearsay. Paragraph 4 is accepted. It is not found, however, that the Board has presented sufficient evidence from which it must be concluded that Respondent caused the red marks on Ms. Wege's arm. It is accepted that she alleged that to be the case and that Respondent was counseled about it. Paragraph 5 is accepted. In the future, the Board attorney shall please refrain from such lengthy paragraphs. Paragraph 6 is accepted. The first two sentences of paragraph 7 are accepted. The remainder is rejected as irrelevant. Paragraph 8 is accepted. See, however, comment in paragraph 3 above. With regard to paragraph 9, it is accepted to the extent addressed in finding of fact paragraph 15; otherwise rejected as irrelevant, contrary to the weight of the evidence, or comment. Paragraph 10 is accepted to the extent that it correctly summarizes Mr. Blitman's testimony; however, as to its conclusion, it is rejected as contrary to the weight of the evidence. Respondent showed a bone fide interest in improving his performance and with sufficient guidance can do so. Paragraph 11 is accepted as an accurate summary of Dr. Gray's testimony; however, as to its conclusion, it is rejected as contrary to the weight of the evidence. See additional comment in paragraph 9 above. Paragraph 12 is rejected as contrary to the weight of the credible evidence. The weight of the evidence established that Respondent and Ms. Wege had a verbal confrontation. No finding is made regarding the alleged "grabbing" of her arm. To that extent Mr. Kennedy's testimony supports Respondent's version of the incident and has been deemed credible. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraph 1 is accepted. Paragraphs 2, 3, 4, 5, and 6 are rejected as recitation of the notice of charges with argument, or contrary to the weight of the credible evidence. Paragraph 7 is accepted. Paragraph 8 is rejected as contrary to the admission made by Respondent to the administrator. Paragraph 9 is rejected as contrary to the weight of the credible evidence. See finding of fact paragraph 15. COPIES FURNISHED: William DuFresne DuFRESNE AND BRADLEY 2929 S.W. Third Avenue, Suite One Miami, Florida 33129 Frank Harder Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 N.E. Second Avenue Miami, Florida 33132 Dr. Patrick Gray Assistant Superintendent Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, Florida 33132 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
