The Issue Whether Respondent committed an unlawful employment practice against Petitioner in violation of chapter 760, Florida Statutes (2012),1/ and Title VII of the Civil Rights Act.
Findings Of Fact Mr. Sims is an African-American man who worked as an adjunct professor for Valencia College from August 31, 2009, until August 6, 2011. During his employment with Valencia College, Mr. Sims taught pre-algebra and introduction to algebra. Valencia College is a two-year community college located in Central Florida, and is comprised of several different campuses. Mr. Sims was an adjunct professor of mathematics for the Osceola campus. Mr. Sims' Charge of Discrimination, initially filed with the Commission, alleged that he was terminated from his employment as an adjunct professor based on his race. After the Commission's determination that there was no cause to believe that a discriminatory practice had occurred, Mr. Sims filed his Petition for Relief. In the Petition for Relief, Mr. Sims alleged that Valencia College had discriminated against him based on race by: 1) not renewing his employment as an adjunct professor; 2) scheduling him fewer class assignments; and 3) paying him less than other adjunct professors. According to Ms. Washington, the math coordinator for Valencia College, an adjunct professor is one that enters into a contract to teach a specific class for a semester. Usually, an adjunct professor teaches between one and two classes a semester. Adjunct professors are paid by the hour for the number of classes. All adjunct professors in the mathematics department were paid pursuant to a scale based on the individual's educational background and number of hours taught. For example, as shown by Respondent's Exhibit 5, all adjunct professors, who had a bachelor's degree in mathematics, were paid $525.00 for one contract hour course. An adjunct professor does not receive any payment if he or she is not on the teaching schedule. Further, as Dr. Perdone, the head of Valencia College's math and science department at the Osceola campus explained, Valencia College uses adjunct professors as a means of controlling costs, and providing flexibility for meeting its students' needs. Mr. Sims did not bring forward any evidence showing that Valencia College engaged in a discriminatory employment practice. Part of Ms. Washington's responsibilities is collecting data concerning the adjunct professor's effectiveness at the end of each semester. In evaluating an adjunct professor's performance, Valencia College's math department examines the "test-taker pass rate," "overall retention," and "overall pass rate." Ms. Washington and Dr. Perdone explained the definitions of each of these terms as follows: "test-taker pass rate" means percentage of students that passed the exam out of those who took the final exam; "overall retention rate" means percentage of students that sat through the entire course and attempted the final out of the total number of students that began the class; and "overall pass rate" is the successful completion rate, the percentage of students who actually passed the class at the end from of the number of students that begin the class. Ms. Washington explained that the "overall retention rate" is important because it indicates that students remained in the classroom for the entire semester, and that the students, if they initially failed, are more likely to pass the class the following semester. Dr. Perdone explained that in reviewing an adjunct professor, she was most interested in the "overall pass rate" which showed the student's successful completion of the course. In a developmental math class, such as pre-algebra or introduction to algebra, the students must successfully complete the class before being enrolled in a college credit math class. The data compiled by Ms. Washington showed that Mr. Sims' teaching performance in his pre-algebra and introduction to algebra classes for the spring and summer semesters 2011 was substandard. Specifically, the evidence showed that the "overall retention rate" for Mr. Sims' developmental math classes for the Spring Semester 2011 were at 50 percent and 35 percent. Further, the percentage of students successfully completing the two classes taught by Mr. Sims had an "overall pass rate" of 35 percent. These numbers represented the lowest for all adjunct math professors on the Osceola campus. Further, Mr. Sims' teaching performance for the Summer 2011 semester also showed a 41 percent "overall retention rate" and a 36 percent “overall pass rate.” Again, Mr. Sims had the lowest percentage of students successfully completing his class out of all the adjunct professors for the math department. The data compiled by Ms. Washington was provided to Dr. Perdone, and Ms. Washington recommended that Valencia College not continue hiring Mr. Sims as an adjunct professor. Dr. Perdone credibly testified in relation to reviewing the data concerning Mr. Sims' teaching that "when we're not seeing enough students getting through the course, sitting for the exam, and passing the exam was my primary concern." Further, Dr. Perdone credibly testified that she had received student complaints about Mr. Sims? teaching not being a "positive experience," and him being condescending to students. In June 2011, Dr. Perdone provided Mr. Sims with an evaluation for the Spring Semester 2011. The evaluation states that Mr. Sims was satisfactory in the areas of "Effectiveness of Teaching/Learning Process," "Scope and Content" of material presented, "Departmental Communication and Support," and in "Testing and Evaluation." However, Dr. Perdone rated Mr. Sims as unsatisfactory in the area of "Review Prior Session Student Assessment Data." Specifically, Dr. Perdone's comments on the evaluation state: Prof. Sims had a challenging year in the math department. He had prior improvements but his successful completion rates and student feedback have taken a negative turn. The rate of students making it successfully through the entire course has dropped to 35 percent. Also, students have visited the office to express their concerns that Prof. Sims does not show a caring and supportive demeanor with students in class. These issues cannot continue if Prof. Sims would like to continue to teach in the math department. On receiving this evaluation, Mr. Sims became upset and spoke with Dr. Perdone. Mr. Sims was upset and questioned why he was being held accountable for students withdrawing from his class. Dr. Perdone explained that Valencia College kept track of the data, and that she was concerned about the number of students successfully completing the class. She found the conversation with Mr. Sims argumentative about Valencia College's keeping track of the data on student withdrawals. It was Mr. Sims' contention that he should not be held responsible for students withdrawing from his class. Dr. Perdone credibly testified that her discussion with Mr. Sims did not progress past his displeasure with Valencia College keeping track of student withdrawals. At the heat of the discussion, and during the presentation of the evidence in this case, Mr. Sims claimed he never understood how the "retention rate" and "overall pass rate" were calculated. Further, Dr. Perdone credibly testified that at no point in their discussion did Mr. Sims ask or seek guidance on how to improve his teaching. Finally, Dr. Perdone credibly testified that her conversation with Mr. Sims confirmed the student complaints about his teaching being condescending. For example, Dr. Perdone took exception to Mr. Sims? negative characterization of the students in the "remedial" math classes.” There is no direct evidence of discrimination. Further, there is no evidence showing that similarly situated adjunct professors, who were not African American, were treated differently than Mr. Sims in scheduling classes, pay, or renewing the adjunct professor contract. Mr. Sims' testimony was often confusing and did not support his contention that he was the victim of racial discrimination. For example, in one instance, in attempting to prove that he was discriminated against in class scheduling, Mr. Sims testified that he believed in the Spring 2011 semester, Ms. Washington and Dr. Perdone discriminated against him by not scheduling him to teach. Then, according to Mr. Sims' testimony, at the "eleventh hour" he was asked to teach a developmental class when an adjunct professor was not available. Mr. Sims contended that in scheduling him to teach this particular class, Dr. Perdone knew before assigning him to the class that students would either withdraw or not successfully complete the class. Therefore, under Mr. Sims? theory, Valencia College discriminated against him both by not scheduling him to teach, and then by scheduling him to teach. Contrary to Mr. Sims' assertions, Ms. Washington credibly testified that Mr. Sims, as well as other adjunct professors, was sent an e-mail in the fall of 2010 asking if the professors would be available to teach in the Spring. Further, Ms. Washington and Dr. Perdone credibly testified that because Mr. Sims did not respond to the e-mail, he was not placed on the schedule. Mr. Sims did not bring forward any evidence showing that Dr. Perdone's explanation that she decided not to contract with him as an adjunct professor, based on his poor classroom performance was pretextual.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Petitioner failed to show that Respondent engaged in an unlawful practice in violation of the Florida Civil Rights Act, and dismissing the Petition for Relief. DONE AND ENTERED this 21st day of September, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 21st day of September, 2012.
The Issue Whether Respondent's employment should be terminated, as recommended by the then-Interim Superintendent of Schools, and, if not, whether Respondent (who has been suspended without pay pending the outcome of this dismissal proceeding) should be reinstated with "back salary."
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, including the stipulations of the parties, the following Findings of Fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Broward County, Florida, including Plantation Middle School (Plantation). Jean Jones is now, and has been since the beginning of the 1998-99 school year, the principal of Plantation. The 1998- 99 school year was her first as a principal of any school. She had served as an assistant principal for seven years before becoming Plantation's principal. Thomas Fegers is now, and has been since 1993, an assistant principal at Plantation. Milton Roseburr is now, and has been since August of 1995, an assistant principal at Plantation. At all times material to the instant case, Carol Mendelson has been an assistant principal at Plantation. Respondent is a veteran educator. He has been teaching since 1964. Respondent has been employed by the School Board as a teacher since 1975. He holds a continuing contract of employment, which provides, in pertinent part, as follows: The Teacher agrees to teach the full period of service for which this contract is made, in no event be absent from duty without leave or to leave his position without first being released from this contract by the School Board, to observe and to enforce faithfully the laws, rules regulations, and policies lawfully prescribed by legally constituted school authorities insofar as such laws, rules, regulations, and policies are applicable to the position held by him. The Teacher agrees that the last salary payment in each academic year may be withheld upon proper notice to the Teacher as to the reasons for said withholding if all duties have not been performed as required by law and regulations of the School Board and the State Board of Education. The services to be performed hereunder shall begin on the beginning date shown above [August 23, 1978] and thereafter as determined by the School Board and are to be performed in the position and school as assigned from time to time by the said School Board. . . . 8. This continuing contract of employment shall remain in full force and effect from year to year, subject to all the provisions herein set forth, unless modified by mutual consent in writing by the Parties hereto, except the teacher may be suspended or removed for cause as provided by law. The Teacher agrees that he may not be entitled to receive any salary from and after the date of such suspension or removal unless such suspension is revoked and in no event shall the Teacher be entitled to any compensation subsequent to the cancellation of this contract. This contract may also be terminated by the written resignation of the Teacher submitted not later than four (4) weeks before the close of the post-school conference period, to take effect at the end of the school year. Such resignation shall be submitted in substantially the form hereto attached described as Exhibit A, and by reference made a part hereof. . . . Failure of either party to fulfill the obligations under this contract, and to carry out the lawful provisions hereof, unless prevented from so doing by reason of personal illness of the Teacher or as otherwise provided by law, shall constitute sufficient grounds for the termination of this contract by the other party, provided, however, no termination shall be effective without reasonable notice and, if timely requested by the Teacher, hearing. The contract shall at all times be subject to any and all laws and all lawful rules and regulations, and policies of the State Board of Education and the School Board now existing or hereafter enacted. . . . 14. This contract may be changed or modified only by an amendment in writing executed in the same fashion as the original or by a collective bargaining agreement ratified by the School Board and bargaining agent. No person, officer or employee may modify the provisions of this agreement or make any other contract with the Teacher for and on behalf of the School Board without expressed ratification by the School Board. Provided, however, in accordance with paragraph two hereof both parties agree that this contract shall be modified by the adoption of a subsequent salary schedule as provided in paragraph two and that adoption of such amended salary schedule by the School Board shall constitute expressed ratification. At all times material to the instant case, Respondent was a classroom teacher at Plantation. For the three school years immediately preceding Ms. Jones' arrival at Plantation (the 1995-96, 1996-97, and 1997-98 school years), Respondent was supervised and evaluated by Mr. Roseburr. During this period of time, Respondent had an extremely difficult and challenging teaching assignment. He taught a "self-contained" class of sixth, seventh, and eight grade "drop out prevention" students. "Drop out prevention" students generally struggle academically, lack motivation and focus, have short attention spans, are easily distracted, come to class ill-prepared, do not complete all of their classwork, and are unruly and disruptive in class. Respondent and these "problem" students remained together in the same classroom the majority of the school day, with Respondent providing the students with instruction in all of their academic subjects. Because conventional teaching and behavior management methods did not always work with these students, Respondent needed to be creative and innovative to effectively discharge his classroom duties. Mr. Roseburr was in Respondent's classroom on a daily basis during the three-year period he supervised Respondent. Impressed with Respondent's performance and his "unique knack of knowing what to say and how to say it to students that are difficult," Mr. Roseburr gave Respondent satisfactory evaluations each of the three school years Respondent was under his supervision. The first quarter of the 1998-99 school year, Respondent had the same teaching assignment he had had the previous three school years, notwithstanding his expressed desire to have his assignment changed. In or around September of 1998, Respondent spoke with Ms. Jones about the possibility of having a parent volunteer (Sybil Moton) assist him in the classroom. Shortly after his discussion with Ms. Jones, Respondent sent her the following letter, dated September 14, 1998: I have been assigned to teach 6th, 7th & 8th grade self-contained D.O.P. for several years. I have been doing this at a great disadvantage. There are many Teachers, Team Leader and Department Heads, at this school who would not accept this assignment or be successful with it. I have accepted this assignment and I'm ready to do the best job I can under the circumstances. I have to plan for three grade levels, while other teachers only plan for one. I have to prepare for five subjects, while other teachers only prepare for one. I have five subject area meetings to attend, while other teachers only have one. I have not read any research that support[s] the notion that a teacher, who has as many duties and responsibilities as have been placed upon me, will be more successful or as successful as a teacher, who teaches one subject area or one grade level. Does the research indicate that children placed in this kind of class situation, will be more successful than in the traditional class situation? Is it possible that the children might be at a disadvantage? Each of the previous times when I requested an assistant, I was denied. It was all about money. Now when I ask a parent to help "FOR FREE," I'm told, "I don't think I'll be able to approve Ms. Moton as a parent volunteer." All I'm saying is that, now that I have been loaded down with all of the above, where is the help that goes with it? As of now, I feel that I have been placed in a situation that is headed for failure, and that's not me. I want to be successful at whatever I do, that's why I keep asking for help. These children need so much help, and I want to help them very badly. My difficulty comes from the situation I've been placed in, more so tha[n] the children I work with. After receiving the letter, Ms. Jones circled the last sentence of the fourth paragraph of the letter, and, on the upper right hand corner of the letter, wrote the following concerning the representation made by Respondent in this sentence: This is blatantly untrue. If you quote people, make sure you quote them correctly. See me please. She then returned the letter (with her handwritten notations on it) to Respondent. Respondent thereafter, as directed, met with Ms. Jones, who cautioned him that he could not "just . . . go out and recruit parents to work in [his] classroom and not have them approved by the School Board." Mr. Roseburr, although he remained an assistant principal at Plantation, did not supervise Respondent during the 1998-99 school year. Respondent's new supervisor was another assistant principal at the school, Carol Mendelson. On October 7, 1998, Ms. Mendelson conducted a classroom observation of Respondent. Following the observation, she sent Respondent the following memorandum, dated October 12, 1998: OBSERVATIONS During my observation of your class, you were introducing personal narratives to your students. You explained the concept of the first draft and the idea that students would choose their own topic for this assignment. Students were walking around the classroom, talking, drawing, had heads down on the desk without consequences from you. A review of your planbook indicates that plans for the day do not coincide with the lesson being taught by you. SUGGESTIONS Please consider the following recommendations to better assist the students: Setting clear, precise, classroom management rules that are reviewed daily with students will help enforce the rules. Consequences must be fair and consistent. Students were walking around the classroom, talking, drawing, had heads down without consequences from you. It is imperative that you establish and implement specific behavioral and procedural expectations, rules, and consequences in order to stop inappropriate behavior before it becomes more serious. Develop plans which match the curriculum you are addressing on each given day. Please make sure that your grade/planbook is in compliance with School Board policy and includes grades, entry dates, transfer dates, absences, interim grades, ESOL strategies, Standards of Service, and all mandated, pertinent information. Please meet me on Monday, October 22 during your planning period with your grade/planbook up- to-date with the abovementioned information. At the end of the first quarter of the 1998-99 school year, in approximately the first week of November of 1998, Respondent was given a new teaching assignment at Plantation, as well as a new classroom (an uncarpeted portable, smaller than his old classroom). He was assigned to a team consisting of four teachers (including himself) responsible for teaching approximately 120 students divided into four separate groups (Groups A through D), one of which (Group D) contained the students who had been in the "self-contained" class of "drop out prevention" students that Respondent had taught during the first quarter of the school year. Although only one of the four groups had students who were in the school's "drop out prevention" program, many of the students in the other three groups were as difficult for the teachers on the team to deal with as were the "drop out prevention" students. Respondent was the team's math and advanced communication skills teacher. The leader of Respondent's team was Ronald Jackson, the team's social studies teacher. Like Respondent, Mr. Jackson joined the team in November of the school year. In addition to Respondent and Mr. Jackson, there was also a language arts teacher, as well as a science teacher, on the team. On November 19, 1998, shortly after he had undertaken his new assignment, Respondent was observed in the classroom by Ms. Jones. Following the observation, Ms. Jones sent Respondent the following memorandum describing what she had observed during the observation: This letter is being written to inform you that on this date, I came to your classroom on two different occasions and found the following: Students not on task (talking, 1/ no materials) Students out of their seats and/or being permitted to sit wherever they wished with no management from you and no consequences for non-compliance. 2/ Your plan book was not updated by November 13 as requested. You have been asked to rectify this situation by Friday, November 20. Your plan book reflected no attendance or grades for students. 3/ Your lesson plans are not written appropriately, do not reflect the Sunshine State Standards, and do not reflect acceptable practice for lesson plans as discussed with all teachers during the pre- planning days. Your back is turned to students during your lesson 4/ and you are not aware or monitoring what is happening in your classroom while you are instructing. There is very little instructional organization and no classroom participation from the students. There is no indication that you are doing the daily FCAT warm-ups required for all math students in the school. There is no FCAT folder required for each student to use on a daily basis. Ms. Jones again observed Respondent in the classroom on Tuesday, December 1, 1998, during first period. Respondent had been off from work the previous five days (Thursday, November 27, 1998, Thanksgiving Day, through Monday, November 30, 1998). Upon his arrival at school that morning, before entering his classroom, he was called into an unscheduled student services meeting. Because of the length of the meeting, he arrived at his classroom a "couple [of] minutes" after the first period bell had rung. When he opened the classroom door, he noticed that "the fire extinguisher had been sprayed all over the room." With the students' assistance, he cleaned up as best he could and then started his lesson. When Ms. Jones entered the room, Respondent was in the back of the room taking attendance. The students were "out of control." They had no books and there was no assignment on the blackboard. Following the observation, Ms. Jones sent Respondent the following memorandum, dated December 1, 1998, describing what she had observed during the observation: On this date I visited you classroom and observed the following: It was 9:00 a.m. and the students were totally out of control. There was no assignment on the board, students had no books. You were in the back of the room finishing your attendance, oblivious to what was going on around you. There were absolutely no reprimands from you for their behavior. In fact, it was I who had to quiet the class down. The class was so loud and unruly, that you did not even hear Ms. Milligan call you over the loudspeaker. I also had to inform you that someone was calling you over the public address system. Although your plan book appears to be updated, you were not following the plans as outlined. In fact, no FCAT warm up was on the board, no books were in use and absolutely nothing in terms of teaching and learning was occurring. This was one half hour after class had started. After I quieted the class down, you proceeded to give out paperwork to students apparently to review it. You handed out papers one by one to students who began to be unruly again. At 10:00 a.m. I visited your classroom again, because I wanted to speak with Mr. Roseburr who was outside your door. However, when I went inside the classroom, there was still no work on the board for students, although books were on the desks. Students were talking and looking around and not on task because there was no task to be on. When I questioned what the students were doing, you explained that you had papers to return and that you[] were going to review their work. Once again, you passed out papers one by one, taking away from instructional time and giving students opportunity to misbehave. 5/ It is apparent to me that there is a lack of classroom management in terms of student behavior, and a greater lack of lesson management since there are no clear expectations for students and no method for simple housekeeping chores as attendance and returning papers. You are oblivious to their behavior 6/ and provide no consequences. Most obvious, is the lack of meaningful work for students. There was none provided. Given those circumstances, students will find an easy opportunity to misbehave. Should these conditions, including delivering lessons as outlined in your plan book, not improve immediately, you will be placed in documentation for unsatisfactory performance. On December 7, 1998, Respondent was observed in the classroom by Mr. Fegers. Following the observation, Mr. Fegers sent Respondent the following memorandum, dated December 16, 1998, in which he described and commented on what he had observed during the observation: On Monday, December 7, 1998 I observed you teaching your class from 9:15-9:45 A. M. Based upon my observation the following are suggestions/comments for your consideration. I found the classroom to be orderly; however, your students were talking loudly as you attempted to teach by talking louder. The class continued talking out loud with no consequence or redirection by you. While the entire class was being disruptive you gave one check to a student for talking, even though the entire class was talking. Never once did you get the class under control and, for some unknown reasons, you continued talking with no one listening. Please be advised that this is unacceptable. It does not make sense to try to shout louder than your class. You must first bring the class under control by confronting the misbehavior. This did not occur. Your attendance was neatly done, listing tardies and absences. Grades were virtually non-existent, and the few that were there did not have names to identify who they belong to. Grades must be clearly recorded next to the appropriate student's name. 7/ Lesson plans from 11/9/98-11/30/98 were incomplete. There were no warm up activities. Additionally, you identified the 504 student's strategies as they were to "do 1/2 of the assignment." The strategies need to be based on the student's needs as they related[] to the written 504 plan. 8/ ESOL strategies written were, "Students may sign out a book if requested." This is unacceptable. Please let me know if I can be of further assistance. On December 17, 1998, Respondent received a memorandum from Ms. Jones notifying him that his "performance [was] unsatisfactory and that [he was being] placed in the Documentation process of the IPAS System effective December 17, 1998." In the memorandum, Ms. Jones explained that she was "moving [Respondent] from Development to Documentation" because of her "concern" regarding his performance in the areas of "lesson presentation," "classroom management," and "behavior management." The memorandum further advised Respondent that "the 1997 Florida Legislature [had] amended Florida Statu[t]e 231.29 [to] state[] that the School District shall place a teacher on performance probation for 90 calendar days from the receipt of this notice of unsatisfactory performance." Respondent signed the memorandum and dated it (December 17, 1998), acknowledging his receipt of the document. "IPAS" is the acronym for the School Board's "Instructional Personnel Assessment System." Under "IPAS," "lesson presentation," "classroom management," and "behavior management" are three of the ten "performance areas" in which instructional personnel are evaluated. The other seven are "instructional planning," "lesson management," "student performance evaluation," "communication," "records management," "subject matter knowledge," and "professional competencies." 9/ Ratings of either "S" (satisfactory), "N" (needs improvement), or "U" (unsatisfactory) are given in each "performance area." With input from Respondent and Gary Itzkowitz, a Broward Teachers Union field staff representative, Ms. Jones, Mr. Fegers, and Dr. Cathy Kirk, the School Board's coordinator of teacher evaluation, developed Performance Development Plans for Respondent in the "performance areas" of "lesson presentation," "behavior management," and "classroom management." Each plan was dated January 7, 1999, and indicated that Mr. Fegers would be the "assessor" and that the "follow- up/review date" was March 5, 1999. The "lesson presentation" Performance Development Plan read as follows: Identified Deficiencies Fails to create interest through the use of materials and techniques appropriate to the varying abilities and backgrounds of students (6B-5.004). Fails to use different types of questions to obtain desired learner responses. Fails to ask questions which are clear and requires students to reflect before responding. Fails to circulate about the room as students engage in seatwork and assist students as needed. Strategies for Improvement, Corrections, and Assistance Ms. Greifinger [the chairperson of Plantation's math department] will meet and discuss various motivational teaching techniques such as (a) Use of visual aids, manipulatives, and critical thinking activities, etc. by January 14, 1999. Ms. Cranshaw will assist with scripting questions related to the content during lesson planning 2-3 weeks in a row by January 29, 1999. Mr. Jones will observe Ms. Greifinger focusing on questioning techniques and follow-up by discussing implementation in classroom during his planning time by January 22, 1999. Mr. Jones will read the FPMS Domain document (domain 3) on circulating and assisting and discuss with Mr. Fegers. Follow-up assistance will be provided by Mr. Fegers and/or Mrs. Jones via observation and follow-up conferencing. Expected Outcomes and Timeline Teacher Will: Create interest through use of material and techniques appropriate to the varying abilities and backgrounds of students (6B- 5.004) by April 13, 1999. Use different types of questions to obtain desired learner responses by April 13, 1999. Ask questions which are clear and require students to reflect before responding by April 13, 1999. Circulate about the room as students engage in seatwork and assist students as needed by April 13, 1999. Consequences for failure or refusal to remediate all areas identified as deficiencies: Will result in an unsatisfactory IPAS evaluation and termination of contract. Respondent received a copy of this document on January 7, 1999, but refused to sign it. The "behavior management" Performance Development Plan read as follows: Identified Deficiencies Fails to maintain consistency in the application of policy and practice by: Establishing routines and procedures for the use of materials and the physical movement of students. Formulating appropriate standards for student behavior. Identifying inappropriate behavior and employing appropriate techniques for correction (6B-5.007). -Fails to demonstrate an awareness of what all students are doing. Strategies for Improvement, Corrections, and Assistance Mr. Jones will observe Ms. Greifinger's class to witness her technique in behavior management. Discussion to follow by January 21, 1999. Mr. Jones will observe Mr. Lyons' class to witness his techniques in behavior management by January 28, 1999. Discussion with Mr. Fegers and Mr. Lyons to follow. Mr. Jones will observe Mr. Watkins' class to witness his techniques in behavior management by January 28, 1999. Mr. Jones will receive assistance from Ms. Mendelson, Mr. Fegers, Mr. Roseburr and selected teacher(s) to develop a behavior management plan including rules, rewards and including consequences by January 14, 1999. Mr. Jones will develop a phone log system which will indicate conversations, conferences with parents, specific student infractions, and disposition of all of the above with the assistance of Ms. Mendelson by January 21, 1999. Mr. Fegers will observe classroom to help identify inappropriate behaviors and follow-up with discussion to include appropriate ways to desist inappropriate behavior by January 28, 1999. Expected Outcomes and Timeline Maintain consistency in the application of policy and practice. Establish routines and procedures for the use of materials and the physical movement of students by April 13, 1999. Formulate appropriate standards for student behavior by April 13, 1999. Identify inappropriate behavior and employ appropriate techniques for correction (6B-5.007) by April 13, 1999. Demonstrate an awareness of what all students are doing by April 13, 1999. Consequences for failure or refusal to remediate all areas identified as deficiencies: Will result in an unsatisfactory IPAS evaluation and termination of contract. Respondent received a copy of this document on January 7, 1999, but refused to sign it. The "classroom management" Performance Development Plan read as follows: Identified Deficiencies Fails to create and maintain an organized and pleasant working environment in the classroom. Fails to encourage students to participate and contribute to class activities. Fails to establish an environment conducive to positive peer interaction. Fails to identify individual social, emotional and/or physical needs that might affect school success. Strategies for Improvement, Corrections, and Assistance Mr. Watkins will assist in the setting-up and organizing of the classroom to include aesthetically appealing academic and social environment by January 14, 1999. Ms. Greifinger will discuss different student activities that will foster participation and interaction 2-3 times by February 11, 1999. Should a 504 student be assigned to your team, Ms. Hogan will review 504 plans and discuss ways to modify curriculum and implement in classroom (Date to be determined). Expected Outcomes and Timeline Create and maintain an organized and pleasant working environment in the classroom by April 13, 1999. Encourage students to participate and contribute to class activities by April 13, 1999. Establish an environment conducive to positive peer interaction by April 13, 1999. Identify individual social, emotional and/or physical needs that might affect school success by April 13, 1999. Consequences for failure or refusal to remediate all areas identified as deficiencies: Will result in an unsatisfactory IPAS evaluation and termination of contract. Respondent received a copy of this document on January 7, 1999, but refused to sign it. The "[s]trategies" set forth in the Performance Development Plans were reasonably designed to enable Respondent to improve his performance in the areas of "lesson presentation," "classroom management," and "behavior management." These "[s]trategies" were implemented. Those at the school asked to assist Respondent provided him the requested assistance (with Respondent's cooperation). 10/ On January 27, 1999, Respondent was observed in the classroom by Mr. Fegers. On February 1, 1999, Mr. Fegers and Ms. Jones met with Respondent to discuss Mr. Feger's January 27, 1999, observation. In addition, Mr. Fegers sent Respondent the following memorandum, dated February 9, 1999, in which he described and commented on what he had observed during the observation: This is a follow up to our conference on Monday, February 1, 1999. On Monday, February 1, 1999, we met to discuss my observation of your teaching that occurred on Thursday, January 27, 1999 from 1:38-2:13 P.M. Ms. Jeanie Jones, our Principal, was also present at the follow up conference. Based on my observation we discussed the following suggestions/comments for your consideration: All students were seated when I arrived. Your rules were not posted. 11/ You were working on F-CAT testing exercises. At 1:55 A.M. I observed eight students not doing any work. I stated my concerns that the students should not be given 30 minutes to do an assignment without you following up to see if they are on task. I recommend that additional assignments be given so that students do not sit and do nothing. The class is becoming increasingly noisy with no redirection from you. This is unacceptable. Finally, you stated to the class, "Alright people listen up!" Nothing followed that comment so the class continued talking. The talking continued because of down time, with students having nothing to do. You then started passing out papers one- by-one to students randomly which took a great deal of time. By this time most of the class was off task. This is unacceptable. Varied instructional activities as well as pacing of assignments would eliminate the majority of the misbehavior. This did not occur. We agreed that I would come back this week for another observation. Mr. Fegers next observed Respondent in the classroom on February 5, 1999. Following the observation, Mr. Fegers sent Respondent the following memorandum, dated February 9, 1999, in which he described and commented on what he had observed during his February 5, 1999, observation: On Friday, February 5, 1999, I observed you teaching your class from 8:50-9:20 A.M. Based on my observation are the following suggestions/comments for your consideration. I found the classroom to be orderly with all students seated at t[]he beginning of my observation. You reviewed the rules and expectations with your class. Your rules were also posted. One student was seated with a washcloth on top of his head. He was not asked to remove it. This is unacceptable and you will need to redirect inappropriate behavior that does not follow the code of conduct. I observed you passing out six writing assignments to students for talking. I observed you circulating and assisting students on division, simplifying fractions and multiplication. I observed you redirecting inappropriate behavior back to the assignment. Some students were requesting pencils at 9:15. Please make sure all students have something to write with at the beginning of the class. This should also be part of your discipline plan, that students come to class with paper and pencil prepared to work. Please let me know if I can be of further assistance. Respondent provided Mr. Fegers with the following written response to Mr. Feger's memorandum concerning the February 5, 1999, observation: #1. Thanks for the positive observation. #2. Yes this is true. I will follow your suggestion. #3. Thanks for the positive observation. #4. Thanks for the positive observation. #5. I have tried your suggestion, it doesn't work. They don't care and they don't want to work. That's why they don't come prepared. On February 17, 1999, Respondent was observed in the classroom by Ms. Jones. Following the observation, Ms. Jones sent Respondent the following memorandum, dated February 17, 1999, regarding her "observation [of] February 17, 1999." It read as follows: On this date I observed your C group in a math class. You were teaching least common denominators for fractions and had several examples on the board. Students came into the room noisily and it took about 7 minutes to get them quieted down and settled for work. You reminded them of the behavior rules. Some students were unprepared for work and had no notebook paper or pencils. Although there were stated consequences for students who misbehaved, there were no consequences for unprepared students. At the beginning of the lesson, you had a student hand out SAT review packets to each student and told them it was due on Friday and that the packet would be their homework for the next two days. You said that anybody could help them with the answers. I am questioning why you would give such a large body of work to these students and then ask them to complete it on their own. These students would benefit far better from you working out each problem with them, and/or allowing them to work in cooperative groups on a small number of problems at a time. This assignment is a concern to me, because I feel that it is a frustrating assignment to these students. Additionally, and most importantly, this is review for the SAT and they need your direct instruction and supervision. They will give up on this assignment because it is too much for them to "bite off" at one time. Students need to be taught to their instructional level, not their frustration level. Again, I feel that teacher directed instruction and cooperative learning activities would be more successful with these students, especially for the SAT review which is critical. I did not feel the answers to the examples should have already been up on the board; however, you did go over each problem thoroughly and had the students figure out how you arrived at the answer. You stopped disruptive behavior and gave two writing assignments out to disruptive students. You helped them learn how to use their calculators properly. You got students to raise their hands for answers and had students contributing to the lesson. You told the students you were going to give them examples of similar math problems to work out themselves, but the four problems you gave them were not exactly the same as the examples i.e., you did not provide a problem with mixed numbers. I see that you are making an effort to work with your students and that you are preparing lessons for them. Your classroom discipline appears to be improving, but still needs some work as students are still coming unprepared for classwork. Please continue to pay attention to the needs of your students, particularly when it comes to assignments that you request they do on their own. On March 3, 1999, Respondent was observed in the classroom by Mr. Fegers. Following the observation, Mr. Fegers sent Respondent the following memorandum, dated March 5, 1999, in which he described and commented on what he had observed during the observation: On Wednesday, March 3, 1999, I observed you teaching your class from 1:35-2:05 P.M. Based on my observation the following are suggestions/comments for your consideration: The students were extremely noisy. You were seated on a stool in the front corner of the room. 12/ You were not redirecting student misbehavior. No attempt to stop the misbehavior occurred. I did not observe you reviewing the rules and expectations that students were to follow. I strongly recommend that you follow the discipline plan as [you] indicated you would. You had three math problems on the overhead for students to do. One of which was the following, "5 is what % of 20?" The students were confused with not only this problem but also the other two. You went over the problem, but not step by step so that the students could follow along. They were confused. It would have been much more beneficial if the exercise or problems were broken down into simpler forms so that your class could understand. You did not take into consideration the appropriate levels or activities of classwork that meet the students' needs. Also the directions should have been clear, brief, and explicit for student understanding. This did not occur. 13/ Two students were reading a magazine, 14/ five were sleeping (literally), right under your nose, one was working with your attendance sheet while class was supposedly going on. This is unacceptable and you will need to redirect inappropriate behavior that does not follow the code of conduct. Additionally, I question why a student was working with a confidential document. 15/ I observed an atmosphere of animosity within the class, as evidenced by your voice inflection and you telling several students to shut up. You also asked me to speak to a student who you claimed had a beeper. I removed the student after the observation was finished and escorted him to the office. The student did not have a beeper. You accused the wrong student. You had claimed that the beeper went off in class, which it may have, but it was not the fault of the young man you requested I remove. Based on the observation done to date your performance in the areas identified in your Performance Development Plan are unsatisfactory. Ms. Jones, on March 5, 1999, filled out an "IPAS" evaluation form rating Respondent "unsatisfactory" in "overall performance" and in the "performance areas" of "lesson presentation," "classroom management," and "behavior management" and rating him "satisfactory" in the remaining seven "performance areas." That same day, she and Mr. Fegers met with Respondent and Mr. Itzkowitz to discuss this "mid-point evaluation," which Ms. Jones showed to Respondent during the meeting. Respondent was advised that he ”needed to utilize appropriate instructional techniques to engage his students, encourage his students to participate and contribute to class activities, demonstrate an awareness of what his students are doing and stop all inappropriate behavior before it spreads or becomes more serious." In addition, he was reminded that "the 90th day [of his probationary period] was April 13 per Florida Statutes 231.29 and the documentation process of the IPAS system." Pursuant to a request made by Mr. Itzkowitz, on Respondent's behalf, at the "mid point evaluation" meeting, the following additional "strategy" was added, effective March 5, 1999, to the "Strategies for Improvement, Corrections, and Assistance" portion of the "lesson presentation" Performance Development Plan: Mr. Fegers, Ms. Greifinger and Mr. Jones will meet to plan a lesson, modeled by Ms. Greifinger and implemented by Jones & observed by Fegers by 3/17/99. On or about March 17, 1999, in accordance with the "model[ing]" requirement added to the "lesson presentation" Performance Development Plan, Ms. Greifinger, in Respondent's presence, taught a lesson to Respondent's students. Mr. Fegers was present for approximately five to ten minutes of the lesson. During the lesson the students behaved, by and large, as they did when Respondent was teaching them. There were students off task and walking around the classroom to whom Ms. Greifinger "had to speak." Respondent noticed that there was one student who had his head on the desk and was listening to a Sony Walkman. Ms. Greifinger said nothing to this student. Mr. Fegers was supposed to observe Respondent teach the lesson that Ms. Greifinger had "modeled." He had initially planned to conduct such an observation the week before spring break, but upon reconsideration (without consulting with Respondent or Mr. Itzkowitz) he determined that, in fairness to Respondent, such an observation should be conducted after spring break. The last school day before spring break was March 26, 1999. Respondent worked that day. It was the last day he reported to work. Sometime after the beginning of spring break, Respondent determined that, because of job-related stress and anxiety (resulting, in part, from his belief that he was being treated unfairly by school administrators), he was not able to perform his assigned duties at Plantation. Accordingly, he did not return to work on April 5, 1999, after the end of spring break, and he remained out of work thereafter. In accordance with School Board policy, each week that he was out (prior to the initiation of disciplinary action against him), he provided advance notice that he would be absent by telephoning "sub- central" and advising of his anticipated absence and the resultant need for the School Board to hire a substitute teacher to teach his classes. On occasion, Respondent also telephoned Ms. Jones' secretary (at the secretary's home) to let the secretary know that he would be absent. Respondent, however, did not initiate any direct contact with Ms. Jones. On or about April 12, 1999, Ms. Jones sent to Respondent, by certified mail, a letter, which read as follows: Please be informed that your 90th day according to Florida Statute 231.29 and as indicated on your Performance Development Plan is April 13. Due to your absenteeism, we were unable to meet for a final evaluation. We will meet in my office on Monday, April 19 at 12:15 P.M. Please call this office as soon as possible to inform us if you will be attending this meeting. Respondent neither telephoned Ms. Jones, nor attended a meeting with her on April 19, 1999. On that date (April 19, 1999), Ms. Jones filled out an "IPAS" evaluation form rating Respondent "unsatisfactory" in "overall performance" and in the "performance areas" of "lesson presentation," "classroom management," and "behavior management" and rating him "satisfactory" in the remaining seven "performance areas." In Ms. Jones' view, although at certain times during the probationary period Respondent had shown some improvement in his performance, "[t]here was nothing [in the way of improvement] on a consistent basis." At no time, however, did Ms. Jones believe that Respondent's performance was so deficient as to warrant his immediate removal from the classroom. Although Mr. Roseburr was not charged with the responsibility of supervising Respondent, he did have occasion to go to Respondent's classroom and see Respondent interact with his students. During these visits, it appeared to Mr. Roseburr that Respondent was discharging his teaching duties in the same satisfactory manner he had during the three previous school years. Respondent was "always in control and working with the students." Mr. Jackson, the leader of Respondent's team, also had a favorable view of Respondent's performance during the 1998-99 school year. According to Mr. Jackson, Respondent "always showed professionalism, spoke to the students in a positive light, . . . [and] would go out of his way to try to get them interested to do their work," employing "[v]ery creative" tactics to accomplish his objective. Another teacher at the school who had the opportunity to see Respondent perform in the classroom during the 1998-99 school year was Claire Peterson. Ms. Peterson provided special instruction to low performing students in the school's "pull out" program. She had occasion to visit Respondent's classroom about every other day to "pull out" students in the program. During these visits, she noted that Respondent's students "seemed to be on task" and "doing what he asked of them," for the most part, and that "education was taking place." 16/ She thought that Respondent was doing a "great job." On or about April 19, 1999, Ms. Jones began her efforts to make telephone contact with Respondent. Her efforts were unsuccessful. She left messages on Respondent's answering machine asking that he inform her when he intended to return to work. Respondent did not return Ms. Jones' telephone calls. By memorandum dated April 22, 1999, Ms. Jones recommended to Dr. Dorothy Or, the then-Interim Superintendent of Schools, that Respondent's employment be terminated. The memorandum read as follows: Pursuant to Florida Statute 231.29, I am writing to inform you that Eugene Jones, teacher, has completed his 90 calendar day performance probation and has failed to correct his performance deficiencies. I do not believe that Mr. Jones can correct said deficiencies and his employment should be immediately terminated. I have complied with all applicable provisions of Florida Statutes 231.29 and have appropriate documentation (see attached). Please inform me of your final decision in this matter. By letter dated April 30, 1999, Ms. Orr advised Respondent that she was recommending that the School Board formally suspend him, without pay, from his teaching position for "unsatisfactory job performance." On or about May 3, 1999, Mr. Itzkowitz, on behalf of Respondent, sent Ms. Jones the following letter: I have recently spoken with Eugene Jones. As you are aware, Mr. Jones has been ill and is currently under a doctor's care. He has informed me that you have tried to contact him by mail but that he is not in receipt of said correspondences. As a result, on behalf of Mr. Jones I request copies of any letters sent to him by your office in the past ninety days. Upon receipt, I shall forward them to Mr. Jones. Additionally, I request that a meeting be scheduled for the purpose of discussing Mr. Jones' annual assessment for the current school year. Both Mr. Jones and I would like to meet with you. I look forward to hearing from you on each of these matters. The meeting that Mr. Itzkowitz had requested in his May 3, 1999, letter was held in "the middle of May." At the meeting, Ms. Jones did not ask any questions regarding Respondent's absence from school. After seeing a physician about the stress and anxiety he was experiencing, Respondent applied for social security and long-term disability benefits. In applying for long-term disability benefits, Respondent submitted a completed Long Term Disability Claim Employee's Statement form, dated May 14, 1999, to the School Board's carrier, UNUM. The following are questions that were on the form concerning his "disability" and "the condition causing [his] disability" and the entries Respondent made in response to these questions: Why are you unable to work?-- c[h]ronic anxiety state/job stress. Does your current condition prevent you from caring for yourself?-- No. Before you stopped working, did your condition require you to change your job or the way you did your job?-- Yes. I could not perform my job d[ue] to my condition. Is your condition related to your occupation?-- Yes. Last day you worked before the disability-- 3-26-99 Did you work a full day?-- Yes. Date you were first unable to work?-- 4-5- 99. Have you returned to work?-- No. If you have not returned to work, do you expect to-- Yes, if I'm allowed, full time, (date) unknown. As part of the application process, Respondent also had his treating physician, Edwin Hamilton, M.D., complete and submit to UNUM a Long Term Disability Claim Physician's Statement. On the form, dated June 3, 1999, Dr. Hamilton stated, among other things, the following: Respondent's primary diagnosis was "chronic anxiety state"; Respondent's symptoms were "inability to sleep, stress, [and] nervousness"; Respondent's symptoms had first appeared "prior to 4/99"; Respondent had first been unable to work "prior to 4/99"; Respondent's first visit to his office had been April 1, 1999, and his last visit had been April 20, 1999; Respondent's condition was work related 17/ ; Respondent had been referred to a medical social worker and advised to see a psychiatrist 18/ ; Respondent should not and could not "work in the present school classroom environment"; Respondent's prognosis was "guarded at this point"; Respondent had not "achieved maximum medical improvement"; he "expect[ed] fundamental changes in [Respondent's] medical condition" in "more than 6 months"; Respondent "should remain out of the school classroom environment for the time being"; and Respondent "may be able to improve on medical/psychiatric consults." By letter to Ms. Orr, dated May 17, 1999, Mr. Itzkowitz "request[ed] a formal 120 hearing on [Respondent's] behalf." On May 18, 1999, the School Board took action to suspend Respondent, without pay, pending the outcome of the "formal 120 hearing" Respondent had requested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board enter a final order immediately reinstating Respondent and paying him his "back salary." DONE AND ENTERED this 13th day of April, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2001.
The Issue Whether Patrick M. Hill, Respondent, is guilty of immorality and misconduct in office as more specifically alleged in letters of April 6, 1990 and May 18, 1990.
Findings Of Fact At all times relevant hereto, Patrick M. Hill held a professional services contract with the Polk County School Board as a remediation teacher at Lakeland High School. He also served as wrestling coach and cross country coach at Lakeland High School. During the spring break of the 1989-90 school year, Respondent told some students they could earn some extra money if they helped him paint his house. Erik Greatens, an 18 1/2 year old senior, agreed to help, and he, with a 25 year old man, John, and Respondent, worked all day painting. Around noon that day when all were hot and thirsty, Respondent told them there was beer in his refrigerator. Both Erik and John accepted the offer. Erik had one beer. When they stopped painting around 5 p.m., Respondent told them he would order pizza if they wanted to return later. Erik accepted and went home to shower and change clothes. He returned around 6:30 p.m. and shared pizza with Respondent. Erik testified that he had only the one beer that day at Respondent's home and that his father permitted him to drink an occasional glass of wine at home. He did not drink beer or any other alcoholic beverage while at Respondent's home that evening. Around 8:30 p.m., Erik left Respondent's residence and went to the Publix parking lot to meet some friends. At the parking lot that evening with his friends, Erik consumed 11 or 12 cans of beer before driving the four or five blocks to his home. When he arrived, his mother was up and considered her son was inebriated and that he had received the beer at Respondent's home. At the time, Erik told her he had only the one beer at Respondent's home, but, from his condition, the mother was sure he had drunk more than one beer. The following day, Mrs. Greatens called the Superintendent's office to complain about Respondent providing Erik with beer. Based upon that complaint, Respondent was suspended from his position as teacher at Lakeland High School. The professional Practices Council of the State Department of Education was notified of the charge so they could institute an investigation to determine if Respondent's state certificate should be disciplined. To date, no charges have been brought by the Department of Education. Subsequently, Petitioner learned that Respondent had pleaded guilty in New Jersey to a charge of contributing to the delinquency of a minor in 1973. A copy of this court record was admitted into evidence as Exhibit 3. In 1973, Respondent was a tenured teacher in the school district of the Township of Pemberton, Burlington County, New Jersey. Charges were preferred against Respondent by the Board of Education, and an administrative hearing was held to determine if the charges and circumstances surrounding the charges warranted dismissal of Respondent from his position as a tenured teacher. Following that hearing, the hearing examiner submitted a report recommending the charge and evidence insufficient to warrant a dismissal or reduction in salary. The Commissioner of Education adopted the finding and recommendation of the hearing examiner. In the instant proceedings, Respondent testified to the facts regarding the 1973 incident. That testimony is essentially the same as found by the hearing examiner in 1973 reported in Exhibit 4 as follows: The testimony offered by the Superintendent of Schools and respondent's building principal was that respondent is a good teacher, as evidenced by his past evaluations, and his record has been unblemished since his employ- ment by the Board. This matter has been brought to the attention of the Commissioner solely because of an incident which occurred on March 8, 1972, and that incident alone is the basis for the Board's action. On the evening of March 8, 1972, respondent was returning to his home after working late at his school on some extra curricular project. The record shows that Respondent was very active in the school community, and that he coached sports activities, served on the executive board of the local P.T.A., and served as President of the Pemberton Township Police Athletic League, in addition to his regular teaching duties. Respondent testified that it was a rainy night. On his way home, he picked up a hitchhiker who told him that he had a job in north Jersey and was on his way to visit his father in the Tuckerton area (approxi- mately thirty miles away). Because of the late hour and the poor weather conditions, Respondent offered the hitchhiker a place to spend the night in his home and told him he would drop him off at the inter- section of Routes #9 and #37 the next morning on his way to school. The hitchhiker accepted the offer and spent the night in respondent's home. Respondent testified that he also offered the use of his telephone so the hitchhiker could call his father, but that he refused saying that he was not expected anyway. He testified fur- ther that nothing untoward happened that night and that he dropped the hitchhiker off at the named intersection the follow- ing morning on his way to school. Respon- dent did not know that the hitchhiker was a minor; neither his appearance, nor his conversation about holding a job in north Jersey, nor having a drink and avoiding the police, lead (sic.)Respondent to conclude that the hitchhiker was a minor. (Tr. 19-22) None of this testimony is refuted by the Board, nor were any witnesses pre- sented by the Board to give any other version about what allegedly occurred on the evening of March 8, 1972. The Board, however, grounds its action against Respondent on his subsequent arrest by the police and his later indictment by the Grand Jury of Ocean County. A change of plea to that indictment reads in pertinent part as follows: (P-1) The State moved under Rule 3:74 to amend the third count of the indictment to read `did contribute to the delinquency of a minor by permitting him to remain overnight without parental consent'. The Court so ordered. Patrick Hill sworn. (sic.) As a result of plea bargaining, the Defendant retracted his former plea of Not Guilty and entered a plea of Guilty to the amended third (3rd) count of [the Indictment). * * * In the hearing examiner's judgment, it would be wrong to speculate why Patrick Hill made the plea (P-1) rather than pursue some other defense of the original charges made against him. He testified that he made the change of plea because he did allow the youth to stay in his home overnight. Suffice it to say that he was represented by counsel and the record must now speak for itself. Respondent entered a plea of guilty (P-1) which the Commissioner must con- sider in making his determination. N.J.S.A. 2A:96-4 reads as follows: A parent, legal guardian or person having the legal custody or control of a child, who by any continued negligence or willful act, encourages, causes or con- tributes to the child's delinquency, or any other person who by any wilful act encourages, causes or contributes to a child's delinquency, is guilty of a misdemeanor. The hearing examiner found that the unrefuted testimony of respondent, and the absence of any proof of conduct unbecoming a teacher by the Board, leads to the conclusion that the only fact before the Commissioner is that respondent knowingly permitted a minor to remain in his home overnight without the consent of the minor's parents. Respondent testified without contradiction that he was told by his attorney that the conviction would be expunged and he could forget it. Accordingly, Respondent concluded, albeit erroneously, that he never would need to reveal this record. Respondent moved to Florida and was employed as a junior high school teacher at St. Joseph's School, Lakeland, Florida, from 1979 to 1986 when he was employed by the Polk County School Board to teach at Lakeland High School. While at St. Joseph's, Respondent continued his extracurricular activities similar to those in New Jersey coaching children in wrestling and track, and he was involved in national and statewide wrestling programs for children. When he started teaching at Lakeland High School, Respondent continued his coaching activities and his work with children. He has been involved with helping troubled adolescents at the Polk Correctional Institute, served on the Governor's Council on Health, Physical Education and sports, was awarded man of the year honors for the AAU Wrestling Division, took a group of young wrestlers to Germany two years ago (1988) in a cultural exchange program and coordinated a return visit of German youth wrestlers to Florida in 1989. Respondent has excellent rapport with his students and with the student's parents. The letters admitted into evidence in Exhibit 5 extolling the virtues of Respondent as a teacher, coach and individual are not the pro forma, perfunctory letters of recommendation usually presented, but clearly indicate heartfelt esteem, appreciation and admiration. Respondent has had no prior disciplinary actions brought against him while teaching in Florida schools.
Recommendation Considering the reputation of Respondent, his rapport with students and peers, the time he has devoted to developing children into responsible adults and the conclusions that the acts complained of do not constitute immorality but are minor infractions coming under the definition of misconduct in office, it is recommended that Patrick M. Hill be found guilty of misconduct in office and suspended without pay for four months. RECOMMENDED this 20th day of August, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Post Office Box 391 Bartow, FL 33830 Arthur C. Fulmer, Esquire Post Office Box 2958 Lakeland, FL 33806 John A. Stewart Superintendent of Schools Post Office Box 391 Bartow, FL 33830 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400
The Issue The issues are whether Respondent committed the acts alleged in the Administrative Complaint, and, if so, what penalty, if any, should Petitioner impose on Respondent's teaching certificate.
Findings Of Fact Petitioner is the state agency responsible for certifying and regulating public school teachers in Florida. Respondent is authorized to teach mathematics pursuant to Florida Educator's Certificate No. 793778. The certificate is valid through June 30, 2005. At all times pertinent hereto, Respondent was employed as a math teacher at the Discovery Academy in the Polk County School District (Discovery). Discovery was formerly known as the Lake Alfred Middle School. Student C.H. first attended Discovery in the fall of 1997 as a sixth-grade student and continued at Discovery for approximately two and one half years. In the sixth grade, C.H. was assigned to a math class taught by Respondent. During the sixth grade, Respondent issued C.H. a referral on one occasion for being out of her designated area, but did not discipline C.H. on any other occasion while C.H. attended Discovery. Respondent did not teach C.H. in either the seventh or eighth grades. Sometime in November 1999, when C.H. was in the eighth grade at Discovery, Respondent called C.H. out of her gym class. The gym teacher allowed C.H. to leave and sent another student with her who needed to use the restroom. While the other student was using the restroom, Respondent and C.H. entered an empty classroom. Respondent leaned against a table, within reach of C.H., stated that he was watching C.H. from the window and that she was "looking good." Respondent then grabbed C.H. by the waist and forced a kiss onto the lips of C.H. Respondent attempted to "stick his tongue" into the mouth of C.H. C.H. backed away and returned to her gym class. Later in the week, C.H. reported the incident to an assistant principal. As a result of Respondent's conduct, the administration at Discovery granted C.H. a transfer to a different middle school. The report of the incident and transfer to another middle school did not result in the circulation of rumors among the students or other adverse notoriety. During the 2001-2002 school year, student K.V. was in the eighth grade at Discovery. K.V. met Respondent through another teacher while socializing in the school courtyard in the mornings before classes began. Respondent never taught K.V. in any of his classes and never disciplined K.V. for any reason. Discovery conducted its commencement ceremony for the 2001-2002 school year on May 21, 2002, the last day of that school year. K.V. arrived approximately 30 minutes early to meet a friend to prepare for the commencement ceremony. K.V. walked across campus to meet her friend and encountered Respondent and a male student of Respondent. At Respondent's request, K.V. agreed to accompany Respondent to his classroom to sign his yearbook. The classroom was empty. The male student placed his belongings on a desk and left the classroom for the basketball court. Respondent and K.V. were alone in the classroom. K.V. noticed a series of photographs of Respondent and his family on a table in the corner of the classroom. While K.V. was looking at the photographs, Respondent approached K.V. from behind, leaned back on a table that was behind him, and pulled K.V. onto his lap. Respondent said to K.V. that he "would get with" her "small waist and big hips . . . any day." K.V. immediately pulled away from Respondent. K.V. had never had such an experience with an educator or other authority figure. K.V. was frightened and shocked. K.V. stayed in the classroom and signed Respondent's yearbook. K.V. feared what Respondent may have done if K.V. had declined to sign the yearbook. After K.V. signed the yearbook, Respondent suggested that they walk to the basketball court. While walking through an empty adjoining room, Respondent stopped and asked K.V. for a goodbye hug. K.V. put one arm around Respondent's side, at which point Respondent pulled K.V. face to face. Respondent proceeded to "peck kiss" K.V. on her lips. Although K.V. attempted to pull away, Respondent pulled her back and again kissed her on the lips. Respondent also attempted to "stick his tongue" into the mouth of K.V. K.V. pulled away from Respondent and told him that she needed to leave. K.V. first reported the incident to her mother and aunt approximately two weeks after May 21, 2002, during a conversation at a restaurant. K.V. suddenly broke down and disclosed the incident. When K.V. disclosed the incident to her mother and aunt, K.V. had no knowledge of the previous incident involving C.H. In June 2002, Respondent telephoned K.V.'s residence on three occasions. During one of the conversations, Respondent spoke with K.V. and asked her if she had told anyone what had happened. During this conversation, Respondent also instructed K.V. not to report the incident. On another occasion, Respondent telephoned the residence and asked K.V.'s mother if he could speak with K.V. K.V.'s mother reported the incident to administrators at Discovery shortly after her conversation with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of violating Subsections 231.2615(1)(c) and (i), Florida Statutes (1999), and Florida Administrative Code Rules 6B-1.006(3)(a) and (e), and revoking educator certificate number 793778 for a period of two years. DONE AND ENTERED this 1st day of June, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 1st day of June, 2005. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Matthew K. Foster, Esquire Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 James Domineck, Jr., Esquire Law Offices of James Domineck, Jr., P.A. 100 South Kentucky Avenue Lakeland, Florida 33801-5096 Edward T. Bauer, Esquire Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent holds a valid Florida teaching certificate, No. 150877. That certificate allows him to teach in the areas of business education, mathematics, social studies and vocational education and is valid through June :30, 1995-. Respondent has been an employee of the School Board of Nassau County since 1979. He teaches mathematics at West Nassau High School in Callahan, Florida where he also serves as the chairman of the mathematics department. Respondent taught general math to a male student, Joey Roundtree, in the school 1985-86. One day while the student was in class he stood at Respondent's desk. Respondent was to the right of the student seated his chair. The student laid a book or piece of paper down and the Respondent reached across to pick up the book or paper and the back of his hand touched the student in the area of his midsection or the zipper of his pants. Respondent's hand moved straight across. Nothing was said by Respondent to the student at that time nor did Respondent make any facial gestures at that time. The student said nothing to the Respondent about this and no other action of this nature occurred between the Respondent and the student on any other occasion. While the Administrative Complaint by the Commissioner describes it as inappropriate conduct in that the Respondent is alleged to have "reached across the desk and brushed against the student's lower midsection", this touching by the Respondent is not found to be inappropriate. It is also significant that counsel to the Commissioner in the proposed fact finding does not urge upon the fact finder that this touching was inappropriate. While Joey Roundtree was in Respondent's general math class in the school year 1985-86 he recalls Respondent making sexually suggestive comments or innuendoes from statements made by other students. While Roundtree can not recall specific statements as they were made he remembers that generally the nature of the exchange between Respondent and a student would be to the effect that the student would say something like, "this is a hard question" and Respondent would say "well it's extremely hard" and in doing so the Respondent would emphasize the word hard. Roundtree recalls walking between the desks on several occasions at which time the Respondent would stare below Roundtree's belt until Roundtree arrived at Respondent's desk at which time time Respondent would lick his lips and look above his glasses. On many occasions Roundtree observed, almost daily, that if a comment was made about length, size or shape that the Respondent would turn this around in a suggestive way that was sexual. Roundtree in his 1985-86 school year understood that the Respondent was referred to as "Dirty Rob" and after being in class Roundtree recognized that the basis for that name was associated with what Roundtree refers to as dirty and nasty and suggestive conduct by the Respondent. These terms by Roundtree equate to sexual innuendos by the Respondent. `This even extended to Respondent and his conduct involving sexual innuendos out of the classroom and in the hallway. Roundtree observed that the Respondent in emphasizing the word "hard" would make facial gestures by looking down above his glasses and licking his lips at Roundtree as a member of the class and smiling and laughing when he said the word "hard". Roundtree recalls Respondent making comments to female members of the class of a sexual nature in the school year 1985-86 but cannot specify what those comments were. He did observe that they were accompanied by liplicking and smiling. Those actions by the Respondent met with comments by some of the female students to the effect "you're being nasty" or "I know what your trying to say," to which the Respondent would reply that "well, your mind is in the gutter". Roundtree has no recollection that the female students appeared embarrassed by the actions of Respondent directed to them, actions which were an every day occurrence. Allegations in the Administrative Complaint and Statement of Charges concerning the school year 1989-90 as to inappropriate and unprofessional conduct involving the touching of the breast and buttocks of a female student, sexually suggestive comments to a female student, inappropriate comments to a female student about her appearance, touching a male student in the genital area, making innuendoes from statements made by students and the use of profanity in front of and directed at students were not proven except to this limited extent: Dana Kriete was a math student taught by the Respondent in the year 1989- She overheard the Respondent talk about a girl's breasts, how large they were. That girl was Dell Evans. More specifically Respondent commented that he wondered "what her boyfriend could do with them," referring to Evans' breast. This comment was made in the presence of other students and loud enough so that the other students could have heard the remarks. When the remarks were made about Dell Evans, Evans appeared upset. The general remarks about Dell Evans were made on approximately five occasions. Kriete also overheard the Respondent use profanity in the classroom, specifically the words "ass" and "damn." In the school year 1990-91 Respondent taught consumer math to Carla Bass, a female student. Bass routinely attended class which was held on each school day, five consecutive days. While attending class Bass overheard the Respondent make sexually suggestive comments. Most of these comments were directed to Sylvia Brantley, a female student, regarding the breasts of Ms. Brantley. Bass overheard Respondent describe how big Sylvia Brantley's breasts were. Bass also heard Respondent say in class that when Brantley was asleep that Respondent was going to "kiss Brantley and wake her up like they do in Snowwhite". These remarks by Respondent were stated loud enough for other students to hear them. In the school year 1990-91 Bass heard Respondent refer to a female student whose name is Christine Hughes as Christine "Huge" which was an innuendo having to do with the student's breasts. Bass observed that when Respondent would make remarks about Brantley and Hughes that Brantley and Hughes would appear embarrassed. In the school year 1990-91 Bass observed the Respondent while staring at her breasts lick his lips and roll his eyes. Bass observed the Respondent lick his lips and raise his eyebrows while looking at other female students in particular certain parts of their bodies. While Bass was in the Respondent's class in the school year 1990-91 she overheard Respondent make suggestive comments about a student Jason Englert whom Respondent referred to as "inch". Englert would be cheating in class and giving out answers to other students and would refer to a measurement associated with inches to which the Respondent said, "yeah, I heard that's how long it was" taken by the student Bass as a sexual connotation referring to Englert's genitals. That connotation could be drawn by Bass from the remarks made by Respondent concerning the student Englert. The use of sexual connotations in the classroom made Bass feel uncomfortable and embarrassed her. On one occasion in the school year 1990-91 Respondent told Bass to "get the hell out of his classroom." This had occurred at a time when Bass was disrupting the Respondent. As previously alluded to, Respondent taught math to Sylvia Brantley in the school 1990-91. At hearing Brantley described events in the Respondent's classroom. She recalled the sexually suggestive manner in which the Respondent spoke of Christine Hughes as being Christine "Huge." This was done in Brantley's presence while Respondent called the class attendance roll. This occurred throughout the time that Christine Hughes was in school in that academic year. In the school year 1990-91 Brantley overheard Jason Englert give answers out in class referring to "an inch" and the Respondent would say something that had a sexual connotation, to the effect, "is that all it is" or "I know that's how small it is". Brantley observed the Respondent roll his eyes and lick his lips after making statements in the class that had a sexual connotation. Brantley observed the Respondent look at the breasts and as she refers to it "the behind" (posterior) of a female student while rolling his eyes and licking his lips. Brantley also observed the Respondent roll his eyes and lick his lips while looking at male students. The class which Brantley attended in the school year 1990-91 had approximately 28 to 30 students. Sabrina Silcox was a female student in Respondent's math class in the school 1990-91. When the Respondent would refer to her name in class he would refer to her as Sabrina "Silcock." This was a reference which had a sexual connotation. Respondent made this reference twice during the school year. This reference was made in front of approximately 20 students. On one occasion someone came to the class to get Sabrina Silcox and asked for her by that name, to which Respondent said "do you mean Sabrina Silcock." The person who had called for the student in the class then said "no sir, Sabrina Silcox". Silcox recalls that in class she observed the Respondent "do a little smirk and then do his eyes or something like that, just look at us out of his eyes, the corner of his eyes funny and stuff". Silcox did not pay any attention when Respondent made these gestures. Silcox indicated that at times she was embarrassed by Respondent's mispronunciation of her name. When she observed Respondent make the gestured with his facial expressions the other students would laugh and she was unaware if any of those students were embarrassed by Respondent's actions. Stella Darlene Metts, a female student, was taught math by the Respondent in the school year 1990-91. While in the class she heard Respondent make sexually suggestive comments. She heard Respondent refer to Christine Hughes as Christine "Huge," seen as a sexual innuendo referring to the student Hughes's breasts. An innuendo which was correctly interpreted by Metts under the circumstances in which that reference was made by the Respondent. Respondent made these remarks about the student Hughes while looking at her in a manner which Metts describes as perverted. Metts also saw the Respondent look at Sylvia Brantley in that fashion. The looks made toward Hughes were to Hughes's breasts. Respondent then would look back at the rest of the class and laugh about the situation with Hughes. Christine Hughes had large breasts, as observed by Metts when commenting about the events in Respondent's classroom, and when Respondent would look at Hughes's breasts the male students in the class would think that these antics were funny because to looking at Hughes's breasts Respondent would gain the attention of the male students in the class and laugh. The male students would state, while the Respondent was looking at Hughes, "yeah look at Mr. Roberts looking at you you better not wear red". The reference to the color red had to do with Respondent's expressed fondness for that color. Crystal Hicks, a female student, was in a math class taught by the Respondent in the 1990-91 school year. In the class Respondent made sexual innuendo statements in front of Hicks. First, reference football players Respondent stated, "all they do is get out of class and get down and hut all day up the butt." In referring to the band members Respondent stated, "all they do is beat and blow all day." As Hicks established, these statements were made "every now and then". Hicks observed the Respondent raise his eyebrows and stick his tongue out, like licking his lips, when staring at female students in the class. She was unable to determine exactly where those stares were directed concerning the students' bodies. About the use of profanity, which Hicks described Respondent using in class, the swear words "damn" and "hell" are found to have been stated in the presence of that witness. Jennifer Yawn, a female student, was in Respondent's math class in the school year 1990-91. Yawn described how Respondent would act if Yawn were chewing gum, that Respondent would say to "quit advertising." Yawn described the sexual connotations behind the remarks of the Respondent as "he would just say it like you were doing something with a sucker", by which Yawn meant that Respondent was describing what the student was doing with a sucker. While making the remarks about advertising Yawn saw the Respondent raise his eyebrows and lick his lips. The comments about advertising with the gum had to do with the instances in which the student blew bubbles. This made Yawn uncomfortable. Yawn also heard the Respondent use profanity in class, the words "hell" and "damn." Jason Englert was a male math student taught by the Respondent in the school year 1990-91. He overheard Respondent talk about Sylvia Brantley's breasts in the classroom, in an instance in which Respondent called Sylvia Brantley's breasts "pillows." He recalls sexual gestures by the Respondent when he was talking to Ms. Brantley. Those gestures involve staring at Ms. Brantley's breasts, moving his eyebrows and licking his lips. In addition Respondent made a sexually suggestive comment to Englert while Englert was walking away from the Respondent's desk. Englert glanced back at the Respondent and Respondent was looking at Englert's "butt," (posterior) Englert put his hands over his posterior, to which Respondent said, "well, that's the part I want to see." There were other persons standing by the desk who could have heard the remarks by Respondent. Those persons looked at Englert and laughed. This circumstance did not bother Englert. Englert also overheard the Respondent speak of Carla Bass and her breasts as being "pillows." Students other than Joey Roundtree, (school year 1985-86), who were in the Respondent's classes in the school year 1990-91 and who testified at the hearing made mention of the Respondent's nicknames "Dirty Rob" and "Red Rob". These references have to do with perceived conduct by the Respondent leading to the impression that his personality was that of an individual who was perverse, having to do with his involvement with sexual innuendoes. The students knew of Respondent's reputation for sexual innuendos before entering the classroom. Such knowledge might influence their reaction to Respondent's conduct which they observed first hand. However the impression which the students gained from his actions in the classroom as reported in these facts were not so influenced by his prior reputation that the students are found to have misinterpreted Respondent's intentions by his remarks and facial expressions which had sexual connotations. In crediting the testimony by the students which pointed out the inappropriate conduct by Respondent in engaging in sexual innuendoes, some of the circumstances which the students identified as being in a similar category have been discounted and any doubt about Respondent's conduct in those instances resolved in his favor. Moreover the decision to favor the impression which the students had about some of these events recognizes that the classroom conduct by some of the students who testified at the hearing was less than commendable in its own right. The conduct by those students did not control or excuse Respondent's improprieties in engaging in sexual innuendoes. The fact that some students who had been in the Respondent's math classes at various years, after the school year 1985-86 but including the school years 1989-90 and 1996-91 did not observe the Respondent participate if any form of misconduct involving sexual innuendoes does not change the impression held about the testimony given by students who described those sexual innuendoes. This refers to testimony by Vicki Giveons and Bryan Hopkins who did not observe misconduct by the Respondent in their classes. The classes that they attended were different from the classes attended by witnesses who identified Respondent's sexual innuendoes. Finally, Respondent's testimony concerning these events in which he has been found to have acted inappropriately with regard to sexual innuendoes is rejected. Racial discussions were held in the Respondent's classes; however, the remarks which he made about racial issues were not biased when examined in the context of the testimony presented at hearing. Likewise the Respondent did not engage in any form of misconduct for which he is held accountable pertaining to the racially inflammatory notes, racially inflammatory replica of a grave site cross, racially inflammatory replica of a grave site tombstone, and racially inflammatory replica of a coffin and funeral carriage. Jeff Rieves, a male student in one of Respondent's math classes in the school year 1990-91 was responsible for producing the notes and other paraphernalia. Rieves contends these items were produced in an environment that was cordial or done in the way of a joke. Although the Respondent created the appearance that he was somewhat indulgent concerning the insensitive acts by the student, a stance taken by the Respondent to minimize the impact created by the correspondence and paraphernalia, Respondent did not believe that these incidents were intended to be all in good fun. It is not accepted that Rieves gave the notes and paraphernalia to the Respondent intending it wholly as a joke and that the Respondent perceived that these items were presented as a joke. Whether what extent Rieves intended his actions to have a more sinister influence, to the extent that you could say that Rieves intended racial harassment is less clear. Being uncertain concerning the student's intent, Respondent was prudent to make officials within the Nassau County School District aware that these circumstances existed and to be a willing participant in the investigation that ensued by the Nassau County Sheriff's Office. When interviewed by the principal at his school and officers from the Nassau County Sheriff's Office, both before and after the law enforcement officials had spoken to Jeff Rieves about this incident, Respondent did not name Rieves as the individual who had prepared the tombstone, coffin and funeral carriage. Whatever suspicions the Respondent may have had that Rieves was the person who had constructed these items, especially given the realization that Rieves had written notes with overtones that bore a racial threat, those notes having been sailed in Respondent's direction by Rieves as paper airplanes, Respondent did not know absolutely that Rieves had constructed the paraphernalia. Contrary to Rieves' assertion, the cross, headstone, coffin and funeral carriage were not handed overt directly to the Respondent as Rieves had told the law enforcement officers when interviewed. Respondent discovered these items where Rieves had left them in his class. Having held their conversation with Rieves, rather than confiding to the Respondent that the sheriff's office had ascertained who the culprit was, the officers for reasons that are not apparent, chose to believe Rieves' comment to the effect that Rieves had directly presented the paraphernalia to the Respondent and to confront the Respondent with this belief by asking the Respondent once again who the person was who had created the paraphernalia. When Respondent did not respond that Rieves was the person who had prepared the paraphernalia in a setting in which the sheriff's office was convinced that he did know, he was charged with giving false information to a police officer concerning the alleged commission of a crime by claiming that he had been harassed by persons not known to the Respondent when indeed he knew who the individual was who had constructed the paraphernalia. Under summons the State Attorney's Office for the Fourth Judicial Circuit of Florida took action against the Respondent on the theory of the false reporting concerning the alleged commission of a crime in Case No: 91-301218, August 1, 1991. This matter was disposed of through the misdemeanor pretrial intervention program involving deferred prosecution. Respondent served the 40 hours of community service contemplated by the disposition in the case. He did this upon advice of counsel that if he went to a trial that he might not prevail in that case. Notwithstanding his decision to conclude the court action by subjecting himself to the requirements set forth in the pretrial intervention, for purposes of this hearing it is not found that the statements which Respondent made concerning his knowledge about the person who had constructed the paraphernalia were false, in that Respondent did not know with certainty who had prepared the paraphernalia. Although the sheriff's office interviewed Rieves and another individual Michael Lloyd who had been involved in the creation of the paraphernalia, neither the sheriff's office nor the administrative prosecutor sought to verify the information received from the culprits who had created the paraphernalia to determine from a more unimpeachable source that Respondent knew who had created the paraphernalia, in that the Respondent had been given the paraphernalia personally in the classroom as Rieves describes, before attributing false motives to the Respondent in complaining about the racial harassment. This could have been achieved by interviewing students who would have been in attendance at the time when Rieves purportedly presented the paraphernalia to the Respondent in the classroom. Absent that effort Respondent was charged upon information provided by a less than credible source and tried in the present case, leading to the impression that Respondent's explanation about this event is more compelling. Craig Marsh, Superintendent, Nassau County School District, a professional educator, was accepted as an expert in the field of education. As an expert Marsh expressed the opinion that the Respondent, based upon his participation in the sexual innuendos discussed in the fact finding, were matters so serious that they impaired Respondent's effectiveness in the school system. That opinion is accepted.
Recommendation Based upon the findings of fact and the conclusions of law reached, it is, RECOMMENDED: That the School Board of Nassau County enter a final order which dismisses the Respondent from his employment as a continuing contract teacher based upon the violations found. That the Education Practices Commission suspend Respondent's teaching certificate for a period of three years during which time Respondent shall submit himself to evaluation by a qualified professional to ascertain the underlying causes for the conduct which has brought about this discipline. If the qualified professional believes that Respondent needs to participate in a program to gain insight and correct any underlying condition in the interest of the Respondent and his prospective students, then Respondent shall cooperate in that endeavor. If Respondent fulfills any necessary requirement for counseling or if counselling is not deemed necessary, then the last year in the suspension period shall be served in a probationary status during which time Respondent shall not engage in conduct which violates Chapter 231.28, Florida Statutes, and the associated rules found within Chapter 6B, Florida Administrative Code. DONE and ENTERED this 13th day of May, 1992, in Tallahassee, Florida. CHARLES C. ADAMS 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 13th day of May 1992. APPENDIX CASE NO. 91-6677 The following discussion is given concerning the proposed facts of the parties: Petitioner Castor Paragraphs 1 through 13 are subordinate to facts found, except the date in Paragraph 7 which should be 1989-90. Paragraphs 14 through 16 are rejected for reasons of credibility. Paragraphs 17 through 19 are subordinate to facts found. Paragraph 20 is rejected. Paragraphs 21 through 24 4re subordinate to facts found. Paragraph 25 is rejected. Paragraph 26 is subordinate to facts found with exception to the last phrase of profanity which is rejected. Paragraphs 27 through 42 are contrary to facts found in their suggestion that the Respondent acted in a racially biased manner or gave false information or reports as alleged in the Administrative Complaint. Paragraph 43 is subordinate to facts found. Paragraphs 44 through 46 are not necessary to the resolution of the dispute. Paragraphs 47 and 48 1 not necessary to the resolution of the dispute and are contrary to the legal conclusions drawn. Petitioner Marsh Paragraph 1 is subordinate to facts found.. Paragraph 2 see discussion of Paragraphs 1 through 26 for Petitioner Castor. Paragraph 27 is subordinate to facts found. Paragraphs 28 and 29 are not necessary to the resolution of the dispute. Respondent's Facts in the Prosecution by Commissioner Castor Paragraph 1 is subordinate to facts found.. Paragraphs 2 through 36 are not necessary to the resolution of the dispute. Paragraph 37 is contrary to facts found. Paragraph 38 in its first two sentences are subordinate to facts found. The remaining sentence is rejected as it attempts to absolve the Respondent of his conduct. Paragraph 39 is contrary to facts found. Paragraph 40 is consistent with the disposition of the case. Paragraphs 41 through 43 are contrary to facts found. Paragraph 44 is consistent with the disposition in the case as are Paragraphs 45 through 48. Paragraph 49 is subordinate to facts found where it describes use of profanity but conary to facts concerning the number of times. Paragraph 50 is rejected in its attempt to be persuasive in countering the notion that Respondent used profanity in the classroom more than an isolated incident. Paragraphs 51 and 52 are subordinate to facts found. Paragraphs 53 and 54 are not necessary to the resolution of the dispute. Paragraph 55 is subordinate to facts found. Paragraph 56 is not necessary to the resolution of the dispute. Respondent's Facts in the Prosecution by Superintendent Marsh Paragraph 1 is subordinate to facts found. Concerning Paragraphs 2 through 15, see discussion of facts in the Castor prosecution, Paragraphs 3-7 through 50. COPIES FURNISHED: Thomas W. Brooks, Esquire Post Office Box 1547 Tallahassee, FL 32302 Karen Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Lane Burnett, Esquire 331 East Union Street, Suite 2 Jacksonville, FL 32202 Brian T. Hayes, Esquire 245 East Washington Street Monticello, FL 32344 Craig Marsh, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, FL 32034 Robert Johnson, Chairman Nassau County School Board Post Office Box 436 Callahan, FL 32011
The Issue Whether Petitioner demonstrated entitlement to a Florida educator’s certificate.
Findings Of Fact Respondent, Pam Stewart, as Commissioner of Education, is authorized to issue Florida educator’s certificates to persons seeking certification to become school teachers in the state of Florida. Petitioner, Robert Grimsley, is a high school teacher who teaches liberal arts and algebra. He is in his first year of teaching and currently teaches at Washington High School in Pensacola, Florida. He seeks to obtain an educator’s certificate to continue teaching. On June 6, 2016, Petitioner submitted an on-line application for a Florida Educator’s Certificate in mathematics (grades 6-12). The application included a section for “Criminal offense record(s) (Report any record other than sealed or expunged in this section.)” Under that section, was the following question: “Have you ever entered into a pretrial diversion program or deferred prosecution program related to a criminal offense?” In his application, Petitioner answered affirmatively that he had entered into a pretrial diversion program related to a criminal offense. Based on the fields provided in the application, he disclosed the following criminal offense as indicated below: City Where Arrested State Date of Arrest Charge(s) Disposition Tallahassee FL 1/2015 Less Than 20 Grams Community Service Petitioner did not disclose any other offenses in the application. There was no definition of “arrest date” provided in the application. Mr. Kossec, program director of Professional Practices Services, testified that Petitioner could have included the dates for his Notice to Appear. However, the application did not indicate that such an option was available to applicants. On August 3, 2016, Professional Practices Services sent Petitioner a letter requesting additional information regarding his criminal offenses so it could conduct an investigation of his criminal history. He submitted documents reflecting two offenses for which he completed a pretrial diversion program. The submissions included the “No Information” for each offense, which disclosed the following: Case No. 14-000004MMA (related to January 31, 2013 offense); Disposition: No Information due to completed Misdemeanor Diversion Program (filed on February 24, 2014). Case No. 15MM00158 (related to January 20, 2015 offense); Disposition: No Information due to completed Diversion Program (filed on March 6, 2015). The parties stipulated to the following facts regarding Petitioner’s criminal history and application: On or about December 31, 2013, Applicant illegally possessed marijuana, as a result of the aforementioned conduct, the Applicant was issued a Notice to Appear by law enforcement for a criminal violation. Applicant was charged with Possession of Marijuana and entered into a pre-trial [sic] diversionary program. On or about January 20, 2015, Applicant illegally possessed marijuana, as a result of the aforementioned conduct, law enforcement arrested Applicant for possessing marijuana. Applicant was charged with Possession of Marijuana and entered into a pre-trial [sic] diversionary program. On or about June 6, 2016, Applicant submitted an application for an educator’s certificate. In said application, Applicant was asked the following question: “Have you ever entered into a pretrial diversion program or deferred prosecution program related to a criminal offense?” Applicant failed to disclose the fact that he entered into a pre-trial [sic] diversionary program for the December 31, 2013--Marijuana Possession arrest. There is no dispute that Petitioner had two criminal offenses for which he participated in a pretrial diversion program. At hearing, Petitioner testified that he did not list the December 2013 offense on the application because he received a Notice to Appear for that offense. Petitioner testified that he did not understand that being released with a Notice to Appear1/ was an arrest because he was not physically arrested. The two officers involved in the respective arrests testified at hearing and described their detainment of Petitioner. On December 31, 2013, Lt. King stopped Petitioner’s vehicle for driving in excess of the posted speed limit. He ultimately found marijuana in the vehicle. Lt. King read Petitioner his rights, issued him a Notice to Appear, and released him. Lt. King did not handcuff Petitioner at any point during the traffic stop. Lt. King testified that he explained to Petitioner that although he was not being physically handcuffed and transported to the local jail, he was placed under arrest. Petitioner did not recall any explanation that a Notice to Appear is still an arrest. Lt. King’s offense report, completed on the same date as the incident, did not reference any explanation to Petitioner that the Notice to Appear was an actual arrest. Petitioner’s testimony is found to be credible. The detainment for the second incident was different from the first. On January 20, 2015, Officer Andre Buckley, a FSU police officer, responded to a complaint of the smell of burnt marijuana coming from a restroom on the campus of FSU. Officer Buckley arrived at the suspected restroom and confirmed the smell of burnt marijuana. After discovering Petitioner in the restroom and in possession of marijuana, Officer Buckley placed Petitioner in handcuffs. Another officer transported Petitioner to the Leon County jail for booking. Despite Petitioner’s mistaken belief regarding the December 2013 arrest, he was indeed arrested. The facts here demonstrate that Petitioner did not understand that he was arrested for the December 2013 offense and, as a result, was confused regarding whether he should include the offense in the application. There was no effort to conceal his participation in the pretrial diversion program for the December 2013 offense because he submitted documents reflecting the information upon request. The undersigned finds that he simply made an error when completing the application. Both misdemeanor criminal offenses occurred while Petitioner was a college student. Since completing the diversion programs, he has earned his Bachelor of Science degree in Statistics. In his letter to the Professional Practice Services dated July 20, 2016, he indicated that he has discontinued using drugs. Further, he has taught for approximately one year without incident. Petitioner’s actions demonstrate that Petitioner had no intent to conceal his record, engaged in no fraudulent conduct in completing the application, and did not fail to maintain honesty in the submission of the application so as to warrant denial of an educator’s certificate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order granting Petitioner, Robert Eugene Grimsley’s, application for a Florida educator’s certificate. DONE AND ENTERED this 20th day of April, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 20th day of April, 2017.
The Issue The central issue in case no. 92-3138 is whether or not Respondent should be dismissed from his continuing contract as a teacher employed by the Orange County school district. The central issue in case no. 92-6637 is whether Respondent committed the violations alleged in the administrative complaint; and, if so, what disciplinary action should be imposed.
Findings Of Fact The Respondent holds Florida teaching certificate no. 427416, covering the areas of driver's education and physical education. Such certificate is valid through June 30, 1997. At all times material to this case, Respondent has been employed as a teacher for the Orange County School District. He has been so employed since approximately 1978. In the fall of 1987, Respondent was assigned to Carver where he taught physical education. He remained at Carver until he was relieved of duty on March 26, 1992. Prior to being assigned to Carver, Respondent was employed at Chickasaw Elementary School where he received satisfactory evaluations and did not have any problems with student discipline. After accepting the job at Carver, Respondent became one of four physical education teachers employed there. Respondent faced discipline problems at Carver he had not experienced during his elementary school tenure. Examples of the problems Respondent faced were: students showing disrespect; students teasing (such as name calling); or students being aggressive and argumentative. On March 7, 1989, Respondent received a written reprimand from the Assistant Principal at Carver, Fred Townsend, for inappropriately disciplining a student. The incident cited in the reprimand was directly related to Respondent's class management and the discipline of students. Mr. Townsend's letter instructed the Respondent to adequately supervise students and to use appropriate disciplinary techniques. Mr. Townsend verbally counselled the Respondent concerning appropriate disciplinary techniques. On April 7, 1989, Respondent was involved in an incident with one of the Carver students which resulted in Mr. Townsend issuing Respondent a written directive to refrain from shoving students, and to follow procedures outlined in the Carver Faculty Handbook and the "assertive discipline strategies" when disciplining students. The procedures for disciplining students as outlined in the Carver Faculty Handbook did not permit a teacher to push, shove, or physically discipline a student. Teachers are permitted to use force to intervene to protect students who may be fighting or to protect themselves if attacked. On October 24, 1989, Respondent was directed, in writing and verbally, by a senior manager of employee relations, John Hawco, not to take physical or disciplinary action against students but to follow school and Board rules pertaining to student discipline and control. The directive followed an incident where Respondent allegedly shoved or pushed a student. On or about March 1, 1990, Board staff gave Respondent a letter outlining sources of assistance available through the school system regarding appropriate means to control and discipline students. On March 2, 1990, Respondent received an oral and written directive together with a written letter of reprimand from Mr. Hawco. This written directive was issued after Respondent allegedly used physical force against two students. Such conduct would have been contrary to Mr. Hawco's earlier directive. The March 2, 1990, directive again advised Respondent not to use force or take physical disciplinary action against students. Mr. Hawco's letter urged Respondent to seek assistance and warned Respondent that if he failed to follow the directive, he could be recommended for dismissal. Respondent was also verbally advised at the time he received the March 2, 1990, directive that should similar incidents occur in the future a recommendation could be made for his dismissal. Despite the prior warnings and counselings, during the 1990-1991 school year, John Hawco was called to Carver to investigate several allegations against the Respondent. Such allegations involved inappropriate student discipline. One of the incidents involved a minor male student who allegedly hit the Respondent. In the Respondent's referral to the office, the Respondent stated that the student "hit me in the nose with his fist, so I hit him back". Although the incident caused Mr. Hawco to have concerns about the Respondent, after investigation, the Board took no formal action against the Respondent for this alleged incident. On or about March 13, 1992, the Respondent received a written directive from the Senior Manager of Employee Relations, Alice Tisdell. This directive advised Respondent not to take physical or disciplinary action against students, to exercise appropriate classroom management skills and to follow proper procedures for disciplining students. Ms. Tisdell issued this directive after she was called to investigate allegations that the Respondent continued to physically intervene with students contrary to prior directives to discontinue this type of discipline. On or about March 10, 1992, Ms. Tisdell advised Respondent, verbally and in writing, that should he continue to fail to comply with the directives, appropriate disciplinary action could be taken. Respondent was advised that such disciplinary action could include his dismissal. During the period from 1989 until he was recommended for dismissal in 1992, Respondent was verbally directed by the Carver principal, assistant principals, and Board management, to use appropriate classroom management techniques and to refrain from pushing, shoving, or using force when dealing with students. Despite the oral and written directives, on March 20, 1992, Respondent shoved a student, Johnny Wyatt, into a locker causing minor physical injury to that student. Such act occurred in connection with the discipline of the student, was contrary to the prior directives issued to Respondent, and resulted because Respondent had failed to maintain control of his assigned area. Wyatt is a minor male student at Carver who, at the time of hearing, was in the seventh grade. During the 1991/1992 school year, he was enrolled in Ms. Carry's sixth grade physical education class. The male students in Ms. Carry's class dressed out in the boy's locker room supervised by the Respondent and another male physical education teacher, Dennis Goldsmith. On March 20, 1992, Mr. Goldsmith was absent and Raymond Martin, a permanent substitute employed at Carver, was assigned to cover the locker room with Respondent. When sixth period began, students assembled at their assigned bench seats in order to dress out. Some students began to misbehave by shouting, running around, and engaging in horseplay. On two occasions, the light switches were turned off and on for several seconds. Wyatt came to the sixth period class and sat down after dressing out. With Mr. Martin's permission, he went to the restroom and returned to his seat. The Respondent accused Wyatt of talking. When the student protested that he had not misbehaved, the Respondent grabbed Wyatt by the arm and began to lead him to the locker room office. Wyatt continued to verbally protest while Respondent held his arm. When they reached a row of lockers, the Respondent pushed Wyatt causing his back to strike the lockers. This incident was witnessed from several different vantage points by other students who were in the locker room that day. When the Respondent pushed the student, Wyatt's back struck a metal clasp on the locker and an injury resulted. Contact with the metal clasp caused a one to two inch scrape located just slightly to the right of the student's spine. Approximately eleven months after the incident, a faint scar is still visible. Immediately following the incident, the Respondent ushered Wyatt to the locker room office and Assistant Principal, Richard Vail, was summoned to deal with the students. Mr. Vail arrived five to ten minutes after the beginning of sixth period. Mr. Vail spoke to the students about their misconduct, and sent them on to their respective class groups. Wyatt approached Mr. Vail, showed him the injury to his back, and told him that the Respondent had pushed him into a locker. Mr. Vail asked the student if he wanted to go to the clinic. When Wyatt declined, Mr. Vail sent him on to join his class. When Wyatt arrived at Ms. Carry's class she observed the injury and sent him to the office. Wyatt was subsequently sent to the clinic by Principal Ernest Bradley. When Wyatt went home after school, his parents learned of the incident. The student's father brought him back to school that same day and spoke to Mr. Bradley and the Respondent. Wyatt's parents were upset about the injury. The Respondent denies the incident entirely. He claims that he did not push or shove Wyatt in any way on March 20, 1992, and that he did not learn of the alleged incident until the end of the school day. The credible proof in this case is to the contrary. The Respondent had difficulties controlling the students in his physical education class. Students in his class frequently acted disrespectfully and failed to follow his instructions. Such students challenged Respondent's authority and were disruptive. Because of class rotation, the other physical education teachers had the same students at different times of the year. The other physical education teachers did not experience the difficulties with the frequency or the severity that the Respondent experienced. As a general rule, the students behaved themselves for Mr. Goldsmith, Ms. Pendergrast, and Ms. Carry. Of the four, only Respondent allowed the students to get out of control. Mr. Townsend formally evaluated Respondent during the 1987-88 school year. Mr. Townsend specifically recommended that the Respondent seek help in the areas of student relations and discipline, and that he enroll in workshops for help with management of student conduct. Mr. Townsend formally evaluated the Respondent during the 1988-1989 school year. Mr. Townsend's evaluation rated the Respondent "Satisfactory with Recommendation" in the area of Classroom Management and Discipline. Respondent was again advised to enroll in training programs for management and discipline. Mr. Vail observed and evaluated the Respondent during the 1989-1990 school year. Mr. Vail observed the Respondent having difficulties in maintaining control of his class and supervising activities. Mr. Vail suggested methods of improving the structure of the class. He also suggested a different roll-taking method. Mr. Vail's 1989-90 evaluation rated the Respondent as "Needing Improvement" in the area of classroom management and discipline. The Respondent received a "Satisfactory with Recommendation" in the areas of subject matter knowledge, planning and student relations. Mr. Vail also gave the Respondent verbal directives to exercise appropriate classroom management. Mr. Vail evaluated the Respondent for the 1991-1992 school year. He observed the Respondent on March 9, 1992, and found several deficiencies with the Respondent's performance. Mr. Vail rated the Respondent as "Needs Improvement" in the areas of classroom management and discipline, planning and delivering instruction, student relations, and professional responsibilities and ethics. Mr. Vail categorized the Respondent as "Satisfactory with Recommendation" in the areas of subject matter knowledge, evaluation of instructional needs, and methods and techniques. Throughout his tenure at Carver, the Respondent has been counseled concerning appropriate discipline techniques and given several opportunities to improve. The Respondent's ability to effectively manage the students did not improve. In short, he was unable to keep good order in his classroom. Respondent has received two reprimands and several directives regarding proper discipline of students. Respondent is required to abide by the Code of Ethics of the Education Profession of Florida. Further, teachers are expected to adhere to reasonable directives issued to them by their supervisors. The Respondent received numerous verbal and written directives concerning the appropriate discipline and management of student conduct. These directives were reasonable and were within the scope of the school's authority. Despite the directives, the opportunities to improve, and the offers of assistance, the Respondent did not improve in the areas of classroom management and student discipline. The Respondent was warned of the impropriety of physical contact with students, yet subsequently pushed and injured a student. The incident involving Wyatt was in violation of the prior directives, and constituted insubordination and misconduct. The Respondent's effectiveness as an employee of the Board has been substantially reduced. Despite several attempts to provide Respondent with assistance, he continued to use inappropriate discipline with students. Understandably, school personnel have lost confidence in Respondent's ability to manage a class, to the point where Respondent cannot return to the classroom. Although the Respondent did not intentionally injure Wyatt, his indifference to the situation placed the student in danger. Respondent failed to protect the student from an avoidable injury. Respondent's use of force was unwarranted as the student did not present a harm to others or to the Respondent. Assuming Wyatt was one of the misbehaving students (which the evidence in this case does not support), force would not have been necessary to discipline a talkative student.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: As to case no. 92-3138, that the School Board of Orange County, Florida enter a final order dismissing the Respondent from his employment with the district. As to case no. 92-6637, that the Education Practices Commission enter a final order placing the Respondent on probation for a period of not less than three years, requiring Respondent to successfully complete some remedial course of instruction related to class management and discipline of students, and to receive a letter of reprimand for the conduct established by this record. DONE AND RECOMMENDED this 27th day of August, 1993, in Tallahassee, Leon County, Florida. Joyous D. Parrish 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 27th day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3138 and 92-6637 Rulings on the proposed findings of fact submitted by Petitioner, Orange County School Board: The following paragraphs are accepted: 1 through 7, 9, 13, 15, 16, 18 through 33, 36 through 43, 45, 46, and 48. Paragraph 8 is accepted with the deletion of the last sentence which is not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. With regard to paragraph 10, it is accepted that Respondent received the directive noted otherwise rejected and not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. With regard to paragraph 11, it is accepted Respondent was adequately apprised of the consequences should his conduct continue; it is not accepted that such warning was in the form of a formal reprimand. Paragraph 12 is rejected as irrelevant. With the deletion of the last sentence which is rejected as irrelevant, paragraph 14 is accepted. Paragraph 17 is rejected as irrelevant. Paragraph 34 is rejected as argument or comment. Paragraph 35 is rejected as irrelevant. Paragraph 44 is rejected as irrelevant. Paragraph 47 is rejected as vague or argument. Paragraphs 49 through 52 are rejected as argument or irrelevant. Rulings on the proposed findings of fact submitted by the Petitioner, Betty Castor: The following paragraphs are accepted: 1, 3 through 10, 12, 14, 15, 16, 17, 18, 20, 21, 23 through 32, 34 through 38, 41 through 45, and 47. Paragraph 2 is rejected as contrary to the weight of the credible evidence. Paragraph 11 is not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. Paragraph 13 is rejected as irrelevant. With the deletion of the last sentence of the paragraph which is rejected as irrelevant, paragraph 19 is accepted. With the deletion of the word "severely" which is rejected as vague or argumentative or contrary to the weight of the credible evidence, paragraph 22 is accepted. Paragraph 33 is rejected as contrary to the weight of the credible evidence. Paragraph 39 is rejected as argument. Paragraph 40 is rejected as argument. Paragraph 46 is rejected as argument or vague. Paragraphs 48 through 51 are rejected as argument or irrelevant. Rulings on the proposed findings of fact submitted by the Respondent: The following paragraphs are accepted: 1, 2, 4, 5, 6, 17, 21 and 22. Paragraph 3 is rejected as irrelevant. Respondent voluntarily accepted the position at Carver and was expected to fulfill his teaching responsibilities at that school. Paragraph 7 is rejected as contrary to the weight of the credible evidence especially as to allegations that he "rarely reacted physically". The last sentence is accepted as accurate. Paragraph 8 is rejected as irrelevant; the discipline options available to Respondent did not include using force. Paragraph 9 is rejected as irrelevant. With regard to paragraph 10, it is accepted that Respondent was offered courses to improve and that he may have attended same, he just didn't comply with the directives or improve his skills either through indifference or otherwise. With regard to paragraph 11, it is accepted Respondent received a reprimand on the date in question for inappropriate discipline techniques; otherwise, rejected as irrelevant or contrary to the credible evidence. With regard to paragraph 12, it is rejected as irrelevant or contrary to the weight of credible evidence. With the deletion of the last sentence which is rejected as contrary to the weight of the credible evidence, paragraph 13 is accepted. Paragraph 14 is rejected as repetitive, argumentative, or irrelevant. Paragraph 15 is rejected as argument or irrelevant. Paragraph 16 is rejected as argument or irrelevant. Paragraph 18 to the extent that it suggests Respondent's action was in self-defense is rejected as contrary to the weight of the credible evidence and otherwise rejected as comment, argument, or irrelevant. Paragraph 19 is rejected as unnecessary comment. Paragraph 20 is rejected contrary to the weight of credible evidence. Paragraph 23 is rejected as contrary to the weight of evidence, argumentative, or irrelevant. Paragraph 24 is rejected as irrelevant. Mr. Wyatt's account of the incident at the hearing has been deemed credible and wholly accurate as to the incident that transpired in the locker room that date. Respondent's account, on the other hand, was not. Paragraph 25 is rejected argumentative and contrary to the weight of credible evidence. The first sentence of paragraph 26 is accepted; the remainder rejected as irrelevant. Paragraph 27 is rejected as speculative, irrelevant, or argumentative. With regard to paragraph 28, it is accepted that Respondent did not use inappropriate language; otherwise rejected as irrelevant or contrary to the weight of the credible evidence. With the clarification that Wyatt did scrape his back on the locker and the rejection of the "allegedly" comment which is contrary to the weight of the credible evidence, paragraph 29 is accepted. Paragraph 30 is rejected as contrary to the weight of the credible evidence. Paragraph 31 is rejected as argumentative and irrelevant. The first sentence of paragraph 32 is accepted; the remainder is rejected as contrary to the weight of the credible evidence. Paragraph 33 is accepted to the extent is identifies Wyatt as the student injured by Respondent on March 20, 1992; otherwise rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 34 is rejected as contrary to the weight of the credible evidence. Paragraph 35 is rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 36 is rejected as irrelevant or argument. COPIES FURNISHED: Tobe Lev, Esq. EGAN, LEV & SIWICA, P.A. Post Office Box 2231 Orlando, Florida 32802-2231 Roseanna J. Lee, Esq. Frank C. Kruppenbacher, Esq. HONIGMAN MILLER SCHWARTZ AND COHN 390 N. Orange Avenue, Suite 1300 Orlando, Florida 32801 Margaret E. O'Sullivan, Esq. Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Karen Barr Wilde, Exec. Dir. 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Donald Shaw, Superintendent Orange County Shool Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue Whether respondent discriminated against petitioner on account of his age in terminating his employment, in violation of the Florida Human Relations Act, Section 760.10 et seq., Florida Statutes (1989)?
Findings Of Fact On July 3, 1989, when he was fired, Neal C. Currow, who was born on January 20, 1927, was by far the oldest employee (T.180) at the Panama City Marine Institute, (PCMI) a non-profit corporation that contracts with the Bay County School Board to provide alternative education programs; and with co- respondent Associated Marine Institutes, Inc. (AMI) to rehabilitate juvenile delinquents or furnish other services for young people. AMI "consists of" (T.225) or "operates" (T.226) 28 schools or institutes like PCMI, of which 13 are in Florida. AMI contracts with the Department of Health and Rehabilitative Services (HRS) to provide services, then subcontracts with its constituent schools. AMI has "central bookkeeping . . . all the payroll is done in Tampa." T.228. But AMI does not maintain complete personnel files on each employee centrally. A "40 year Water Safety Instructor Trainer with the American Red Cross," (T.181) Mr. Currow also holds a "100 ton Master's license for . . . Auxiliary Sail," id., issued by the U.S. Coast Guard. After 18 years as an independent building contractor, he became a junior college teacher and "started all of the building programs for the Gulf Coast [Junior] College." Id. Mr. Currow wears a hearing aid, but he still does aerobics five days a week. Before he went to work for PCMI as a paid employee on September 29, 1980, Mr. Currow had worked as a volunteer for approximately a year, donating money and the use of his motor home, as well as time. A "stable employee, he had all the knowledge . . . [and was] relied on for information . . . [about] how to do things." T.139. Other employees looked up to him and the children respected him more than most of the other teachers. Id. At PCMI, he suffered the gibes of Jack Ross, George M. "Mike" Larson, who was director of operations at the time, Mr. Larson's successor, with apparent good humor. In staff meetings, Messrs. Ross and Larson referred to him as "the old man" and "the old fossil." T.140-1. When Mr. Larson did "his hearing aid thing" (T.140), i.e., telling Mr. Currow to "turn it up Neal, or turn it down, Neal, or something referring to it . . . Jack would laugh." T.140. Danny Grizzard referred to Mr. Currow as "the old man" five or ten times a week, sometimes behind his back, and frequently asked questions like "Does Neal have his hearing aid turned up?" T.121. Danny Grizzard is "in his 40's" (5.12) and Jack Ross is "[m]aybe a couple of years younger." Id. As seamanship and vocational instructor at PCMI, Mr. Currow taught sailing and woodworking. T.30. He also had duties as a "Deep Sea Captain" (T.615) and "did all the training of the staff in aquatics." Id. He regularly took student teams to sailing regattas. Petitioner chaperoned "more student trips that anybody [else] in the institute. In fact, [he] taught about student trips at . . . staff conferences every year." T.172. On such trips and otherwise, PCMI students required supervision, an institute policy that was "stressed continually." T.221. The policy is that "[c]hildren should remain within the eyesight of the staff that they're assigned with," (T.17) but the policy was not always followed. T.105, 158. On overnight trips, official policy specified that the ratio of students to staff should not exceed 5 to 1. Petitioner's Exhibit No. 1, but compliance with this policy, too, was a sometimes thing. The Early Years As executive director of PCMI from March of 1983 to August of 1988, Larry Schmidt spoke to Mr. Currow about supervising children at least twice. Early on in this five-and-a-half-year period, on two occasions, students under petitioner's supervision reoprtedly misbehaved, both times at Etheridge Marina in Panama City. Once students smoked in the bathroom there and another time there "was a theft . . . [of] sodas or something," (T.221) or so Mr. Schmidt heard. Mike Larson, PCMI's Director of Operations for approximately a year ending in the middle of March 1989, testified that petitioner "would become insubordinate with me." T.214. He also testified: "[H]is students might be out on the dock and he would be in his classroom, okay, out of his supervision. There's other times, one case in memory, the students was in his classroom and he was next door at a business getting parts." T.213. (Of course, testimony that something "might be" cannot establish what in fact occurred.) Mr. Larson spoke to Mr. Currow about supervising the students on "several occasions." T.213. Jack K. Ross succeeded Mr. Schmidt as PCMI's Executive Director, approximately half way through Mr. Larson's tenure as operations director. Mr. Ross remembered an occasion in August of 1988 when Mr. Currow was in his classroom while "the kids were outside in the back yard without a staff member" (T.39) and another time when "there were kids out there on the dock . . . [and petitioner was in the seamanship] room getting fishing gear." T.39. On the latter occasion, Mr. Ross testified, he "walked into the seamanship room and I said, 'look Neal, you need to be with your kids', and he said, 'well, I can't be in two places at one time.' And I said, 'well then, you need to bring your kids with you in the class and do it as a group.' And at the staff meetings I reiterated the supervision on a couple of occasions." T.39. On at least one other occasion, Mr. Ross spoke to Mr. Currow individually about supervising children. Written Expectations Like Mr. Larson, Mr. Ross felt Mr. Currow was insubordinate at times. After Mr. Ross spoke to O.B. Standard, AMI's vice-president of operations, about petitioner, Mr. Standard visited PCMI, where he spoke further with Mr. Ross "worked with . . . [Mr. Larson] on his people skills" (T.51); and "had a nice conversation [with Mr. Currow] . . . for two or three hours . . . about supervision [and] everything else you could imagine." T.190. At Mr. Standard's suggestion, Mr. Ross then wrote Mr. Currow this memorandum, dated November 28, 1988: Neal, as a veteran staff member at PCMI, you are a vital part of a very elite team. Your commitment to PCMI and the kids over the past 10 years is of the finest standards. Your hard work and dedication has made you a legend within PCMI. As you are aware, there have been a few changes at PCMI over the previous months. As a professional, I am soliciting your help in supporting me with some of these often difficult changes. There comes a time in everyone's life when we have to stop and decide whether we can adapt and change, or whether we need to step down to reach a new personal challenge. Should you decide to remain with PCMI and continue using your expertise towards helping the troubled youth of Bay County, there are a few expectations I ask that you must consider. Below I have outlined what I expect from every member of the PCMI staff to continue to make PCMI a winning team. Supervision--a maximum of 7:1 ratio of students to staff member. You are to remain with the students you are assigned. Everything during the course of the day that you are involved with, should be done with every member of your class. Never separate the class and put yourself in a position where you cannot intervene with a situation. Negative comments--to display teamwork and integrity among the kids, we cannot expose ourselves as being negative around the students. Talking negative around the students about other staff members is not acceptable behavior. As a member of the PCMI team we are being observed the community 24 hours a day. When comments are made concerning the institute, they should always be made with PCMI's best interest at heart. Supporting the D.O.--The Director of Operations is the conductor of the orchestra. If he is not supported by the rest of the team, then the kids suffer. As the Executive Director I will not allow the kids to suffer. It is your responsibility to support the Operations Director if you are to remain a part of the team. Insubordination--insubordination is not accepting authority. As a captain you know that every member of your crew cannot give orders to control the boat. You expect every crew member to lend a hand and accept orders to ensure the success of the cruise. The same is true at PCMI. Insubordination is not acceptable at PCMI. These are the only changes I have made that I think you should re-evaluate. What I am talking about are values. Values are what we are trying to teach the kids. If we do not display them, then we are being hypocritical with the students. Neal, we need you at PCMI, and I sincerely hope you decide to personally accept these challenges and join the team again. Should you decide to continue with PCMI, and I hope you do, I and the rest of the PCMI team are willing to help you work on these problem areas. If this is asking too much, then I understand and I wish you the best of luck in the future. Respondent's Exhibit No. 3. Aside from this memorandum, no writing in respondent's personnel file made mention of any problems supervising students. T.50. Not long after the memorandum was written, PCMI sent Mr. Currow to Dallas with five or six students to pick up a sailboat. (T.193). Single Incident Next Year In years past staff and students alike had attended regattas on St. Andrew Bay as spectators when the PCMI team Mr. Currow coached participated. T.20. Again in 1989, the PCMI team won the regatta. But, when at least one instructor asked to take her students to watch, Danny Grizzard, who had taken over from Mr. Larson as operations director on March 6, 1989, had denied permission. Mr. Currow and seven PCMI students were together day and night during the regatta, which began on the last Monday in June and finished the following Thursday, June 29, 1989. At the banquet and awards ceremony with which the regatta concluded, Mr. Currow told Mr. Grizzard that "he and the kids were going out for ice cream with one of the other teams and that he was going to spend the night [with the students on a sailboat anchored] at the park." T.62. One of the young sailors in petitioner's charge that night, Shane Hernandez, lived on the same street as Fran, petitioner's "lady friend." At least as early as the banquet, there was talk of watching television at Shane's house. After the banquet and after ice cream, petitioner acquiesced, taking the students to Shane's house, where they found "the lights on . . . and the cars . . . there." T.171. While the others waited outside in the van, Shane went inside ostensibly to learn, as respondent had asked him to find out, if it would be "okay for [them] to watch TV." T.171. Shane reappeared saying it was "okay," and petitioner let the other students out of the van, saying he would be right back. Only later did Mr. Currow learn that neither Shane's parents nor any other adult had been at home when he left the children there. T.207. After dropping the students off at the Hernandezes', he drove "two doors down" "probably around 75 yards" (T.13) to his friend's house, parked and went inside. Before the awards banquet, Mr. Currow had gotten word that his mother was "in the hospital in Pensacola again, and . . . [had] a blood clot in her leg." T.170. Using Fran's telephone, he spoke to a hospital nurse in Pensacola. Fifteen or twenty minutes after dropping the children off, he started for the Hernandez home on foot. The students met him before he reached the house, asking for something to drink. Evidently Mr. Hernandez's girlfriend, who arrived at the Hernandez house shortly after the children did, (T.136) had nothing to offer. After Fran served the boys soft drinks, Mr. Currow drove them back to the sailboat where they all spent the night. Friday morning they returned to PCMI. Petitioner Discharged The next day Danny Grizzard telephoned Shane Hernandez. In response to his questions, Shane told him that the students had been unsupervised for 15 or 20 minutes. Immediately after talking to Shane, he telephoned Mr. Ross, and relayed the news. The next Monday, a day off for petitioner, Mr. Grizzard summoned him to PCMI's offices, where he and Jack Ross told him he no longer had a job. "Neal, you['ve] finally done it," (T.169) Mr. Ross said. Perplexed, Mr. Currow did not realize what he was talking about at first. Then he or Mr. Grizzard told him of the report that the children had been left unsupervised for 15 or 20 minutes, but nothing was said about his having sole supervision overnight of seven (rather than five or less) students, a ratio his supervisors had countenanced. Learning that Mr. Currow had resigned or been discharged, students prepared a petition which stated, in part: "We feel it is unfair that the most valued and loved instructor at PCMI be punished because he trusted us." Respondent's Exhibit No. 5. The petition was signed by 27 students, perhaps all of the students at PCMI. (Eric Hernandez, Shane's father, testified for petitioner at hearing.) Younger Men Hired The preceding Thursday (the day of the awards banquet), PCMI had hired Eddie Prevost, at the time 27 or 28 years old, to instruct in scuba diving and to do woodworking. "He did some vocational work, that was his background." T.34. Mr. Prevost, who, when hired, filled a newly created position, took over petitioner's duties as vocational instructor, after petitioner was discharged. The vacant slot created by petitioner's termination was filled by 25- year-old John Penland, who took over petitioner's duties as seamanship instructor. To the extent the place Mr. Currow had held in the organization was filled, younger men took his place. PCMI "had additional funding in July and . . . split the position into two positions . . .." T.74. PCMI "replaced [petitioner] with a vocational instructor and a seamanship instructor." Id. Some time after the discharge, PCMI proposed to petitioner that he continue training staff in aquatics on a contract basis, but petitioner turned down this offer to work two weeks a year for $75.00 a day. T.177. At no time after July 3, 1989, did AMI or PCMI offer petitioner any other employment. T.176. Nobody was hired to train staff in aquatics, as far as the evidence disclosed. Incident Was Pretext AMI and PCMI attach understandable importance to supervision of children for whom they are responsible. Yet, as far as the record shows, PCMI has never terminated any other employee for failure to supervise students. T.244. This is so even though it "was not unusual" (T.105) at PCMI for students to be out of sight of the instructors responsible for their supervision. T.158, 176. Sometimes as many as 14 students would be assigned clean-up out of doors (as punishment) and left without supervision, except for checks every 40 minutes or so. T. 106, 142. Certain staff members frequently permitted children to walk between the PCMI campus and the civic center unsupervised. These facts were known to some, probably all, supervisory personnel. Between November of 1988 and February 1, 1991, some of the 27 other schools that, together with PCMI, comprise AMI discharged a total of 43 employees citing problems supervising children. Respondent's Exhibit No. 7. The severity and frequency of such problems are not a matter of record, however, and nobody who had worked nearly as long as petitioner had was terminated for this reason. Id. Respondents showed that, of the 44 people discharged for student supervision problems during this period by all 28 schools, petitioner was the oldest: eight others were over 40 years old and four of them were also over 50. Respondent's Exhibit No. 7. The fact that Mr. Currow left the sailing team unsupervised for 15 or 20 minutes at the Hernandez house was not the real reason for his discharge, although, as petitioner himself conceded, Respondent's Exhibit No. 4, this lapse was a breach of institute policy for which discipline was appropriate. Messrs. Ross and Grizzard did not themselves view the incident as an adequate reason to discharge petitioner. Petitioner's dismissal was out of keeping with past practice at PCMI. His firing came as a genuine and understandable surprise to him and others, and was viewed by virtually everyone other than the decision-makers as an injustice. E.g., Respondent's Exhibit No. 5. The reaction to his discharge reflected how drastic the departure from ordinary practice was, and how implausible the reason assigned for the termination was.
Recommendation It is, accordingly recommended that the Florida Commission on Human Relations enter an order requiring respondents to reinstate petitioner (or make an appropriate award of front pay) and award back pay, attorney's fees and costs; and, in the event the parties cannot agree on the details of relief, that the Commission remand for further hearing as necessary. RECOMMENDED this 14th of October, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7301 With respect to petitioner's proposed findings of fact Nos. 1 and 2, Mr. Currow was a paid employee for less than nine years. Petitioner's proposed findings of fact Nos. 3, 4, 7, 9, 10, 11, 12, 13, 14, 15, 17, 18, 20, and 21 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 5 has been adopted, in substance, insofar as material, except for the date. With respect to petitioner's proposed findings of fact Nos. 6 and 8, somebody else was sent to help at one point. With respect to petitioner's proposed finding of fact No. 16, no such termination occurred after November of 1988, except for Mr. Currow's. With respect to petitioner's proposed finding of fact No. 19, the evidence did not show that the hearing impairment was age related. Respondent's proposed findings of fact Nos. 1, 2, 4, 9, 10, 11, 12, 13, 14, 15, 18, 24, 25, 26, 27, 28 and 30 have been adopted, in substance, insofar as material. With respect to respondent's proposed findings of fact Nos. 3 and 33, numerous instances of students' going unsupervised were proven, including a 45-minute lapse by Mr. Grizzard. With respect to respondent's proposed findings of fact Nos. 5, 6, 7 and 8, nobody present at the time testified to these events. With respect to respondent's proposed finding of fact No. 16, the letter did not warn "that any further occurrence . . . would result in disciplinary action or termination." With respect to respondent's proposed finding of fact No. 17, it was not shown this was attributable to supervision as opposed to insubordination problems. Respondent's proposed findings of fact Nos. 19 through 23 pertain to subordinate matters. With respect to respondent's proposed finding of fact No. 29, petitioner was not offered work in a residential program. With respect to respondent's proposed finding of fact No. 31, Prevost was hired before July 3, 1989. With respect to respondent's proposed finding of fact No. 32, Penland assumed some of petitioner's duties. COPIES FURNISHED: Ronald M. McElrath, Executive Director Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, FL 32399-1570 Rhonda S. Clyatt, Esquire P.O. Box 2492 Panama City, FL 32402 E. John Dinkel, III, Esquire Macfarlane, Ferguson, Allison & Kelly P.O. Box 1531 Tampa, FL 32601 Dana Baird, Esquire Harden King, Esquire 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
The Issue The issue is whether the termination of Respondent, Barbara Paul, by Petitioner, "for cause," was justified.
Findings Of Fact Respondent Barbara Paul is a teacher covered under the Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197 (1941), as amended ("Tenure Act") and the Collective Bargaining Agreement ("CBA") between Duval Teachers United and DCSB for 2006-2009. Respondent is a tenured or experienced contract teacher, who can only be terminated for "just cause" as defined in the Tenure Act and the CBA. Respondent has used the word "boy" on more than one occasion to address male students. Respondent has told a female student to "shut her mouth" or "shut her face." Respondent worked for DCSB as a full-time "tenured" teacher during the 2006-2007, 2007-2008, and 2008-2009 school years. Respondent, originally born in Jamaica, moved to the United States in March 1989, where she has remained since that time and, with the exception of one year in 1998, has been employed as an English/Language Arts ("E/LA") teacher for DCSB. E/LA consists of primarily literacy, English, grammar, some writing skills, and aspects of reading. During the 2008-2009 school year, Respondent, a "tenured/professional contract" teacher, was certified by the Florida Department of Education (FDOE) to teach language arts and was assigned to teach creative writing to 12 and 13-year-old students (sixth grade) at Paxon. DCSB is a duly-constituted school board charged with the responsibility to operate, control, and supervise all free public schools within the School District of Duval County, Florida, pursuant to Section 1001.31, Florida Statutes. Pursuant to her contract with DCSB, and consequent to holding a professional teaching certificate issued by FDOE, Respondent was, at all times material, subject to DCSB's rules and regulations as well as all applicable Florida laws and regulations, including Sections 1012.23 and 1012.33, Florida Statutes, and FDOE Rules 6B-1.001 and 6B-1.006. Teachers employed by DCSB are bound by a "Progressive Discipline" Policy, which generally prohibits adverse employment action based on misconduct unless the following steps are taken: (a) a verbal reprimand, (b) a written reprimand, (c) a suspension without pay, and (d) termination. The policy may be disregarded for "some more severe acts of misconduct." Respondent does not dispute that the following steps in the Progressive Discipline Policy were taken, although she disputes the factual particulars of such disciplinary actions: September 2006, Step I Verbal Reprimand, DuPont Middle School, based on inappropriate comments made during a parent conference; October 2006, Step II Written Reprimand, DuPont Middle School, based on inappropriate, racial comments to students; May 2007, Step III Five-Day Suspension, DuPont Middle School, for battery upon a student; February 2008, Step II Written Reprimand, Paxon Middle School, for threatening to shove a broom down a student's throat. If the instant charges are supported, Respondent's misconduct during school year 2007-2008 would constitute "Step Three," the final step of the Progressive Discipline Policy, which justifies termination of her employment. The instant charges are based on an incident that occurred on March 19, 2009, at Paxon. During the fourth period (toward the end of the school day), six students reported to the sixth-grade administrative office at Paxon and reported that their creative writing teacher, Respondent, would not allow them into her classroom. Ronnie Williams was the assistant principal and the sixth-grade house administrator at that time. Mr. Williams instructed the school's security officer, J.R. Johnson, to escort the students back to the classroom to find out what was going on, because they had no passes or referrals from the teacher, as required by school policy. Mr. Johnson returned about 15 or 20 minutes later with the students and reported that, contrary to school policy, Respondent still refused to allow them back into her class, and that she stated she would be writing them referrals. Two of the students, K.W. (female) and D.P. (male), told Mr. Williams that Respondent had pushed K.W. and also stepped on K.W.'s foot. D.P. stated that Respondent had hit him in the face with a book. After that, because of the seriousness of the allegations, Mr. Williams asked each student to complete a written statement of what they observed in the classroom. The students were kept separated from one another while they wrote their statements, so that Mr. Williams could observe them. Mr. Williams testified that the children did not have an opportunity to speak with one another or to compare statements, and did not collaborate in any manner when the written statements were done. Mr. Williams then individually interviewed each student. Each of the student's statements was consistent with one another and with K.W.'s and D.P.'s accounts. According to the students' written statements (all of which were entered into evidence without any objection from Respondent) and interviews, D.P. and K.W. had entered Respondent's classroom before the final bell had rung. After she entered the class, K.W. realized she had left her purse with another student and stepped out of the class to retrieve it. D.P. reported that he asked Respondent for permission to go the restroom, which she granted. Both children had put their book bags and books down in the classroom. D.P. reported that when he returned, there was a line of students about four or five deep waiting outside the classroom trying to get in. Respondent was standing in the doorway blocking their entrance and trying to close the door against the students. D.P. went around the line to try to get back in the classroom, reminding Respondent that she had given him permission to go the restroom. Nonetheless, she would not let him back in. Instead, she twisted D.P.'s arm to remove his hand from the classroom door handle, pushed him back and back-handed him with a book across the bridge of his nose and his face. When K.W. tried to enter the classroom to retrieve her book bag, Respondent yelled at her and pushed her back with her forearm and elbowed her two or three times in the chest and in the course of doing so, Respondent also stepped on K.W.'s foot and scratched her. After striking K.W. and D.P., Respondent pushed them out of the classroom door and sent them and four other children to Mr. Williams, the sixth-grade house administrator, without passes or referrals. The following morning, Mr. Williams sent an e-mail to the principal, Dr. Darrell Perry, summarizing the incident. Mr. Williams described a telephone conversation he had with Ms. W. (mother of K.W.), in which Ms. W. told Mr. Williams that her daughter reported to her that Respondent had made several derogatory racial comments to students in class, including using the phrase "negro power," which Ms. W. found to be offensive. The mothers of both K.W. and D.P. came to the school to complete statements. Ms. P. also filed a formal complaint against Respondent to the DCSB police officer on duty at Paxon, Officer Green. Mr. Williams received a referral from Respondent concerning K.W. on the date of the incident, Thursday, March 19, 2009, but did not receive a referral concerning D.P. until Monday, March 23, 2009. Mr. Williams concluded from this delay that "the reason the referral [for D.P.] was written was because there were allegations made against Respondent from D.P." Mr. Williams also observed on the date of the incident a recent scratch on K.W.'s arm that K.W. told him was caused by Respondent. Respondent called Ms. P. (mother of D.P.) on March 19, 2009, telling her that Respondent was writing her son up for skipping class. When Ms. P. tried to ask her about the details, Respondent proceeded to talk about other students in her class. When Ms. P. asked Respondent to tell her what happened with her son, Respondent got short with her and hung up. About five or ten minutes later, her son, D.P., called her and told her that when he got to the classroom, he asked Respondent for permission to go to the restroom, which Respondent granted. When he returned to the classroom, there was a line of children at the door of the classroom trying to get in, and Respondent was in the middle of an altercation with another female student, K.W. Respondent and K.W. were "going back and forth," and D.P. said that he saw Respondent push K.W. and then step on K.W.'s foot. When he tried to enter the classroom, Respondent pushed him and hit him in the face with a book. When Ms. P. returned home, she received a call from Ms. W., the mother of K.W. Prior to the telephone conversation, Ms. P. had never spoken to Ms. W. They did not know each other because they lived in different parts of town. D.P. and K.W. did not have a chance to speak with each other after the incident, because it was the end of the day and Ms. P picked up her son from the office when he telephoned her. The story K.W. told her mother concerning the incident with Respondent was the "same exact thing that my son had just told me when I picked him up from school and when he had called me." Prior to this incident, D.P. had received only one referral at any time in his school history for an altercation with another student. Ms. P.'s testimony was consistent with the written statement that she made on March 20, 2009, the day after the incident. At the hearing, D.P. testified that after the warning bell had rung, but prior to the late bell ringing, he asked Respondent if he could leave the classroom and go to the restroom. Respondent said yes. When he was trying to get back into the classroom, another student was also trying to get into the class to get her things. Respondent was pushing her and stepped on her foot. When D.P. tried to go in, Respondent pushed him and then she hit him in the face with a book. D.P., a small-framed, 11-year-old male of only about five feet tall at the time of the incident, demonstrated how Respondent had hit him, and described the book she used as an oversized literature book with a hard cover. He demonstrated and testified that Respondent hit him with the book across the face, striking him in the nose, that it hurt him when she struck him and that it looked like it was intentional on her part and not an accident. D.P.'s testimony was consistent with the written statement he made to Mr. Williams on the day of the incident. Upon receipt of the incident report, DCSB's Office of Professional Standards (OPS) initiated an investigation. The investigation was primarily handled by OPS Investigator John G. McCallum, an experienced former detective with the Jacksonville Sheriff's Department and investigator with the State Attorney's Office, now serving DCSB. While the principals generally handle Step I and Step II disciplinary actions, OPS normally investigates more serious cases, such as the instant case, alleging a battery on a student. Within days of the incident, on Monday, March 23, 2009, Mr. McCallum went to the school and interviewed Assistant Principal Ivey Howard, who was in charge of curriculum; Mr. Williams, the sixth-grade house administrator; student- victim K.W.; student-victim D.P.; Security Officer Johnson; and Christina Price, a reading resource teacher assigned to Respondent's classroom that day. Mr. McCallum also attempted to interview Respondent, but she elected to provide her statement through her counsel. Mr. McCallum also reviewed all the statements that Mr. Williams had received from the students and Ms. P., the mother of D.P. When he individually interviewed students D.P. and K.W., Mr. McCallum asked them also to demonstrate with him what happened, putting Mr. McCallum in the positions that they were in relative to Respondent and the other students. This helps him evaluate witness credibility, in that sometimes a child witness will demonstrate details in the "role play" that he or she may not have put down in the written statement. Similarly, D.P. demonstrated to Mr. McCallum that Respondent "back-handed him" with a workbook across the bridge of his nose and across his face and yanked, twisted, and pulled his arm. Mr. McCallum reported that K.W.'s and D.P.'s verbal statements from his interviews were consistent with their and the other students' written statements. Respondent's version of the events of March 19, 2009, differs dramatically from those of the seven student and two adult witnesses. Respondent asserted that six students were seven minutes late to class, yet she allowed them in the class and wrote their names on the tardy log. She then stated that two students, C.B. and B.P. were "skipping class" and that she saw them at the end of the hallway. Although this detail was not mentioned in her written statement (and is completely contradictory to the testimony of Paxon Principal Darrell Perry), Respondent testified at the hearing that the teachers at Paxon were required to keep their classroom doors locked because "this is the inner city where guns were rampant in our classrooms and outside." She stated that someone knocked on the classroom door, and when she opened it, three students, K.W., D.P., and V.C. (a male student), ran out of her classroom. She then said that the three students stopped "at my door," and K.W. tried to come back in to get her "stuff" from the room and in doing so "slammed" her body into her and cursed at Respondent, demanding her "stuff." Respondent claims to have received an injury from that contact which was treated at an emergency walk- in medical clinic later that evening. She further testified that V.C. and D.P. "forcefully kept the door ajar" as she attempted to close it "to diffuse the situation." Further, contrary to all of the students' statements, Respondent denies pushing or striking any student, although she admits she may have "accidentally" stepped on K.W.'s foot. In her written statement, she asserted that she "wrote referrals on all students who were outside, except A.W." In fact, the only referrals she wrote were for K.W. and D.P. Mr. McCallum found the interviews with the two student victims to be credible and consistent. Conversely, he found Respondent's statement to be markedly distinct from the other statements. Respondent's claim that she was injured and sought medical treatment is doubtful when she failed to report any such claim to the school's administration nor produce at any time any records or medical reports to support this claim. Prior Discipline: A Pattern of Similar Misconduct Paxon Middle School – February 2008 (Step II Written Reprimand) Respondent was hired by Dr. Darrell Perry, principal of Paxon, to teach English and Language Arts to sixth-grade Paxon students beginning with the 2007-2008 school year, which was also Dr. Perry's first year at Paxon. Dr. Perry selected Respondent from the "voluntary surplus list" and interviewed her for the position. Based on her experience as a "seasoned English language arts teacher," he hired Respondent. Dr. Perry was aware of Respondent's prior disciplinary history when he brought her to Paxon, partly because Respondent had to serve out a suspension she received while at DuPont the prior school year for a Step III disciplinary action charging battery upon students. Notwithstanding her prior disciplinary history, Dr. Perry testified that he believed Respondent possessed the right skills and was willing to give her an opportunity to grow in a different setting. Nonetheless, on May 24, 2008, Dr. Perry issued to Respondent a Step II Written Reprimand for Respondent's "inappropriate and offensive" remarks made and actions taken with female student, A.H., on February 14, 2008, in which A.H. alleged that Respondent placed a broom handle in A.H.'s face and stated, "I will shove this broom down your throat." Before issuing the discipline, however, Dr. Perry referred the matter to the OPS (Director John Williams and Investigator Leroy Starling) to investigate. Based on their investigation, interview of Respondent, and review of witness statements, Investigator Starling issued his report sustaining the allegations. Allen Moore, who was, at the time of the A.H. incident, assistant principal at Paxon and eighth-grade house administrator, performed the initial investigation of the alleged misconduct, which was part of his responsibilities as house administrator. Mr. Moore recalled that A.H. came to his office, directly from Respondent's class, and told him that after a verbal exchange between the two, Respondent held a broom handle in A.H.'s face and threatened to shove the broom handle down her throat. Mr. Moore then selected at random five other students from Respondent's class, those whom he knew to be credible and good students, and separately interviewed them and asked them to prepare statements. He also asked A.H. to prepare a written statement. Each student confirmed A.H.'s statement that Respondent threatened to put the broom handle down A.H.'s throat. Mr. Moore concluded that the incident took place as A.H. had stated. In direct contrast to this set of facts, according to Respondent, one of the other female students in the class picked up the broom and asked if she could sweep the floor. Respondent testified that she thought the student was going to hit A.H. or sweep her feet, because A.H. had tripped her. She asked the student to put the broom away. Respondent took the broom from her and was on her way to put it away, stating that she was walking away from A.H., when A.H. began cursing at her, telling Respondent to move or she would "beat" her "a - - " with the broom. Respondent stated that she responded: "and what should I do, stick [the broom] in your mouth?" With respect to the level of discipline he gave to Respondent for the incident, a Step II Written Reprimand, Dr. Perry testified that while he could have given her a Step III termination based on the allegations of the A.H. incident and Respondent's previous Step III discipline issued at Dupont for similar behavior, he decided to give her a Step II. Dr. Perry believed Respondent had some strengths that she could contribute at Paxon. He hoped to rehabilitate her. Shortly before the end of the 2006-2007 school year and before requesting a voluntary transfer to Paxon, Respondent received a five-day suspension for battery upon two DuPont students and for physically blocking another student from leaving her classroom in three separate incidents that took place within days of one another, on April 24, May 2, and May 3, 2007. April 24, 2007 - Alleged Battery of Female Student P.C. In the first occurrence on April 24, 2007, a female seventh-grade student, P.C., was trying to leave Respondent's classroom. P.C. reported that in an attempt to keep her from leaving the classroom, Respondent grabbed P.C.'s ID lanyard, which was around P.C.'s neck, as P.C. walked by Respondent and Respondent yanked her back, leaving her with a rope burn mark on her neck. P.C. reported the incident right away to Assistant Principal Shannon Judge, who testified at the hearing and, shortly after the occurrence, had prepared a written statement to then-school Principal Gary Finger summarizing the incident and her investigation. P.C. stopped Ms. Judge in the hallway, coming straight from the classroom moments after the incident with Respondent, and was visibly upset. P.C. told Ms. Judge that Respondent had stopped her from leaving the room and had grabbed her by her badge as she attempted to leave, which she wore on a lanyard around her neck. P.C. said to Ms. Judge, "look at this," and P.C. turned around and held up her hair in the back. Ms. Judge could see "one dark red line and a smaller red line" on the back of P.C.'s neck, which was not a cut, but which looked like a "burn" where the lanyard had been pulled. P.C. told her that some students had been told by Respondent to stay after class, but that P.C. was not one of them. When P.C. tried to leave the classroom, Respondent blocked the doorway. As she attempted to go around Respondent, Respondent grabbed her ID lanyard. Ms. Judge, who was on her way to another assignment in the lunch room, instructed P.C. to go to Ms. Judge's office and fill out an incident form. When Ms. Judge returned to her office approximately 45 minutes later, she reviewed P.C.'s statement, interviewed her, and took a photograph of the marks on the child's neck, which by then had somewhat faded. P.C. had listed some witnesses in the classroom to the event, whom Ms. Judge interviewed and asked to complete written statements. Ms. Judge also "pulled some random kids from the class" who were not listed on P.C.'s list, each of whom also individually gave written statements and were separately interviewed by Ms. Judge. Ms. Judge also called Respondent and took a verbal statement from her over the telephone. Respondent relied upon her written statement made through her attorney, delivered to DCSB nearly three months later on July 16, 2007, concerning the incident with P.C. Respondent admitted she did have "words" with P.C., and that P.C. was trying to leave her class when she was not supposed to, but that she had not grabbed P.C. by her lanyard. Perhaps, she stated, her lanyard "got caught" on Respondent's arm as P.C. tried to push past her. In her written statement, Respondent also speculated that the marks on P.C.'s neck may have been "self-inflicted or occurred at another time and place." When further questioned about that statement at the hearing, Respondent replied: "She did yank on her lanyard, but I don't know if that was sufficient to leave a mark." When questioned whether Ms. Judge would have any reason to lie about what P.C. told her and the marks on P.C.'s neck that Ms. Judge observed, Respondent replied: "I don't know of any reason." Respondent's statement and testimony, with no evidence to support it, does not support her version of the events. Based on Ms. Judge's investigation, the consistency among all the student witness statements with P.C.'s account, the fact that P.C. was a good student who rarely, if ever, received any referrals or got into trouble, and Ms. Judge's observation of the red marks on P.C.'s neck within moments after the altercation, Ms. Judge concluded that the P.C.'s allegations were substantiated and recommended to Mr. Finger that Respondent should be disciplined for her actions. May 2, 2007 – Alleged Battery of Male Student D.W. On May 2, 2007, within days of the P.C. incident, Respondent had taken her class out into the hallway so that some of the children could use the restroom. One of the male students, D.W., came out of the restroom, and, according to Respondent, she thought he had not washed his hands and was attempting to wipe his hands on Respondent. Carmen Polenco, a science and math teacher for seven years at DuPont and a former director of a program in New York treating women dually diagnosed with psychiatric problems and drug additions and their infant children, was coming out of the administrative office on May 2, 2007, and walking down the main hallway where Respondent and her students were located. As Ms. Polenco approached, she heard students yelling "let him go, let him go" and saw that Respondent had grabbed a male student, D.W., by the collar of his shirt held up around his throat and was pushing him backwards down the hallway toward Ms. Polanco, saying something like "Oh, no you won't" to the student. Ms. Polanco demonstrated at the hearing how Respondent was holding D.W. with one hand around his shirt collar and her other hand in the air. Ms. Polanco told Respondent to stop, and she let D.W. go. D.W. yelled to her, "she grabbed me and she wouldn't let me go and I was scared she was going to hit me." After Respondent let D.W. go, Ms. Polanco noticed that Respondent had scratched the student's neck and broken his necklace. Respondent told Ms. Polanco that the student had placed his hands, open palm on the top of her shoulder. Respondent was "very angry" by this and proceeded to grab him, because, as she stated to Ms. Polanco at the time, "I did not want his dirty hands on me." Ms. Polanco also made a written statement to Assistant Principal Steele the day after the incident. Mr. Steele had also observed some of the incident, and had also memorialized his observations in a memorandum to Mr. Finger one day later. Respondent's version of events again differs dramatically from all the other witnesses' testimony. Again, Respondent relied on her written statement of July 16, 2007, which she affirmed at the hearing. Respondent admitted that she held D.W. by his lapel (not his collar), but stated that she was walking with him "side by side," and not walking him backwards down the hallway as Ms. Polanco observed. At the hearing, Respondent did not have any explanation for Ms. Polanco's contradictory testimony other than that she "was not within close proximity enough to see what happened." In light of Ms. Polanco's testimony that she had a clear view of exactly what Respondent was doing, and the other witness testimony, Respondent's testimony is not credible. May 3, 2007 – Blocking Student's Exit One day later, while he was still in the process of writing up Respondent for the previous two incidents, Mr. Finger received a phone call in his office from Respondent telling him that one of her students would not leave her classroom. When he got there, Mr. Finger took the student out in the hallway and asked him why he did not leave the room. The student responded that it was because Respondent was blocking the door and would not let him out. Mr. Finger then selected some other students at random from the class to find out if the student was telling the truth, and the other student statements were consistent – that Respondent had blocked the door. Respondent's statement summary as to these three incidents is typical of her response of outright and blatant denial to all of the allegations of misconduct that have been lodged against her over a period of years and across two schools and administrations. Despite credible evidence to the contrary, Respondent has repeatedly placed the blame on the very students that she victimized. As a result of the three incidents, on May 23, 2007, Mr. Finger recommended that Respondent receive a Step III five- day suspension, which was approved by DCSB, and which Respondent served out after she voluntarily transferred to Paxon. DuPont Middle School – October 2006 (Step II Written Reprimand) Respondent received a Step II Written Reprimand for comments that she made in class and during a parent-teacher conference in October 2006, in which Mr. Finger and then- Assistant Principal Loretta Hines were also present. The meeting was initiated by the female parent when her son came home and told her that Respondent exhibited prejudicial behavior toward the African-American children as compared to the white children, and made racist comments in the classroom. For example, the child told his mother that Respondent would let the white children go to the bathroom, but not the African-American children, and that she told a white student that she had to send him to a "time-out" because she didn't want the others to think she was a racist. She also referred to African-Americans as "negroes" and called male black students "boy." During the conference, Respondent told the parent that she had no problem referring to African-American male students as "boy" because in her country of origin, Jamaica, this was not an offensive salutation. Respondent made other comments in the conference that angered the parent, and "embarrassed" and "disgusted" Ms. Hines and Mr. Finger. At that time, Respondent had been in the United States for approximately 16 years. Respondent stipulated that she used the term "boy" to address male students, but denies she used it specifically with African-American male students. At the hearing, rather than testify concerning the specific allegations of her misconduct, Respondent "reaffirmed" the written statement she made to Principal Finger on October 18, 2006, in which she denied being a racist, although she admitted that "sixteen years should be long enough to be able to use the proper terminology. However, habits do not just disappear overnight." DuPont Middle School – September 2006 (Step I Verbal Reprimand) Respondent received a Step I verbal warning for telling students to "shut their mouths" or "shut their faces." In her written statement, Respondent stated that she told a female student on at least one occasion to "shut her face because her face was in mine." She also stipulated to this fact in her pretrial stipulation.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Duval County School Board enter a final order terminating the employment of Barbara Paul as a teacher. DONE AND ENTERED this 6th day of May, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2010. COPIES FURNISHED: David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Carol Mirando, Esquire City Hall St. James Building 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ed Pratt-Dannals, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207
