Findings Of Fact Background Respondent is a teacher certified in English, which he has taught while employed by Petitioner. He was first employed by Petitioner during the 1984-85 school year. In 1987, he was awarded a professional service contract. He has six years' teaching experience outside Highlands County. Principals or assistant principals routinely conduct annual teacher evaluations. The evaluation form contains two sections. Section 1 contains 14 categories that are marked based on one or more classroom observations. Section 2 contains 15 categories that are marked based on classroom observations and experience with the teacher. The back of the evaluation form explains the marks as follows: Mark Description Commendable (C) Indicates exceptional performance of the identified behavior(s). Satisfactory (S) Indicates satisfactory performance of the identified behavior(s) Needs Improvement (NI) Indicates a need for the employee to strengthen/improve performance of the identified behavior(s). Must Improve (MI) Indicates a need for the employee to remediate deficient behavior(s). If the deficiency is not corrected, the employee's contract status could be affected. The back of the evaluation form explains the "NEAT Procedure/Due Process": When an employee is evaluated as Must Improve, remediation procedures must be implemented as follows: Notice--The employee has the right to receive full written notification of the identified deficient behaviors. Explanation--The employee has the right to receive a full explanation for the reason behaviors are considered deficient. Assistance--The employee has the right to receive assistance in remediating the deficient behavior. Time--The employee has the right to a reasonable amount of time to achieve remediation. Various documents exist to normalize the evaluations of teachers. However, a degree of subjectivity necessarily remains in the evaluation process. Petitioner has prepared a booklet entitled, "Performance Appraisal System for Instructional Personnel" (Appraisal Booklet). The Appraisal Booklet introduced into evidence is dated October 5, 1992, but, judging from the cover letter from the superintendent, was in effect for the entire 1992-93 school year. The Appraisal Booklet contains, at page 12, a section describing the assessment process. The booklet states in part: When a competency or behavior is marked "NI-Needs Improvement," the appraiser shall provide counseling and/or resources whereby improvement may occur. For each competency or behavior which is marked "MI--Must Improve," a remediation procedure must be designed and implemented. The procedures will be described in a Professional Development Plan, as called for in the NEAT procedures. Each deficient item shall be addressed in a separate [Professional Development Plan]. The plan shall include the following: Area to be improved: specify the identified problem. Specific desired improvement: write as a measurable goal or objective. Action to be taken: describe action the involved parties will complete to achieve desired improvement. Assistance plan: List and describe who will provide assistance, showing role of each participant. Time line: specify dates for each activity to be completed and evaluated. Evaluation: describe how and when evaluation of progress or success will occur. Consequences: specify consequences if improvement is not achieved satisfactorily. The Appraisal Booklet contains, at page 15, a section entitled, "Use of Assessment Data for Personnel Decisions." This section requires written comments for every C, NI, or MI. Under a subsection entitled, "Unsatisfactory Ratings," the Appraisal Booklet states in its entirety: For every MI assigned, the assessor will conduct a follow-up of the Professional Development Plan to determine if the appraisee accomplished the required improvement and/or when that competency will be reassessed. Failure to improve within the expected time may be grounds for returning to annual contract for an employee holding a Professional Service Contract or a Continuing Contract. If the deficiency is not corrected during the second year, it may be grounds for non-renewal. (See NEAT) If the appraisee receives two consecutive unsatisfactory annual evaluations, the superintendent shall notify the Department of Education as required by statute. On [the evaluation form] three or more ratings of MI . . . will constitute an "unsatisfactory annual evaluation" for purposes of reporting to the DOE. The Appraisal Booklet discusses C's. Nothing in this section of the booklet explicitly addresses NI's except, as noted above, that comments must accompany each NI. The contract between Petitioner and the teachers discusses evaluations, but not in such detail as to address the meaning of NI's and MI's. Concerning remediation, the contract states: Where deficiencies are brought to the teacher's attention by his/her supervisor, the teacher shall be responsible for taking the necessary steps for improving his/her skills to an acceptable level as determined by the principal. Assistance shall be offered the employee and such assistance for improvement shall be noted in writing and a signed copy be retained by the appropriate supervisor and the employee. Following remediation, reassessment shall be accorded the employee in compliance with the procedures of Article XI. If the final assessment report fails to note specific deficiency, it shall be interpreted to mean adequate improvement has taken place. The professional judgment of the evaluator shall not be subject to the grievance procedure. The contract acknowledges that it shall not be interpreted to abridge or in any way usurp the authority or power of [Petitioner] as established by constitutional provisions or state Board of Education regulations or statutes existing at the time of the [contract]. And further, [Petitioner] shall be relieved of compliance with any term or condition of this [contract] if such compliance is contrary to any constitutional provision or state Board of Education regulation or statute in effect or enacted subsequent to the signing of this [contract]. Petitioner has no clear written or unwritten policy regarding whether a performance deficiency evidenced by an MI is corrected by an NI, rather than a C or an S. The determination whether a teacher has corrected performance deficiencies depends on the circumstances. The Lake Placid Teacher Handbook for the 1992-93 school year, a copy of which was given to Respondent at the beginning of the year, notes that teachers are to administer their assertive discipline plan and enforce all school rules. Regarding student control, "teachers must not argue with students, use profanity or sarcasm, and must keep hands off students." Petitioner's Code of Student Conduct for the 1992-93 school year describes the teacher's role in the maintenance of discipline as starting with the preparation of a classroom assertive discipline plan, which outlines a series of increasing consequences for disciplinary problems. Under the first step, the teacher will follow his or her plan, which may contain consequences such as withholding a privilege, isolation, counseling, detention, extra work, task assignment, or a parent conference. Under the second step, if the misconduct is repeated, the teacher shall try to contact the parent and record the result. Under the third step, the teacher will refer the matter to the social worker, school nurse, Guidance Committee, or School Attendance Review Committee for positive intervention. Under the fourth step, if the problem persists or the misconduct becomes a major disruption, the teacher will complete a student disciplinary referral form and a school administrator will determine the appropriate punishment. Evaluations Prior to 1991-92 School Year Respondent's evaluation dated November 13, 1985, contains all S's with the exception of an NI for circulating and assisting students. The evaluation was prepared by Donn Goodwin, an assistant principal at Sebring High School where Respondent was then teaching. Respondent's evaluation dated March 5, 1986, contains all S's except for C's in demonstrating friendly, positive attitude toward all students; maintaining academic focus; using effective questioning techniques; providing for practice; dependability; and punctuality/attendance. The evaluation contains one NI for parent/community relations. The comment accompanying the NI is obscured, but suggests that Respondent did not schedule enough parent conferences, although he did a good job with those that he conducted. The evaluation was prepared by James Bible, the principal of Sebring High School. Respondent's evaluation dated September 4, 1986, contains all S's except for C's in demonstrating effective communication skills, presenting subject matter effectively, maintaining academic focus, arranging physical features of the classroom for a safe learning environment, dependability, work attitude, and commitment. A note at the bottom of the evaluation states that Respondent maintained an "excellent class." The evaluation was prepared by Michael Agner, an assistant principal at Sebring High School. Respondent's evaluation dated February 25, 1987, contains all S's except for C's in maintaining academic focus and maintaining effective classroom control and an NI in using specific academic praise. The evaluation was prepared by Mr. Bible. Respondent's evaluation dated April 6, 1988, contains all S's except for C's in demonstrating effective communication skills, having materials ready, maintaining academic focus, using effective questioning techniques, punctuality/attendance, quantity/quality of work, commitment, and professional behavior/ethics. The evaluation was prepared by Mr. Bible. Respondent's evaluation dated February 28, 1989, contains all S's. A comment under parent/community relations notes: "Need to continue working in this area. Parental support helps your teaching." A comment under student/staff relations adds: "Need to be mindful of backing students in corners with no alternatives." The evaluation was prepared by Mr. Bible. Respondent's evaluation dated October 17, 1989, was obscured in the copying process. It appears to contain all S's with some C's in Section 1. The evaluation was prepared by Thomas Knowles, an assistant principal at Sebring High School. Respondent's evaluation dated October 3, 1990, contains all S's. The evaluation was prepared by Ruth Hatfield, then an assistant principal at Sebring High School. Respondent's evaluation dated February 20, 1991, contains all S's except for C's in having materials ready and circulating and assisting students and NI's in punctuality/attendance, student/staff relations, personal appearance, and receptiveness. Among the comments under Section 1 is that the observer did not see Respondent's assertive discipline rules posted. Section 2 comments are that Respondent was often late and "very defensive--refuses criticism." Under student/staff relations, the comment is: "Alienates students. Backs up kids in corners. Need to be aware of this." Another comment suggests a need to dress more professionally. The final comment states: "Need to work on areas that deal with students and parents." The evaluation was prepared by Mr. Bible. A letter dated May 13, 1991, memorializes a conference that took place on May 9, 1991, between Respondent and Rebecca Clark, another assistant principal at Sebring High School. The letter states that Ms. Clark had noticed Respondent leaving his class while two guest speakers were making a presentation. Upon questioning, Respondent said that he had to run a quick errand and would be right back. Ms. Clark remained in the classroom until the end of the period, at which time Respondent returned. The letter warns Respondent that he must remain with his class and may not leave campus without prior authorization from an administrator. Evaluations During 1991-92 School Year A new principal, Calvin Smith, replaced Mr. Bible at Sebring High School for the 1991-92 school year. Mr. Smith conducted Respondent's next evaluation, which was dated December 2, 1991. Based on an observation taking place during a 50- minute period on November 26, 1991, Respondent received all S's in Section 1 except for a C in presenting the subject matter effectively and an NI in using specific academic praise. In Section 2, Respondent received S's in only five categories: keeping accurate records, punctuality and attendance, initiative, student evaluation, and professional growth. Receiving no C's in Section 2, Respondent received three NI's in personal appearance, receptiveness, and commitment and seven MI's in dependability, work attitude, parent/community relations, student/staff relations, quantity/quality of work, planning, and professional behavior/ethics. The comments for the NI's are brief and in handwriting. Under receptiveness, the comment is: "seem[s] to be afraid of dealing with a problem. I am only trying to make you a better teacher." The comment under commitment states: "dedicate yourself to your job. You have too much talent to waste." Each MI is treated in a separate Professional Development Plan. The Professional Development Plans, which are attached to the December 2 evaluation, consist of several parts: "area to be improved," "desired improvement," "action to be taken," "who will provide assistance," "time line for achieving objectives/goal/improvement," "evaluation process to determine improvement," and "consequences if improvement is not satisfactorily achieved." Under parent/community relations, the desired improvement is: "When dealing with parents you must exhibit an air of professionalism but be understanding." The action to be taken is: "Schedule parent conferences as needed to resolve situations with students. Apologize for your actions if need be and start over with the situation." Under dependability, the desired improvement is: "Should show he is able to be counted on without constant badgering." The action to be taken is: "Submit lesson plans on time. Supply I[n] S[chool] S[uspension] students with work when requested. Meet with parents without being directed to do so. Learn to deal with students as an adult rather than getting into shouting matches, etc." Under student/staff relations, the desired improvement is: "Show you understand students by working with them in correcting deficiencies." The action to be taken is: "Don't get in students['] faces and yell at them. Don't allow things to go on and then establish a rule of the next one goes to the office. Learn to deal with student problems rather than expecting the office to handle the problem." Under work attitude, the desired improvement is: "Show that you like what you do. Turn students on to your subject. Work on faculty relations." The action to be taken is: "Be cooperative in dealing with parents, students, and faculty members. Present an atmosphere of enthusiasm that is contagious and infectious to those around you." Each Professional Development Plan states that assistance or training would be provided if requested by Respondent. For student/staff relations, the plan states: "Inservice will be provided by administrators as requested and a workshop may be recommended." Similar language is contained in the plan for work attitude. Under time line for achieving objectives/goal, improvement, each Professional Development Plan states: "Should show some immediate improvement but enough improvement must be shown prior to evaluation in 92/93 school year to remove the MI." Each Professional Development Plan describes the evaluation process to determine improvement as: "List kept of ineffective behaviors. [Respondent] will be given a copy of each item placed in folder." Each Professional Development Plan warns that, "if improvement is not satisfactorily achieved," there will be a "recommendation to place [Respondent] back on annual contract." By letter dated December 16, 1991, Mr. Smith refers to the evaluation and the evaluation conference that took place on December 5, 1991. The letter notes that one of the Professional Development Plans required Respondent to supply in-school suspension students with work when requested. The letter acknowledges that Respondent had said at the conference that he would take care of all of the MI's. The December 16 letter notes that Respondent had already failed to provide make-up work for five named students who had been sent to in-school suspension. Students punished by in-school suspension are prohibited from attending their classes, but are sent to another part of the school. It is important for their teachers to provide their assignments, so the students can study the same materials that the teacher is presenting to their classes. The December 16 letter concludes: "Repeated cases of this problem will lead to my recommendation to the superintendent that you be suspended without pay for five (5) days for gross insubordination." Respondent received a second evaluation from Mr. Smith during the 1991-92 school year. Dated March 3, 1992, the second evaluation is slightly worse than the first. Section 1 contains the same C for the presentation of the subject matter and NI for using specific academic praise. A new NI appears in Section 1 for demonstrating friendly attitude toward all students, and a new MI appears for maintaining effective classroom control. The new MI rating appears to be based in part on Respondent's allowing several students to have food and drink in the classroom after telling one student to dispose of his food or drink. In Section 2, Respondent received five S's, as he did in the first evaluation, as planning went from MI to S and punctuality/attendance went from S to NI. Work attitude improved from MI to NI, but personal appearance and receptiveness went from NI to MI. A written comment states that dependability improved some, but not enough to remove the MI. The MI's on the March 3 evaluation are again the subject of attached Professional Development Plans. Under dependability, the desired improvement is: "Show you are able to be counted on without constant badgering." The action to be taken is: "Learn to deal with students without being sarcastic or getting into shouting matches. Student and parent complaints are numerous." Under parent/community relations, the desired improvement is: "Exhibit an air of professionalism in meetings with parents." The action to be taken is: "Schedule parent conferences as needed to resolve situations with students. Apologize for your actions if need be and start over. Show parents you care about their child." Under student/staff relations, the desired improvement is: "Work with students in correcting deficiencies." The action to be taken is: "Learn to deal with student problems. Be more friendly. Be consistent in your discipline but be fair." Under receptiveness, the desired improvement is: "Be able to listen to constructive criticism and follow suggestions made by administration." the action to be taken is: "Follow rules and regulations established for personnel and students at Sebring High School rather than defying directions given by an administrator." Each of the Professional Development Plans states that the administration will provide assistance or training if requested to do so by Respondent. The time line for achieving objectives/goal/improvement is now "immediate" for the cited areas. There is no longer any mention of the removal of MI's, except that the Professional Development Plan for student/staff relations requires: "Immediate improvement--MI must be removed prior to October 92 visitation." The consequence of Respondent's failure to remove the MI's remains returning him to annual contract. The March 3 evaluation is followed by a letter dated March 9, 1992, from Mr. Smith to the superintendent. Mr. Smith writes that Respondent has not improved since the December 2 evaluation and recommends that Respondent be placed on annual contract for the following school year. The Grievance Process On March 13, 1992, Respondent filed a grievance seeking a list of specific remedies for each MI in the March 3 evaluation, adherence to the NEAT procedure, a reconfirmation of the deadline stated in the December 2 evaluation of 1992-93 "for remediation," withdrawal of the recommendation that Respondent be returned to annual contract, and transfer of Respondent to another position where he could be evaluated by someone not part of the current Sebring High School administration. Mr. Smith responded to the grievance with two documents, both dated April 7, 1992. In a three-page memorandum, Mr. Smith recounted the December 2 evaluation, noting that Respondent's "statement to all of this (as he signed the assessment and the PDP's) was, 'You mean all I have to do is correct these and I will get satisfactories?'" The April 7 memorandum notes that the March 3 evaluation was worse than the December 2 evaluation. Despite the fact that, with one exception, the March 3 evaluation did not equate correction with the removal of MI's, the April 7 memorandum states: "[Respondent] still has until the 1992-93 assessment to remove the MI's from his assessment. However, if he does not, he will be notified of non-renewal of a contract for 1993-94." Attached to the April 7 memorandum are "Specific Remedies for Must Improve." These remedies track the areas receiving MI's in the evaluations and discussion in the Professional Development Plans. Under maintaining effective classroom control, the April 7 attachment informs Respondent that he is to ensure that his students follow the rules. Under dependability, the April 7 attachment gives 12 examples of assignments that Respondent must perform. These include timely providing grades for meetings of the School Attendance Review Committee, remaining current with printed attendance sheets, submitting in-school suspension assignments when requested, arriving and leaving on time, not leaving the classroom unattended, and not allowing the students to break the rules. Under parent/community relations, the April 7 attachment states that Respondent should meet with parents at his initiative rather than waiting until irate parents demand a conference after hearing their child's complaints. Also, the attachment advises Respondent to be "gentle" with parents and not be negative. The attachment suggests that Respondent return parents' telephone calls. Under student/staff relations, the April 7 attachment warns Respondent not to back students into a corner. The attachment notes that many reports indicate that Respondent uses sarcasm with students and then disciplines them when they reciprocate with sarcasm. The attachment recommends, "Work on your personality to be more accepting and understanding of students." Under quantity/quality of work, the April 7 attachment suggests that Respondent spend more time on grammar rather than literature alone. The attachment suggests that Respondent should become involved with students' activities so that they know that he cares about them, as well as about what they learn. Under receptiveness, the April 7 attachment notes a lack of desire by Respondent to change his attitude about the providing in-school suspension assignments. Under professional behavior/ethics, the April 7 attachment recommends that Respondent not retaliate against students. It is unclear exactly what Mr. Smith means by "retaliate"; it may mean confront the students in class or respond to the students' sarcasm with sarcasm. By letter dated May 13, 1992, Deputy Superintendent John Martin decided the grievance by determining that Petitioner would grant Respondent a subsequent year of employment, under a subsequent year or annual contract, to correct the indicated deficiencies, and, if Respondent "corrects the indicated deficiencies," he would be given a new professional service contract. The May 13 letter also states that Respondent would be transferred, as he had requested. Respondent chose not to pursue additional grievance procedures available to him, so the grievance was resolved at this point. On May 15, 1992, Petitioner informed Respondent that he had been appointed for a "subsequent year of employment . . . on annual contract pursuant to Florida Statute 231.26(3)(e)." On June 23, 1992, Petitioner and Respondent executed a contract for a "'subsequent year of employment,' as that term is used in 231.36(3)(e), Florida Statutes . . .," for the 1992-93 school year. The 1991-92 School Year During the 1991-92 school year at Sebring High School, Respondent experienced problems in his relationship with the students and parents and in his inability to fulfill certain important responsibilities imposed on each teacher. With students, Respondent was often sarcastic. When the students returned in like kind, Respondent took offense and disciplined them, often with a disciplinary referral to the office. Mr. Smith witnessed a half dozen confrontations between Respondent and students in the main office where Respondent made derogatory remarks to the students. With parents, Respondent often failed to behave professionally in parent/teacher conferences. He walked out on one conference involving a parent who was also a teacher at Sebring High School. He often responded negatively to parents and sometimes failed to follow through on conferences or even return parents' telephone calls. Respondent was often late in fulfilling his duties. He was frequently late in getting his grades or attendance sheets to the Student Attendance Review Committee, which consisted of a guidance counsellor, an administrator, student's teachers, and student's parents who met periodically to discuss a student's attendance problems. Respondent consistently failed to submit assignments for students who had been assigned to in-school suspension. Each of the deficiencies described in the preceding paragraph interfered materially with Respondent's performance as a teacher. With respect to each of these deficiencies, Respondent was materially worse than his fellow teachers at Sebring High School. The resulting evaluations were the worst ever given by Mr. Smith, who describes himself as a hard evaluator. Evaluations During the 1992-93 School Year As Respondent demanded in the grievance, Petitioner transferred Respondent to Lake Placid High School for the 1992- 93 school year. He was assigned to teach English to all of the ninth grade students except those in honors and dropout prevention. On November 3, 1992, Respondent received his first evaluation at Lake Placid High School. He received all S's except for C's in demonstrating effective communication skills, and student evaluations and NI's in maintaining academic focus and maintaining effective classroom control. The evaluation was prepared by David Robinson, who was an assistant principal. On February 25, 1993, Respondent received a second evaluation for the 1992-93 school year. This evaluation, which was prepared by the principal, Roger Goddard, was worse than the first. There were no C's, and there were NI's in demonstrating friendly attitude toward all students, maintaining academic focus, parent/community relations, student/staff relations, receptiveness, and professional behavior/ethics. Under the comments in Section 1 of the February 25 evaluation, a note reads: "Needs skills in [knowing] when to use in-class discipline or office referral." The handwritten comments under Section 2 note that Respondent "had difficulty dealing with parents in conferences an/or returning phone calls" and "lack[s] rapport with students, staff, and administration." The handwritten comments state that Respondent is "many times defensive during conferences with administrators" and "needs a better procedure with make-up work utilizing school policy." By letter dated March 19, 1993, Dr. Goddard informed Respondent that he would be unable to reappoint Respondent for employment at Lake Placid High School for the following school year. Respondent asked Dr. Goddard to perform another evaluation, and Dr. Goddard did so on April 23, 1993. There were fewer NI's than in the February 25 evaluation, but the evaluation was not much better. Under Section 1, Respondent received all S's except for an NI in demonstrating a friendly attitude toward all students. An anecdotal comment adds: "There have been over 70 referrals for discipline during the year. This is as many as 20 other teachers combined." Under Section 2, Respondent received all S's except for three NI's in parent/community relations, student/staff relations, and receptiveness. Accompanying handwritten notes state that Respondent "still shows difficulty in dealing with parent conferences," "still lacks understanding of role of assistant principal [and] staff," and "many times still defensive regarding suggestions from administration." By letter dated April 26, 1993, Dr. Goddard advised Respondent that he could not change his original recommendation given on March 19. The letter states that the recommendation is based on the need for a change in the ability to handle discipline effectively within the classroom, handle parent conferences without conflict, and be receptive to administrative suggestions without a defensive attitude. By letter dated April 30, 1993, to Dr. Goddard, Respondent states, in part: . . . Some administrators are possessed by a sort of spectral indifference, and look at their fellow beings as ghosts. For them, teachers and other staff members are often merely vague shadowy forms, hardly distinct from the nebulous background of such a life, and easily blended with the invisible. But you, Dr. Goddard, are an honorable man and I believe, from our conversations, that you really care about the parents, staff, and students of our school. . . . Respondent's letter to Dr. Goddard discusses the preceding evaluation and asks for an opportunity to continue teaching. By letter dated May 25, 1993, Superintendent Richard Farmer states that Dr. Goddard had informed Mr. Farmer that Respondent had not successfully removed all deficiencies from his evaluation. The letter advises Respondent that his annual contract was expiring, Dr. Goddard had decided not to issue Respondent another annual contract, and, according to Section 231.36(4), Florida Statutes, Petitioner would not issue him a new professional service contract. By notice to the Florida Department of Education dated June 2, 1993, Dr. Goddard advised that, after two consecutive unsatisfactory annual evaluations, Respondent's employment with Petitioner was being terminated or not renewed. The 1992-93 School Year Despite the absence of MI's on the 1992-93 evaluations, the problems Respondent had experienced with students, parents, and administrators in 1991-92 worsened in 1992-93. With respect to relations with students, the basic problem is that Respondent reverted to sarcasm at Lake Placid High School, and his students reciprocated, just as his students at Sebring High School had done the prior year. Sarcasm bred sarcasm, which bred disciplinary referrals--125 of them in fact. Respondent outdistanced his nearest competitor in disciplinary referrals by 2.5 times. On two separate days, Respondent submitted more than 10 disciplinary referrals--more than most teachers submitted all year. As Dr. Goddard's comment notes, Respondent issued more disciplinary referrals than a score of his colleagues. The huge number of disciplinary referrals did not mean that Respondent was maintaining firm control of his classes. To the contrary, he was not able to maintain firm control of his classes, partly due to the atmosphere of mutual disrespect that his sarcasm engendered. The number of disciplinary referrals indicated that Respondent had lost control of the situation and tried to shift to the administrators the job of regaining control of his classroom. A major part of the problem, in addition to Respondent's sarcasm, was his inability to adhere to his own assertive discipline plan. Respondent's assertive discipline plan, which was duly posted in his classroom, contains the following consequences in increasing order of severity: warning, contact parents, detention, and office referral. Sometime during the school year, Respondent switched the second and third consequences, so that he would place a student on detention before he would contact the parents. This change was duly posted in the classroom. Respondent's assertive discipline plan is satisfactory, but he never adhered to it. Sometimes he gave detentions, but then failed to appear at the location where the students were to serve the detentions. Sometimes Respondent simply placed the offending students in the hall where they remained, unsupervised, in violation of school rules. Sometimes Respondent gave warnings, and often he gave disciplinary referrals. But he displayed an aversion to parent/teacher conferences by almost invariably omitting the step that required him to contact a parent. Nearly all disciplinary referrals were made prior to this step taking place, and many were made prior to giving the student a detention. Respondent clung doggedly to his sarcasm despite all efforts to free him from this habitual behavior. Dr. Goddard intervened at one point during a parent/teacher conference and prevailed upon Respondent to stop using sarcasm against the student who was the subject of the conference. Respondent's response was to post a sign in his room indicating a "moratorium" in the use of sarcasm--intentionally implying that the cessation in sarcasm would be temporary. At times, Respondent lashed out at students with hurtful remarks lacking even the thin veneer of humor. He told one student that he would be a serial killer. He told another student that he would never be rich and successful. He repeatedly referred publicly to one student as a witch and asked if she had taken her Midol. In front of another student's mother, as well as other teachers and Mr. Robinson during a parent/teacher conference, Respondent referred to a girl as "bitchy." Respondent refused to accommodate valid student needs, such as the unusual demands placed on one child by a disabled brother. The regressive effect on students of Respondent's embittered and embittering classroom presence was unwittingly reflected in another student's class journal. His early entries demonstrated an emotional vulnerability as he depicted his simple, rural lifestyle; his later entries were defiantly copied out of textbooks, magazines, or encyclopedias. As a result of Respondent's poor relations with students, more than one student quit Respondent's class, even if it meant taking English in summer school or another school or dropping out of high school altogether. One parent checked her son out of school just long enough that he would not have to attend Respondent's class. By the end of the 1992-93 school year, morale among Respondent's students and their parents was a very serious problem. Respondent's relationship with parents was, if possible, even worse than his relationship with students, although his contact with parents was less frequent. During one meeting with a father in the main office, the parent and Respondent had a heated exchange. Mr. Robinson intervened and diplomatically tried to end the conference. After the parent had started to walk away, Respondent restarted the argument and approached the parent until their noses were touching. Mr. Robinson again broke up what had transformed from a conference into a confrontation, and again Respondent reinitiated the engagement. Again, Mr. Robinson had to break up the argument. Mr. Robinson attended another parent/teacher conference in which the mother, according to Respondent, looked at him with "eyes . . . like daggers." (Tr 541) The mother observed that her daughter had no problems in any other classes but Respondent's class. The parent charged that Respondent's class was out of control. Respondent saw that Mr. Robinson was not "going to fulfil his role as mediator," so Respondent got up, announced that "I'm not going to take this damn stuff anymore," and walked out of the conference. (Tr 542) At first glance, Respondent's relationship with the administrators seems better than his relationships with the students and parents, but this is due to the professionalism of Dr. Goddard, inexperience of Mr. Robertson, and uninvolvement of Ms. Hatfield. For different reasons, each administrator at the school responded differently to Respondent's increasingly bizarre behavior and in no case did any administrator at the school ever lose his or her composure in dealing with Respondent. Respondent believes that he has been unfairly treated by every administrator at Lake Placid High School, and at least two at Sebring High School. Interestingly, Ms. Hatfield had given Respondent his last evaluation-- in October, 1990--without an NI or MI. However, without any evident provocation, Respondent demanded that the other assistant principal, Mr. Robinson, handle Respondent's evaluations and disciplinary referrals. Respondent was apprehensive that Ms. Hatfield might be biased due to her past service at Sebring High School. In November, 1992, Ms. Hatfield had a conference with Respondent and cautioned him that she was receiving a number of student complaints about his use of sarcasm. Respondent's reaction was to request that he be evaluated by Mr. Robinson, who was in his first year of service as an assistant principal. In retrospect, Respondent's demand proved unwise. As evidenced by his treatment of another teacher, Mr. Robinson displayed a heightened sensitivity toward humor directed at students, even if the humor did not seem sarcastic at all. Thus, Mr. Robinson's concern about Respondent's sarcasm was not due to bias against Respondent, but was due to Mr. Robinson's concern that students be treated with dignity and respect. But, as noted above, even without Mr. Robinson's heightened concern about humor, Respondent's sarcasm exceeded the wildest imaginable limits. Dr. Goddard intervened after the first evaluation. Respondent's concern about bias defies reason and logic when applied to Dr. Goddard, who counselled Respondent and gave him an opportunity to discover for himself the shortcomings of his defensive style of dealing with students, parents, and administrators. To imply that Dr. Goddard's evaluations were orchestrated by individuals at Sebring High School or the district office is to ignore reality. As discussed in the Conclusions of Law, the very lack of coordination presents legal problems that could have easily been avoided with the smallest amount of coordination. Respondent had trouble with nearly every administrator. And Respondent consistently found himself the blameless target of unwarranted persecution. His paranoia interfered with his ability to do his job. This fact is best illustrated by the time that Dr. Goddard instructed the teachers to clean up their rooms in preparation for a visit that night by the school board. Respondent wrote the following on his chalkboard to be read by the school board members: "The fact that you're paranoid doesn't mean that they are not out to get you." In addition to problems with students, parents, and administrators, Respondent continued to display an inability to fulfill his important responsibilities. He failed to appear at ninth grade orientation at the beginning of the school year, despite the fact that he was a new teacher at the school and taught most of the ninth graders. Respondent routinely failed to supply grades to students for whom guidance counsellors were trying to prepare weekly progress reports in order to monitor the students' progress more closely than is possible with report cards. Respondent was routinely resistant to assigning make- up work. Students would have to pursue him for days to get assignments, until finally Respondent decided to write these up on the chalkboard. On more than one occasion, Respondent's solution--when pushed by parents or administrators--was to avoid the extra work imposed upon him by grading additional materials; rather than assign make-up work or tests, Respondent would simply not penalize the student for the missed assignment, such as by doubling the weight of the next grade. There is no evidence that the administration at Lake Placid High School learned of Respondent's 1991-92 evaluations at Sebring High School until Respondent mentioned them when he received his first evaluation at Lake Placid High School. There is no evidence that the actions taken by the administration at Lake Placid High School were influenced by anything except the Respondent's performance during the 1992-93 school year. Respondent was warned about his problems in evaluations going as far back as the 1980's when Respondent was evaluated by Mr. Bible. The March, 1986 evaluation identifies Respondent's reluctance to deal with parents. The February, 1989 evaluation suggests that Respondent lacked the support of parents and was placing students on the defensive. In the February, 1991 evaluation, Mr. Bible warned Respondent that he needed to improve in several areas, including student/staff relations and receptiveness to criticism from administrators. Again, Mr. Bible pointed out that Respondent was alienating students. Respondent's problems, which culminated in the exceptionally bad evaluations during the 1991-92 school year, largely represented a continuation of problems that had been identified in one manner or another for the preceding five years. But instead of correcting the problems, Respondent had allowed them to get worse. These problems were described in greater detail in the 1991-92 and 1992-93 evaluations due to the deterioration of Respondent's behavior. Petitioner provided Respondent with reasonable assistance in remediating his performance deficiencies. Dr. Goddard made numerous additional visits to Respondent's classroom, and he and other administrators routinely talked to Respondent. After the first evaluation in November, 1992, Mr. Robinson twice recommended to Respondent that he rely on his assertive discipline plan because he was referring too many students to the office. After discovering how poorly Respondent handled parent conferences, administrators ensured that appropriate persons participated in Respondent's conferences to model suitable behavior. In early February, 1993, Mr. Robinson gave Respondent a set of assertive discipline tapes to view to assist in imposing proper discipline in his class. This intervention preceded the February 25 evaluation by almost three weeks. About one week prior to the February 25 evaluation, Mr. Robinson suggested that Respondent attend a workshop on parent/teacher conferences. Respondent attended the workshop. Evidently arranged prior to the February 25 evaluation, Respondent went to a high school in another district to observe a ninth-grade English teacher. The practical effect of this assistance is attenuated by the fact that the February 25 evaluation preceded the visit, although the visit preceded the March 19 non-appointment letter, April 23 follow-up evaluation, and April 26 follow-up letter. The extent of the assistance effectively offered Respondent must be evaluated in the context of Respondent's problems. He was not an ineffective teacher due to an inadequate grasp of the course material or inability to present material imaginatively. To the contrary, Respondent is a highly intelligent, literate individual who is intellectual capable of being an outstanding teacher. If his problems were in his understanding of the material or an inability to find the methods to convey the material to his students, a program of assistance and inservice workshops probably could be designed to provide meaningful help. Instead, Respondent needed to stop disparaging students. He needed to stop confronting parents. He needed to stop ignoring administrators who were trying to stop Respondent from disparaging students and confronting parents. But Respondent simply refused to change his ways, and no amount of videotapes, inservice workshops, school visits, evaluation follow-ups, and informal discussions were going to help. Respondent was given a second chance when he was transferred to Lake Placid High School. But instead of addressing the source of the problem-- himself--he attacked students, parents, and administrators. He avoided performing rigorously all of his teaching duties, such as enforcing his assertive disciplinary plan and its graduated response to misbehavior, promptly providing make-up work, and sending interim grades when needed. Instead, he inexplicably continued to bicker with the students, provoke the parents, and defy the legitimate demands of the administrators.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Highlands County enter a final order not issuing Respondent a new professional service contract. ENTERED on January 13, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 on January 13, 1993. APPENDIX Rulings on Petitioner's Proposed Findings 1-6: adopted or adopted in substance. 7-8: rejected as irrelevant. 9-18: adopted or adopted in substance. 19: rejected as irrelevant. 20-35: adopted or adopted in substance. 36: rejected as irrelevant. 37-39: adopted or adopted in substance. 40: rejected as irrelevant. Nothing requires that Petitioner make "every effort" to help Respondent through the means cited. 41: adopted or adopted in substance. 42: rejected as subordinate. 43-44: adopted or adopted in substance. 45: rejected as irrelevant. 46: adopted or adopted in substance. 47-48 (first three sentences): rejected as irrelevant. 48 (last sentence)-53: adopted or adopted in substance. 54-56: rejected as irrelevant. 57-59: adopted or adopted in substance. 60-61: rejected as irrelevant. 62: adopted or adopted in substance. 63: rejected as irrelevant. 64-65: adopted or adopted in substance. 66: rejected as subordinate. 67-69: adopted or adopted in substance. 70: rejected as subordinate. 71-74: adopted or adopted in substance. 75-76: rejected as subordinate. 77-78: adopted or adopted in substance. 79: rejected as hearsay. 80-85: adopted or adopted in substance. 86: rejected as irrelevant. 87-92: adopted or adopted in substance. 93: rejected as subordinate. 94: rejected as irrelevant. 95-100: adopted or adopted in substance. 101: rejected as irrelevant. In fact, to permit either student to leave the classroom would violate Paragraph 11 of the Classroom Management section of the Teacher Handbook. 102: rejected as irrelevant. Mr. Smith wore sunglasses indoors during part of the hearing. 103-04: rejected as irrelevant. 105: rejected as subordinate. 106-17 (first sentence): adopted or adopted in substance. 117 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 118: rejected as irrelevant and subordinate. 119: rejected as hearsay. 120-34: adopted or adopted in substance. 135-37: rejected as irrelevant. 138: adopted or adopted in substance. 139: rejected as irrelevant. 140: adopted or adopted in substance. 141: rejected as irrelevant. 142-43: adopted or adopted in substance. 144: rejected as subordinate. 145-46: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-7: adopted or adopted in substance. 8-10: rejected as irrelevant. 11-14: adopted or adopted in substance. 15-17 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 17 (second sentence): adopted or adopted in substance. 18-19: rejected as unsupported by the appropriate weight of the evidence. 20: adopted or adopted in substance. 21-22: rejected as subordinate. 23-24: rejected as unsupported by the appropriate weight of the evidence. 25-26: rejected as subordinate. 27-28 (first sentence): adopted or adopted in substance. 28 (second sentence)-29: rejected as unsupported by the appropriate weight of the evidence. 30: adopted or adopted in substance. 31: rejected as unsupported by the appropriate weight of the evidence. 32: rejected as subordinate. 33: rejected as unsupported by the appropriate weight of the evidence. 34: rejected as unsupported by the appropriate weight of the evidence. This provision governs only when Petitioner must refer matters to the Department of Education. 35: rejected as subordinate. 36: rejected as unsupported by the appropriate weight of the evidence. 37-39: adopted or adopted in substance except as to meaningful follow-up conferences. 40-41: rejected as unsupported by the appropriate weight of the evidence. 42: rejected as irrelevant. COPIES FURNISHED: Superintendent Richard Farmer Highlands County School District 426 School St. Sebring, FL 33870-4048 Commissioner Doug Jamerson Department of Education The Capitol Tallahassee, FL 32399-0400 James F. McCollum James F. McCollum, P.A. 129 S. Commerce Ave. Sebring, FL 33870-3698 Anthony D. Demma Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302
The Issue Whether Petitioner, Brevard County School Board (Petitioner or Board), has just cause to terminate Respondent, Emily M. Randall (Respondent or Randall) from employment with the school district.
Findings Of Fact The Parties Petitioner is the entity charged by law with governing and administering the Brevard County School District and is responsible for all employees of the school district. Disciplinary actions, such as the instant case, fall within the jurisdiction of the Board. At all times material to this case, Respondent was an employee of the School Board who served as an itinerant school psychologist. The Charges By letter dated December 9, 2014, Superintendent Binggeli recommended Respondent be terminated from her position with the Board. The letter claimed Respondent had been willfully absent without leave; had failed to follow directives of her supervisor, constituting gross insubordination and willful neglect of duty; had repeatedly lied to supervisors, constituting misconduct in office; and had reported to a disciplinary meeting in a condition violating the Drug-Free Workplace Policy, constituting misconduct in office. Respondent asserts that she should not be terminated for acts or omissions occurring prior to November 21, 2014, and that the Board failed to properly establish Respondent was “intoxicated” on that date. Background Information Petitioner employed Respondent as a school psychologist in 1992. Since that time, Respondent performed her responsibilities in an acceptable manner until the 2013-2014 school year. As a school psychologist, Respondent was responsible for conducting psychological evaluations for students who may require services for learning disabilities, emotional handicaps, or behavioral disorders. Psychological assessments are critical to the evaluation of exceptional students and serve to assist instructional staff to provide appropriate educational plans for students meeting criteria for support services. It is critical that such evaluations be timely performed, documented in accordance with law, and communicated to the appropriate personnel so that exceptional students may receive needed services. Eligible students do not receive exceptional services until all documented paperwork is completed. At all times material to this case, Respondent was required to complete her psychological educational assessments within 60 days. All school psychologists, including Respondent, were assigned as “itinerant” workers. Typically, school psychologists are directed to work at three or four schools. At each school the school psychologist teams with instructional staff, guidance counselors, and administrators to forge appropriate plans for exceptional students. The school psychologist is an essential member of the team. In practical terms, Respondent’s duties included performing student evaluations; designing intervention strategies with teachers, administrators, and parents; and attending meetings with all those involved. Additionally, school psychologists must respond to crisis situations as directed by the coordinator of psychological services. It is essential that the Psychological Services Department (Department) know the schedule of all school psychologists and be able to reach them by telephone. Beginning in August of 2013, the coordinator of psychological services, Dr. Maggie Balado, gave all school psychologists her personal contact information so that absences from work could be promptly reported. School psychologists were given the option of contacting Dr. Balado directly or the Department’s secretary, Ms. Beyer, if they would be absent from their scheduled school assignment. Requiring school psychologists to contact the Department to report absences was a continuation of the policy that pre-dated Dr. Balado’s appointment to the coordinator position. In September of 2013, Dr. Balado also advised all school psychologists that they would be required to comply with the 60-day guideline for completing student evaluations. The requirement also pre-dated Dr. Balado becoming the coordinator. Performance Concerns In January of 2014, Dr. Balado learned that Respondent had been absent on December 17 and 19, 2013, and January 6 and 7, 2014. Because Respondent had not reported the absences as required by the Department policy, Dr. Balado reminded Respondent of the correct protocol for missing work and directed her to comply with the policy in the future. At all times material to the allegations of this case, Respondent had adequate leave time to miss work. Reporting the absence was still required by the policy. School psychologists are required to complete personnel allocation forms to allocate and track funding. Respondent failed to timely complete the funding forms despite being reminded. When Dr. Balado completed the performance evaluation for Respondent for the 2013-2014 school year, she noted that Respondent was out of compliance with four student evaluations and had 29 referrals that were to be completed for the school year. As a result, Dr. Balado rated Respondent as needing improvement in the categories of managing the learning environment, ethical leadership, and technology. Dr. Balado met with Respondent to go over the concerns and Randall indicated that she would work to improve her performance. Dr. Balado then met with Dr. Beth Thedy, assistant superintendent for Student Services, and decided to place Respondent on a professional development assistance plan to identify the issues that needed improvement and give Respondent a plan to show performance improvement. On August 18, 2014, Dr. Balado and Dr. Thedy met with Respondent to go over the performance issues and to discuss the improvement plan. Respondent did not raise any questions regarding what was expected. Despite being aware of the improvement plan, Respondent did not meet compliance standards for student evaluations. Moreover, Respondent never suggested to Dr. Balado or Dr. Thedy that an accommodation was needed in order for her to meet compliance standards. On October 2, 2014, Respondent did not timely respond to Dr. Balado’s attempts to contact her. Tangled Webs Were Woven On October 30, 2014, Respondent was assigned to be at Coquina Elementary School (Coquina Elementary) in Titusville. The school is located approximately 40 minutes from Respondent’s home, and she was to be there to watch a meeting with Enis Messick, the guidance counselor. After the meeting with Ms. Messick, Respondent planned to evaluate a student. Due to technical difficulties unknown to Respondent, Ms. Messick’s meeting was canceled. Respondent did not timely report to work at Coquina Elementary on October 30, 2014. Respondent did not timely report her absence from work on October 30, 2014, to Dr. Balado or Ms. Beyer. Failing to report her absence in accordance with prior directives, violated the attendance policy for the Department. Respondent had adequate leave to be absent from work on October 30, 2014. Failure to telephone her absence or e-mail the proper persons was a violation of a reasonable directive given to her on more than one prior occasion. During the afternoon of October 30, 2014, Dr. Laura Rhinehardt, north area superintendent (encompassing Coquina Elementary School), contacted Dr. Balado and informed her that Respondent was not at her assigned school that day. Thereafter, Dr. Balado telephoned Respondent and asked her where she was. Respondent told Dr. Balado that she was in the parking lot at Coquina Elementary School when she was not (Lie #1). Suspicious of this statement, Dr. Balado directed Respondent to go into the school office and call her back on the landline at the school. Although Respondent indicated she would do so, she did not (Lie #2). Dr. Balado then called Coquina Elementary’s Principal Katrina Hudson who advised that Respondent had not been seen at the school that day (hearsay later corroborated/admitted by Respondent at a later date). Respondent, next, told Dr. Balado that she went into the school’s office as directed but did not feel comfortable using the school’s telephone to call her back (Lie #3). Dr. Balado was understandably concerned that Respondent had misrepresented the events of October 30, 2014. Dr. Balado, next, communicated the events of October 30, 2014, to Dr. Thedy who placed Respondent on paid administrative leave on October 31, 2014. On November 4, 2014, a meeting was held to review the events of October 30, 2014. Present were Dr. Thedy; Jim Hickey, director of Human Resources and Labor Relations; and Respondent. Respondent told Dr. Thedy and Mr. Hickey that she was at Coquina Elementary on October 30, 2014, and that she could prove it (Lie #4). Respondent said Enis Messick would verify she had been at Coquina Elementary on October 30, 2014 (Lie #5). Ms. Messick did not see Respondent at the school on the date in question. Ms. Messick corroborated that Respondent had phoned her to advise that she would not be at the school. Respondent later stated that she had sat in her car in the parking lot at Coquina Elementary all day on October 30, 2014 (Lie #6). None of Respondent’s initial accounts of the events of October 30, 2014, were true or justified not reporting her absence as required by her supervisor, Dr. Balado. Finally, when Mr. Hickey requested that Respondent provide a written statement setting forth the events of October 30, 2014, Respondent relented and admitted she had previously lied. The Aftermath Following Respondent’s admission and further consideration of her behavior by Mr. Hickey, a pre-termination meeting was scheduled for November 12, 2014, to discuss Respondent’s conduct. At the November 12, 2014, meeting, Respondent claimed that she had filed for an accommodation to assist her so that she could timely prepare the reports required by her job. Respondent claimed that in 2010, she had made Petitioner aware of her need for an accommodation due to a wrist problem that made typing difficult. To address the accommodation request in 2010, Petitioner provided Respondent with a dictation software program known as Dragon. The software allowed Respondent to dictate the portions of her reports that required typing. After the software was provided, Respondent did not renew her request for an accommodation nor did she suggest the solution provided by the Board was inadequate to meet her needs. At all times material to the conversations between Respondent and Dr. Balado, Randall never mentioned a physical limitation kept her from meeting the timelines applicable to her work. Respondent’s late-mentioned comment regarding this 2010 accommodation has not been deemed credible or persuasive as a basis for not completing her work assignments in a timely manner. The performance improvement plan developed by Dr. Thedy and Dr. Balado would have appropriately addressed the deficiency in Respondent’s work. A second meeting was scheduled for November 21, 2014, to discuss Respondent’s future employment with the Board. Respondent remained on paid administrative leave throughout the procedure of reviewing the allegations and concerns regarding Respondent’s performance and behavior. In anticipation of the November 21, 2014, meeting, Petitioner’s staff conferred and decided to offer Respondent the opportunity to be placed on a performance improvement plan, with a freeze to her salary for the next school year, and an unpaid five-day suspension. Had the meeting gone as Petitioner hoped, Respondent’s disciplinary action would have been resolved with Respondent’s acceptance of the offer. On November 21, 2014, Respondent, her husband, and her lawyer met with Mr. Hickey, Dr. Thedy, and Dr. Balado. Based upon Respondent’s behavior and demeanor at the meeting, Petitioner’s attendees became suspicious of Respondent’s condition. Respondent’s demeanor shifted from crying and emotional to questioning and anger. Respondent was disheveled, her eyes were red and watery, her skin was flushed, and she was shaking. Coupled with what Mr. Hickey, Dr. Thedy and Dr. Balado noted was a strong odor of alcoholic beverage, Respondent’s demeanor gave Petitioner’s employees the concern that Respondent was under the influence of alcohol. After conferring with one another, Dr. Thedy and Mr. Hickey completed a reasonable suspicion observation form and expressed concern that Respondent was intoxicated. After being directed to undergo a reasonable suspicion breathalyzer examination, Respondent submitted to the test performed by Kathy Krell, the Drug and Alcohol Program Administrator for Petitioner. Ms. Krell has been fully-trained to administer breathalyzer examinations, has held the position with the Board for over 20 years, and has performed thousands of tests, such as the one given to Respondent. Ms. Krell performed Respondent’s examination in accordance with all testing guidelines and as routinely completed in the regular course of business for the Board. The final results of Respondent’s breathalyzer demonstrated that on November 21, 2014, at approximately 2:45 p.m., Respondent had an alcohol level of .104. This level is above the legal level for driving in the State of Florida. Respondent voluntarily submitted to the breathalyzer examination and has provided no credible explanation for the test results. Instead, Respondent challenged the results and maintains that her conduct, demeanor, appearance, and test results do not establish that she was intoxicated on November 21, 2014. It is determined that contrary to Respondent’s assertion, on November 21, 2014, at approximately 2:45 p.m., while attending a school meeting on School Board property to address her future employment with Petitioner, Respondent was under the influence of some alcoholic beverage or substance such that she was, in fact, impaired or intoxicated. To suggest that she was fully capable of functioning with an alcohol level of .104 is both contrary to common sense and the facts of this case. Respondent failed to maintain a professional demeanor and was unable to maintain a consistent appearance and behavior. When the results of the breathalyzer were made known to the parties, Petitioner withdrew the disciplinary offer then pending for Respondent’s acceptance. Subsequent to the November 21, 2014, meeting, Dr. Balado gave Respondent a referral to Petitioner’s employment assistance program (EAP). The EAP is available to Board employees with problems that adversely impact their ability to perform their work assignments. When an employee in EAP acknowledges their issue, participates, and agrees to seek help for their problem, the employer typically works to return the employee to the work environment. In this case, Dr. Binggeli recommended that the Board terminate Respondent’s employment on December 9, 2014. At its December 16, 2014, meeting, Petitioner voted to terminate Respondent’s employment with the school district and the instant administrative challenge to the decision ensued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s employment with the Brevard County School District be suspended until such time as Respondent can show that she has successfully completed continuing educational courses related to the ethical standards expected of her, that her salary be frozen at the level of compensation for the 2013-2014 school year, that she does not receive any back pay or other compensation for the duration of her suspension, and that she be placed on a professional improvement plan to assure monitoring and compliance with all requirements of her job. DONE AND ENTERED this 30th day of December, 2015, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 30th day of December, 2015. COPIES FURNISHED: Wayne L. Helsby, Esquire Allen, Norton and Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Shannon L. Kelly, Esquire Allen, Norton and Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Scarlett G. Davidson, Esquire Culmer and Davidson, P.A. 840 Brevard Avenue Rockledge, Florida 32955 (eServed) Joseph E. Culmer, Esquire Culmer and Davidson, P.A. 840 Brevard Avenue Rockledge, Florida 32955 Dr. Desmond K. Blackburn, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6601 Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue in this case is whether the application of Petitioner, Kenneth Crowder, for a Florida Educator's Certificate should be denied for the reasons set forth in the Notice of Reasons issued on July 22, 2005, by Respondent, John Winn, acting in his capacity as the Commissioner of Education.
Findings Of Fact On or about February 28, 2002, the Ohio State Board of Education notified Petitioner, Kenneth Crowder, that it intended to suspend, revoke, or limit his teaching certificate. The proposed action was based on allegations that Petitioner engaged in inappropriate conduct with three female students, engaged in inappropriate conduct with a female teacher in December 2000, and was convicted of disorderly conduct, which was amended from a charge of domestic violence. An administrative hearing was conducted with respect to Petitioner's Ohio teaching certificate on March 11 and 14, 2002. The hearing was conducted in accordance with Chapter 119 of the Ohio Revised Code. Petitioner appeared at the hearing, was represented by counsel, and testified on his own behalf. There were three alleged incidents involving allegations of Petitioner's inappropriate conduct with female students that were litigated during the Ohio administrative proceedings. The first alleged incident occurred during the 1999-2000 school year when Petitioner was employed at Northland High School. The other two incidents allegedly occurred during the 2000-2001 school year when Petitioner was employed as a teacher at Brookhaven High School. The Ohio State Board of Education alleged that during the 1999-2000 school year, while a teacher at Northland High School, Petitioner inappropriately touched Ms. Tranette Nicole Jackson, a student in his science class. At the time of the incident, Ms. Jackson was about fifteen and a high school freshman.3 During the Ohio administrative proceeding, Ms. Jackson testified that on March 21, 2000, Petitioner called Ms. Jackson up to his desk and told her he wanted to see her after class.4 At the end of class, with no one else present in the classroom, Ms. Jackson reported to Petitioner's desk. Petitioner then touched Ms. Jackson's leg and rubbed her skirt, raising the skirt. Petitioner then told Ms. Jackson that he needed to see her in the supply room, which was across the hall from the classroom. Ms. Jackson accompanied Petitioner into the supply room, where Petitioner put both hands on Ms. Jackson's buttocks and stated, "This is what I wanted to talk to you about. Keep it to yourself." Ms. Jackson testified that Petitioner then gave her a pass to her next class. Ms. Jackson testified that she was "confused," "scared," and "uncomfortable" about the incident and that she reported it to one of her teachers that same day. The incident was then reported to the school principal and the Franklin County Children Services. After the incident, Ms. Jackson was reassigned from Petitioner's science class to another class. During the Ohio proceedings, Petitioner testified that he never touched Ms. Jackson, but that he reprimanded her for her inappropriate attire. Petitioner testified that in instances where students had on inappropriate attire, the school policy required teachers to send such students to the front office. Notwithstanding the school policy, Petitioner testified that he spoke with Ms. Jackson alone and after class concerning her attire. This failure to abide by school policy lends credence to Ms. Jackson's version of events. Moreover, Petitioner's complete inability on cross-examination during the instant hearing to provide his version of the incident leads the undersigned to accept Ms. Jackson's testimony.5 In the 2000-2001 school year, Petitioner was transferred from Northland High School to Brookhaven High School (Brookhaven), where he taught ninth grade science. The Ohio State Board of Education alleged that during the 2000-2001 school year, while he was employed as a teacher at Brookhaven, Petitioner engaged in two incidents involving inappropriate conduct with female students and one incident involving inappropriate conduct with a female teacher. In one instance, it was alleged that on December 19, 2000, about a day before the Christmas break, Petitioner asked a female student, identified as Student 2, to come to his room after school and give him a hug. It was alleged that the student refused to comply with Petitioner's request and reported the alleged incident to school officials. Student 2 did not testify at the Ohio administrative proceeding. However, Judith Gore, the assistant principal for student services at Brookhaven, one school official to whom Student 2 reported the incident, testified at the Ohio administrative proceeding. Ms. Gore testified that in January 2001, Student 2 told her that on or about December 19, 2000, Petitioner approached Student 2 and told her to give him a hug after school and that when she came to the room she should not wear her jacket. Ms. Gore also testified that Student 2 reported that although Petitioner approached her and requested a hug in December 2000, Student 2 told her that she reported it in January 2001, soon after and because Petitioner approached her in January 2001, after the Christmas break, and asked why she had not come to his room and hugged him in December 2000, before the winter holiday. Ms. Gore also testified that as a result of Petitioner's comments, the student was extremely uncomfortable. Ms. Gore testified that she later attended a conference with the student's father and Petitioner regarding the incident. Student 2 did not testify at the Ohio administrative proceeding. However, Petitioner testified at the Ohio administrative hearing that he asked Student 2 for a hug on or about December 19, 2000, the day before winter recess. Petitioner testified that Student 2 was in the hallway, and he said to her, "Hey, yeah, give me a hug. It's Christmas time. I wish you a Happy New Year and a Merry Christmas." Petitioner testified that at the time he requested that Student 2 give him a hug, she was not in any of his classes, but was one of his student assistants. In fact, Petitioner testified that when he requested that Student 2 give him a hug after school, she was not in his classroom, but was in the hall at her locker. Petitioner testified that because December 19, 2000, was the day before the Christmas recess, it was not unusual for students to hug him. However, Petitioner testified that Student 2 did not make any overtures indicating she wanted to hug him. Rather, Petitioner testified that he approached Student 2 and asked her to hug him. Based on Petitioner's testimony in the Ohio hearing and the instant proceeding, regarding Student 2, it is found that in December 2000, Petitioner approached Student 2 while she was in the hall at her locker and asked her to give him a hug. Ms. Gore testified that during December 2000, a different female student, Student 3, complained to her that Petitioner had touched her buttocks while passing behind her. Student 3 did not testify at the Ohio administrative proceeding, and no evidence was presented at the Ohio administrative proceeding or the instant administrative hearing to establish this charge. At the Ohio administrative proceeding, the Ohio State Board of Education litigated the allegation that Petitioner had engaged in inappropriate behavior with a teacher at Brookhaven. Mary Williams, who was a co-worker of Petitioner at Brookhaven High School, testified in the Ohio administrative proceeding. Ms. Williams testified that, in December 2000, while she was standing at the counter in the main office of the school, Petitioner passed by and intentionally brushed against her buttocks. Ms. Williams also testified that the office was large enough so that Mr. Crowder needed not to touch her at all. Ms. Williams was upset by Petitioner's actions and informed him, in graphic language, what would happen if he ever did it again. Petitioner then apologized to Ms. Williams. Petitioner's testimony concerning the incident involving Ms. Williams is conflicting. For instance, Petitioner testified during the Ohio proceedings that if he brushed his hand against Mr. Williams' buttocks, it was purely accidental. During the instant proceedings, however, Petitioner acknowledged that he touched Ms. Williams' buttocks, but explained that it occurred accidentally as a result of his carrying a meter stick through the office area. At no time during Petitioner's prior testimony did he mention that the touching occurred with a meter stick, or even that he was carrying a meter stick. Accordingly, the undersigned finds Ms. Williams' testimony to be more credible. John Tornes, the personnel director for Columbus City Schools, testified at the Ohio administrative proceeding that as a result of the accumulation of allegations and incidents, Petitioner was assigned to work at home, effective January 29, 2001. The following day, January 30, 2001, Petitioner was assigned to a location where he had no contact with students. On March 26, 2001, Petitioner resigned from the Columbus City Schools, effective June 8, 2001. Mr. Tornes testified that Petitioner was not eligible for rehire. Mr. Tornes explained: During every year of Mr. Crowder's employment, there was an allegation of sexual harassment or abuse; three straight years of it while at Crestview Middle School [sic],[6] while at Northland High School, and then the incident just kept ballooning at Brookhaven High School. . . . His behavior became so questionable that it was no longer feasible for the district to continue his employment. The Ohio State Board of Education litigated the issue of Petitioner's conviction of disorderly conduct, which was amended from a charge of domestic violence. During the Ohio proceedings, Jill S. Harris testified on behalf of the Ohio State Board of Education. Ms. Harris testified that for about a year, beginning in 1999, she was involved in a rocky relationship with Petitioner. During that period, Petitioner and Ms. Harris were living together. According to Ms. Harris, on October 7, 2000, Petitioner, after a night of drinking, arrived home at approximately 5:30 a.m., at which point a violent argument ensued. During their confrontation, Petitioner struck Ms. Harris twice in the face, bruising her chin and cheek and cutting her lip. At some point during the argument, Ms. Harris summoned the police. However, when they arrived, Ms. Harris informed the responding officers that nothing was wrong due to her fear of retaliation from Petitioner. Ms. Harris testified that after the police left, the Petitioner picked up a glass table and threw it at her, breaking the table. Petitioner also grabbed Ms. Harris, at which point she cut her foot on the broken glass. Ms. Harris then left the house and called the police from the vehicle she was driving. Soon after Ms. Harris called, police officers met Ms. Harris and returned with her to the house where she and Petitioner lived. When they arrived there, Petitioner was not there. Officer Sheri Laverack was one of the police officers who met with Ms. Harris on October 7, 2000, shortly after the incident, and investigated the matter. At the Ohio administrative proceedings, Officer Laverack testified that soon after the altercation between Ms. Harris and Petitioner, she observed that Ms. Harris' "lip had been busted and her face was swelling and the bottom of her foot was cut." Officer Laverack also observed that there was bruising around one of Ms. Harris' eyes. At both the Ohio administrative proceeding and in the instant proceeding, Petitioner denied that he struck Ms. Harris in the face and caused the injuries to her face that were observed by Officer Laverack. However, it is found that his testimony was not found to be credible by the hearing examiner presiding over the Ohio administrative hearing. Petitioner has offered conflicting testimony with respect to the incident involving Ms. Harris and the cause of her facial injuries. During the Ohio administrative proceeding, Petitioner testified that he slammed his hand down on the glass table, causing it to come up and hit her. At no time during the Ohio proceeding did Petitioner testify that Ms. Harris lifted up the table or in any way contributed to the facial injuries she suffered. However, during the instant proceeding, Petitioner testified that when he hit the glass table, Ms. Harris "pulled the top of it up, and I think it [the glass portion of the table] hit her in the chin or something to that effect." Petitioner then testified that "I don't really recall . . . that's what I vaguely recall." Petitioner's testimony concerning the October 7, 2000, incident and how Ms. Harris sustained the injuries to her face is inconsistent and not credible. In light of the multiple injuries to Ms. Harris' face (a cut to her lip, swelling on the right side of her face, and bruising around her eye), it is unlikely that Ms. Harris' injuries could have been sustained in the manner described by Petitioner. Petitioner's testimony in the instant proceeding that he did not hit Ms. Harris is not credible. On the other hand, given the nature of the injuries, it is more probable that Ms. Harris' injuries resulted from Petitioner's hitting her, as she testified. It is found that Ms. Harris' testimony that Petitioner struck her in the face was credible. Moreover, Ms. Harris' credible testimony was substantiated by the testimony of Officer Laverack, who observed the injuries to Ms. Harris on October 7, 2000, shortly after the incident. As a result of the October 7, 2000, incident, Ms. Harris filed domestic violence and assault charges against Petitioner. Ultimately, as a result of the incident, Petitioner was charged with disorderly conduct. On June 25, 2001, Petitioner entered a guilty plea to the amended charge of disorderly conduct. Pursuant to an agreement with the State of Ohio, Petitioner was sentenced to 30 days in jail, with the sentence being suspended if and when Petitioner made restitution of $1,000 to Ms. Harris for the damage to her table. Petitioner paid the restitution. At the time of the Ohio administrative proceeding, Petitioner had a four-year middle school teaching certificate with an expiration date of June 30, 2002, and had applied for a temporary teaching certificate. On April 2, 2002, the Ohio hearing examiner submitted a recommended order to the Ohio State Board of Education. In the recommended order, the hearing officer found that Petitioner sexually abused Ms. Jackson, inappropriately touched Ms. Williams, and committed an act of violence against Ms. Harris. In addition, the hearing examiner recommended that the Ohio State Board of Education revoke Petitioner's teaching certificate and deny his application for a temporary teaching certificate. In a Resolution dated May 16, 2002, the Ohio State Board of Education revoked Petitioner's teaching certificate. The Resolution was adopted by the Ohio State Board of Education at its meeting on May 14, 2002. The Ohio State Board of Education's Resolution stated that it was revoking Petitioner's middle school teaching certificate "based upon his 2001 conviction for disorderly conduct stemming from domestic violence and inappropriate sexual contact with three female students and one female teacher during 2000 and 2001." Petitioner appealed the decision of the Ohio State Board of Education. The Ohio State Board of Education's decision was subsequently affirmed on appeal by the Ohio Court of Common Pleas on August 11, 2003, in Case No. 02CVF06-6230.7 The testimony of Ms. Harris, Ms. Williams, Ms. Jackson, Officer Laverack, Mr. Tornes, and Ms. Gore in the Ohio proceeding constitutes an exception to the hearsay rule under Subsection 90.803(22), Florida Statutes.8 Therefore, the testimony of the foregoing named individuals in the Ohio administrative proceeding is sufficient in itself to support a finding of fact and does not run afoul of Subsection 120.57(1)(c), Florida Statutes.9 Petitioner's conduct fell short of the reasonable standard of right behavior that defines good moral character. By any reasonable standard, it is wrong for a teacher to brush his hands on the buttocks of a student and of a fellow colleague. The wrong is compounded when the teacher instructs the student to conceal the fact that he engaged in such conduct. During his testimony, Petitioner admitted that he asked a high school student to give him a hug. By any reasonable standard, this conduct fell short of right behavior that defines good moral character. Petitioner's testimony regarding the circumstances and appropriateness of such a request is not credible or persuasive. Neither does Petitioner's explanation provide a reasonable basis for a teacher to solicit a hug from any student. Petitioner's conduct of committing acts of violence against the woman with whom he lived likewise fell short of the reasonable standard of right behavior that defined good moral behavior. The three incidents in which Petitioner engaged in inappropriate conduct with Ms. Jackson, Student 2, and Ms. Williams, occurred at school. The incident involving Ms. Jackson, one of his students, occurred on school grounds in March 2000. The conduct in which Petitioner engaged with Student 2 and with Ms. Williams, his colleague, occurred at school in December 2000. Petitioner's pattern of conduct with two female students and a female teacher demonstrates that he is an unsuitable candidate for a teaching certificate. Moreover, Petitioner's conduct as established by the facts of this case, particularly as it directly involved students at the school, bears directly on his fitness to teach in the public schools of Florida. The evidence failed to establish that Petitioner possesses the good moral character required of a teacher in this state. For this reason, Petitioner is not eligible for certification. The evidence establishes that Petitioner committed an act or acts for which the Education Practices Commission would be authorized to revoke a teaching certificate. The evidence establishes that Petitioner has been guilty of gross immorality of an act involving moral turpitude. The evidence establishes that Petitioner has had a teaching certificate revoked in another state. The evidence establishes that Petitioner pled guilty and was convicted of the misdemeanor charge of disorderly conduct. The evidence establishes that Petitioner has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. The evidence establishes that Petitioner failed to make a reasonable effort to protect students from conditions harmful to learning and/or to the student's mental health and/or physical health and/or public safety. The evidence establishes that Petitioner intentionally exposed a student to unnecessary embarrassment or disparagement. The evidence establishes that Petitioner exploited a relationship with a student for personal gain or advantage. The evidence establishes that Petitioner has engaged in harassment or discriminatory conduct, which unreasonably interfered in an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment and, further, failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Education Practices Commission enter a final order denying Petitioner's application for a teaching certificate and providing that he be permanently barred from re- application pursuant to Subsection 1012.796(7)(a), Florida Statutes. DONE AND ENTERED this 24th day of May, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 24th day of May, 2006.
Findings Of Fact William Haynes Gandy, for 17 years a school teacher and coach, began his most recent stretch of employment with the Santa Rosa County School Board in the fall of 1978 at Jay High School. He coached football and taught girls' physical education and math courses during the 1978-1979 school year, even though he held a teacher's certificate in physical education only, at all pertinent times. Coaching assignments entail a certain amount of prestige and entitle their recipients to a salary supplement. In Santa Rosa County, school principals make coaching assignments in their unfettered discretion. LETTER NO FACTOR On July 1, 1979, Mary Cecelia Diamond Findley, assistant principal of Jay High School during the preceding school year, became principal. During Dr. Findley's first year as principal, Mr. Gandy taught math and science courses. In the fall of the year, a student asked petitioner to write a letter on her behalf, because she had been accused of a burglary. Dr. Findley's son had also been charged with this crime. On November 30, 1979, Mr. Gandy addressed the following letter "To Whom it May Concern" and gave it to the student's parents: I, W. H. Gandy, being employed by Santa Rosa County School Board as an in- structor at Jay High School do hereby give the following statement in behalf of Karen Cooley. I have known this student for several years. She was in my class last year and was an excellent student. I found her to be very cooperative, initiative [sic] and enthusiastic young student. Her capabilities and talents are unlimited if she applied herself. I know of no past conflicts or involvements in our community or school which would reflect on her character. In working directly with young people for the past 15 years, I have found that most all students need help at one time or another. Of course, their needs vary, from personal, emotional problems, school discipline problems, to problems with the laws of our society and state. I feel Karen realized what she did was wrong and now must face the consequences. She has already been subjected to the scrutiny of her classmates at school, to the embarrassment of hurting her parents and family, and to the fact that she took part in crime and now has a record which will remain with her the rest of her life. Karen cannot undo the wrong she has done, but certainly since this is her First Offense, and she has the ability and desire to mature into a useful citizen in our community, she should be given this opportunity. I hope and pray that she will be given some kind of a probation period and given the opportunity to finish school and start a meaningful life of her own. Petitioner's Exhibit No. 1 He told no one other than the Cooleys and Karen's attorney about the letter, at the time. Dr. Findley did not learn of the letter until this year. Dr. Findley's decision not to reappoint Mr. Gandy as assistant football coach, more than two and a half years after the letter was written, took place after discussions with the head football coach and had nothing to do with the letter or any other exercise by petitioner of his first amendment rights. TRANSFER Beginning with the 1979-1980 school term, Mr. Gandy has been on continuing contract as a teacher for respondent. On Dr. Findley's recommendation, at the close of the 1982-1983 school year, and that of Bennett C. Russell, respondent's superintendent, respondent transferred Mr. Gandy to the Gulf Breeze Middle School. Originally he was to teach health classes there, but he was assigned physical education classes after his request for formal hearing was filed. Respondent had taught some classes out of his field every year he was at Jay High School. Before the letter on behalf of Ms. Cooley was ever written, and, according to petitioner, before there were any ill feelings between Dr. Findley and himself, he was assigned exclusively math and science courses for the 1979-1980 school year. In 1980-1981, and again the following school year, Mr. Gandy taught a single physical education class and several math classes. He taught math courses exclusively during the 1982-1983 school year. By the spring of 1983, there were five teachers at Jay High School who had taught there shorter periods than the five years petitioner had taught at Jay High School. Of these, Oliver Boone, the band director, and Deborah Walther, who was certified in art and science, were retained. Desiree Jamar, who was certified in art, was transferred; and the two other junior teachers did not have their annual contracts renewed. One of these two, Deborah Gomillion, who is certified to teach exceptional education classes, was subsequently rehired to head the exceptional education program at Jay High School. Five of the 32 teachers at Jay High School for the 1982-1983 school year were certified in physical education, but, unlike respondent, some of them were certified to teach other subjects, as well. Respondent transferred another coach from Jay High School who was certified in social studies as well as physical education. There was only one teacher certified in mathematics for the 1982-1983 school year. Respondent hired a second certified mathematics teacher for 1983-1984 who was to teach five mathematics courses and coach football at Jay High School. On July 28, 1983, respondent hired a teacher certified in physical education to teach at Pace High School. Dr. Findley and Mr. Gandy had their differences. She believed him guilty of certain improprieties never formally established. He resented a notice of non-renewal Dr. Findley, under the erroneous impression that Mr. Gandy had not yet been awarded a continuing contract, sent in response to instructions so to notify all annual contract teachers who taught compensatory classes like the math classes he was teaching at the time. The low esteem in which Dr. Findley held petitioner was a factor in her recommending that he be transferred. The superintendent was aware of the friction, but he made his decision "because we were cutting back personnel at Jay High School and we had a position available at Gulf Breeze Middle School." (T. 129) Respondent's superintendent did not accept her recommendation that petitioner be transferred just to keep the peace. Dr. Findley herself was transferred from Jay High School for the 1983-1984 school year. The continuing contract of employment between the parties does not grant petitioner the right to teach in a particular school. Joint Exhibit No. The master contract in effect between Santa Rosa County School Board and the Santa Rosa Professional Educators provides: Involuntary transfer of teachers shall be made by the Superintendent and Board based upon: l) Santa Rosa County School District needs as determined by the Superintendent and the Board; 2) certification; 3) length of service in Santa Rosa County; and, 4) any other data. Petitioner's Exhibit No. 6, p. 8. Article IV of the same agreement establishes in detail a grievance procedure, but does not make it mandatory or exclusive.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent dismiss petitioner's request for hearing, without prejudice to his filing a grievance as regards his transfer. DONE and ENTERED this 27th day of September, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1983. COPIES FURNISHED: Philip J. Padovano, Esquire 1020 East Lafayette Street Tallahassee, Florida 32302 Paul R. Green, Esquire Post Office Box 605 Milton, Florida 32570
The Issue Whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Madison County School District is a school district which consists of eight schools, serving approximately 2600 students. It employs approximately 400 people. Since 2012, Doug Brown has been the Superintendent of Schools for Madison County. Willie Williams is Respondent’s Chief Operations Officer. As part of his duties in that position, he serves as the head of the Human Resources Department, and is involved in the screening of applicants for positions within the district. He also serves as the human resources equity officer with responsibility for ensuring that the district’s procedures are followed in employment interviews and that all interview questions are asked in the same order and manner for all employment candidates. As an employer, Respondent established standard hiring procedures which included procedures for the advertising, screening, and interviewing for all open positions within the district. As part of such procedures, all applications for open positions with Respondent are screened by a screening committee prior to any interview by the Respondent. During screening, the committee reviews every application for completeness and for compliance with the requisite experience and certifications required for that position. Only those applicants who were determined by the screening committee to possess the requisite experience and certification and whose applications are determined to be complete are granted an interview with Respondent. Respondent also had a policy which prohibited retaliation and discrimination on the basis of gender. The policy provided a procedure for a complaint to be made by any person who believed they were a victim of retaliation or discrimination. Petitioner, who is male, is a former employee of Respondent. During his prior employment with Respondent, Petitioner was employed in a variety of positions until June 2012, when his annual contract expired and was not renewed. Following his non- renewal, Petitioner filed a Complaint of Employment Discrimination with FCHR, wherein he claimed race discrimination and retaliation. FCHR investigated Petitioner’s complaint and, on February 15, 2013, issued a Notice of Determination finding no cause to believe that an unlawful employment practice had occurred. Petitioner took no further action with regard to this complaint and FCHR’s determination became final. In July of 2013, Respondent had a vacancy for a Dean of Students/Lead Teacher ESE position. Pursuant to its collective bargaining agreement, Respondent first advertised the position internally for three days to current district employees for whom the open position would be a lateral transfer. Respondent did not receive any internal applications. Accordingly, Respondent subsequently advertised the Dean of Students/Lead Teacher ESE position to the public. The required qualifications for the Dean of Students/Lead Teacher ESE position were: Bachelors Degree or higher from an accredited educational institution. Certified in an education field. Minimum of three (3) years teaching experience. Applicant must be certified in ESE. Respondent required that applicants for the Dean of Students/Lead Teacher ESE position hold the general exceptional student education (ESE) certification that is currently offered by the Florida Department of Education. Respondent did not accept any grandfathered special education certifications other than the full ESE certification for this position. There was no evidence that this requirement was discriminatory or retaliatory toward Petitioner.2/ Around this same time, Respondent also had openings for other Dean of Students positions. Unlike the other Dean of Students positions available at the time, the Dean of Students/Lead Teacher ESE position was a hybrid position which would fulfill both the role of Dean of Students, as well as that of ESE teacher. As a result, the Dean of Students/Lead Teacher ESE position for which Petitioner applied required ESE certification while other Dean of Students positions did not. Petitioner, along with 22 other individuals, applied for the Dean of Students/Lead Teacher ESE position. The applicants for the Dean of Students/Lead Teacher ESE position were approximately half male and half female. On his application, Petitioner reflected that he held a varying exceptionalities certification in special education. He also held certification in the areas of driver’s education, law enforcement, mental retardation, and secondary school principal. The applications for the Dean of Students/Lead Teacher ESE position were screened in compliance with Respondent’s established procedures. During the screening committee’s review, the screening committee verified Petitioner’s certification coverage with the Florida Department of Education. The Department of Education confirmed that Petitioner possessed certification in the areas of mental retardation and varying exceptionalities, but did not have the general ESE certification that Respondent required. Based upon Petitioner’s application and the certification report obtained from the Florida Department of Education, the screening committee members agreed that Petitioner did not meet the required qualifications for the Dean of Students/Lead Teacher ESE position and screened him out of the interview process for such position. In fact, several applicants, both male and female, were screened out of the interview process for the Dean of Students/Lead Teacher ESE position due to not being qualified. The only applicants who passed the screening process and were granted interviews for the Dean of Students/Lead Teacher ESE position were those applicants who possessed the full ESE certification. There was no evidence that Respondent’s or the screening committee’s actions in processing these applications were discriminatory or retaliatory against Petitioner. The applicant who was ultimately selected for the Dean of Students/Lead Teacher ESE position was a female who was a current school board employee at the time of her application and who possessed the full ESE certification that Respondent required for the position. After learning that he had been screened out of the interview process for the Dean of Students/Lead Teacher ESE position, Petitioner met with Superintendent Brown and inquired as to why he was screened out of the interview process for such position. The Superintendent indicated to Petitioner that if he was qualified for the position he should have been interviewed and advised Petitioner he would look into the matter. Following such meeting, Superintendent Brown conferred with Willie Williams regarding the screening and interview process for the position at issue. The chief operating officer informed Superintendent Brown that Petitioner did not possess the required full ESE certification and that he was therefore not qualified for the position. After receiving this information, Superintendent Brown concurred that Petitioner was not qualified for the Dean of Students/Lead Teacher ESE position and took no further action in relation to the issue. In July 2013, Petitioner applied for a Dean of Students position with Respondent. This position did not require ESE certification. Eighteen individuals applied for the position. The applications for this Dean of Students position were also screened in compliance with Respondent’s established procedures. Petitioner was determined to be qualified for this position by the screening committee and received an interview. Petitioner, however, was not recommended for the position and the position was ultimately filled by an African American male. Subsequently, Petitioner applied for an open driver’s education position with Respondent for the summer of 2014. This position did not require ESE certification. Likewise, the applications for the driver’s education position were screened in compliance with Respondent’s established procedures. Petitioner was deemed qualified for this position by the screening committee and received an interview. The interview committee recommended Petitioner to Superintendent Brown for this position and Superintendent Brown subsequently presented that recommendation to the School Board. The School Board approved the Superintendent’s recommendation and Petitioner was hired for the position. Petitioner also applied for an Assistant Principal position with Respondent in July 2014. This position did not require ESE certification. The applications for the Assistant Principal position were screened in compliance with Respondent’s established procedures. Petitioner was determined to be qualified for this position by the screening committee and was offered an interview. Petitioner, however, did not respond to Respondent’s attempts to schedule that interview and thus was not interviewed for the position. Ultimately, Petitioner failed to present any evidence to show that he was, in fact, qualified for the Dean of Students/Lead Teacher ESE position or that he was screened out of the interviews for such position for any reason other than his failure to meet the required qualifications. Based on this lack of evidence, the Petition for Relief should be dismissed. Finally, in his Employment Complaint of Discrimination and Petition for Relief, Petitioner alleged that Respondent provided “false and defaming references as further acts of retaliation” and “a negative derogatory reference letter.” However, Petitioner presented no evidence in support of these allegations. To the contrary, the evidence showed that at some point in time, Petitioner requested that Superintendent Brown write a reference letter for Petitioner. Following that request, Superintendent Brown wrote a letter for Petitioner to provide to potential employers which recommended Petitioner for employment and stated that Petitioner had not had any disciplinary issues with Respondent. Given Petitioner’s failure to present any evidence to support his allegations of retaliation, the Petition for Relief should be dismissed
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Rights enter a Final Order finding that Respondent did not discriminate or retaliate against Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 18th day of November, 2014, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 18th day of November, 2014.
The Issue Whether Respondent is subject to personnel action as specified in the Notice of Charges and if so, what action should be taken.
Findings Of Fact Respondent Casey Carlisle is a teacher at Santa Fe High School and is employed by the Alachua County School Board on a professional service contract. Respondent has taught at Santa Fe High School since 1990 and has taught in the Florida public school system for 32 years. The 2006-2007 school year for students began on Monday, August 14, 2006. Respondent teaches a business systems technology course during the sixth period in Room 11-011. The class has approximately 30 students. Respondent is hard of hearing. He advises both teachers and students of his hearing problem, and tends to speak louder than most. According to his wife, he does not need a microphone when he is talking. He had advised the sixth period class of his hearing problem and his tendency to speak loudly on the first day of school. Room 11-011 is a large classroom, although not the largest in the school. The noise from the air conditioner, lights, computers and monitors, and the normal activity of having a classroom full of students shuffling their feet and passing things out, combined with Respondent's hearing deficit, is such that Respondent finds it necessary to speak loudly in this room. Respondent also has a tendency to "talk with his hands," and did so often during his testimony at hearing. The computers in Respondent's classroom were not functioning properly on the first day of school, which caused frustration for students and teacher alike. As a result, Respondent changed his plans for the second day and gave the students an alternative lesson. In preparing for this lesson, it was necessary for him to hand out books and document holders at the beginning of class that were still in the storage cabinets in the classroom. On this same day, Principal Bill Herschleb was monitoring students in a common area on campus during the transition between fifth and sixth periods, which is his normal practice during the initial days of a school year. A student came up to him and asked for help retrieving a backpack that had been left in Room 11-011. Herschleb escorted the student to the classroom to retrieve the backpack so that the student would not be considered tardy going to his next class. Herschleb entered Respondent's classroom with the student while Respondent was giving instruction and handing out books and document holders. According to Herschleb, he remained in the room only 15-30 seconds, and Respondent's back was to him. Herschleb testified that Respondent was yelling down the second row of students in the direction of a particular student, leaning toward that student and saying very loudly, "Come on, buddy, come on," in what the principal perceived as a threatening challenge. The principal believed that he would have to intervene because a physical confrontation was eminent. The principal testified that Respondent was speaking much louder than normal; that he was gesturing and motioning; that the veins of his temples were sticking out and that in Herschleb's judgment, the volume of Respondent's voice was not appropriate for a classroom setting. During this brief exchange, Respondent also allegedly stated, "I'll show you what we're going to do," and turned to his left. At that point, he saw the principal standing near the door and asked what he needed. Herschleb explained that the student wanted to get his backpack. However, the backpack was not located and both Herschleb and the student left the classroom. Herschleb acknowledged that while he felt the incident to be totally inappropriate, Respondent used no name calling and no profanity, and no physical altercation actually occurred. Herschleb did not testify how close Respondent was to the student in question and did not explain how he could see veins at Respondent's temples when Respondent had his back to him. Several students, as well as Respondent, testified regarding their recollection of the incident. Their testimony varied greatly, in terms of whether anything out of the ordinary happened; whether Respondent was speaking louder than normal; which student, if any, was the subject of Respondent's anger; and the reason for any action taken by Respondent. Their testimony was uniform, however, that there was no physical threat to any student. Further, the incident, to the extent there was one, had not made a lasting impression on any student in the classroom. Based on the evidence presented, it is found that Respondent admonished Garrett Holton for speaking in class when he asked questions of Sarah Sapp, a student sitting next to him, after Respondent had instructed the class not to talk without being recognized first. He pointed at Garrett while speaking to him, but there were no threatening gestures. Respondent did raise his voice, but was not much louder than usual, especially when it is taken into account that he was in the process of passing out document holders and at times had his back to the class. While Respondent did not feel well and may have been irritated, he was not angry. Respondent told the student he would get a referral if he continued to talk. Both the student to whom the comments were directed and the girl to whom he was speaking ultimately viewed the incident as not being a "big deal." Garrett Holt testified that while he was embarrassed initially and did not want to get into trouble, he did not take it too seriously and did not indicate any reluctance to return to the class the next day. Sarah thought it was just a normal day, and teachers yelling in class is "nothing new." She did not think the incident was a big deal and felt she and Garrett were treated appropriately and should have waited to discuss the lesson after Respondent finished talking. The students did not feel threatened and the incident was not the subject of conversation around the school. No student or parent complained about the incident. Indeed, one student testified that the matter had been "blown up into something that it wasn't," and it wasn't "necessary to go to court over." Several students considered the day just an ordinary day. Respondent certainly thought so, and was actually pleased with the overall progress of his class that day, given the challenges the computers had presented. After class ended, Respondent saw the backpack that the student with Herschleb had not been able to find, and loaded it onto his cart to take it to Herschleb or to the student via the lost and found. The next morning Respondent saw Herschleb and told him he had found the backpack. He asked what Herschleb wanted him to do with it and apologized for not helping more to find the backpack during class time, making a comment to the effect that "it shouldn't have happened that way." Herschleb understood his apology to mean that Respondent recognized that his behavior the day before as inappropriate. On Wednesday afternoon, August 16, 2006, Herschleb gave Respondent a letter notifying him of a meeting with the principal to be held on Friday, August 18, 2006. Respondent did not know that Herschleb had any concern about his conduct during the August 15, 2006, sixth period class until Herschleb made the allegation on Friday, August 18, 2006. During this meeting, Herschleb explained what he had observed on Tuesday afternoon in Respondent's classroom and why he was concerned. Respondent denied any wrongdoing. Respondent was placed on administrative leave with pay so that the matter could be investigated. The matter was also reported to Joan Longstreth, Assistant Superintendent for Human Resources for the Alachua County School Board. An investigator was assigned who obtained random statements from members of the sixth period class. After receipt of the administrative investigative report, a committee was convened to review the report and make a recommendation. While the committee members discussed the student statements, the most significant factor in recommending disciplinary action to the superintendent was the fact that the school principal had observed the incident.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing all charges against Respondent. DONE AND ENTERED this 5th day of February, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 5th of February, 2005.
