Findings Of Fact An Administrative Complaint was served on the Respondent in April, 1983. Herb A. Sang, Superintendent of Duval County County Schools, was responsible for those charges. In the complaint, it is alleged that Respondent is guilty of professional incompetency in fulfilling his duties as a teacher in the Duval County School System in the years 1979-80 and 1980-81. Respondent is a tenured teacher in the Duval County School System and had held that tenure at all times relevant to this inquiry. Respondent opposed these allegations, leading to the formal Subsection 120.57(1), Florida Statutes hearing. Respondent, who has been employed in the school system since 1954, was transferred to Duncan U. Fletcher Senior High School in 1971. Lee remained at Fletcher High through the school year 1979-80. In that year, Lee taught 10th grade English. His performance in the classroom was observed by Dr. Andrew Knight, principal at Fletcher High School, and by other professionals in the school. These observations commenced in September 1979 and continued throughout the school year. By January 30, 1980, Dr. Knight had gained a sufficient impression of the performance of the Respondent to write and inform him of areas of deficiency. A copy of that letter of evaluation may be found as Petitioner's Exhibit No. 7, admitted into evidence. In addition to setting forth deficiencies, the letter suggests techniques that might be employed to correct the deficiencies. Relevant areas of concern involved classroom management, teaching effectiveness and classroom performance. Those observations as set out in the letter of evaluation and critique of the Respondent's performance are an accurate depiction of the performance. All these items set forth relate to teacher competency and this depiction of Respondent, coupled with similar observations which were testified to during the course of the hearing, demonstrate a lack of competency on the part of the Respondent in performing his teaching duties. The deficiencies set forth in the letter of evaluation were explained to the Respondent in person. Following the interim evaluation of January, 1980, the annual formal evaluation was made on March 12, 1980. A copy of that evaluation may be found as Petitioner's Exhibit No. 9, admitted into evidence. As depicted in this document, Respondent was still perceived in March, 1980, as giving a poor performance as a teacher. This characterization of his performance, as found in the evaluation of March 12, 1980, is accurate and those observations, together with the observations of his performance as testified to in the hearing, point to the fact that the Respondent continued to be less than competent in his teaching. Throughout that school year, classroom management was the most obvious deficiency. In particular, students were sleeping and talking to each other and not paying attention, a problem not satisfactorily addressed by Lee. As a result, the learning experience was diminished. Moreover, this circumstance was made worse by the fact that Lee's perception of how to plan for instruction and his efforts at carrying out these plans were not structured in a fashion to hold the attention of his classes and promote the goals announced in the Duval County School course Curriculum for Tenth Grade Language Arts. See Petitioner's Exhibit No. 33. Based upon his unsatisfactory evaluation for the school year 1979-80, and in keeping with the Duval County Teacher Tenure Act, Respondent was transferred to Edward White High School in the school year 1980-81. The principal at that school was John E. Thombleson. Thombleson was aware of the unsatisfactory rating that Lee had received and undertook, during the course of Respondent's stay at White High School, to observe and assist Lee in trying to improve Lee's teaching. That improvement was not forthcoming. Lee continued to have problems related to classroom management and teacher effectiveness and he was not responsive to beneficial ideas of improvement offered by Thombleson related to in-service assistance. Ideas for improvement which were posed to the Respondent include those set forth in Petitioner's Exhibit No. 11, admitted into evidence which is a memorandum concerning a conference held with Respondent by Principal Thombleson. Other exhibits admitted pertaining to observations by Thombleson and other administrators at White are found to be accurate depictions of the atmosphere in Lee's classroom related to management and teaching effectiveness. Through October, 1980, visits to Respondent's classes revealed a lack of attention on the part of students, a lack of preparedness by the Respondent, a failure to proceed in a sequence which would be commensurate with the curriculum goals set for the classes, tardiness on the part of the Respondent and students, failure to provide lesson plans to the administration observer, failure to conform to the scheduled lesson plan for the day, and failure to provide continuity between the lesson of the day and the following day's assignment. These were problems that had been observed during Lee's 1979- 80 year at Fletcher. Consequently, the required interim evaluation of October 30, 1980, was not favorable to Lee. A copy of that formal evaluation may be found as Petitioner's Exhibit No. 18, admitted into evidence and the observations set forth therein are found to be accurate. Lee was also provided with a memorandum on that date, a copy of which is Petitioner's Exhibit No. 19, admitted into evidence. This document suggested ways to improve classroom management, teaching effectiveness and classroom performance. Both the evaluation and memorandum of improvement were discussed with the Respondent and the matters of that conference are set forth in the memorandum of October 30, 1980, a copy of which is found as Petitioner's Exhibit No. 20, admitted into evidence. On November 6, 1980, Respondent's grade book was evaluated and found to be deficient, a finding which is accepted. The grade book was not properly documented, among other shortcomings. Respondent, by correspondence of November 18, 1980, a copy of which is admitted as Petitioner's Exhibit No. 24, requested Principal Thombleson to give concrete examples of expectations of the Respondent in fulfilling his teaching responsibilities. This correspondence was replied to by memorandum of December 5, 1980, a copy of which is admitted as Petitioner's Exhibit No. 25, and contains a continuing explanation of ideas of improvement which had been previously suggested by Principal Thombleson. Lee's performance did not improve after this exchange and the final evaluation at White of March 12, 1981, was not positive. A copy of that evaluation may be found as Petitioner's Exhibit No. 27, admitted into evidence and the evaluation's conclusions are accepted. Overall, in the year 1980-81, Respondent did not perform as a competent teacher while at Edward White. Respondent did not conclude the teaching year at Edward White in 1980- In the face of an attitude which Thombleson considered to be insubordinate and the Respondent's expressed desire to be transferred, Lee was reassigned to William Raines Senior High School in April, 1981. For the remainder of that academic year he served as a substitute teacher. It was not established in the course of the hearing what quality of performance Lee gave as a substitute teacher when assigned to Raines High School and it is therefore assumed that that performance was satisfactory. In the school year 1981-82, Respondent was assigned to Raines High School and acted primarily as a substitute teacher. He remained in the high school for that school year premised upon a settlement negotiation between the Respondent and the Duval County School Board pertaining to an Equal Employment Opportunity Commission complaint which he had filed pursuant to Title VII of the Civil Rights Act of 1964. For the school year 1981-82, the Duval County school administration decided that they would not afford a performance evaluation to the Respondent and none was given. There being no evidence to the contrary, it is assumed that Respondent fulfilled his role as substitute teacher adequately. In the school year 1982-83, Respondent was reassigned to Raines school and worked primarily in the media center program in a nonteaching capacity. Lee did a limited amount of substitute teaching in that year. Jimmie A. Johnson, Principal of Raines school found his work as a substitute teacher to be acceptable as set forth in the memorandum of March 23, 1983, a copy of which is admitted as Respondent's Exhibit B. No contrary position being offered on the question of the quality of performance in the limited role of substitute teacher during that school year, Respondent is found to have performed the role of substitute teacher in a satisfactory manner. Lee's performance as a substitute teacher in the years 1981-82 and 1982-83 while accepted as satisfactory does not overcome the established fact that in the school years 1979-80 and 1980-81, when performing the role of full- time tenured teacher in Duval County, he was not a competent teacher. This performance in the substitute role, while similar, is not sufficiently so to provide a quality of rehabilitation which would set aside the present perception that Respondent is not competent to fulfill the role as full-time classroom teacher in Duval County. This finding is supported by the observations of Dr. Jeffrey Weathers, a professional educator who specializes in teacher evaluations related to their classroom performance as to subject matter and general methodologies. Although some of the tasks which Weathers observed in the Respondent's classroom both at Fletcher and White did not pertain to active instruction, to the extent that other tasks observed called upon Respondent to teach, he was not doing so in an effective manner. As Dr. Weathers described, the vital link between activity and learning could not be found in Lee's classes. Weather's observations, together with those of other professionals at Fletcher and White, coupled with the Respondent's less than cooperative attitude, results in the finding that Respondent has not removed the stigma of his incompetence as a full-time classroom teacher through his teaching in the substitute role at Raines. Finally, while the quality of performance by those students at Fletcher and White who were taught by Lee and participated in the MLST minimum skills tests were similar to students of other teachers in the aggregate, this fact is not enough to set aside the impression of the Respondent's competence. As Dr. Curtis Randolph, who was assistant principal at Fletcher in 1979-80, correctly stated upon reflecting on Respondent's performance, Lee is not competent to teach in Duval County Schools.
The Issue The issues for determination at the final hearing were: 1) whether the Respondent should be dismissed from employment due to incompetency; and 2) whether the conflict in the statute cited in the Notice of Charges dated November 18, 1982, and the Notice of Hearing dated June 18, 1983, constitute inadequate notice to the Respondent Muina of the charges against him. At the final hearing, Marsha Gams, a learning disability teacher at Carol City Junior High School, Rosetta Vickers, Director of Exceptional Student Education, Dade County School Board, Carol Cortes, principal at Carol City Junior High School, Karen Layland, department chairperson of the Exceptional Education Department at Carol City Junior High School and Desmond Patrick Gray, Jr., Executive Director of Personnel, Dade County School Board, testified for the Petitioner School Board. Petitioner's Exhibits 1-13 were offered and admitted into evidence. Yvonne Perez, Bargaining Agent Representative, United Teachers of Dade, Alexander Muina and Desmond Patrick Gray, Jr., testified for the Respondent. Respondent's Exhibits 1-5 were offered and admitted into evidence. Subsequent to the hearing, the Respondent requested via telephone conference call, that Respondent's Exhibit 6, the published contract between the Dade County Public Schools and the United Teachers of Dade, be admitted into evidence as a late-filed exhibit. The contract was admitted over Petitioner's objection. Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted. On July 11, 1983, the Petitioner filed objections to the Respondent's Proposed Findings of Fact, Conclusions of Law and Recommended Penalty. Certain of the Petitioner's objections were subsequently stipulated to by the Respondent and are not in issue in this proceeding.
Findings Of Fact The Respondent Alexander Muina has been employed by the Dade County School System for approximately nine years. He initially worked with regular students, then worked as an assistant teacher with profoundly mentally handicapped students. During the 1979-80 school year, the Respondent became a permanent substitute in a class for the trainable mentally handicapped. He held this position for approximately two months and during that period received a satisfactory annual evaluation. During the 1980-81 school year the Respondent was assigned to the "ESOL" Program which is an acronym for English for Speakers of Other Languages. During this period, the Respondent taught as an itinerant teacher at three different schools each week. One of the schools the Respondent was assigned was Carol City Junior High School, where he taught on Thursdays and Fridays, as part of the Entrant Program. This was a program which was established for the approximately 13,000 children who had entered the Dade County School System during the Mariel boat lift. Mrs. Carol Cortes, principal at Carol City Junior High School, compiled the Respondent's annual evaluation for 1980-81 after consulting with the two other principals to whose schools Respondent was also assigned. At that time, Respondent received an acceptable annual evaluation from Cortes; however, Cortes had not continually observed the Respondent or had continuous direct contact with him since he was only at the school two days a week. At the close of the 1980-81 school year, the Respondent asked Cortes if there was an opening in exceptional education in which he could be placed. Toward the end of the summer a position became available in varying exceptionalities, an area in which the Respondent is certified by the State of Florida, and he accepted this position. A varying exceptionality class includes students who have three types of learning disabilities or exceptional problems, including the educable mentally handicapped, the learning disabled, and the emotionally handicapped. Although the Respondent is certified by the State of Florida to teach varying exceptionalities, during his first year instructing the class the Respondent experienced significant problems which are reflected in his evaluations of November, January and March of the 1981-82 school year. The first observation of Respondent as a varying exceptionalities teacher was done on November 5, 1981, by Carol Cortes, principal. The Respondent's overall summary rating was unacceptable in the areas of preparation and planning and classroom management. Individual Education Plans (IEPs) for each of the students were not being followed. The Respondent was not using the IEPs to develop activities for the students which would meet the goals of providing "diagnostic prescriptive teaching." Using the IEPs and the diagnostic prescriptive teaching techniques is crucial to the success of exceptional educational students. The students were not being taught according to their individual abilities, but rather were doing similar classroom work. Additionally, classroom management was lacking in that the Respondent did not formulate adequate behavior modification plans for the students who were observed talking and milling about the classroom. Following her first observation, Cortes offered assistance to Respondent, including changing his physical classroom layout and placing him with the department chairperson. This was done so that the chairperson could assist in developing the activities and plans necessary for the students and could also provide support in developing behavior modification plans. Cortes also asked the school psychologist to work with the Respondent in establishing such plans. Dr. Gorman, the assistant principal, had frequent informal observations of the Respondent in an attempt to help him with his classroom difficulties. The next formal observation of Respondent was performed by Cortes on January 20, 1983, and the overall summary rating was again unacceptable in the areas of preparation and planning, classroom management and techniques of instruction. Preparation and planning was unacceptable because the Respondent was still not following the student's IEPs. He continued to assign the same general activities to all students regardless of individual differences. His class was confused regarding their goals. Because the Respondent was not teaching toward the objectives set forth in the IEPs, the children were not achieving a minimum education experience. The Respondent was marked unacceptable in classroom management because he did not have adequate control over the students. Students were walking around the class and the class was generally noisy The work that the Respondent did with individual students was in the nature of giving directions rather than actually teaching. In order to teach it is necessary to provide students with new concepts and provide teacher input rather than simply monitor students. The Respondent was marked unacceptable in techniques of instruction because his lesson planning was deficient. He spent the majority of time in the classroom attempting to discipline students. His grade book was kept in an inappropriate manner and the students were frustrated. As a result of these problems, Cortes requested that the Respondent visit a program at Madison Junior High School which had an acceptable behavior modification program in place. The Respondent visited the program on January 26, 1982; however, no substantial improvement after the Respondent's visit was noted. The Respondent also took a reading course in late January, 1982. No significant improvement was noted following completion of that course. In January of 1982, a social studies position at Carol City Junior High School became available. Cortes offered that position to the Respondent and he could have transferred into the social studies department if he had so desired. The Respondent, however, elected to remain in the field of exceptional student instruction. At that time, Cortes felt that the Respondent was attempting to deal with his deficiencies and he should be given the opportunity to correct the problems with his class. Mrs. Vickers, Director of Exceptional Student Education for Dade County Schools, made a routine visit to Carol City Junior High School on January 27, 1982. She had heard from one of her education specialists that there were difficulties in classroom management in the Respondent's classroom. She observed that many of the students were not on task in that they walked around the classroom, talked out loud, and called the Respondent "pops". A few of the students tried to work, but the noise level in the class was so high it was disruptive. Vickers chose not to do a formal observation at that time, because she felt that there were many areas that she could not have marked acceptable. Instead, Vickers chose to do a planning session with Respondent on that same date. At the planning session, Vickers discussed with Respondent such topics as getting the students on task, bringing supplies and materials, completing assignments and doing homework. She discussed IEPs with the Respondent and the minimal skills tests that the children are administered in grades 5, 8 and 11. She explained to the Respondent how to use a grade book and examined the student's work folders. Although the folders contained significant amounts of work, the work did not correlate with the objectives on the children's IEPs. Vickers was also concerned that the Respondent was monitoring the class rather than directly instructing the students on specific skills. He did not pull individual students or groups aside for direct instruction. Vickers returned to the Respondent's classroom on February 25, 1982, in order to conduct a formal observation. At that time, Vickers gave the Respondent an unacceptable overall summary rating. She found him deficient in the categories of classroom management, techniques of instruction, assessment techniques, student-teacher relationships, and acceptable in the category of preparation and planning. She rated the Respondent unacceptable in classroom management because a serious problem existed with the management of his students who were not on task. The students were not working in an orderly fashion and the class was so loud that it distracted the class on the other side of the room. When Vickers tried to speak with the teacher in the adjoining room, the noise level in the Respondent's class prevented a successful conversation between them. Due to these problems, the Respondent's students were not receiving a minimum education experience. Children with learning disabilities are easily distracted by visual or auditory interference; this problem was occurring in Respondent's class. Vickers rated the Respondent unacceptable in techniques of instruction since he was not using the diagnostic prescriptive teaching method that is required in the Dade County School System. Respondent was not utilizing small groups to give specific help with skills, but was instead, monitoring. Vickers also rated the Respondent unacceptable in assessment techniques. Exceptional education teachers are required to do a profile on each student showing the skills that the student has met and the skills that the student needs to improve. The Respondent did not meet this requirement. Finally, Vickers found the Respondent unacceptable in student-teacher relationships since she observed that the students showed an unacceptable level of respect for the Respondent. Vickers suggested that the Respondent visit three other exceptional education teachers along with regular teachers in school. She also scheduled an assertive discipline workshop for exceptional education teachers and asked that Respondent attend. The Respondent however, did not attend the workshop. On March 25, 1982, Cortes completed Respondent's annual evaluation for 1981-82 and recommended nonreappointment. This annual evaluation took into consideration all of the observations done by administrators in the building. She found the Respondent unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. Cortes next observed the Respondent on May 17, 1982, and again gave him an overall summary rating of unacceptable. She found him unacceptable in the categories of preparation and planning and classroom management. Preparation and planning was unacceptable because the Respondent was not following the IEPs for the students. Cortes observed that the Respondent misspelled a word on the black board and the students copied his misspelling. Classroom management remained unacceptable because most of the class was not working. The Respondent continued to have difficulties controlling his students who continued to address him inappropriately by calling him "pops". As the Respondent moved from student to student, the remainder of the class was either talking or milling about the room. Respondent did not have understandable classroom rules and resultant consequences for breaking such rules. Rather than institute positive rewards for students who met the classroom criteria, his emphasis was on negative reinforcement. Following Cortes' discussion with the Respondent as to these deficiencies, she continued to see minimal improvement. It was also recommended that the Respondent visit Mrs. Layland, the department chairperson, to observe her classroom management techniques. Layland had a behavior modification plan in place and was able to work individually with each student while other students remained on task. The Respondent did visit Mrs. Layland's class but there was no significant improvement following that visit. On May 24, 1982, Cortes performed a second annual evaluation on the Respondent in which she found him unacceptable in one category, preparation and planning and acceptable in the remaining categories, but did not recommend him for reemployment. The second annual evaluation had only one unacceptable category, preparation and planning, and overall Respondent was rated unacceptable. However, the area in which the Respondent was rated unacceptable is especially important in the context of exceptional education. Preparation and planning is an important aspect of this field since planning for exceptional education students must be done on an individual basis. Additionally, the teacher has to plan what each student will be learning over a given period of time, and such planning is necessary in order to successfully instruct these students. Notwithstanding the Respondent's improvement, Cortes moved for his nonreappointment at the conclusion of the 1981-82 school year. The Respondent, however, was reappointed for the 1982-83 school year, when it was determined that the documentation upon which the nonreappointment was to be based was insufficient due to noncompliance with the existing union contract. Prior to the completion of the 1981-82 school year, the Respondent, through his area representative, Yvonne Perez, requested a transfer back into a regular classroom where the Respondent could teach Spanish or Social Studies. This was based on the Respondent's recognition that he was encountering extreme difficulties in teaching varying exceptionalities. Patrick Gray, Personnel Director for the Dade County School System, was aware of the request for a transfer on behalf of the Respondent and agreed to consider it. Gray subsequently determined not to transfer the Respondent, and reassigned him to his existing position. Following his assignment back to Carol City Junior High School, Cortes began to formally observe the Respondent. The first such observation of the 1982-83 school year occurred on September 13, 1982, less than one month after teachers had returned to school. Cortes observed the Respondent and documented an observation sheet with five attached papers. Observations performed the previous year had included only one statement. Approximately one month later, Cortes conducted another observation with four detailed attachments. The documentation provided to the Respondent in September and October of 1982 was accumulated to verify or affirm the decision which was made by Cortes in May of the prior year, to terminate the Respondent. Based on Cortes' observations of the Respondent while he was employed at Carol City Junior High School, she would not recommend him for a teaching position in any other field. According to Cortes, the Respondent is lacking the basic skills necessary to be a successful teacher. Marsha Gams, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1981-82 school year and Respondent's supervisor, met with the Respondent on numerous occasions during the course of his assignment to Carol City Junior High School. Although Gams saw improvement on Respondent's part during the period that she observed him, the improvement was not significant. Based on Gams' observation of the Respondent's class, she felt that the Respondent's students were not receiving a minimum education experience since the Respondent did not have an adequate grasp of the curriculum and materials required for the learning disabled and educable mentally handicapped students. The Respondent's class eventually affected Gams' students due to the noise level which came from his adjoining class. Karen Layland, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1982-83 school year, also worked with the Respondent. They had joint planning periods and spent a number of afternoons reviewing lesson plans, methods, curriculum, and matching materials to IEP objectives. According to Layland, the Respondent's basic problem was that he did not clearly understand the requirements of teaching varying exceptionalities Layland did not observe significant academic progress in the Respondent's class. The Respondent's grade book was disorganized and the materials contained in the student's folders were not appropriate for the particular students. Moreover, there was a lack of organization in his classroom in that students left class without permission. Although Layland felt that the Respondent was well intentioned, he did not have an adequate grasp of the curriculum, teaching management and behavior management that are necessary in an exceptional education setting. Even if Layland had been allowed to continue to work with the Respondent for the remainder of the school year, she did not feel that he could have been brought up to a competent level to teach varying exceptionalities during that period of time. Based on her observations, Layland believed that the Respondent's students were not receiving a minimum education experience due to the Respondent's lack of definite knowledge of methods in instructional techniques for varying exceptional students. By November, 1982, the School Board had made a determination that the school system had exhausted its remedies to raise the Respondent's performance to an acceptable level. Although the Respondent had obtained an acceptable rating from Cortes at the end of the 1982 school year, even this evaluation demonstrated a serious deficiency on Respondent's part. Additionally, during the 1981-82 school year the Respondent encountered numerous significant problems which had not been adequately remediated in order to permit him to continue teaching varying exceptionality students. The school board administration declined Perez' request that the Respondent be transferred into a regular class on the belief that the Respondent was incompetent in basic classroom instruction. However, based on the Respondent's teaching record prior to his employment at Carol City Junior High School, the Respondent encountered difficulties only when he was teaching varying exceptionalities, and in other fields, his basic skills were documented as acceptable. At all material times, the Respondent was employed as an annual contract teacher and did not hold a professional service contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Petitioner Dade County School Board affirming the dismissal of the Respondent. DONE and ENTERED this 26th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 26th day of September, 1983.
The Issue Whether Respondent, Volusia County School Board, Florida (Respondent, Volusia County Schools, or the School Board), violated the Florida Civil Rights Act of 1992, sections 760.01 through 760.11, Florida Statutes,1/ by discriminating against Petitioner, Johnnie Lee Canady (Petitioner), based upon Petitioner’s race or disability.
Findings Of Fact The School Board is the duly authorized entity responsible for providing public education in Volusia County, Florida. At all material times, Petitioner was employed by the School Board as a seventh-grade social studies teacher at River Springs Middle School (River Springs). The principal of River Springs was Stacy Gotlib. Petitioner served as the River Springs Professional Learning Community Coordinator (PLCC) during the 2012- 2013 school year. As a PLCC, Petitioner was responsible for organizing staff meetings to collaboratively discuss issues arising in the classrooms. Petitioner testified that he “signed up” for the PLCC supplemental duty position, which was awarded to him by Ms. Gotlib. During the 2013-2014 school year, Don Sarro, who, at the time, was the department chair for River Springs’ social studies department, publicly announced that that he was running for the School Board. Under the circumstances, most employees at River Springs were probably aware that Mr. Sarro would be resigning as department chair, creating a vacancy in the position the following school year. Petitioner claims River Springs discriminated against him on the basis of his race because he “was not told of the vacancy” and “a less qualified white female” was selected for the position. Petitioner did not prove these allegations. At the conclusion of the 2013-2014 school year, Petitioner completed a teaching preference form. Petitioner did not express an interest in serving as the department chair for the social studies department or any other supplemental duty positions. At the conclusion of the 2013-2014 school year, River Springs teacher, Kelly Moore, notified River Springs that she was interested in serving as the department chair for the social studies department. River Springs did not advertise the supplemental duty position, and no teachers made formal applications for the position. Chester Boles, assistant principal intern at River Springs, selected Ms. Moore for the supplemental duty position. She was the only candidate who expressed any interest in the position. She was looking for a leadership position because she was working toward a degree to become an administrator. Petitioner did not offer evidence that he was treated any differently than any other teacher at River Springs regarding the social studies department chair position. In fact, although he alleges that he was discriminated against because he was not told of the vacancy, he admits that he does not know of anyone who was told. He offered no evidence to show how Ms. Moore was informed. In fact, there was no advertisement. And, Petitioner did not show that race was a factor in the hiring decision. Prior to the start of the 2014-2015 school year, Petitioner applied to the School Board for seven teaching positions at four schools outside of River Springs. He interviewed with the principals of those schools for each of those positions, but was not selected. Petitioner believes that he was discriminated against on the basis of his race because the selected applicants “were less qualified” than Petitioner. Petitioner, however, did not prove his claim. In fact, he testified that he does not have specific knowledge of the individuals who were hired for each position, the race of the selected applicants, or the reasons the applicants were chosen for the positions. Petitioner testified, in relevant part, as follows: Q: Do you know what position Brian McClary was hired into? A: No. Q: Do you know his race? A: No. Q: Do you know why he was hired? A: No. Q: Okay. How about Jordan Tager, do you know what position he was hired into? A: No. Q: Do you know who hired him? A: No. Q: Do you know his race? A: No. Q: How about Joseph Martin, do you know what job he was entered – hired into? A: No. Q: Do you know who hired him? A: No. Q: Do you know why he was hired? A: No. Q: Do you know his race? A: No. Q: Amy Tolley, do you know what job she was hired into? A: No. Q: Do you know who hired her? A: No. Q: Do you know why she was hired? A: No. Q: Do you know her race? A: No. Q: How about Elizabeth Stople, do you know what job she was hired into? A: No. Q: Do you know who hired her? A: No. Q: Do you know why she was hired? A: No. Q: Do you know her race? A: No. [...] Q: Do you know Chelsea Ambrose? A: No. Q: Do you know her race? A: No. Q: Do you know what position she was hired into? A: No. Q: Do you know why she was hired? A: No. Q: How about Amanda Muessing, do you know what job she was hired into? A: No. Q: Do you know who hired her? A: No. Q: Do you know why she was hired? A: No. Q: Do you know her race? A: No. Petitioner offered no evidence of the race of the individuals selected for the seven positions. Although he offered the résumés of five of the applicants allegedly hired for five of the positions, he failed to substantiate his claims that he was discriminated against on the basis of his race when he was not selected for one of the seven teaching positions. Petitioner testified that, during the 2013-2014 school year, several teachers were having problems “because the [seventh grade] wing was out of control.” He testified that students were being very “disruptive” and there was a general lack of discipline. According to Petitioner, the situation created a “very difficult and stressful” atmosphere for the teachers. On June 8, 2014, Petitioner emailed the School Board's assistant superintendent, Peromnia Grant. His email stated that the stress from the previous school year may “have aggravated some of [his] Persian Gulf War Syndrome [i]ssues.” The email stated, in relevant part: I have participated in the transfer fair and applied for high schools. If I must return to River Springs or middle school, I might need to take a leave of absence until January, 2015 so the Veterans Administration can conduct a full evaluation of my medical concerns and discuss my retraining for an alternative job. Petitioner sought treatment over the summer with the Veteran Administration Outpatient Clinic (VA). The VA worked “to help stabilize” his condition. He “was in distress” after “a bad [school] year.” He was placed on prescription medication for approximately three months. At the beginning of the 2014-2015 school year, Petitioner had a conversation with Eric Ellis, an eighth-grade teacher at River Springs. Petitioner informed Mr. Ellis that he was admitted to the VA hospital over the summer. Petitioner told Mr. Ellis that the VA had asked him if he had any suicidal thoughts and that he advised the VA that he did not. Petitioner further told Mr. Ellis that when the VA asked him if he had any thoughts of harming or killing anyone else, he responded, “Amanda Wiles.”3/ Amanda Wiles was the assistant principal at River Springs. On or about August 19, 2014, Petitioner attended a pre- planning meeting at River Springs. During the meeting, Petitioner got into a loud verbal exchange with Mr. Sarro. River Springs assistant principal intern, Chester Boles, attended the meeting. Petitioner was upset because he believed Mr. Sarro was using the meeting as a platform to give “a political speech” and to talk about “how wonderful everything” was at the school. Petitioner believed Mr. Sarro was breaking school policy and that he “had to stop him.” Petitioner proceeded to engage in a heated discussion with Mr. Sarro. At some point during the conversation, Petitioner stated something to the effect that, "I better shut my mouth, I'm getting racist,” and shoved a crumpled up piece of paper into his mouth. After the meeting, Mr. Boles informed Ms. Gotlib of the situation. Shortly after the meeting, Mr. Sarro approached Mr. Ellis about Petitioner. Mr. Ellis explained to Mr. Sarro that he too was concerned about Petitioner. Mr. Sarro asked Mr. Ellis if he would like to go with him to the principal’s office to share their concerns about Petitioner with Ms. Gotlib. Mr. Ellis agreed and they both went to the principal's office and spoke to Ms. Gotlib. After speaking with Mr. Sarro and Mr. Ellis, Ms. Gotlib contacted the School Board's director of Professional Standards, Sandy Hovis. Ms. Gotlib informed Mr. Hovis about Petitioner’s reportedly threatening comments and unusual behavior. Mr. Hovis then met with Mr. Ellis and Mr. Sarro to discuss their concerns. Mr. Ellis told Mr. Hovis that Petitioner made a comment to the VA that he would like to hurt or kill the assistant principal at River Springs. On August 19, 2014, Mr. Hovis met with Petitioner and informed Petitioner of the information that was reported to him by administration and his fellow teachers. He advised Petitioner that Petitioner was being administratively assigned to home with pay pending a safety evaluation to be conducted under the School Board’s Employee Assistance Program (EAP). Safety evaluations are requested by the School Board when there are concerns that an employee may be an “imminent risk of danger to [himself] or to others.” Following the meeting, Petitioner sent Mr. Hovis an email, entitled “[a]ccusations from staff at River Springs Middle.” In his email, Petitioner stated that the “first accusation about [him] biting down on folder paper is correct.” Petitioner claimed that it was a heated discussion, which led him to tell Mr. Sarro “a thing or two, or three about himself (about 3 minutes’ worth).” When referring an employee to EAP, the School Board works with Horizon Health, a third-party administrator that contracts with the School Board. Mike Nash with Horizon Health was the liaison between the School Board and independent health care providers. Mr. Nash, who was located in Colorado, was responsible for ensuring that Petitioner met with appropriate healthcare providers to conduct evaluations. In accordance with arrangements made by Mr. Nash, Petitioner met with a licensed mental health counselor, Brianard Hines, PhD, in August and September 2014, for a safety evaluation. Sandy Hovis did not have any conversations with Dr. Hines. Although no contemporaneous written report from Dr. Hines was submitted into evidence, Petitioner introduced a "To whom it may concern" letter from Dr. Hines, dated May 15, 2016, stating: Dr. Johnny Canady was referred to me through the Volusia County Schools Employee Assistance Program as a mandatory referral for three sessions to evaluate current risk to self and others. Mr. Canady had allegedly made statements which other employees believed contained some degree of implicit threat to staff at his school, was suspended from his teaching duties and directed to participate in the assessment sessions with me. Dr. Canady attended sessions at my office in Port Orange Florida on August 24, September 4 and September 11, 2014. On those occasions he participated actively and denied any current or past homicidal or suicidal ideation. He also adamantly denied making any statements which were intended to be or could of been considered to be threatening in any way. He reported some symptoms of Posttraumatic Stress Disorder, which he attributed to his earlier service in the military. After completing his three sessions, the Volusia County School Board apparently decided that he should participate in a fitness for duty evaluation before returning to his job. Fitness for duty evaluations are not performed by Employee Assistance Programs, and it is my understanding that Mr. Canady obtained his evaluation from another provider. Please let me know if I can provide any further information, although complete records are available through the Employee Assistance Program at any time, which were provided through Horizon Health. On or about September 18, 2014, Mr. Nash informed Mr. Hovis that Horizon Health recommended that Petitioner submit to a fitness-for-duty evaluation. Mr. Hovis was not provided with written documentation of Horizon Health's recommendation. Later that day, Mr. Hovis met with Petitioner and directed him to undergo a fitness-for-duty evaluation. Unlike a safety evaluation, a fitness-for-duty evaluation determines whether the employee is capable and able to perform the duties and responsibilities of his or her position. As indicated in the letter from Dr. Hines, Dr. Hines did not perform Petitioner’s fitness-for-duty evaluation. Rather, it was performed by licensed psychologist Dr. William Friedenberg. Petitioner was on placed on paid administrative leave pending the outcome of the evaluation. Dr. Friedenberg’s fitness-for-duty evaluation of Petitioner determined that Petitioner suffered from “Adjustment Disorder with mixed anxiety and depressed mood.” Specifically, Dr. Friedenberg determined: Although it does not appear that Dr. Canady poses a risk of danger to himself or others, he realizes that it is not advisable for him to return to a classroom teaching setting at this time due to the stress associated with this job and his previous reaction to such stressors. It is thus the opinion of this examiner that, within a reasonable degree of psychological certainty, Dr. Canady is not currently fit for return to duty in his previous capacity as a classroom teacher. He will likely, however, be able to return successfully to employment with the Volusia County School system in an administrative capacity. Upon receiving Petitioner's fitness-for-duty- evaluation, the School Board requested further clarification from Dr. Friedenberg. Dr. Friedenberg explained that "administrative capacity" was a non-student contact position. Dr. Friedenberg was unable to provide a timeline as to when Petitioner would be able to return to his previous position as a classroom teacher. Based on Dr. Friedenberg’s assessment, the School Board reviewed its vacancies and determined that there were no vacant positions for which Petitioner was qualified because the positions all involved student interaction. On October 21, 2014, Mr. Hovis met with Petitioner and reviewed Dr. Friedenberg’s evaluation with Petitioner. Because there were no vacant positions available, the School Board, through Mr. Hovis, offered Petitioner the option of resigning, being terminated, or taking a leave of absence in lieu of termination. Petitioner elected to take a leave of absence. During his leave of absence, on May 11, 2015, Petitioner voluntarily resigned from his position. In his Complaint of Discrimination filed with FCHR on April 8, 2015, Petitioner claims that he was discriminated on the basis of his alleged disability. Particularly, Petitioner claims that he was “denied [a] reasonable accommodation” when he was not placed in another position within the school district. Petitioner did not offer any evidence that there were any vacant positions available at the time that he was granted a leave of absence. Since that time, Petitioner has not applied for a single administrative position. At the final hearing, during cross examination, Petitioner testified: Q: [After you received] Dr. Friedenberg’s report, [d]id you apply for any administrative position within the School Board? A: No, because Mr. Hovis said we have nothing for you. [...] Q: Did you ever go on to the Volusia County School Board web site to look to see whether there was any position that you were interested in? A: No. [Mr. Hovis] said they had nothing for me, so there was no reason for me to – in my mind to waste my time doing that. He said they have nothing for me. Q: And to this day you haven’t applied for any other position within the school district, correct. A: No, because they say I’m not fit for duty. I can’t be around – I can’t be in the classroom setting . . . The evidence submitted by Petitioner was insufficient to establish that he was denied a reasonable accommodation or that the School Board otherwise discriminated against him because of his disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 27th day of September, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2016.
The Issue The issue in this case is whether the professional service contract of the Respondent with the School Board of Dade County should be terminated for misconduct in office, gross insubordination and incompetency due to inefficiency.
Findings Of Fact The Respondent, who is 40 years old, became a teacher in 1985 and taught from 1985 through March 4, 1992 as an employee of the School Board of Dade County. She held a professional service contract. Before the 1989-90 school year her teaching performance was adequate. During the 1989-90 school year she was employed at Kinloch Middle School as a sixth grade language arts teacher. Students at Kinloch are predominately of Hispanic background. In May, 1990 she was reassigned to Edison Middle School, where the students are predominantly African-American. During the 1990-91 school year, Respondent had a difficult time managing the behavior of the children in her classroom. Walking by her classroom at Kinloch, administrators often saw the class in serious disorder, with students running around, yelling, throwing papers, and not doing school work. On one occasion an assistant principal found 40 to 50 paper balls on the floor of her classroom. On another day while the students were engaged in a "paper fight," one of the students broke a glass display case with his head. One of the assistant principals at the school, Irving Rashkover, performed a formal observation of the Respondent's teaching on March 5, 1991, using the formal observation instrument for assessing teacher performance developed by the School Board of Dade County for all teachers, known as TADS, the Teacher Assessment and Development System. He found that the Respondent was significantly deficient in the areas of preparation and planning, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. As is required when an observation shows deficient performance, the Respondent was given prescriptions designed to assist her in improving her performance in her areas of deficiency. Prescriptions are also directives which are given by an administrator requiring the teacher to perform the specific prescriptive tasks, which are designed to improve classroom performance. The prescriptions given to Respondent included such things as requiring her to prepare lesson plans and tests to be turned in to another assistant principal, Mrs. J. Reineke. The Respondent failed to comply with these prescriptions. It would have been difficult for her to perform all the directives, because she was removed from the classroom and assigned to the regional office, not long after the observation of her teaching. She nevertheless failed to perform the tasks that did not require her to be on the school site, such as the preparation of lesson plans for the substitute teacher in her classroom, and recreating her grade book. Because of her poor work performance, the Board required that the Respondent have a psychological evaluation. That evaluation indicated that she might benefit from psychotherapy, but that she could return to the classroom. The Respondent also requested to change her work location. Both she and school administrators believed that a change in schools might assist her in improving her performance, so in May 1991 she was transferred from Kinloch Park to Miami Edison Middle School. Ordinarily, teachers whose performance has been found deficient and who are therefore working on prescriptive activities to improve their teaching are not eligible for transfer. The approval of this transfer showed that the School Board was making a special effort to accommodate the Respondent in an effort to improve her teaching. Respondent was transferred to Miami Edison Middle School as a team teacher. This meant that she did not have primary responsibility for the classroom in which she worked. Another experienced teacher had primary responsibility, and Respondent assisted in teaching. An external performance evaluation was done for Respondent, that is, the TADS evaluation was done by an evaluator who was not an administrator at Miami Edison Middle School. In the new team teaching situation, the external evaluation resulted in an acceptable performance rating for the Respondent. She received an acceptable annual evaluation for the 1990-91 school year, despite her earlier problems that year at Kinloch, the need to remove her from the classroom, assign her to the district office and have the psychological evaluation done before her reassignment to Miami Edison. Respondent was placed in a self contained classroom at Miami Edison for the 1991-92 school year. Unfortunately, the deficiencies that she had exhibited at Kinloch returned. A TADS observation of her teaching was done on October 24, 1991. The evaluation found her deficient in planning, classroom management, techniques of instruction and assessment techniques. She was given prescriptive activities to help her to remediate these deficiencies to complete by November 21, 1991, but she did not do them, even though the matter was brought to her attention in a memo dated December 3, 1991. The Respondent was wholly unable to control her classroom. Her students essentially engaged in free-for-alls during her class periods. They would not remain in their seats, they were talking, running, throwing paper balls at each other, going in and out of the classroom and engaging in fights. While this disorder was taking place around her, Respondent merely sat at her desk and did nothing to control it. Simply put, Respondent did not teach. Her inability or disinclination to require discipline of her students made it impossible for anyone to teach in the circumstances prevailing in her classroom. This was coupled with other unusual behavior by the Respondent: she directed her students to make up and insert their own grades in their progress reports. This is wholly unacceptable conduct by a teacher. Administrators at Miami Edison became aware of the disarray in Respondent's classroom because of complaints by students and parents. Her classroom had been on the second floor, but when students were seen sitting on the window sill, the school administration moved her classroom to the first floor, near the main office. It was hoped that the move would make her classroom more safe for her students, since if she failed to control them they would not be in danger from sitting in upper floor windows, and the proximity to the main office was designed to help improve student behavior since they would be so close to the school administration. The misbehavior, however, continued unabated in her classroom. The level of disorder in the classroom and the consequent lack of teaching caused continuing parental complaints to administrators about the Respondent's performance. Another TADS classroom observation was performed by the school's principal in the Respondent's classroom on November 22, 1991, the day after her prescriptive activities from the October observation were to have been completed. Her performance again was found deficient in classroom management, techniques of instruction, teacher-student relationships and assessment techniques. Additional prescriptions were issued to Respondent but again she did not complete these either. When these failures were again brought to her attention her response to the administration was that "she didn't feel it was necessary" to comply with the prescriptions (Tr. 87). On December 19, 1991, the principal had a conference with Respondent on her failure to complete the prescriptive activities assigned after the two evaluations in October and November 1991. The principal followed up again, and specifically told the Respondent on January 6, 1992 that unless she complied with the prescriptions, he would recommend that she not be reappointed as a teacher. The disarray in her classroom continued. School security had to go to her classroom to break up fights. Continuing complaints by parents came both to the school administration and to the central administration of the School Board. The photographs of her classroom taken on December 20, 1991, are almost unbelievable (School Board Composite Exhibit 12). The classroom looks as if it were the scene of a riot. Shortly after that day, Respondent was removed as a classroom teacher. During a formal "conference for the record" with the Director of the Office of Professional Standards of the school board, Dr. Joyce Annunziata, in January 1992, the Respondent stated that student behavior was the responsibility of the students, not the teacher; the teacher's duty is to teach and the student's duty is to learn, but if students don't want to learn there is nothing the teacher can do about it; and, that she was powerless to change the student's behavior. The principals of Kinloch Middle School and Edison Middle School both testified that in their opinion, which is credited, the Respondent was incompetent as a teacher, and that her failure to maintain discipline in her classroom after receiving assistance in doing so through prescriptions for improved classroom management constituted misconduct in office and gross insubordination. Neither would willingly reemploy her as a teacher at their schools. The repeated complaints about her classes, rising from the school level to that of the central district administration, is further persuasive evidence that Respondent has lost her effectiveness as a teacher in the community. The Respondent has failed to create an effective and safe learning environment for students in her classrooms. Based on her prior acceptable evaluations, she knows how to keep order in her classes. She has also demonstrated by her repeated failure to teach and impose classroom discipline that she is now incompetent to teach. Moreover, her repeated refusal to comply with prescriptions given to improve her classroom performance by administrators at Kinloch and Miami Edison Middle Schools, which are specific directions which have been given to her by administrators with proper authority, constitutes gross insubordination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the School Board of Dade County terminating her employment as a teacher for misconduct in office, incompetency and gross insubordination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of February 1993. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February 1993. APPENDIX The findings proposed by the School Board have been accepted. Findings proposed by the Respondent: Paragraphs 1-3 have been accepted. Paragraphs 5-8 are rejected for the reasons stated in the Findings of Fact dealing with her ineffectiveness, gross insubordination and incompetency by reason of inefficiency. It is true that no annual evaluation of the Respondent's teaching performance showed an unacceptable evaluation. This occurred because she was transferred to the district office and removed from the classroom for a substantial period of time in 1991, and the annual evaluation could not be one finding unsatisfactory performance since, by the end of the year, she was performing satisfactorily in the team teaching situation with another teacher (Tr. 105). She may be able to perform adequately in that situation, but the School Board is not required to employ her as a teacher who needs a guardian in the form of another teacher in her classroom. A competent teacher keeps order in her class herself. COPIES FURNISHED: James C. Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 William Du Fresne, Esquire Du Fresne & Bradley, 2929 Southwest Third Avenue Miami, Florida 33129 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Octavio J. Visiedo, Superintendent Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard Suite 215 Miami, Florida 33132
The Issue As to Case 12-2570TTS, whether the Broward County School Board (School Board) has good cause to suspend the employment of Sarena Stewart (Respondent), a classroom teacher, for three days as alleged in the Administrative Complaint filed by the School Board on July 30, 2012. As to Case 12-4137TTS, whether the School Board has good cause to terminate Respondent's employment, as alleged in the Administrative Complaint filed by the School Board on December 21, 2012.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida. New River is a public school in Broward County, Florida. During the 2011-2012 school year, Respondent was employed as a math teacher at New River pursuant to a professional service contract. Prior to the 2011-2012 school year, Respondent was assigned to teach math at McArthur High School (McArthur). Respondent has been employed by the School Board since 2006. Respondent received satisfactory performance evaluations for each school year of her employment prior to the 2011-2012 school year. During the 2011-2012 school year, Melinda Wessinger was the principal of New River, and Taina Sierra was an assistant principal. Ms. Sierra's administrative responsibilities included oversight of the math department. The 2011-2012 school year was Ms. Wessinger's first year at New River. Ms. Sierra has been at New River for six school years. CASE 12-2570TTS For the 2011-2012 school year, August 22, 2011, was the first day of school for students. Teachers were required to report to work on August 15, 2011, for a week of preplanning. During the preplanning week, teachers attended faculty meetings and readied their classrooms for the coming school year. On August 15, 2011, the work hours for the preplanning week and for the upcoming school year were discussed at a faculty meeting. Also discussed was the sign-in and sign-out requirements for the preplanning week. Teachers were required to sign-in when they arrived at school and sign-out when they left the facility for any reason. On August 16, 2011, Respondent asked for and received permission from Ms. Sierra to leave New River so she could go to McArthur to retrieve certain materials she had left at her former school. Respondent did not follow the sign-out procedure when she left New River. On either August 16 or 17, 2011, Respondent again asked for, and received, permission from Ms. Sierra to leave New River so she could go to McArthur to retrieve other materials. Respondent did not follow the sign-out procedure when she left New River. One day during the preplanning week, Respondent was tardy arriving to school. On August 19, 2011, the last day of preplanning, Ms. Sierra had a conference with Respondent during which Ms. Sierra told Respondent to adhere to the sign-in and sign-out procedures and to arrive at work on time. Ms. Sierra did not consider that conference to be disciplinary. After this conference, Respondent knew, or should have known, New River's leave policies and its sign-out policy. Respondent had ready access to the faculty handbook through a link on the CAB (Communication Across Broward) system. When school started on August 22, 2011, teachers did not have to sign-in when they arrived at school. However, they were required to sign-out if they left school early. The New River faculty handbook contained the following as to signing out before the end of the school day: All personnel must get permission from the grade level assistant principal before leaving campus for any reason. This includes school related in-service, county meetings, school visits, etc. To leave campus for any personal reason, permission must be obtained from an assistant principal in advance. An emergency sign in/out sheet will be available at Office Manager's desk. If you are leaving during the day for personal reasons/doctor's appointments, it is your responsibility to obtain coverage for your classes. Please notify your administrator in the front office, via CBA, the teacher(s) who will cover your classes. The time you take off will be deducted from your accumulated personal sick or personal leave time. On September 16, 2011, Ms. Sierra met with Respondent to discuss complaints from parents and students. Ms. Sierra directed Respondent to cease and desist any inappropriate behavior toward students as a violation of the code of ethics and that she was to treat students with respect at all times. On October 28, 2011, Ms. Sierra had a pre-disciplinary conference with Respondent based on Respondent's continued failure to follow directives, including directives to comply with all processes and procedures regarding class coverage, absences, and embarrassing and/or disparaging students. As a result of that meeting, Ms. Sierra recommended that Respondent be suspended for one day without pay. That recommendation was approved by the School Board on December 6, 2011. Respondent served that one-day suspension without requesting a formal administrative hearing to challenge that action. Article 23 of the CBA pertains to “Leaves,” including sick leave and personal leave. Section A.2 of Article 23 provides that employees shall be granted up to six days each school year for personal reasons. That provision also provides that personal reasons leave shall not be granted on the day preceding or following a holiday. On November 30, 2011, Respondent put in for personal leave beginning on December 14 through 16, 2011. These dates immediately preceded a school holiday (school winter break was December 19 through 30). Ms. Sierra and Ms. Wessinger explained the CBA provision to Respondent and told her that she could not have personal leave. Respondent then explained that she was having a medical procedure performed.1/ They told her to change her leave from personal leave to medical leave. Ms. Sierra and Ms. Wessinger also told her that they needed a doctor's note excusing the absence. There was no particular form required for the doctor's note. On January 3, 2012, Ms. Sierra sent a follow-up email to Respondent informing her that she had not changed the leave request from personal leave to sick leave as she had been directed. Respondent responded that she had changed the leave request and stated that the change could be verified through the School Board's “smartfind” computer program. Respondent's representation to Ms. Sierra was false. Respondent had not changed her leave request.2/ In addition to her planned absences from December 14 through 16, 2011, Respondent called in sick on December 12 and 13, 2011.3/ On these two days, Respondent called into the smartfind system at 8:00 a.m. and 8:21 a.m., respectively. Despite having been repeatedly told to comply with policies and procedures relating to absences, these calls were not in compliance with New River's faculty handbook. A teacher who called in sick after 6:00 a.m. was required to call the substitute coordinator's (Nicole Armstrong) direct line, which gives a caller her voicemail should the coordinator not be at the school or at her desk. Respondent's failure to comply with the call-in procedure resulted in Ms. Armstrong’s having to scramble with very little time to find coverage for Respondent's classes on December 12 and 13, 2011. Teachers at New River are required to leave emergency lesson plans with Ms. Armstrong in case of unplanned absences. Respondent had provided emergency plans earlier in the year, but as of December 12 and 13, 2011, those emergency plans had been used and not replaced. Consequently, there were no emergency plans for December 12 and 13. Moreover, Respondent did not comply with the procedures for leaving lesson plans for planned absences for her absences on December 14 through 16. Prior to January 5, 2012, Respondent had brought in two notes addressing her need to be absent December 12-16, 2011, for medical reasons. Both notes were vague. On January 5, Ms. Wessinger and Ms. Sierrra met with Respondent to discuss with her the need for a clear doctor's note. During this meeting, they repeated that Respondent was to follow all policies, procedures, and directives given by the New River administration. Later that day, Respondent left New River before the end of the school day without following the sign-out policy. Respondent left early to get an acceptable note from her doctor, which she brought in the next day. Notwithstanding her need to obtain a doctor's note, Respondent failed to comply with the directives given her by Ms. Wessinger and Ms. Sierra earlier that day. Thereafter, Ms. Sierra recommended that Respondent be suspended without pay for three days for gross insubordination. That recommendation underpins Case No. 12-2570TTS. CASE 12-4137TTS On January 23, 2012, Respondent confiscated a cell phone from N.D., a male student, during her fifth-period class. Respondent placed the cell phone in her desk drawer with the intention of turning the cell phone in to the office after class. At the end of that class, N.D. removed the cell phone from Respondent’s desk without permission and reported to his sixth-period language arts class taught by Tommy Moore. After the start of sixth period, Respondent realized that the cell phone had been removed from her desk drawer. Respondent went to Mr. Moore’s class. There is a conflict in the evidence as to what occurred next. The greater weight of the credible evidence established that Respondent knocked on the door to Mr. Moore’s classroom. Mr. Moore opened the door for Respondent. Respondent entered the classroom where she remained by the doorway. Respondent tried to get N.D. to come to her, but he refused to do so. Respondent asked N.D. in a loud voice to give her the cell phone. A loud argument broke out between Respondent and N.D. Another male student joined in the argument. Respondent and the students engaged in name calling with the terms “bitch” and “bum” being used. Petitioner failed to establish that Respondent used either term. Respondent retrieved the cell phone and left Mr. Moore’s classroom. The argument lasted at least ten minutes and completely disrupted Mr. Moore’s class. Mr. Moore was unable to regain control of his class and was unable to complete the lesson he had started before Respondent came to his classroom. Mr. Moore did not try to stop the argument between Respondent and the two students. N.D. did not appear to be embarrassed or upset because of the argument he had with Respondent. None of the students appeared to be frightened or upset during the argument. After leaving Mr. Moore’s class, Respondent went to a math department meeting chaired by Ms. Stephanie Tegreeny. Ms. Tegreeny had completed her presentation to the other math teachers by the time Respondent arrived. Ms. Tegreeny repeated her presentation for Respondent. After that meeting, Respondent took N.D.’s cell phone to the office. Prior to the start of school on the morning of January 24, 2012, Robin Terrill, a school volunteer, and Mr. Moore were in the media center making copies. Respondent came into the media center and in a loud, rude, and vulgar fashion criticized the school administration. Respondent described the school administration in profane terms, including the “f” word. There was a conflict in the evidence as to whether students overheard Respondent’s rant. The greater weight of the credible evidence established that students were present in an area that they could have overheard Respondent. Later in the morning of January 24, 2012, Mr. Moore contacted Ms. Sierra to inform her of Respondent’s conduct in his classroom the day before. Later that day Ms. Sierra asked Respondent about her conduct in Mr. Moore’s classroom, and she discussed with Respondent what had been reported to her. Prior to the start of school on January 25, 2012, Mr. Moore was walking down the stairs from his classroom to the main level with a student he had been tutoring. Respondent confronted Mr. Moore about his report to the administration of the incident in his classroom on January 23. This confrontation was clearly unwelcomed by Mr. Moore, who testified that he felt “agitated,” “stressed,” and “uncomfortable.” After that meeting on the stairs, Respondent stopped Mr. Moore again to ask what he knew about the administration’s investigation into the incident in his classroom. Mr. Moore thereafter altered his schedule to avoid Respondent. The School Board and the teacher’s union have entered into a CBA applicable to this proceeding. Sections A.1.a. and of Article 18 of the CBA provides for progressive discipline, in part, as follows: Progressive Discipline: Any discipline of an employee shall be for just cause. The parties agree that the concept of just cause embodies the principles of progressive discipline under the circumstances. Disciplinary procedures may include but are not limited to: verbal/written reprimand, suspension, demotion and termination. . . . The School Board’s Policy 4.9 provides certain “Disciplinary Guidelines” and is part of the record of this proceeding as Respondent’s Exhibit 2. Those guidelines are hereby incorporated in this Recommended Order by reference. The School Board’s Policy 5.9 prohibits bullying, which is defined by the policy as follows: “Bullying” means systematically and chronically inflicting physical hurt or psychological distress on one or more students or employees. It is further defined as: unwanted purposeful written, verbal, nonverbal, or physical behavior, including but not limited to any threatening, insulting, or dehumanizing gesture, by an adult or student, that has the potential to create an intimidating, hostile, or offensive educational environment or cause long term damage; cause discomfort or humiliation; or unreasonably interfere with the individual’s school performance or participation, is carried out repeatedly and is often characterized by an imbalance of power. Bullying may involve, but is not limited to: unwanted teasing threatening intimidating stalking cyberstalking cyberbullying physical violence theft sexual, religious, or racial harassment public humiliation destruction of school or personal property social exclusion, including incitement and/or coercion rumor or spreading of falsehoods
Recommendation The following recommendations are based on the foregoing Findings of Fact and Conclusions of Law: As to Case 12-2570TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of employment of Sarena Stewart for a period of three school days. As to Case 12-4137TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of employment of Sarena Stewart for a period of 30 school days. DONE AND ENTERED this 8th day of August, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 8th day of August, 2013.
The Issue The issue is whether Petitioner, Ricky Lynn Sapp (Sapp), was nonrenewed for his annual teaching contract for constitutionally permissible reasons.
Findings Of Fact Petitioner was first employed by the Escambia County School Board for the 1984-85 school year in the compensatory education program at Bellview Middle School and later that school year he took the place of an eighth grade math teacher who was out on maternity leave. Sapp holds a Florida Teaching Certificate in elementary education and is not certified to teach in middle school. He has a bachelors degree. Sapp was asked by the School Board to take the courses necessary to become certified in middle school math, but did not do so because he was working at another job at the time. Petitioner was hired on annual contract by the principal of Bellview Middle School to teach seventh grade math during the 1985-86 school year and to teach sixth grade for the 1986-87 school year. For the most part, Sapp received excellent performance evaluations from the Bellview principal. In September, 1986, a mother of a Bellview Middle School student complained to the principal regarding what she believed to be unacceptable contact between Sapp and her son. The principal told Sapp to stay away from the student, but the parent's complaints continued. The student had been in Sapp's seventh grade math class the prior school year. On November 7, 1986, Sapp was arrested for lewd and lascivious assault on that student. As a result of these charges the Superintendent of the Escambia County School District recommended to the School Board that Sapp be suspended without pay. The School Board voted to disapprove the Superintendent's recommendation. Instead, Sapp was reassigned to administrative duties at the Hall Center. In the fall of 1986, Sapp was also notified by the Department of Education, Professional Practices Services (PPS), that an investigation of the allegations involved in the criminal charge had been instituted. On April 1, 1987, Sapp received the standard memo from the School Board, signed by the Bellview principal, indicating that his annual contract was going to expire at the end of the 1986-87 school year. The memo also indicated that the school district would move as rapidly as possible on the reappointment of the annual contract teachers recommended to the Superintendent for reappointment for the 1987-88 school year, but "personnel assignments resulting from the closing of the Beggs Center and the redistricting of all middle school boundaries greatly obscures the timeline for such reappointments." During the summer of 1987, Sapp talked to Dr. Roger Mott, the Assistant Superintendent for Personnel Services of the school district, and others in his office regarding appointment to an annual contract for the 1987-88 school year. Sapp claims he was told by Mott that he would not be rehired until after his criminal trial. Mott denies telling this to Sapp. Because Sapp's testimony was very confused and contradictory regarding these alleged statements by Mott, Sapp's version is given little weight. Instead, it is found that Mott did not tell Sapp that he would be rehired after the criminal trial. During the discussions between Sapp and Mott in the summer of 1987, Mott did tell Sapp that he was free to interview with any principals in the district for open annual contract positions, however those principals who inquired would be told that there was a Professional Practices Services investigation. Sapp expressed interest only in employment at Bellview. During 1987 the middle schools of Escambia County were redistricted. As a result of redistricting, Bellview Middle School anticipated losing approximately 300 students and 10 teaching positions for the 1987-88 school year. After the jury found him not guilty on August 12, 1987, Sapp again inquired regarding employment. According to Charles McCurley, principal of Bellview Middle School, there were no positions available at Bellview. By letter dated August 21, 1987, Sapp was advised that the Professional Practices Services was investigating two complaints. The first related to the charge of lewd and lascivious assault on a child. The second complaint was that Sapp had received his teaching certificate by fraudulent means because he failed to disclose two criminal convictions on his applications. Mott became aware of the PPS investigation and he discovered that Sapp had apparently falsified the applications for his teaching certificate and the applications for employment with the Escambia County School District. Mott then informed Sapp that the chances of reemployment were not good and that he could not be considered for employment until the PPS investigation was complete. Mott also testified that Sapp was not reemployed because of the information that formed the basis of the second PPS investigation. While this is not the place to determine whether or not Sapp falsified these applications, it is necessary to determine what facts the Respondent acted on in not renewing Sapp's annual contract. Sapp's applications to both the school district and the state showed that he answered "no" when asked if he had ever been convicted of a felony or first degree misdemeanor or other criminal offense other than a minor traffic violation. Sapp has, in fact, been convicted of at least two such violations which were not disclosed. Sapp approached Robert Husbands, Executive Director of the Escambia Education Association, for assistance in getting employment. Husbands talked to Mott. Mott informed him that Sapp could not be rehired until the PPS investigation was resolved. Husbands found that there were seven teaching positions in the whole county which were vacant at the beginning of the 1987-88 school year. Two of those positions were located some distance from Pensacola. Only one of those positions was known to have been filled by an annual contract teacher. There were 37 annual contract teachers in the school district who were not renewed for the 1987-88 school year. Eight others who were not renewed at the beginning of the school year were rehired during the year. Because of redistricting, Bellview had only one opening for an annual contract teacher after it placed its continuing contract teachers. That one opening was for reading and was filled by a reading teacher with a masters degree. Sapp was not qualified for that position. After the 1987-88 school year had begun, Bellview experienced increased enrollment and a resulting increase in teaching positions. Those positions were filled by teachers who were teaching in their field of certification and who were at least as qualified as Sapp. It was very important that Bellview have teachers working in their area of certification because the school was to be audited for accreditation in the 1987-88 school year. Sapp's former position at Bellview was filled by a continuing contract teacher who had previously taught seventh grade and who was certified to teach in both middle and elementary school. The teacher who took over Sapp's class in the 1986-87 school year was not rehired. During the first week of the 1987-88 school year, Sapp sought employment at Bellview and the principal correctly told him there were no jobs. Later, in October, 1987, a position opened up at Bellview and a continuing contract teacher with a masters degree in reading and 18 years of experience was transferred in at her request. Sapp believes he was not renewed as retaliation for the School Board's rejection of the Superintendent's recommendation for suspension on January 27, 1987. This allegation is based only on Sapp's personal feeling and no evidence was presented to substantiate his belief. Sapp also believes he was not renewed because of the arrest itself. Again, no evidence was presented to substantiate his belief. By letter of September 18, 1987, the School District, through counsel, advised Sapp's attorney that Sapp would not be considered for reemployment until the PPS investigation was concluded and the District was advised of the results. The PPS has not filed any complaint against Sapp based on either of its investigations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Ricky Lynn Sapp, be DENIED relief from the nonrenewal of his annual contract and that his request for relief be DISMISSED. DONE and ENTERED this 8th day of March, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5059 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Finding's of Fact Submitted by Petitioner, Ricky Lynn Sapp Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(10); 3(12); 4(14); 5(2); 6(2); 8(3); 9(3); 11(4); 12(5); 13(8); 15(6); 16(7); 18(23); 20(20); 21(24); 22(26); 23(26); and 25(27). Proposed findings of fact 7, 17, 28 and 29 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 10 is rejected as irrelevant. Propose findings of fact 14, 19, 24, 26, 27, and 30 are rejected as being unsupported by the competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, School Board of Escambia County Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(9); 2(1 and 10); 3(11); 4(25); 5(25); 6(13); 7(14 and 16); 8(15 and 22); 9(18); 10(22 and 23); 11(6); 12(19); 13(29); 14(30 and 31); 15(32); 16(33); 18(19); 19(27); 20(28); 21(33); 22(34); and 23(35). Proposed finding of fact 17 is rejected as being unnecessary. Proposed finding of fact 24 is subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: G. James Roark, III, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Mike Holloway Superintendent of School Board Escambia County 215 West Garden Street Post Office Box 1470 Pensacola, Florida 32597-1470 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
The Issue The issue in this case is whether the Respondent committed an unlawful employment practice against Petitioner based on race or otherwise violated Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, who is Caucasian, was employed by the Gadsden County School Board as a teacher in 1972. Since that time, other than an absence of three years, she taught in the Gadsden County School system for 29 years. Petitioner graduated from Florida State University (FSU) in 1971 with a bachelor of science degree in elementary and early childhood education. In the early 1980’s she obtained a master of science degree from FSU in reading-K-12 and language arts. She also had continuous in-service training over the 29 years she taught in Gadsden County. Petitioner has certifications to teach in English and language arts and has received recognition as a teacher from the National Board. Such National Board recognition signifies that Ms. Gates is considered an “outstanding” teacher in her area of specialization. Additionally, at the time of her recognition by the National Board, Ms. Gates was one of only 1500 teachers nationwide to receive this honor. Petitioner taught sixth grade with the majority of her time spent as a reading instructor working with at-risk children in Gadsden County. Petitioner was the reading instructor for both the Quincy Middle School until it closed and then for the Carter- Parramore Middle School. She continued in that position until Carter-Parramore closed and the school was moved to Shanks Middle School. While at Carter-Parramone, Petitioner began working with Edna Hussein-Forehand, a fellow Gadsden County School Board employee, doing Saturday tutoring/mentoring for children who needed extra support and help in reading. The Saturday program provided one-on-one instruction for at-risk children and eventually became known as the Help One Student To Succeed (HOSTS) program. In fact, Petitioner helped bring HOSTS to the Gadsden County School system. The HOSTS program was a prescribed instructional reading and language arts program that paired students with parents in order to promote reading through mentoring. It was held during the school day. Data collection and compilation of the program’s impact were required. In 1998 or 1999, Petitioner became the site facilitator for the HOSTS program at her school. In that capacity, she worked with at-risk children, including children who were scoring below average on standardized tests. She provided lesson plans and help to the volunteers in the program. More than that, Petitioner was instrumental in the program’s success and helped in the program’s receiving a National Exemplary Status award. The award was based on the success of the program in achieving positive academic and attitudinal results and in reducing the number of disciplinary referrals for the children who participated in the HOSTS program. Clearly, Ms. Gates had been involved in disciplinary decisions and in maintaining discipline in the classroom for some 29 years. She was also involved in disciplinary matters in the HOSTS program and in the Saturday mentoring program. After her success in the HOSTS program and prior to September 2003, Ms. Gates, along with a handful of other employees of Respondent, spearheaded the effort to bring the 21st Century Grant program to the Gadsden County School system. The Grant program was a partnership between the Gadsden County School Board and another community entity. The program was offered after school, beginning each school day around 3:00 to 3:15 p.m. It served at-risk children similar to the children Ms. Gates had been teaching and helping throughout her career. Given her teaching career and her voluntary efforts to help children succeed, Ms. Gates clearly believed in the Grant program and in helping a difficult population of children to succeed. In 2003, The Board advertised for five part-time Site Coordinator positions for the 21st Century Grant program. The positions were located at select schools in Gadsden County, including Shanks where Petitioner taught. The advertised qualifications were: Bachelor of Science degree or higher with a Masters’ degree preferred. Supervisory skills. Knowledge of the Gadsden County School District’s operations and procedures. Ability to work with children, adults, community members and parents. Essential Job Responsibilities listed in the advertisement were: Organize and Supervise the decision- making process. Provide clear direction and support to teachers and staff. Make clear job responsibilities and roles for all staff. Supervise care and maintenance of community center schools, equipment and property. Coordinate center schedule. Assist Program Director in periodic reviews of staff performance. Monitor collection and maintenance of student records and progress. Review program performance through on- going assessments and provide feedback to Program Director. Coordinate facilities and supervise extra-curricular activities. Facilitate communication among staff, parents, students, and community. Investigate and document all related incidents. Assist Program Director in on-going assessment to ensure quality implementation and success in activities that 1) improve students’ mastery of academic skills . . . through individualized assistance, 2) reduce juvenile risk-taking behaviors and promote healthy lifestyles through quality, fun after school and summer programs, and 3) strengthen families through increased parental participation in their child’s academic and social success and through extended learning programs addressing adult needs. Special projects . . . . The posted Vacancy Announcement, as well as the application for these positions, also required three references. However, most of the applicants were district employees who had references on file with the Board. Such filed references were accepted by Respondent as meeting the references required by the posted Notice of Vacancy and the application. Therefore, failure to submit references with the application did not disqualify the applicant. There was no evidence that acceptance of already-filed references in this application process was unreasonable or a pre-text to promote job applicants who did not submit references with their applications. Indeed, several applicants did not submit such references. Van Riggins, a former employee of Respondent, was the Director of the 21st Century Grant program. Mr. Riggins is African-American. In September 2003, Ms. Gates applied for the Site Coordinator position for the 21st Century Grant program located at Shanks, where she knew the children the program would serve. At the time of her application, she had been working with the type of children served by the Grant program for about 26 years. Additionally, the program would overlap with the reading program Ms. Gates taught on Saturdays. She submitted the three required reference forms with her application. Each of her letters of reference shows that Petitioner was considered by her supervisors and peers as “excellent” or “good” in her performance with Respondent. Unquestionably, Petitioner met the qualifications for this position. In fact, Petitioner had extensive experience in every category of the essential job responsibilities for this position and was already performing similar duties in the various positions she held at the time of her application. The interview panel for the site coordinator positions consisted of Vann Riggins; Tammy McGriff Farlin, African- American and then Coordinator of the HOSTS program; Maurene Daughan, Caucasian, then Grant Coordinator for the Board; and Ann Taylor, Caucasian. In addition to Petitioner, other applicants for the five positions were Carla Galvin, African-American; Debby Thompson, Caucasian; Doris Jean Black, race unknown; Rayford E. Blitch, Caucasian; Cedric Fabian Chandler, African-American; Irene Ford, African-American; Michelle Denise Taylor, African- American; and Marshall Lewis Williams, African-American. Debby Thompson limited her application to the position available at Chattahoochee Elementary School. Ms. Gates and Carla Galvin limited their applications to Shanks. Irene Ford preferred the position at Shanks, but did not limit her application to a specific school. Doris Black limited her application to Shanks, Chattahoochee Elementary, East Gadsden Elementary and a school in Greensboro. Cedric Chandler limited his application to Stewart Street Elementary School. Marshall Williams limited his application to Havanna Middle School. The other applicants did not limit their applications to a position at a specific school. Thus, the applicants competing for the Shanks position were Ms. Gates; Carla Galvin, the successful applicant; Doris Black; Rayford Blitch; Irene Ford; and Michelle Taylor. Carla Galvin had a bachelor’s degree in education. She did not have a master’s degree. She held a Florida teaching certificate in middle grade English. She had taught school since 1988 and had about 15 years’ teaching experience. She occasionally volunteered for the Saturday reading program. The evidence did not show that Ms. Galvin often helped at the Saturday program. Nor did the evidence show that Ms. Galvin had the extensive experience of Petitioner. As a teacher, she worked with some at-risk children. Ms. Galvin was also nominated for District Teacher of the Year and was one of the finalists for that award. Ms. Galvin was qualified for the position of Site Coordinator. Doris Black held a Florida teaching certificate in elementary education and varying exceptionalities. She was an exceptional student education (ESE) teacher at Shanks and had been working with ESE and at-risk children for over 20 years. The evidence did not show what college degree Ms. Black had obtained. She was qualified for the position of Site Coordinator. However, her qualifications are not at issue here. Rayford Blitch had an impressive resume since, during his 30-year career, he had been a guidance counselor, school psychologist, and school principal in high school and adult education in Gadsden County. He had extensive administrative experience. Mr. Blitch held a teaching certificate in administration, adult education, guidance counseling, school principal, school psychologist and school social work. He held a bachelor’s degree in criminology, special education and administration. He was experienced in testing and documentation of programs. However, he had retired in 2001 and the committee members were concerned about his ability to re-integrate into the school system and his general commitment to the program. The committee’s concerns were vague, but did form a reasonable basis for not recommending Mr. Blitch for the position of Site Coordinator at Shanks. The evidence did not demonstrate that the committee’s rationale was a pre-text for racial discrimination. Irene Ford held a Florida teaching certificate in elementary education. The evidence did not demonstrate the Batchelor’s degree she had attained in college. Ms. Ford began teaching in 1967 and had taught for about 36 years. She had retired from the Gadsden County school system in 2003. The committee, generally, scored Ms. Ford lower than either Petitioner or Ms. Galvin. Her qualifications are not at issue here. Michelle Taylor held a Florida teaching certificate in middle grade social studies. She held a bachelor’s degree in sociology and psychology and a Master’s degree in political science-public administration. She had been teaching since 1993 and had about 10 years’ experience as a teacher. Her qualifications are not at issue here. All the applicants were interviewed for the Site Coordinator positions by the committee. During the interview process, the applicants were all asked the same set of pre- established questions. There were no specific questions regarding student discipline. However, discipline was an important aspect of the position. One of the questions asked of applicants was to relate any additional strengths the applicant believed he or she had for the position. During her interview, Ms. Gates in listing her strengths, volunteered that she did not like to discipline students. Although this was not one of the interview questions, Ms. Gates’ statement was noted in the interview notes of three of the four committee members. Ms. Gates was never asked to qualify her statement nor to explain what she meant. At no time did Petitioner ever state during her interview or at any other time that she could “do everything except handle discipline,” as Mr. Riggins indicated in his affidavit to FCHR during its investigation of this matter. Mr. Riggins, the only interview committee member marking Ms. Galvin higher than Ms. Gates, did not write anything on his interview package about any discipline comments made by Ms. Gates. However, the comment was noted in his mind and brought up during the discussion following completion of all the scoring and interviews. After the interviews, the committee members independently scored each application. Petitioner received the following scores from each of the persons sitting on the interview committee: Committee Member Score Ann Taylor 33+ Maurine Daughan 18 Tammy McGriff Farlin 14.5+ Vann Riggins 16+ TOTAL SCORE 81.5 Carla Galvin received a lower overall score than Ms. Gates from the interview Committee. Ms. Galvin scored as follows: Committee Member Score Ann Taylor 25.5+ Maurine Daughan 14+ Tammy McGriff Farlin 11+ Vann Riggins 21+ TOTAL SCORE 71.5 Three of the four panelist scored Ms. Gates higher than Ms. Galvin. Mr. Riggins scored Ms. Galvin higher than Ms. Gates. Scores alone were not determinative of the committee’s ultimate recommendation of an applicant for a position. As indicated, the committee discusses each candidate and considers any other information or opinions of committee members regarding the applicants. At least two of the committee members had known Ms. Gates for many years, had worked with her and had a high regard for her abilities as a teacher and her dedication to improving at risk children. Mr. Riggins knew of both Ms. Gates and Ms. Galvin, but did not have any knowledge specific to either applicant other than he felt they were both good teachers. The other committee members were slightly more familiar with Ms. Galvin and recognized that she was a good teacher. As with Ms. Gates, they assumed Ms. Galvin could discipline students, since she had been teaching for a number of years and discipline is part of the job. During the group discussions of the applicants, Mr. Riggins raised concern about Ms. Gates’ statement that she did not like discipline. He noted that discipline was an important concern at all the Grant site locations since the Site Coordinator would be the only authority figure on location and would be responsible for handling any disciplinary problems that might arise. There would be no principal or backup administrator to help the Site Coordinator maintain discipline or handle a problem that might arise. Although vague and based more on intuition, Mr. Riggins felt that Ms. Galvin could “control the whole operation better” from a discipline standpoint. The evidence did not show that Mr. Riggins’ concern was a pre-text for racial discrimination. In this instance, committee members gave Mr. Riggins’ opinion about the ability of the candidates in fulfilling the duties of the Site Coordinator great weight since he was the director of the Grant program. The group reached a consensus that Ms. Galvin was the better candidate for the position and unanimously recommended her for the Shanks position. Out of five Site Coordinator positions to be filled, only one position was filled by a white applicant, Debby Thompson. However, this fact does not demonstrate that the committee members were motivated by race in recommending Ms. Gates for the Shanks position. Admittedly, Ms. Gates would seem to be the best candidate and the fact that she was not recommended for the Shanks position caused her to leave the Gadsden County School System and cost the School System an excellent teacher and mentor. However, the majority of the duties and responsibilities of the 21st Century Site Coordinator position did not involve being in the classroom and involved only occasional mentoring. The duties were mostly administrative and, since this was a new program, the director, Mr. Riggins, was the person most aware of the nature of the position which he would oversee. Mr. Riggins’ concerns over discipline were sufficient to overcome the higher score of at least two committee members and his regard for Ms. Gates. Deference by the racially-mixed committee to his concern over Ms. Gates’ ability to discipline was not unreasonable and not shown to be a pretext for racial discrimination. Therefore, 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 Relations enter a Final Order finding that no unlawful employment practice occurred and dismissing the Petition For Relief. DONE AND ENTERED this 13th day of February, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Marie Mattox, Esquire Law Office of Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Deborah Stephens Minnis, Esquire Ausley & McMullen, P.A. Post Office Box 391 Tallahassee, Florida 32302
The Issue Whether Respondent's educator's certificate should be subject to discipline for the violations alleged in the Administrative Complaint dated September 27, 2002.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record of this proceeding, the following Findings of Fact are made: General Findings Respondent, Robert A. Pringle, Jr., holds Florida Educator Certificate No. 720759, covering the areas of mathematics and physical education, which is valid through June 30, 2005. Mr. Pringle has a bachelor's degree in education from Maryville College in Maryville, Tennessee. Mr. Pringle played baseball at Maryville College for five years and coached baseball for two semesters at the college. In 1993, immediately after graduating from Maryville College, Mr. Pringle was employed as a mathematics and physical education teacher at Riverdale High School ("Riverdale") in the Lee County School District (the "District"). Mr. Pringle's employment as a teacher at Riverdale has continued uninterrupted since 1993. For the past eight years, Mr. Pringle has served as Riverdale's head baseball coach. He has been Riverdale's golf coach since 2000. Mr. Pringle has had no prior disciplinary actions brought against his license. The precipitating event for the allegations in this case was the varsity baseball tryout in January 2002. During Mr. Pringle's tenure as head coach, the Riverdale baseball team had progressed from a perennial losing program to a contender for the state championship in Class 3A. Competition was fierce for the 16 available spots on the team. In some years, as many as 100 boys would try out for the team. In January 2002, 38 players participated in the three-day tryout. Mr. Pringle testified that, though the number of players trying out was lower than in some previous seasons, the quality of the players was quite high, and he knew that the cuts would be hard to make. There were 25 players trying out who had played for the Riverdale varsity or junior varsity teams, in the autumn "wooden bat" league, or for local summer or AAU teams. In 2001, there had been many complaints from the disappointed parents of players who failed to make the cut. Before the 2002 tryouts, Mr. Pringle warned the Riverdale administrators to expect another round of complaints, because he fully expected that some good players would be cut. The varsity tryouts were conducted from Monday, January 14, through Wednesday, January 16, 2002. Players were allowed to choose the positions for which they wanted to be considered. At the tryouts, the coaches assessed each player on the basis of the "five tools" of baseball: hitting for average; hitting for power; running speed; arm strength; and fielding ability. The five tools are the accepted standard for rating baseball players. Running speed was measured via a timed 60-yard dash. Arm strength was measured by timing a throw from 120 feet away for infielders and 220 feet away for outfielders, commencing from the point at which the ball touched the fielder's glove to the point at which the ball touched the receiver's glove. Two coaches would time each dash or throw to ensure accuracy. Fielding was assessed by coaches on a one-to-five scale. One coach would hit to the fielders while two others stood to the side observing. Hitting and pitching were also graded on a one-to-five scale, with several coaches observing and comparing notes to arrive at a consensus rating. The Riverdale coaches conducting the tryouts included Mr. Pringle, assistant varsity coach Justin Cook, and junior varsity coach Cliff Trosterud. They were assisted at the tryout by Tommy Watkins, Jason Guy, and Ryan Carter, all of whom play professional baseball at the minor league level, as well as Casey Brock, a former college player who assists with the junior varsity pitchers at Riverdale. Mr. Pringle posted the results of the tryouts on the door of his classroom on the morning of Thursday, January 17, 2002. Among the players who did not make the varsity team were twin brothers Willard and Chris Truckenmiller, Curtis Rine, and Tyler Caruthers. All of these boys were juniors who had played junior varsity baseball the previous year, though mostly in a backup capacity. Mr. Pringle testified that all of these boys had the ability to play high school baseball, but that the talent level on the 2002 Riverdale team was extraordinarily high and they were simply not good enough to make that team. During a change of classes on the morning of January 17, 2002, Curtis Rine entered Mr. Pringle's classroom at Riverdale. Curtis was very upset at not making the cut. He yelled at Mr. Pringle that he did not need to be on his team, that he could transfer to Bishop Verot High School (a private Catholic school in Fort Myers) and play baseball for them. Mr. Pringle did not report this incident because Curtis did not use profanity or otherwise do anything that merited discipline; he was "just a kid . . . upset that he was cut from the baseball team." On the evening of January 17, 2002, Mr. Pringle conducted varsity practice at the Riverdale baseball field. Chris Stevens, a deputy with the Lee County Sheriff's Department assigned as Riverdale's school resource officer, was in the parking lot outside the baseball field. Richard Shafer, Riverdale's principal, had informed Deputy Stevens that there were parents disgruntled about the baseball cuts and asked Deputy Stevens to stay near the baseball field to make sure Mr. Pringle was safe. Deputy Stevens noticed Kim Caruthers, the mother of Tyler Caruthers, in the parking lot with Tyler's father. Deputy Stevens approached Mr. Pringle on the baseball field and told him that Ms. Caruthers was apparently waiting to talk with him. Mr. Pringle told Deputy Stevens that he would talk to her and attempt to explain the situation regarding the baseball cuts. Mr. Pringle testified that as soon as he came near her, Ms. Caruthers began yelling and "calling me every name in the book" in a profane harangue. She said that "I hurt her son and now she was going to hurt me." Deputy Stevens concurred that Ms. Caruthers was very angry and became more agitated as the conversation went on, until she "start[ed] to boil" and repeatedly threatened that Mr. Pringle was "going to go down." Deputy Stevens told Ms. Caruthers more than once that she needed to calm down. Deputy Stevens testified that Mr. Pringle maintained a calm, professional demeanor throughout Ms. Caruthers' rant and tried repeatedly to explain the tryout process to her. After about ten minutes, Ms. Caruthers began to walk away from Mr. Pringle, then turned around and spat at Mr. Pringle. The spit landed on Mr. Pringle's shoe. Deputy Stevens told Ms. Caruthers to leave.2 Deputy Stevens told Mr. Pringle that the spitting could be construed as battery and that he had the right to press charges. At the time, Mr. Pringle saw no need to press charges. Mr. Shafer, the Riverdale principal, testified that Ms. Caruthers had been generous to the school. Among other donations, she had offered $35,000 to support the baseball program. On January 17, 2002, the same date as her confrontation with Mr. Pringle, Ms. Caruthers showed up at a school open house and told Mr. Shafer that she would not give the money to Riverdale and would take her money to a school that wanted her son. Mr. Pringle testified that matters with Ms. Caruthers did not end on the evening of January 17, 2002. Over the next three weeks, she repeatedly made threatening phone calls. She would come to the baseball field and yell at Mr. Pringle. She came into the school and shouted at him in the hallways. She threatened to circulate flyers labeling Mr. Pringle a "pervert" and a "rapist." Tiring of the harassment, Mr. Pringle filed a complaint for misdemeanor battery against Ms. Caruthers on February 6, 2002. He testified that he hoped that pressing charges would lead to entry of a restraining order that would keep Ms. Caruthers away from him. Eventually, the state attorney declined to prosecute the matter. On February 18, 2002, Tom and Mary Rine, the parents of Curtis Rine, met with Mr. Pringle, Mr. Shafer, Riverdale athletic director Boyd Gruhn, and assistant principal Don Trelease. Both Mr. Shafer and Mr. Trelease recalled that the gist of the meeting involved the Rines' contention that their son should be on the varsity baseball team. Mr. Shafer told the Rines that he had seen the scores on the cut list, looked at the quality of the people who judged the players, and concluded that the tryout had been conducted fairly and competently. At this point, the Rines launched into a series of personal allegations against Mr. Pringle. Their chief accusation concerned a story their son Curtis had told them about a bus trip to a baseball game in Miami the previous season. They alleged that on the trip back from Miami, Mr. Pringle and the other coaches went around the bus asking the players if they wanted to accompany them to "Lookers," a strip club in Fort Myers. The Rines also alleged that Mr. Pringle "always" had a dip in his mouth at games and practices,3 and that he freely used profanity in the presence of his players. Mr. Shafer asked the Rines why they would want their son to play on a team where such inappropriate behavior was occurring. The Rines responded that Mr. Pringle was a successful coach. Ms. Rine testified that at this meeting, Mr. Pringle admitted that he chewed tobacco on the field, but never when there was a student around. If he was on the field on the weekend, or during the school day when no students were present, he would use tobacco, but would take it out if anyone else approached. Ms. Rine also testified that Mr. Pringle admitted to using improper language with students, including the term "blow job." Mr. Pringle testified that he did not admit to using tobacco on the baseball field. He did admit to using tobacco away from the school and stated that his life away from the school was his own business unless he did something to embarrass Riverdale. Mr. Pringle testified that he did admit to using the term "blow job" once in a conversation with his players and expressed regret that he did not employ the term "oral sex" or some other more clinical term. Mr. Pringle explained that late in the 2000 baseball season, five Riverdale athletes, including one member of the baseball team, were facing charges for having received oral sex from an underaged female. Later, there was coverage of the matter in the local newspapers and on television news, but when the charges first arose, neither Mr. Pringle nor his players knew anything other than that the player did not show up for practice and that rumors were flying around the school. Mr. Pringle was called into the principal's office and the matter was explained to him. He then met with his players to explain the situation and gauge the team's reaction. He told his players that no decision had been made whether the player would be expelled from school or even suspended from the baseball team, and he wanted to ensure that the other players would react appropriately should their teammate later show up to play. It was a delicate situation, and Mr. Pringle wanted to be sure his players understood the facts. He used the term "blow job" in explaining what happened, because he thought that was a term the players would understand. At the meeting with the Rines, he conceded that it was a poor choice of words. Mr. Trelease confirmed Mr. Pringle's version of the discussion regarding tobacco. Mr. Pringle stated that he was a tobacco user, but he leaves his tobacco in the car and never has it on his person when he is at school. Mr. Trelease did not recall the details of the profanity discussion because it was such a minor part of the overall meeting. He stated that the Rines spent most of the meeting talking about their allegations of misbehavior on the bus trip back from Miami. Mr. Pringle's version of the discussion at the meeting with the Rines is credited. There is no essential conflict between his version and that of Ms. Rine as to the profanity discussion. They both recalled Mr. Pringle's admitting to using the term "blow job." Ms. Rine simply leapt to the conclusion that this constituted a broader admission than Mr. Pringle intended. As to the tobacco discussion, Mr. Pringle's version is supported by the credible testimony of Mr. Trelease. On Tuesday, January 28, 2002, a group of parents including Terry and Dani Truckenmiller, Mary Rine, Kim Caruthers, and the father of Sean Fox (a 2002 Riverdale graduate who had played golf for Mr. Pringle and who had failed to make the varsity baseball team as a junior) met with Mr. Shafer and Doug Whittaker, the director of curriculum for the District. Mr. Shafer testified that these parents voiced allegations that Mr. Pringle constantly used tobacco on school property, used profanity in the presence of students, and indulged in sexual innuendo with and about female students. Mr. Shafer stated that it was clear to him these parents not only wanted Mr. Pringle fired, but wanted his teaching certificate revoked. On January 29, 2002, the Truckenmillers filed a written complaint with the District. Mr. Pringle was immediately suspended from his coaching duties, though not his teaching duties, and the District commenced an investigation into the parents' allegations. Bill Shoap, the District's coordinator of personnel services, conducted the investigation. In his investigative report, Mr. Shoap framed the issues as follows: The allegations are as follows: Whether Robert Pringle ever used tobacco products on school district property during baseball practice and game times; whether he ever used profanity in front of team members; and whether he ever communicated sexual innuendo towards students. Mr. Shoap described the investigation as follows: A total of forty-nine [sic] witness statements were received regarding this investigation. Approximately 27 concerned parents, past co-workers and community members submitted letters of support for Robert Pringle, describing him as a positive role model and dedicated coach, as well as an effective teacher. Each of the 16 members of the Riverdale Varsity Baseball team (acting as witnesses) signed a letter which specifically refutes the three allegations being made against Mr. Pringle. This investigation also takes into account additional information provided by those who have worked near or along the side of Mr. Pringle, as well as those who have made the allegations . . . . Mr. Shoap submitted his investigative report to the District on February 11, 2002. On February 12, 2002, a pre-determination conference was held to allow Mr. Pringle to respond to the allegations. John Hennebery, the District's coordinator for professional standards presided over the conference, which was also attended by the District's staff attorney and a recording secretary. Mr. Pringle denied every allegation. He admitted that he does use dip, but stated that he has never done so on school grounds or at any school function, including baseball practices and games. He stated that on occasion he might have muttered the word "damn" or "hell" to a fellow coach in the dugout and that a player conceivably could have overheard, but that he had never otherwise used profanity in front of students. After reviewing the investigative report and considering Mr. Pringle's statements, Mr. Hennebery determined that there was no probable cause to proceed further in the matter and that no disciplinary action should be taken against Mr. Pringle. Mr. Hennebery testified that the allegations simply could not be substantiated. He noted that Florida High School Athletic Association ("FHSAA") rules prohibit chewing tobacco, and that no one had ever been ejected from a Riverdale baseball game for that offense. He also noted that Mr. Pringle had been accused of "cussing out" the entire team and offering trips to a strip club to a charter bus full of students, yet only a few students, none of whom included current members of the baseball team, and no coaches claimed to have witnessed these acts. In sum, Mr. Hennebery concluded that the witnesses supporting Mr. Pringle were more credible than his accusers. Mr. Pringle's suspension was lifted on February 14, 2002. At about the same time, someone filed a complaint with the Office of Professional Practices Services of the Department, which assigned Shellie White to investigate on behalf of the Department. It is noted that there was confusion at the hearing as to who filed the complaint with the Department and dispute as to the manner in which Ms. White conducted her investigation. Mr. Pringle alleged that Ms. White purposely neglected to interview any witnesses possessing exculpatory information. This allegation was lent some support by the testimony of Jason Scott, a social studies teacher at Riverdale. Mr. Scott stated that Ms. White commenced an interview with him, then stopped it after five minutes and never contacted him again. It is also noted that the Department chose not to elicit testimony from Ms. White or anyone else involved in its investigation of Mr. Pringle and chose not to clarify the question as to who filed the complaint against Mr. Pringle.4 On September 27, 2002, the Department issued its finding of probable cause and the Administrative Complaint described in the Preliminary Statement above. Terry Truckenmiller Terry Truckenmiller is the father of the twins, Willard and Chris, who were cut from the varsity team in January 2002. Of all the witnesses who testified on behalf of the Department, Mr. Truckenmiller was the most vociferous accuser. He was also the least believable. For the sake of orderly presentation, Mr. Truckenmiller's testimony is treated separately at the outset, so that the Findings of Fact in Sections III through VI below may deal with those witnesses possessing some level of credibility. In a statement provided to Ms. White, the Department's investigator, Mr. Truckenmiller wrote: In the 5 years I have known Mr. Pringle it is comman [sic] knowledge from students, staff & parents that he chews tabacco [sic] & swears every moment at school. It is comman [sic] knowledge of his sexual conduct and actions with minor girls. He has taken his players to "strip clubs" many times and supplied them with alcohol on a weekly basis. I repeat this is not an allegation-- it is FACT. Mr. Shafer (the Principle)[sic] knew of this and probably many more, that he has "sweeped [sic] under the rug." This all started when a friend of Mr. Pringle who was the wrestling coach here at Riverdale asked my son if he was having sex with his girl-friend [sic] & did she like to swallow. With her brother on the team the info got back to her mom and she brought it to Mr. Shafer's attention and the word was put around school that this family was trouble-makers. This was done from the staff at Riverdale. When this was brought forward my sons were starting QB & running back in football, starting catcher (1 son) & starting shortstop (other son). It also maybe [sic] noted that Mr. Pringle picked & told me how great my boys are & would be for Riverdale-- they would start & play full-time over the boys that are now on the team playing. He would tell us how much "better" the boys were than the others. Why did this change? I coached in high school for football, baseball and took softball teams to the state finals. I know all these kids & their talents, since I've been coaching in Lee County for over 25 years. I also know my boys are not the best on the team, but they were chosen by another high school coach who took the best 15 boys in the whole county to the national finals! Top 15 in county, but not top 15 in their local school? There must be a reason-- there is [sic] you come forward and your family gets dumped on by the staff at school. My boys had teachers come up to them and tell them to watch their backs the staff said they will get them. The "good ole boy" network at Riverdale starts with Mr. Shafer and Mr. Gruhn the athletic director, the assistant principles [sic] and athletic coaches and staff hide and alter records to please their need. Were [sic] also told if we did not go forward with our complaints that our boys grades would be "fixed" to suit us. 40 yr. old men do not ask high school kids if they "swallow", are they "easy to lay", what positions they like, who and when they have "slept with". This investigation has been in the hands of administrators for 2 yrs., we have been continualy [sic] lied too [sic] & decieved [sic] by them. What Mr. Pringle has done is wrong! If he were not a teacher he would be in prison. Our kids need role models that know right from wrong. Thank you for your time and effort in this matter. May the Lord be with you always. At the hearing, Mr. Truckenmiller stood by everything in the above statement. Thus, Mr. Truckenmiller swore that: Mr. Pringle chewed tobacco and swore continually at school; Mr. Pringle took students to strip clubs; Mr. Pringle provided alcohol to students every week; Mr. Pringle made lewd remarks to female students and possibly even had sexual relations with them; and the entire Riverdale administrative staff, from Mr. Shafer down, was made aware of Mr. Pringle's actions and conspired to cover up his activities, going so far as to offer bribes in the way of altered grades to the Truckenmillers in exchange for their silence. The statement also implies, in an echo of the Rines' meeting with Mr. Shafer, that Mr. Truckenmiller nonetheless wanted his sons to play varsity baseball on Mr. Pringle's team. At the hearing, Mr. Truckenmiller testified that, unlike Mr. Pringle, "I don't believe in abusing children . . . If a man wants to take kids to strip clubs and talk sexual innuendo with kids and ask them some of the things that he asks them, it's just totally inappropriate. You do not go up to a 16 year old girl and ask her if she swallows." Mr. Truckenmiller testified that he had witnessed Mr. Pringle "curse and swear" hundreds of times at practices and games. He stated that it was "a continuous thing," that Mr. Pringle cursed, swore, and degraded players every three minutes. Mr. Pringle used the words "shit," "piss," "damn," "hell," and "God damn," among others. He used the word "fuck" "numerous, numerous, numerous times." Mr. Truckenmiller testified that he saw Mr. Pringle chewing tobacco "basically every day for three years." Mr. Truckenmiller stated that he heard Mr. Pringle ask about a girl "swallowing" during a baseball practice with the entire team present. No other witness recalled this incident, and, when pressed during cross-examination, Mr. Truckenmiller could not name anyone else present who might confirm his story. Mr. Truckenmiller testified that he has heard 70 to 80 different people talk about the "fact" that Mr. Pringle takes students to strip clubs. He also heard "the boys" discussing the fact that Mr. Pringle supplied them with alcoholic beverages. No other witness confirmed these "facts." Mr. Truckenmiller testified that it was Mr. Shafer, the principal of Riverdale, who offered to "fix" his sons' grades in exchange for dropping his complaint. At the hearing, Mr. Shafer was shown Mr. Truckenmiller's written statement. Mr. Shafer credibly denied the allegation that he covered up anything regarding this matter and was visibly offended that such allegations were made against him. Mr. Shafer testified that none of the accusations against Mr. Pringle came forward until after the 2002 varsity baseball cuts. The administration spread nothing about the Truckenmillers being "troublemakers" and no one "dumped" on that family. He absolutely denied that anyone at Riverdale altered records or made any sort of offer to "fix" the Truckenmiller boys' grades. Mr. Shafer did recall that Ms. Caruthers had made such an offer to him, i.e., she would drop her complaint if her son were placed on the varsity baseball team and that he declined even to discuss the matter with her. In a letter dated January 18, 2002, Ms. Caruthers alleged that her son was cut from the baseball team in retaliation for an alleged incident between Tyler Caruthers and Dr. Christine Dollinger, an assistant principal at Riverdale. The allegations themselves are irrelevant and so absurd on their face that they do not merit discussion here. However, the story culminated in a scene in which Dr. Dollinger begged Ms. Caruthers not to report the incident and offered to change Tyler's grade in Spanish class in exchange for Ms. Caruthers' silence. Ms. Dollinger credibly testified at the hearing that Ms. Caruthers' letter was "offensive" and "full of lies" and that no such incident ever occurred. While no direct link was established, the similarity between Ms. Caruthers' story and that of Mr. Truckenmiller is notable enough to suggest that the former may have inspired the latter. At the hearing, Mr. Truckenmiller adamantly denied ever coordinating with Ms. Caruthers or any other parents regarding the complaints against Mr. Pringle. However, Mary Rine admitted attending such a meeting with the Truckenmillers. She denied that Mr. Pringle was the subject of the meeting, but conceded that "Bob's name probably did come up" in connection with a discussion about the laxity of the Riverdale administration in "taking care of problems when they had them." Mr. Truckenmiller also denied contacting Sean Fox about his testimony in this proceeding and claimed not to know if his wife or sons had done so. Sean Fox testified that the Truckenmillers persistently phoned and e-mailed him, both at home and while he was away at college in North Carolina in the Fall of 2002. Mr. Fox stated: "They wanted to know what I knew, kind of as their inside man, if you want to say that, since I played around [Mr. Pringle] and with him for golf and baseball, and wanted to know anything I knew." Mr. Truckenmiller testified that neither he nor his wife had ever caused any trouble or conflict while their sons played Little League baseball. Several witnesses testified to the contrary. Fred Burson, a former junior varsity baseball coach at Riverdale, a ten-year district administrator for Little League, and a witness for the Department, testified that the Truckenmillers have a "long, storied history of causing trouble." He did not know Mr. Truckenmiller well, but has known Mrs. Truckenmiller for a long time, and stated that she has caused trouble at every level of baseball in which her children have participated. Mr. Burson testified that he would never be a part of anything the Truckenmillers were involved in. Justin Cook, the assistant varsity baseball coach at Riverdale, coached both Truckenmiller boys in Little League. He testified that Mr. and Mrs. Truckenmiller complained to him about their sons' positions, then took their complaint to the Little League officials when they were dissatisfied with his response. Fred Barker is the parent of a Riverdale varsity baseball player and a coach in the autumn "wooden bat league." He has coached both Truckenmiller boys. He testified that the Truckenmillers perpetually complained about the coaching if their children did not play where and when the Truckenmillers thought was proper. Elizabeth Parrish was player agent for the Little League, and her husband was the president of the Little League during the years when the Truckenmiller children played at that level. She testified that Mr. Truckenmiller was required to step down as an assistant coach in the Little League for telling a player he would "whip his ass" if the player didn't do as he was told. Diane Byrus' son, Greg, played one year of junior varsity and three years of varsity baseball for Mr. Pringle at Riverdale, and he was a contemporary of the Truckenmillers throughout their youth's baseball careers. Ms. Byrus testified that in 2001, when Greg was playing catcher for the varsity squad, the Truckenmillers told her that Greg was no good and that Mr. Pringle should make their son the starting catcher. Ms. Byrus had observed both Mr. and Mrs. Truckenmiller coach in the Little League and stated that she would not let either of them coach her son because of the way they treated the children. Mr. Truckenmiller was "very obnoxious" on the field, cursing in front of the players, even saying the word "fuck" while coaching teenagers. Mrs. Truckenmiller was belligerent and constantly belittled other peoples' children. Ms. Byrus did not want her children to be around the Truckenmillers. The above findings are sufficient to demonstrate that Mr. Truckenmiller was a wholly unreliable witness, and his testimony has been disregarded as the basis for any finding of fact in this case. In his witness statement, Mr. Truckenmiller gathered every available scrap of hearsay and rumor about Mr. Pringle, magnified it, and presented it as "fact." For example, rumors that Mr. Pringle once suggested a trip to a strip club (discussed in Section V, supra) became, in Mr. Truckenmiller's telling, the "fact" that Mr. Pringle regularly smuggled underaged high school students into such places. Other accusations, such as Mr. Pringle's giving alcohol to students, were not even alleged by any other witness. To the Department's credit, its Administrative Complaint did not include Mr. Truckenmiller's wilder accusations regarding strip club attendance and providing alcohol to players, or his implication that Mr. Pringle may have molested high school girls. However, the Department knew or should have known that much, if not all, of Mr. Truckenmiller's testimony was fabricated, yet it chose to give him free rein to retell these stories as a witness for the Department in this case. Including Mr. Truckenmiller's inflammatory testimony in its case suggests that the Department engaged in this proceeding for reasons other than arriving at the objective truth of the matters at issue. Use of Tobacco The Administrative Complaint alleges that Mr. Pringle "chewed tobacco at baseball practice, at baseball games, on trips to games and/or at school; allowed his players (students) to do the same . . . and/or provided chewing tobacco for students despite the fact that there was a rule for athletes at the school that they could be dismissed from the team for possession of tobacco." The Department called several witnesses who stated they had seen Mr. Pringle using dip on the baseball field. Fred Burson was the junior varsity baseball coach at Riverdale under Mr. Pringle from 1998 through 2000. In an April 4, 2002, letter to the Department's investigator, Shellie White, Mr. Burson wrote: "I have seen Mr. Pringle use tobacco on the field during practice and games." However, Mr. Burson's testimony at the hearing was much more equivocal. He testified that he never actually saw Mr. Pringle put tobacco into his mouth. Mr. Burson had seen the can of dip in Mr. Pringle's car, saw a bulge in Mr. Pringle's mouth, and assumed that it was dip. He never saw Mr. Pringle carrying the can of dip in his pocket and could not recall ever seeing Mr. Pringle spit tobacco juice. Mr. Burson was not sure if any students were ever present during those times he thought Mr. Pringle had dip in his mouth, which appears to conflict with his written statement that Mr. Pringle used tobacco during baseball games. Mr. Burson never saw Mr. Pringle offer dip to a student; to the contrary, Mr. Burson testified that Mr. Pringle discouraged his players from using tobacco. Despite the fact that he was called by the Department, Mr. Burson was plainly a reluctant witness. He stated that he "resent[ed] being here" because this case was a matter of "sour grapes" and a waste of time and money. Mr. Burson testified he was never offended by anything that Mr. Pringle did and never saw Mr. Pringle do anything in the presence of parents, students, or teachers that would embarrass Riverdale. Sean Fox graduated from Riverdale in 2002 and had played junior varsity baseball and varsity golf. His witness statement to Ms. White, dated May 7, 2002, stated as follows regarding tobacco: All of the alligations [sic] against Coach Pringle are true. I have witnessed with my own two eyes, everything dealing with chewing tobacco and profanity. I witnessed him telling another teammate that he did have chewing tobacco with him and that he could have some that it was "over on top of the crate." He has some of my friends hooked on chewing tobacco thanks to him sharing it. I have had him this past year for a golf coach and he did the exact same things on the golf course. On a golf trip to Clewiston, he was chewing tobacco in the van spitting it out in a 20 oz. bottle of Coke right in front of us. His chewing tobacco is an everyday thing for him at Riverdale. At the hearing, Mr. Fox's testimony was far less assured than was his witness statement. He continued to maintain that someone at practice had blurted out a request for tobacco, and that Mr. Pringle had indicated he had some on a crate or on the dugout bench. Mr. Fox could not recall who had asked for the tobacco, though he was "pretty sure" it was a student. He agreed that his recollection of the event was "pretty hazy." Mr. Fox admitted having no basis for alleging that Mr. Pringle had hooked his friends on tobacco. Rather than "an everyday thing," Mr. Pringle's tobacco use was "every now and then at practice." In his direct testimony, Mr. Fox stated that he had seen Mr. Pringle put tobacco in his mouth "maybe once or twice." However, during cross-examination, he admitted that he never actually saw Mr. Pringle put tobacco in his mouth and never saw him spit tobacco juice, except on the Clewiston golf trip. As to the Clewiston incident, Mr. Fox admitted that he "can't honestly say" that he saw Mr. Pringle spit tobacco juice into a Coke bottle. He saw the motion of the bottle to Mr. Pringle's mouth and assumed he was spitting tobacco juice. Curtis Rine, one of the players cut from the 2002 Riverdale baseball team, testified that he once saw Mr. Pringle openly dipping tobacco in his math class, and that Mr. Pringle openly dipped tobacco on the baseball field, both at practices and at games. He testified that Mr. Pringle allowed players to use tobacco, and they would all have it in their mouths, "pretty much" at every practice and every game. The players openly used and spat tobacco at games, in front of parents, school officials, and the umpires, who did nothing about it. Curtis Rine also testified that on a bus trip home from an away baseball game, two players were dipping tobacco in the back of the bus. They swallowed the tobacco, became sick, and hung their heads out of the bus window to throw up. Curtis Rine testified that Mr. Pringle laughed when he saw the two boys throwing up. No one else associated with the Riverdale baseball team, players or coaches, either in their written statements or their live testimony, claimed to have ever witnessed players hanging out of a bus window and throwing up. Assistant baseball coach Justin Cook pointed out that the Riverdale team rides a charter bus to away games and that the windows of such a bus cannot be opened by the passengers. Mr. Pringle also denied that anyone ever threw up on the bus and noted that the bus driver would have reported such an incident had it happened. No other witness ever claimed to have seen Mr. Pringle use tobacco in the classroom. As Mr. Hennebery testified, had Mr. Pringle openly used tobacco during a baseball game, he would have been ejected. Mr. Pringle was never ejected from a Riverdale baseball game. Any player using tobacco in a game would have been ejected from that game and suspended from playing baseball for two weeks. No Riverdale player was ever ejected for tobacco use under Mr. Pringle. Mr. Pringle strongly and credibly denied allowing any player to use tobacco under any circumstances. Curtis Rine's testimony on these points cannot be credited. Mary Rine, Curtis' mother, also testified that she witnessed Mr. Pringle chewing tobacco at Riverdale baseball games. She testified that he continuously spat tobacco juice throughout the games, even while standing in the third base coach's box in full view of the umpires. She also stated that on five or six different occasions at the baseball field, she saw Mr. Pringle with dip in his mouth at the concession stand. Mr. Pringle testified that he never went to the concession stand with dip in his mouth. Amy Cafaro-Dillon's son, John Cafaro, played junior varsity baseball at Riverdale in 2001. He tried out for the varsity team in 2002, but did not survive the cut. John Cafaro played golf on the Riverdale varsity team coached by Mr. Pringle. Ms. Cafaro-Dillon testified that she has spent a great deal of time around Mr. Pringle because of her son's participation in baseball and golf. When her son was on the junior varsity team, she helped run the concession stand at baseball games. She attended every practice. Ms. Cafaro-Dillon testified that she never saw Mr. Pringle use dip on school grounds. Elizabeth Parrish's son, Robby, played four years of varsity baseball at Riverdale for Mr. Pringle and graduated in 2000. Ms. Parrish "more or less" ran the concession stand for the four years her son played baseball at Riverdale. She attended every baseball game her son played in at Riverdale and continued attending some of the games in 2001 and 2002. Ms. Parrish testified that she never saw Mr. Pringle using tobacco. The only thing she ever saw Mr. Pringle spit was sunflower seeds. Justin Cook teaches business at Riverdale and has spent three seasons as assistant varsity baseball coach. He spends hours with Mr. Pringle every day during baseball season and sits less than a foot from Mr. Pringle during games. Mr. Cook confirmed that he has seen Mr. Pringle use Copenhagen dip when he is away from school, such as on a fishing trip. However, Mr. Cook stated that Mr. Pringle has never used dip at any school-related function, including baseball games and practices, and in fact, leaves the can of dip locked in his truck when he is at school. As did Mr. Hennebery, Mr. Cook pointed out that tobacco use at baseball games violates state and school rules and that officials will eject a coach or player caught with tobacco. Jason Scott has taught social studies at Riverdale for four years, and has served as assistant golf coach under Mr. Pringle for the past two seasons. He has also attended several baseball games as a spectator. Mr. Scott testified that he has never seen Mr. Pringle use tobacco products in front of students. Fred Barker's son, Brian, played three years of varsity baseball under Mr. Pringle. Fred Barker has assisted Mr. Pringle in running the autumn "wooden bat" baseball league. He attended nearly every baseball game, home and away, during his son's career at Riverdale. Mr. Barker testified that he had no idea Mr. Pringle used tobacco until these allegations arose after the 2002 cuts. Brian Barker testified that he knows what dip looks like in the user's mouth because his father used dip for years, but that he had never seen Mr. Pringle use dip. Brian also stated that he had never seen any of his fellow players use dip, in contrast to the testimony of Curtis Rine. James Simmons has two sons who played varsity baseball at Riverdale under Mr. Pringle: Justin played four years of varsity baseball and graduated in 2000; and Joshua played two years of junior varsity, two years of varsity, and graduated in 2002. Mr. Simmons attended every Riverdale baseball game, home and away, when his sons were on the team. Between 1998 and 2001, Mr. Simmons attended nearly every baseball practice. Mr. Simmons testified that he never saw Mr. Pringle use tobacco. Greg Byrus played three years of varsity baseball at Riverdale, graduating in 2003. He also played on the golf team for two years. Mr. Byrus testified that he has used dip for about a year and knew two other Riverdale players who used dip. However, he stated that none of the three players ever used dip at a practice or a game because it was not allowed. Mr. Byrus testified that he had once seen Mr. Pringle use dip at a fishing tournament, but that he had never seen Mr. Pringle use it during a school-related function. In response to Mr. Byrus' testimony, Mr. Pringle testified that he was unaware that Greg Byrus used dip. Mr. Pringle stated that he has never seen a student using tobacco products while that student was a member of the baseball team. He has seen former players smoking or dipping tobacco products after graduation. Diane Byrus is the mother of Greg Byrus. She is the athletic secretary at Riverdale and reports to Boyd Gruhn, the school's athletic director. She attended all but two games during Greg's four years at Riverdale and sat in a lawn chair at the fence near the Riverdale dugout, no more than five or six feet from Mr. Pringle. Ms. Byrus testified that she never saw Mr. Pringle use tobacco at a school activity, though she has seen him use it in social activities away from school. Richard Shafer, the principal of Riverdale for six years, testified that when he first came to the school, he had a concern about several coaches using tobacco. In 1999, he "heard something" about Mr. Pringle chewing tobacco on the field. He had a discussion with Mr. Pringle and William Hoke, then the athletic director about the matter. Mr. Pringle denied using tobacco on the field, and that was the end of the matter. Mr. Shafer heard no complaints about Mr. Pringle chewing tobacco until after the 2002 baseball cuts. Mr. Shafer has never seen Mr. Pringle with tobacco in his mouth. Mr. Hoke, the athletic director at Riverdale during the 1998-1999 school year, testified that when word got out in the community that he was going to Riverdale, he began hearing things about profanity and tobacco use among the coaching staff. People relayed such concerns to him because they knew of his activity in the Fellowship of Christian Athletes and of his strong opposition to cursing and tobacco use. At the start of the school year, Mr. Hoke called a general meeting of the coaching staff to remind them of the rules. Mr. Hoke stated that if he ever discussed tobacco use or profanity individually with Mr. Pringle, it would have been at the "tail end" of a meeting on another subject and would have been a mere reiteration of the statements made in the general meeting. Mr. Pringle did not recall an individual meeting with Mr. Hoke about the subject of tobacco and profanity, though he did recall that Mr. Hoke "hit those topics hard" in the general meeting. Mr. Hoke testified that he watched the coaching staff "like a hawk" for objectionable behavior, and that he never witnessed Mr. Pringle using profanity or tobacco products during his tenure as athletic director. In his own defense, Mr. Pringle testified that he does use Copenhagen, a dip. He started using dip during his last year of college. Mr. Pringle fished in tournaments while in college and still fishes recreationally. He likes to put a dip in his mouth when he is out on the water fishing. He has a dip at night before he goes to bed, and occasionally when playing golf. However, when he is at school, the dip container is either locked in his truck or left at home. As a possible explanation for Sean Fox' claim that he saw a container of tobacco in the dugout, Mr. Pringle noted that the Riverdale baseball field is used by the community and by college teams. He quite often finds tobacco products, beer bottles, and other refuse at the field after outsiders have used it. Mr. Pringle flatly denied ever having offered tobacco to a student. He stated that he would never allow players to use tobacco products on the field and that he has never seen a current Riverdale player use tobacco. Mr. Pringle is a member of the FHSAA and of the Florida Athletic Coaches Association. Both associations prohibit profanity, tobacco, and alcohol at any athletic event. In high school baseball, the rules are enforced by the umpires. A player ejected for using tobacco or profanity is not allowed to play in another game for two weeks. Prior to the 2002 season, a coach ejected for tobacco or profanity was required to leave the school grounds and serve a one-game suspension. Mr. Pringle testified that the rule was strengthened in 2002 and now provides the same two-week penalty for coaches as for players. Mr. Pringle testified that in his ten years at Riverdale, no coach or player has been ejected from a baseball game or even warned by the umpires regarding tobacco use or profanity. Mr. Pringle stated that he runs a strict program. Players are not permitted to argue with or "show up" the umpires, or to throw bats or helmets. The same strict rules apply to practices as to games. Mr. Pringle testified that he has high goals for the Riverdale baseball program, and "there's no way I would allow myself or a player to jeopardize our goals" by using tobacco on the field. Mr. Pringle testified that he did use tobacco in front of Mr. Burson, when the coaches would go out for dinner after practices or especially after tryouts, to review the cut lists. Mr. Pringle stated that he will occasionally dip tobacco after dinner and likely did so on those occasions with Mr. Burson and the other coaches. Mr. Pringle recalled the golf trip to Clewiston, but denied using tobacco on that trip. He also denied ever using tobacco in the classroom. Mr. Pringle stated that he is an inveterate chewer of sunflower seeds and has chewed those on golf trips, bus trips, and even in the classroom when he is not actively teaching. If he is indoors or in a car, he spits the sunflower shells into a container. Mr. Pringle chews sunflower seeds at baseball practices and games. The assistant coach, Mr. Cook, confirmed that the coaches and some players chew sunflower seeds "all the time" during practices and games. Ms. Parrish testified that Mr. Pringle usually bought sunflower seeds from the concession stand before games. Mr. Pringle makes his own beef jerky, which he chews at practices and games. Mr. Pringle also chews gum. Any of those items could be mistaken, at a distance, for dip tobacco, particularly by someone who knows that Mr. Pringle does use dip on occasion. In summary, the Department failed to demonstrate by clear and convincing evidence, or even by a preponderance of the evidence, that Mr. Pringle ever chewed tobacco at baseball practice, at baseball games, on trips to games, or at school. The Department failed to demonstrate by clear and convincing evidence, or even by a preponderance of the evidence, that Mr. Pringle ever provided tobacco to his players or allowed his players to use tobacco in his presence. Swearing The Administrative Complaint alleges that Mr. Pringle "used profanity and/or demeaning language in front of students, including but not limited to words to the following effect: asking them what the hell they were thinking; telling them they were uncoachable motherfuckers; telling them they were worthless pieces of shit, sorry asses and/or fucking losers; and/or asking a student how he could be 17 years old and only be in the 9th grade." No evidence was presented that Mr. Pringle asked a student "how he could be 17 years old and only be in the 9th grade." No evidence was presented that Mr. Pringle called his players "uncoachable motherfuckers," "sorry asses" or "worthless pieces of shit." Thus, these allegations are deemed abandoned. The Department called several witnesses who claimed to have heard Mr. Pringle use profanity in front of students. In his May 7, 2002, statement to Ms. White, Sean Fox wrote: Profanity with him is an everyday thing. On the golf course, baseball field, anywhere outside of his classroom, every other word out of his mouth is profanity. On a couple of occasions in the classroom talking to him during golf season, in a quiet manner, he has used profanity in those little conversations. At the hearing, Mr. Fox testified that his written description was "pretty much accurate." Mr. Fox stated that to his knowledge this swearing occurred only in front of the athletes, not other students. Mr. Pringle would say "damn" and "hell" if the players did something wrong. Mr. Fox stated that Mr. Pringle said "fuck" once or twice in his presence. Willard Truckenmiller testified that he only heard Mr. Pringle curse a couple of times, after games. "Shit" and "damn" were the only words he could clearly recall Mr. Pringle using. He stated that Mr. Pringle might have said "hell" a couple of times, but he expressly denied ever hearing Mr. Pringle say the word "fuck." Curtis Rine testified that Mr. Pringle used profanity in front of the baseball players, either when joking around or when something happened in a game that made him mad. Mr. Pringle used "probably almost every single" curse word, including "hell," "shit," "fuck," "bitch," and "assholes." Curtis Rine stated that Mr. Pringle once called the entire team out onto the field, berated them for fooling around and not doing their jobs during the previous day's game, and called them "fucking losers." Mary Rine's older son, Tommy, played varsity baseball for Mr. Pringle in 2000 and 2001. Ms. Rine testified that Tommy would come home complaining about the swearing that occurred on the baseball field. She stated that in 2001, she wrote a letter to Mr. Shafer to complain about a variety of things, including the cursing and use of tobacco on the baseball field. Her husband delivered the letter to Ms. Dollinger, who told Mr. Rine that she would investigate the matters raised in the letter. The Rines did not retain a copy of the letter. At the hearing, Ms. Dollinger testified that she purged her files when she changed jobs a year later, and that the Rines' letter must have been destroyed at that time. She could not remember the exact substance of the Rines' complaint. She did recall bringing four baseball players into her office separately to discuss the allegations made by the Rines about Mr. Pringle and recalled being satisfied that there was no truth to the allegations. She then met with Mr. Pringle to discuss the allegations and her findings and to caution him that there were parents on the lookout for misbehavior on the baseball field. Ms. Rine coached cross-country at Riverdale for six years. While running with her team across the baseball field one day, she stated that she heard Mr. Pringle yelling at the players participating in an off-season conditioning program, "What the hell were you thinking about?" Ms. Rine conceded that the players were in the dugout and that she could not see into the dugout from her position, but she was certain that she recognized Mr. Pringle's voice. Ms. Rine testified that Mr. Pringle would swear at baseball games if the game was going badly or a player made a bad play. She recalled hearing him say "shit," "damn," and "hell," though she could remember no particular instance of his swearing aside from the incident with her cross-country team. Fred Burson testified that he has heard Mr. Pringle say the word "fuck," but only under his breath in frustration. Mr. Burson could not say whether any student heard the word. He testified that this was not typical language for Mr. Pringle, but that, like anyone else, Mr. Pringle would occasionally become frustrated and say something he shouldn't. In three years of working with Mr. Pringle, Mr. Burson never heard Mr. Pringle curse at a student or direct such language at any other person. As noted above, Mr. Hoke watched the coaches "like a hawk" during his tenure as athletic director and never heard Mr. Pringle use profanity. Justin Cook, the assistant varsity baseball coach for the last three years, testified that he has heard Mr. Pringle swear a few times when they have been fishing together, but never when performing his professional duties. Mr. Pringle has used the word "hell" two or three times in game conversations with Mr. Cook. During games, Mr. Cook and Mr. Pringle sit very close together in folding chairs outside the dugout, and are not near the players. Mr. Cook stated that he did not believe the players could hear these conversations. Mr. Cook testified that Mr. Pringle has said to him, "What the hell is going on right now?" However, Mr. Pringle has never said that to the players. Mr. Cook also recalled Mr. Pringle meeting with him in the right field corner before a game, 200 feet from the dugout where the players were sitting and saying, "How in the hell are we going to beat this team today?" Mr. Cook has never heard Mr. Pringle shout a curse word. Jason Scott, the teacher who assists Mr. Pringle with the golf team, testified that Mr. Pringle's behavior has always been purely professional. He has heard Mr. Pringle curse while playing golf with a group of adults, but has never heard Mr. Pringle utter a curse in the presence of a student. Brian Barker, who played baseball for four years under Mr. Pringle, testified that he never heard Mr. Pringle use any vulgar or sexually explicit language. The worst thing Mr. Pringle might have said was "damn," and Mr. Barker could not say for certain whether Mr. Pringle had said that. He stated that Mr. Pringle "gets on to you when you do something wrong," but never says anything to put down or demean his players. Mr. Barker testified, "[Y]ou can't really get nothing done when somebody is cussing at you . . . Why would he cuss at us to get us to work harder for him? I mean, it just don't make any sense." Greg Byrus, who played three years of varsity baseball under Mr. Pringle, testified that Mr. Pringle did not say anything that he considered cursing or profanity. He stated that Mr. Pringle would occasionally use the word "damn" or "hell" when something went wrong on the field. Mr. Byrus did not consider "damn" or "hell" to be curse words. He stated that Mr. Pringle did not shout the words; only the players sitting on the bench could hear them. Mr. Byrus expressly denied that Mr. Pringle had ever called the players "losers" or otherwise demeaned the players. Diane Byrus, Greg's mother, stated that she did consider "damn" and "hell" to be curse words, but that she never heard Mr. Pringle utter even those terms. From where she sat at the baseball games, she could hear the players talking in the dugout and was certain she could have heard Mr. Pringle cursing had he done so. Ms. Byrus stated that, in her position as athletic secretary, she would have been obliged to report to the athletic director any misbehavior by Mr. Pringle. She never saw any such misbehavior. Mark Ryan and Fred Barker both testified that they had never heard Mr. Pringle utter a profanity. James Simmons testified, "I've heard him holler at them, but he didn't cuss them." The assistant principals, Don Trelease and Christine Dollinger, both testified that they had never heard Mr. Pringle utter a profanity at a baseball game. In his own defense, Mr. Pringle testified that he has never used profanity in a game situation or at practice, and had certainly never shouted profanity on the field or in the dugout. He conceded that he has softly said "damn" or "hell" to a coach sitting next to him. He denied ever turning to a student and saying, "What the hell were you thinking?" or anything like that. He noted that use of profanity is a cause for ejection from baseball games and that neither he nor any of his players had ever been cautioned or ejected for using profanity. He also noted that Riverdale plays 15 home games every year, with an average attendance of 100 people, yet no one complained about his alleged foul language or tobacco use until after the 2002 cuts. Mr. Pringle stated that he probably had used profanity in the presence of Mr. Burson, but only away from school and never when students were present. Mr. Pringle and Mr. Burson would exchange jokes that included ribald language, all the way up to the word "fuck." In summary, the Department failed to demonstrate by clear and convincing evidence that Mr. Pringle used profanity and/or demeaning language in front of students. The only thing clearly and convincingly demonstrated is that Mr. Pringle would occasionally mutter an oath to the coach seated next to him. Of the student witnesses, only Curtis Rine claimed to have heard Mr. Pringle berate players with profanity, including calling the entire team "fucking losers." The Department's other two student witnesses, Willard Truckenmiller and Sean Fox, recalled no such berating of players, though they claimed to have heard Mr. Pringle utter curse words. Greg Byrus and Brian Barker denied hearing Mr. Pringle use profanity in front of the players, as did assistant coach Jason Scott. Mr. Byrus did recall Mr. Pringle occasionally saying "damn" or "hell." Fred Burson, who recalled hearing Mr. Pringle use the word "fuck" on the field, testified that he said the word under his breath. Of all the witnesses not directly involved with the baseball team, only Mary Rine claimed to have heard Mr. Pringle use profanity on the baseball field. Other adults who spent as much or more time with the baseball team as did Ms. Rine testified that they never heard Mr. Pringle use profanity. The weight of the credible evidence favors Mr. Pringle. At most, the evidence establishes only that some players may have overheard Mr. Pringle say the word "damn" or "hell" to a coach seated next to him at the edge of the dugout. No credible evidence established that Mr. Pringle ever directed such language at students, or that he ever used language that any reasonable person would consider demeaning to his baseball players. Sexual Innuendo The Administrative Complaint alleges that Mr. Pringle "told coarse jokes and/or made inappropriate sexual comments in front of students, including but not limited to, comments about the following: blowjobs; lap dances; getting a piece of ass; asking a student how he would like to fuck the hell out of a certain female; asking a female student if her black eye was due to her boyfriend's penis having hit her eye while she was giving him oral sex; asking male students about their sexual relationships with their girlfriends; and/or discussing how much 'head' a student had received." In his May 7, 2002, statement to Ms. White, Sean Fox wrote the following: As far as sexual comments & gestures, he has set a world record in that department. He has made numerous sexually related comments to one of my good friends, Melissa Land. She has told me that he said "Damn, you look good in those shorts," and "If you ever need help raising a grade, I'm sure we can make a trade." Melissa didn't even have him for a teacher, so how could he help her raise her grade in another class? Melissa Nunez, Jackie Whitlock are two other cheerleaders I'm almost certain he has made sexually-referred [sic] comments to and probably even sexual contact with. On road trips with golf & baseball I have heard him make comments about the girls saying "How would you like to fuck the hell out of her?" "Just let me know, I can make it happen." Every day he has a different sexual comment about a cheerleader. I have asked other cheerleaders (who request to remain anonymous) that Pringle has asked them to have sexual fun & sexual intercourse. He has done everything he has been accused of and denied everything during baseball season to keep his coaching job. He should not be a coach, nor a teacher before some more serious [sic] happens (i.e. rape, mollesting [sic]) He thinks that since he is a teacher, he can get away with this easier. He's not at this high school to teach, he's here to take advantage of girls that are 17 & 18 years old. Someone needs to get rid of him & out of this school before rape or mollesting [sic] occurs & the school board and school really get into a situation I'm sure they don't want to be in. Lee County School Board did a horrible job investigating him before. As a student, this scares me knowing a creep, a pervert like him is on the loose getting away scot- free. At the hearing, Mr. Fox considerably softened those portions of his statement that he did not expressly disavow. Mr. Pringle's actual comments about girls were "maybe not that extreme" when compared to those in Mr. Fox' written statement. Mr. Pringle would "just say something about how good a girl would look or how maybe the way she acted." Mr. Pringle's comments were "maybe not necessarily" about cheerleaders, but about some other unnamed girls. At the hearing, Mr. Fox could recall no particular statements Mr. Pringle made about girls. When questioned about the "How would you like to fuck the hell out of her?" comment, Mr. Fox stated: I don't remember the whole "let me know" thing, "I can make it happen," but I'm sure once or twice-- I can't remember specifically, but the first statement would be true at some point. Mr. Fox testified that he wrote his statement "probably out of pure anger at the time and frustration" over being dragged into this matter at a time he was preparing for graduation and going through family problems. Graduation was supposed to be a good time, but this controversy was roiling the school and Mr. Fox was being pulled into it. He stated that, if he could, he would take back the accusations that Mr. Pringle was a "creep" and a "pervert." He testified at the hearing that Mr. Pringle was a good coach and a good role model for students. Mr. Fox admitted that, of all the girls named or referenced in his statement, Melissa Land was the only one he actually spoke with about these matters. His other allegations were based on the girls' "reputations and rumors that I have heard about them, and stuff like that." He admitted having no personal knowledge as to the truth of any of the allegations in his statement regarding Mr. Pringle and female students. Sean Fox never saw Mr. Pringle make any inappropriate comment to any female student. In a written statement to Ms. White dated April 3, 2002, Willard Truckenmiller alleged that Mr. Pringle talked to players about having sex with their girlfriends and whether the girls were "easy." He also wrote about a cheerleader, later identified as Melissa Land, who came to school with a black eye. Willard Truckenmiller alleged that Mr. Pringle asked Ms. Land "if her boyfriend miss [sic] her mouth and hit her in the eye." He alleged that Ms. Land did not come forward because she was threatened with being kicked off the cheerleading squad if she did. At the hearing, Willard Truckenmiller testified that Mr. Pringle made no sexual comments in his presence. As to Melissa Land, he disclaimed any personal knowledge of the incident, stating that he only knew what Ms. Land told him. For reasons set forth below, it is far more likely that Willard Truckenmiller's information about the incident came from Curtis Rine, the "boyfriend" referenced in the statement, than from Melissa Land. Curtis Rine testified that he was dating Melissa Land at the time of the incident. Melissa had received a black eye during a cheerleading practice. Mr. Rine testified that Melissa told him that she saw Mr. Pringle in the hallway, and that Mr. Pringle asked her, "What happened to your eye? Did your boyfriend, you know, miss your mouth and hit you in the eye with his dick?" Mr. Rine testified that this made him angry but that he did not report Mr. Pringle. Ms. Land testified that she did not know Mr. Pringle very well but that she would walk past his classroom and say hello every day during the change of classes. On the day in question, Mr. Pringle was standing outside his classroom with Mark Ryan, another teacher. Ms. Land recalled that Curtis Rine was with her as she walked past Mr. Pringle and Mr. Ryan. Mr. Pringle saw her black eye and "said something like, 'What were you doing with your boyfriend?'" Ms. Land testified that she did not take the remark as referencing sex. She simply took it as a joke and laughed, "blew it off." Later, however, Curtis Rine told her that he thought Mr. Pringle was making some kind of sexual remark. Mr. Ryan recalled the incident. He knew Melissa Land as a former student of his. She walked past Mr. Pringle and him during change of classes, and they noticed she had a black eye. Mr. Pringle said something like, "What happened to you?" This was in the context of a brief, lighthearted conversation about whether cheerleading is a "sport," a running joke in the hallways of Riverdale. The entire conversation lasted no more than twenty seconds. When asked directly whether Mr. Pringle made any kind of sexual remark to Melissa Land, Mr. Ryan testified: Absolutely not. I mean, I have been a teacher for 15 years in Lee County, and any remark of a sexual nature would be something that would be imprinted in my memory. And no. I mean, nothing like that has ever happened. You know, I mean, this conversation, if it’s a conversation that becomes something out of the normal teacher- student, in passing, joking type of conversation, you would remember that. Absolutely not. That would be something that... it would just... it would absolutely stick. Mr. Pringle testified that he and Mr. Ryan were standing in the hallway when Melissa Land came walking by. Curtis Rine was not with Ms. Land. Mr. Pringle asked Ms. Land what happened to her eye, and she explained that another girl accidentally hit her during cheerleading practice. Mr. Pringle jokingly asked how she could get hurt in cheerleading, since it was not a sport. At the hearing, Mr. Pringle explained that this was a running joke at the school because Riverdale's cheerleading team is highly competitive and nationally ranked, yet receives no money from the school's athletic budget. Melissa Land laughed, and that was the end of the conversation. It is clear from the testimony of all involved that the sexual content of this incident derived from the mind of Curtis Rine, not from anything Mr. Pringle said to Melissa Land. Any fair-minded investigation could only have led to the conclusion that this allegation was, if not utterly devoid of merit, then certainly one that could not be proven by clear and convincing evidence when no one who was actually present recalled Mr. Pringle saying anything like what was alleged. The fact that such a vile and improvable allegation was included in the Administrative Complaint again raises questions as to the Department's intent in bringing this case against Mr. Pringle. In his written statement to Ms. White dated April 3, 2002, Curtis Rine wrote: Now about the strip clubs and sexual coments [sic]. One night we had a baseball game in Miami and on the way home, there were a couple of us in the front of the bus and [Mr. Pringle] asked if we were gonna go to Lookers with him (strip club) and we said no. I also heard him ask Matt Howerton how many blow jobs has he got now. At the hearing, Curtis Rine stood by the text of his statement, though he noted that he believed Mr. Pringle was joking about taking the boys to a strip club. Matt Howerton was another player on the Riverdale baseball team. It was well known, at least among the baseball players, that Matt's older sister was a dancer at "Lookers," the strip club allegedly mentioned by Mr. Pringle. Curtis Rine stated that Matt laughed when Mr. Pringle suggested they go there. Brian Barker was one of the Riverdale players on the charter bus to the Miami game. He never heard Mr. Pringle make a comment about going to Lookers or any strip club, on that trip or at any other time. Mr. Barker stated, "I definitely would recall something like that, yeah." Greg Byrus was another Riverdale player who rode the bus to the Miami game. He never heard Mr. Pringle say anything about going to Lookers, though he qualified his statement by noting that he was in the back of the bus and Mr. Pringle was sitting in the front. Assistant coach Justin Cook sat next to Mr. Pringle on the bus coming back from Miami. Mr. Cook testified that Mr. Pringle never said anything about going to Lookers and has never made any comment of the kind to students in Mr. Cook's presence. Mr. Pringle testified that he never made any comment about going to Lookers. He stated that he would never make such a comment, if only because it was a "very touchy subject" due to the fact that Matt Howerton's sister worked at the club. Other kids gave Matt "a hard time" about it, in a teasing manner. Mr. Pringle did not approve of the teasing and disallowed it on the baseball field. Mr. Trelease testified that the Lookers allegation was raised by the Rines at their meeting with him, Mr. Shafer, Boyd Gruhn, and Mr. Pringle on February 18, 2002. Mr. Trelease stated that when the school's administration investigated the matter, it could find no substantiation for the allegation from any player on the bus. Thus, on the record produced at the hearing, Curtis Rine is the sole witness to Mr. Pringle's alleged invitation to a bus full of students and coaches to join him at a strip club. This allegation has not been proven. Other sexual comments were attributed to Mr. Pringle by Sean Fox, Willard Truckenmiller and Curtis Rine: asking "How would you like to fuck the hell out of her?"; asking whether certain girls were "easy"; asking how often they had sex with their boyfriends; and asking a student how many blow jobs he'd had. Mr. Pringle denied ever making any such comments. No other coach ever heard him make such comments. Brian Barker and Greg Byrus denied ever hearing Mr. Pringle make such comments. The District's investigation concluded there was no reason to give credence to these allegations. Mr. Trelease noted that no such allegations had ever surfaced against Mr. Pringle until the 2002 baseball cuts were made. Mr. Hennebery noted that even after the allegations against Mr. Pringle had reached the District level, the charges of sexual innuendo did not come up until the investigation was nearly complete, as a sort of afterthought. In summary, the Department failed to demonstrate by clear and convincing evidence that Mr. Pringle told coarse jokes and/or made inappropriate sexual comments in front of students. Conclusions The Department produced not a single disinterested witness to support any of the allegations brought against Mr. Pringle. In some cases, this would not be of overriding significance. However, in this case, the accusations regarding Mr. Pringle alleged that his behavior was open and notorious. He cursed freely and often, in front of the entire baseball team and any parents who happened to be in the vicinity. He chewed tobacco at Riverdale baseball games, in full view of the fans, school officials, and umpires. He offered to take a bus load of minors to a strip club. Yet the only persons who witnessed these acts were those who had been cut from his baseball team or their parents. To give credence to these allegations, one must be prepared to believe that the entire Riverdale baseball team, their parents, several Riverdale teachers and all of its administrators, and the Lee County School District either lied or acted in bad faith to protect Mr. Pringle. The undersigned was not persuaded that such a conspiracy existed and is at a loss to understand how the Department could have been so persuaded. The testimony of two of the Department's own witnesses, William Hoke and Melissa Land, tended to support Mr. Pringle's version of events. Department witness Fred Burson testified that this case was "a waste of time," and could not say whether any student ever witnessed Mr. Pringle's tobacco chewing and cursing. Mr. Pringle testified that he had indeed cursed and dipped tobacco in Mr. Burson's presence, but never in the presence of a student. Sean Fox, author of some of the most sordid accusations against Mr. Pringle, retracted the bulk of them on the witness stand. He now regretted the vitriol of his written statement and testified that Mr. Pringle was a good coach and a good role model, though in January 2002, he had told teacher Jason Scott that he was not trying out for baseball "because I hate Pringle." The Rines and the Truckenmillers carried clear grudges against Mr. Pringle because of the 2002 baseball cuts. The Rines' dissatisfaction with Mr. Pringle actually dated back to their elder son Tommy's experiences on the Riverdale baseball team, having nothing to do with cursing or tobacco use. The parents believed that Tommy had the potential to pitch at the University of Florida. Mr. Pringle and his assistants did not share that opinion. The Rines were angry that Tommy pitched only sporadically for Riverdale and that the coaches would not risk their own credibility by recommending Tommy to college and professional scouts. As Curtis Rine put it, Mr. Pringle had "screwed over" Tommy, and his parents believed that Mr. Pringle was going to "screw me over, too." The local newspaper and television stations ran stories on the allegations against Mr. Pringle while the District was conducting its investigation. John Hennebery and Bill Shoap both testified that the District has a strict confidentiality rule regarding ongoing investigations, and both testified that the District was not the source for these stories. Mr. Pringle credibly testified that a television reporter indicated to him that the sources for the story were Mary Rine, Kim Caruthers, and one of the Truckenmillers, all of whom sought to create a public scandal that would lead to Mr. Pringle's dismissal. When the news was released that the District had cleared Mr. Pringle of the charges against him, Tom Rine, the father of Curtis and Tommy, flew into an obscenity-laced tirade against Mr. Pringle in the presence of two female Riverdale students who were visiting the Rine home. In front of these girls, Mr. Rine threatened violence against Mr. Pringle in explicit terms. Mr. Rine's behavior was so extreme and threatening that one of the girls reported the matter to Deputy Stevens, who filed an incident report and let it be known that Mr. Rine should stay away from the Riverdale campus. Mary Rine testified that her husband assured her that he did not engage in this tirade. Both of the female Riverdale students testified that he did. The Department listed Mr. Rine as a witness, but elected not to call him. These facts are recited not to further discredit the Department, but to point out that the Department knew or should have known of these facts before it elected to proceed against Mr. Pringle, or at least before this matter ever reached the point of a formal hearing. As far as Riverdale High School and the Lee County School District were concerned, this matter was concluded on February 14, 2002. For reasons not apparent to the undersigned, the Department of Education elected to revive these charges and extend Mr. Pringle's ordeal for an additional year and a half. The Department did not come close to carrying its burden in this case. Moreover, the Department should have known that it could not carry its burden long before this case came on for hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 6th day of November, 2003, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 6th day of November, 2003.
