The Issue At issue in this proceeding is whether the Respondent committed the offenses set forth in the Corrected Notice of Specific Charges and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Petitioner, School Board of Miami-Dade County (School Board), is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. The Respondent, Michael Durrant, was at all times material hereto, employed by the School Board (under a professional service contract),and assigned to North Miami Middle School, North Miami Senior High School, and other work locations. During the 1996/97 school year, E. H. was a fourteen- year-old female student at North Miami Middle School. During that school year, E. H. was in the eighth grade and was an honors student. During that school year, the Respondent was one of her teachers. At the beginning of that school year, E. H. did not like the Respondent, but during the course of the school year, she became attracted to the Respondent. On January 16, 1997, while E. H. was in the Respondent's classroom, the Respondent approached her seat to talk to her. During the course of their conversation, the Respondent put one of his arms around E. H. and asked her to give him a kiss. E. H. gave the Respondent a light kiss on the cheek. The Respondent then told E. H. that she should come back to his classroom after school. After school that same day, E. H. returned to the Respondent's classroom. When E. H. asked him what he wanted, the Respondent approached E. H. and gave her a "French" kiss, which involved inserting his tongue in E. H.'s mouth. On January 23, 1999, E. H. again met the Respondent in his classroom after school. When E. H. arrived, two other students were also in his classroom. Eventually, the two other students left the classroom and E. H. and the Respondent were the only people in the classroom. Shortly thereafter, the Respondent gave E. H. a "French" kiss and began to fondle her vagina. The Respondent then inserted his penis in E. H.'s vagina and they engaged in sexual intercourse for a brief period of time. E. H. had not previously engaged in sexual intercourse and she began to bleed as a result of the sexual intercourse. Due to the bleeding, the sexual intercourse did not last very long. E. H. then cleaned herself up and went home. From February 2, 1997, until April 9, 1997, the Respondent was assigned to work at the regional office. On April 9, 1999, the Respondent was returned back to his teaching position at North Miami Middle School. A few days later,6 the Respondent and E. H. planned a meeting. They met at a grocery store near North Miami Middle School on an early release day, and the Respondent then drove E. H. to his townhouse. At the townhouse, the Respondent and E. H. engaged in two episodes of sexual intercourse involving penile penetration of E. H.'s vagina. On Monday, May 19, 1997, the Respondent took a day off from school and E. H. skipped school. The Respondent met E. H. near her home and drove her to the Respondent's townhouse. On this occasion, the Respondent and E. H. engaged in two episodes of sexual intercourse involving penile penetration of E. H.'s vagina. In addition, they engaged in two episodes of oral sexual activity; one episode involving the Respondent placing his mouth in contact with E. H.'s vagina, and the other episode involving E. H. placing her mouth in contact with the Respondent's penis. During the summer of 1997, E. H. took some summer school classes at North Miami Senior High School. The Respondent was teaching at that school during the summer session. The Respondent and E. H. no longer continued their sexual relationship, but on the last day of summer school, they kissed each other. Eventually, the sexual activity between the Respondent and E. H. was brought to the attention of the school authorities. The matter was investigated by school authorities and by two police departments. On November 5, 1997, the Respondent was arrested on three criminal charges: (1) unlawful sexual activity with a minor under sixteen years of age by an adult over twenty-four years of age; (2) sexual activity with a child in a custodial position; and (3) lewd and lascivious assault on a child.7 The news of the Respondent's arrest was widely published in local newspapers and on local television in the Miami-Dade area. News of the arrest resulted in a considerable amount of disruption at both North Miami Middle School and North Miami Senior High School. A number of students at both schools became aware of the fact that the Respondent had been arrested on charges related to sexual activity with a student. Some students became aware of the fact that E. H. was the student who had been sexually involved with the Respondent. A number of parents expressed concerns about the Respondent's conduct. The Respondent's effectiveness as a teacher has been seriously impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered which sustains Respondent's suspension without pay, and which dismisses him from employment with the School Board. DONE AND ENTERED this 6th day of July, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 July, 1999.
The Issue Whether Respondent violated Florida Administrative Code Rules 6B-1.001, 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(f), 6B-1.006(3)(g), and 6B-1.006(3)(h), and, if so, whether such conduct is just cause for dismissal of Respondent pursuant to Subsection 1012.33(6)(a), Florida Statutes (2003).
Findings Of Fact During the 2002-2003 school year, Gary was employed by the School Board as a band and orchestra director at James Madison Middle School (Madison). Gary had been employed by the School Board for two years previous to the 2002-2003 school year. Prior to the incidents which are at issue in this case, Gary had been thought of by the Madison school administrators, students, and parents as an excellent teacher, who was able to inspire and motivate students. Gary taught C.J., a ninth-grader, advanced band and intermediate band during the 2002-2003 school year. Sometime during that school year, Gary noticed a dead dragonfly on a window in the band classroom. The dragonfly was removed from the window and placed in a trash receptacle. C.J. said that he would eat the dragonfly for a dollar. Another student said that he would give C.J. a dollar, and Gary said, "Okay." C.J. retrieved the dead dragonfly from the trash can and ate the insect. Gary gave C.J. a dollar. C.J.'s parents learned of the dragonfly incident through a younger cousin of C.J., who also attended Madison. C.J.'s mother went to see Gary to discuss the incident. Gary indicated to the mother that he was sorry for what had happened and that it was poor judgment on his part. C.J.'s mother felt that they had addressed the issue during their conversation and left the meeting satisfied about the issue. Gary did not advise school administration about C.J. and the dragonfly. After the dragonfly incident another situation arose involving Gary and C.J.'s eating an inappropriate item. Gary and some students, including C.J., were eating lunch in the cafeteria. Gary was eating baked ziti and began chewing on a particularly hard piece of ziti. He removed the ziti from his mouth and placed it on the side of his plate. Gary offered C.J. 12 dollars to eat the ziti, saying, "I bet you won't eat this piece of baked ziti." C.J. replied, "Oh, yes, I will." Gary then told C.J. not to eat the chewed food. Other students were egging C.J. on to eat the ziti, and C.J. picked the food off Gary's plate and ate it. One of C.J.'s cousins related the ziti incident to C.J.'s mother, and C.J.'s mother paid Gary another visit. The mother was not happy about the ziti episode and spent more time discussing the issue with Gary than she did when she visited him concerning the dragonfly. Gary told C.J.'s mother that he had bet C.J. 12 dollars to eat the ziti. The mother told Gary not to pay C.J. the money. Before she left the school on the day of the ziti discussion, she went to see Gary a second time to inquire about the status of his health because C.J. had eaten food that had previously been in Gary's mouth. Gary assured her that he was in good health. Gary did not advise school administration about the ziti incident. Gary was provided a copy of the school district's "Code of Ethics" which contained a section entitled "How to Use Common Sense and Professional Judgment to Avoid Legal Complications in Teaching." On of the admonishments in this section was "[k]eep your hands and other parts of your body to yourself." During the 2002-2003 school year, Gary put his hands inside students' pockets and searched for candy, chewing gum, notes, and money. He admitted searching the pockets of D.B., S.D., M.R., N.M., D.R., and L.B. Such actions were inappropriate and caused some of the students to feel uncomfortable. If a teacher suspects that a child has candy, chewing gum, or notes in his pocket, the correct procedure is to have the child empty his pockets so that the contents can be viewed. The teacher is not to put his hands in the student's pockets. L.D. was a student at Madison during the 2002-2003 school year, and Gary was her band instructor. L.D. considered Gary to be a "really good friend" as well as a teacher. During the 2002-2003 school year, L.D. was sitting on the stairs in the band room playing her band instrument. She played incorrectly, Gary came up to her, aggressively grabbed her neck, and said "urrr." She told him to stop, and he did. She did not think that his actions were sexual in nature, but did feel that they were inappropriate for a teacher. During the 2002-2003 school year, J.W. attended seventh grade at Madison. Gary was her band teacher. J.W. has hugged Gary, and he has hugged her back. J.W. has seen Gary hug other students at Madison. D.B. was a honor roll student at Madison. During the 2002-2003 school year, she was in Gary's first period orchestra class. She played the violin, and, during a two-week period when her violin was broken, she helped Gary in his office. Gary's office was located within the band room. The office had a door with a glass window, which took up at least three-quarters of the upper half of the door. Adjacent to the door, there was a large picture window which was on approximately the same level with the door window, but which was almost twice the size of the door window. A desk with a computer on it was located underneath the picture window. The top of the computer monitor came just below the bottom of the picture window. Occupants of the office could be seen from the band room; however, the evidence does not establish that the occupants could be seen fully from the band room. Gary made inappropriate comments to D.B., including telling her that she had sexy lips and telling her that she smelled good. These comments made D.B. feel uncomfortable. Gary also inappropriately touched D.B. While she and Gary were in his office, Gary "touched her inner thigh" and "rubbed it" and asked her if she knew how beautiful she was. In a second incident, Gary held her hand and rubbed her arm while she in his office to file papers during first period orchestra. During a third incident, Gary put his fingers inside her shorts at her waist, pulled her toward him, and asked her what she wanted. This incident took place when the door to the office was open. In another incident, D.B. asked Gary to tune her violin, and he put his hand up the bottom of her shirt. All the incidents happened during first period orchestra class when students were in the band room. Gary argues that D.B.'s testimony is not credible because of a conversation D.B. had with some fellow classmates. J.D., a classmate of D.B., was talking with D.B. and another classmate K.S. during fifth period of the 2002-2003 school year while Gary was still teaching at Madison. K.S. said, "You know what's being said about Mr. Gary is not true," and D.B. said, "Yeah, it's not true, don't say anything." The evidence did not establish what was being said about Gary and whether it concerned D.B.'s allegations against Gary. Thus, the evidence does not establish that D.B. was fabricating her allegations about Gary. Gary admits that he may have touched D.B. on occasion, but that the touching was not sexual in nature or inappropriate. M.R. was enrolled in Gary's second period and sixth period band classes during the 2002-2003 school year. She alleged that beginning in January 2003, Gary inappropriately touched her person. M.R. alleged that on two occasions when she was in Gary's office with the office door open and other students were present in the band room, Gary touched the outside of her clothing in her vaginal area. She also alleged that in a third incident that Gary placed his hand inside her pants underneath her underwear and rubbed her vagina. The third incident allegedly took place in the office with the door open and while other students were present in the band room. On a fourth occasion, M.R. alleged that Gary came up behind her in the filing room, placed his hands inside her shirt, and touched her breasts. The alleged incidents supposedly happened during third period lunch when other students were in the band room eating lunch or practicing. Of the students who testified at the final hearing and spent most of their lunch periods in the band room, none saw any inappropriate contact between Gary and M.R. M.R. had wanted to be first chair flute in her band class, but Gary made another student first chair. M.R. was angry about Gary's selection for first chair and told her friend J.W. sometime after Christmas 2002 that she was going to get even with Gary for not making her first chair. K.M., who was a student at Madison, overheard M.R. tell another student that the allegations and problems facing Gary were "what he deserves for not promoting me up in chair." M.R. does not have a good reputation in the community for truth and veracity. Her testimony concerning inappropriate touching by Gary is not credible, and it is found that those incidents did not happen. The School Board established other incidents of inappropriate behavior by Gary. Such behavior included telling a student that he could not wait until she was 21 so that he could be all over her and that it was a good thing that she was pretty because her brains would not get her anywhere; tickling her at the end of class; pulling her against her will onto his lap, and placing his arms around her arms and waist. Gary would also sit with students in the same chair in his office. Gary failed to tell school administrators of possible sexual misconduct between two students in the student restroom, when he became aware that some misconduct probably occurred between the two students. Although, the School Board proved these incidents, the School Board failed to allege the incidents in the Petition for Dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order dismissing Benjamin Leon Gary for just cause from his employment as a teacher with the School Board. DONE AND ENTERED this 24th day of June, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2004. COPIES FURNISHED: Harold T. Bistline, Esquire Stromire, Bistline, Miniclier & Griffith 1970 Michigan Avenue, Building E Post Office Box 8248 Cocoa, Florida 32924-8248 Mark S. Levine, Esquire Levine, Stivers & Myers 245 East Virginia Street Tallahassee, Florida 32301 Benjamin B. Garagozlo, Esquire 3585 Murrell Road Rockledge, Florida 32955 Dr. Richard A. DiPatri, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6699 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue to be determined is whether Respondent violated the provisions of Section 1012.795(1)(c), (f) and (i), Florida Statutes (2007)1/, and Florida Administrative Code Rule 6B- 1.006(3)(a) and (e), and if so, what penalty should be imposed?
Findings Of Fact At all times relevant to this proceeding, Respondent held a Florida Educator's Certificate, numbered 1003139, covering the area of athletics coaching. The certificate was valid through June 30, 2008. Petitioner is the state agency charged with the certification and regulation of teachers, pursuant to Chapter 1012, Florida Statutes. At all times relevant to these proceedings, Respondent was employed as an in-school suspension teacher and a track coach at Hernando High School in the Hernando County School District. The allegations in this proceeding involve events that occurred during the 2007-2008 school year, and deal with three separate incidents: Respondent's conduct in connection to the prom; his actions toward M.G.; and his actions toward A.H. The Prom The prom for Hernando High School was held on or about April 5, 2008, at the Glen Lakes Country Club in Hernando County. Joy Nagy was a coordinator for the prom, and Vicelia Azzarelli was the administrator on duty. Teachers who desired to chaperone the prom signed up in advance. They were given specific responsibilities, including a schedule for monitoring students' behavior. Volunteers' duties did not include dancing with the students. Those teachers who were not volunteering but wanted to stop by and see the students dressed up in their prom attire were also expected to get prior authorization. According to Joy Nagy, Respondent neither signed up to volunteer nor sought permission to attend the prom. Respondent came to the prom with Mr. Mobley, a long-time substitute teacher. Both men were present for a short time, approximately twenty minutes. During their appearance at the prom, they were seen on the dance floor dancing with the students. Assistant Principal Azzarelli observed Respondent while he was at the prom, and he appeared to her to be under the influence of alcohol. He had the smell of alcohol on his person and on his breath, his eyes were dilated and his gait was unsteady. She and another administrator requested that Respondent and Mr. Mobley leave the dance, and they did so. After the prom, a group of students chose to continue celebrating, and rented rooms at a hotel in Clearwater Beach. Respondent and Mr. Mobley went to the hotel where the students were staying, and socialized with the students. The students were drinking alcohol at the hotel, and the presence of alcoholic beverages was evident. The next week, some students came forward asserting that Respondent and Mr. Mobley were partying with students in Clearwater Beach following the prom. During a subsequent investigation into the partying, Respondent admitted to Ms. Azzarelli that he went to Clearwater Beach after the prom, and had a couple of drinks at a club there. He also admitted that he went to the hotel room of some of the students. As a result of the investigation into the events surrounding the prom, school officials also received information regarding possible conduct by Respondent with respect to two female students at Hernando High School. M.G. M.G. is currently a student at Valencia Community College. At the time of the events in this case, she was a senior at Hernando High School, and was, along with a few other students, a manager for the track team. At some point during the 2007-2008 school year, M.G. was sent to the in-room suspension room for a dress code violation, because she was wearing a skirt that was too short. She was the last student to leave the room. As she was leaving the classroom, Respondent came up behind her and reached around, putting his hand underneath her skirt, over her underpants. M.G. immediately left the room. She did not report the incident to anyone initially, because there were no witnesses to the conduct and she did not think anyone would believe her. She thought that by staying out of in-school suspension and working with the other track managers, she would not be in a position where the situation could be repeated. However, there was a subsequent occasion where M.G. was taking inventory of the uniforms for the track team. She was again alone with Respondent, and he again came up behind her and touched her in the crotch area, over her clothes. On this occasion, M.G. was wearing capris pants. She left the room and, as before, did not tell anyone because she did not want to be in a position where she reported the behavior and no one believed her. She only came forward after hearing about another incident involving Respondent's alleged conduct with a female student.3/ A.H. A.H. was also a student at Hernando High School at the time of the events in question. She graduated in 2009, and is now a student at Pasco-Hernando Community College. There was an occasion during the 2007-2008 school year when A.H. was alone with Respondent in the portable where he taught. Respondent kissed her, and she tried to walk out. He grabbed her arm, pulled her back to him and kissed her again. Respondent also sent A.H. inappropriate text messages. For example, he would text her that he did not want to have sex with her because he knew she was a virgin, but that "I'll go down on you and show you a good time." Like M.G., A.H. did not want to tell anyone about the incident with Respondent because she did not want anyone to know about it. When questioned initially by school officials, she denied it for the same reason. Both girls were interviewed by Detective Morrell of the Hernando County Sheriff's Office during her investigation stemming from the conduct related to prom. The information given during the investigation by Detective Morrell and the information provided during the hearing was consistent. Unfortunately for both girls, after the conduct was investigated, there was significant publicity regarding the incidents. Information was published in both the print and electronic media. Consistent with her fears, M.G. was subjected to ridicule and the publicity related to the investigation made it difficult for her to finish her senior year. Neither girl wanted to press charges as a result of Respondent's conduct, because they did not want to have to deal with the publicity associated with criminal charges. Neither girl wanted to testify in this proceeding. However, both girls were candid and credible, despite their obvious reluctance to appear. On or about May 5, 2008, Respondent resigned in lieu of termination from his position with the school district.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order finding that Respondent violated Section 1012.795(1)(c), (f), and (i), Florida Statutes (2007), and Florida Administrative Code Rules 6B-1.006(3)(a) and (e), and permanently revoking his teaching certificate. DONE AND ENTERED this 10th day of February, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2010.
The Issue The issue for consideration in this matter is whether Respondent should be dismissed from employment with the Polk County School Board because of the matters alleged in the letter of intent prepared by the Superintendent of Schools.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for providing public primary, secondary and adult education in Polk County, Florida, and operated Haines City High School, (HCHS), in Haines City. Respondent had been employed at HCHS for eight years, and in the last two years prior to the incidents herein taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. DCT students are allowed to leave campus before the end of the school day to work at jobs in the local area. However, Respondent allowed some students to leave school during the morning hours for the purpose of getting breakfast and, coincidentally, to bring items back to school for her to eat. There is also allegation that Respondent would solicit students to run personal errands for her during school hours but would not give them a pass to allow them to lawfully leave the campus. Allegedly, she advised them that they were on their own and she would deny responsibility or knowledge if they were caught. Taken together, the evidence establishes that Respondent did allow students to leave class on personal business and did not give them passes to be off campus. It also appears that she solicited them to pick up items for her while they were away, but not that she solicited students to leave class to run errands off campus for her. Even so, her actions are in violation of the Board policy regarding student absence from campus, a policy about which Respondent had been briefed. In addition, some time during the Autumn of 1994, Respondent overheard a student on the school's football team, Bradford Parton, discussing with his girlfriend the fact he was having cramps. Respondent advised him he should take potassium and on at least one occasion, during a class session, gave Parton a pill which, she said, would give him energy and take away his cramps. She believed the pill was the functional equivalent of one banana. Respondent was aware that it was a violation of Board policy for anyone other than the school nurse to administer any form of pill or medication to a student. When the Principal learned that Respondent had given Parton the pill, he directed an investigation into the matter. On November 17, 1994, after he had heard that Respondent was making comments in class to the effect that the students were getting her in trouble with the administration, the Principal gave her verbal instructions not to discuss these matters with the students and to limit her conversations with them to matters related to class work. His comment to her included, "Just teach the class. Just don't bring yourself down to their level." The following day, on November 18, 1994, after receiving word that Respondent had again spoken to Parton after he had warned her not to do so, the Principal reduced his prior comments to writing and again instructed her not to discuss the matter with any students, warning her that he considered her doing so a matter of insubordination which, if repeated, would result in severe disciplinary action. There is some indication Respondent, in early December, 1994, advised several students after the warning she was going to have them removed from her class She subsequently advised the school's guidance counselor that several of the students involved should be removed from her class because they appeared to be "unhappy" in it. The students denied being unhappy in class and urgently resisted being removed because they needed the credit to graduate. Respondent's comments to the students constituted insubordination, and her action in urging removal of the students was considered by the administration to be an attempt at retaliation against them because of their allegations made against her. There is also indication that while the investigation into the allegations against her was under way, Respondent spoke with Ms. Denmark, another teacher, who was in the room when Respondent gave the pill to Mr. Parton, in an effort to get her to change her statement. School Board officials consider Respondent's blatant violation of school rules and policies by allowing students to leave campus without a pass and by improperly administering a pill to a student combine to severely impair her effectiveness as a teacher. Under the circumstances established here, this appears to be the case. Prior to the initiation of this action, Respondent had received a verbal warning regarding drinking in front of students at a conference and regarding making untoward comments about Blacks. Her personnel record, commencing with the teacher evaluation of her performance in the 1988-1989 school year, reflects positive comments and no substantial criticism. However, in July, 1994, the Superintendent advised Respondent of his intention to suspend her without pay for five days for making improper comments of a sexual nature toward students and for allowing students to grade papers, to average grades and to have access to her grade book. Respondent requested hearing on this proposed action. That hearing was held consolidated with the instant hearing and no final action has been taken by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova's, suspension without pay pending hearing be sustained and that she be dismissed from employment as a teacher with the Polk County School Board because of misconduct in office and gross insubordination as described herein. RECOMMENDED this 3rd day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 3rd day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-2599 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 4. Accepted and incorporated herein. - 9. Accepted and incorporated herein. Accepted in so far as Respondent allowed students to leave campus and periodically suggested those who did run errands for her. - 13. Accepted and incorporated herein. 14. Accepted and incorporated herein. FOR THE RESPONDENT: & 2. Accepted and incorporated herein with the understanding that the term, "no further details regarding the allegations were provided" refers to the charging letter, and that Respondent was provided with specific allegations of misconduct prior to hearing. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 8. Accepted and incorporated herein. First sentence accepted and incorporated herein. Second sentence rejected. See Partain's December 2, 1994 letter to Chapman. Accepted and incorporated herein. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U. S. Highway 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
The Issue The issues to be determined are whether Respondent, Jean- Baptiste Guerrier, made inappropriate comments to, or engaged in inappropriate conduct with, female students, or inappropriately discussed the topic of sex with his class, as alleged in the Administrative Complaint; and, if so, what sanction is appropriate.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting misconduct allegations against individuals holding Florida educator's certificates. Mr. Guerrier held Florida Educator's Certificate 596926, covering the areas of English and middle grades, which was valid through June 30, 2015. At all times pertinent hereto, Mr. Guerrier was employed as a vocational education teacher at D.A. Dorsey Education Center School in the Miami-Dade County School District. Mr. Guerrier primarily taught English to students who had dropped out of school earlier and were returning for vocational education. Some of his students were adults, and some were still minors. On August 2, 2012, Ms. Ana Sanchez, an investigator for the Miami-Dade County School Board, received a case alleging that Mr. Guerrier had made inappropriate comments of a sexual nature to his students and had inappropriately touched female students. Ms. Sanchez interviewed students and prepared an investigative report detailing what each student told her regarding Mr. Guerrier's conduct in class. She did not personally observe Mr. Guerrier's conduct in the classroom. On September 6, 2012, Mr. Guerrier wrote a letter to Ms. Anne-Marie DuBoulay, the district director of the Office of Professional Standards. In the letter, Mr. Guerrier indicated that he had read the allegations and that he denied them. On or about October 5, 2012, the Miami-Dade County School District notified Mr. Guerrier that he would be recommended for suspension without pay and dismissal. On or about October 8, 2012, Mr. Guerrier submitted his resignation from his position at the Miami-Dade County School District. On October 10, 2012, Ms. DuBoulay prepared a memorandum for the file indicating that Mr. Guerrier had resigned and that the investigative information had been transmitted to Professional Practices Services of the Florida Department of Education. On August 12, 2013, an Administrative Complaint was filed against Mr. Guerrier by the Commissioner. It was subsequently sent to the Division of Administrative Hearings. At hearing, Ms. Sanchez testified that she interviewed several students from Mr. Guerrier's classes. She testified that some students told her that Mr. Guerrier often made inappropriate comments about sex and female anatomy to his students. She testified that students told her that he inappropriately touched students. She testified that students told her that he had asked female students, "What would you do for a grade?" She testified that Elijah Del'Valle, a 21-year-old student, told her that he saw Mr. Guerrier pulling a female student's G-string, confirming the female student's statement to her. The investigative report prepared by Ms. Sanchez indicated that D.W., a 25-year-old female student, told Ms. Sanchez that Mr. Guerrier would make sexual comments to his female students on a daily basis. The report indicates that D.W. told Ms. Sanchez that Mr. Guerrier asked her in class if he could see her private parts and asked "what she would do for the grade." The report indicates that K.L., a minor female student, told Ms. Sanchez that Mr. Guerrier rubbed her stomach and asked her to kiss him. The report indicates that K.L. told Ms. Sanchez that Mr. Guerrier told a story in class about a student who had reported him and that he told his class that the student was mad because he would not have sexual relations with her. The report indicates that K.L. told Ms. Sanchez that Mr. Guerrier told K.L. that her boyfriend "could not handle her." The report says that K.L. told Ms. Sanchez that she witnessed Mr. Guerrier pull G.C.'s underwear in class. The report indicates that J.S., a minor female student, told Ms. Sanchez that Mr. Guerrier always used inappropriate slang terms for female anatomy in class and that she heard Mr. Guerrier ask K.L. to show him her private parts. The report indicates that J.S. told Ms. Sanchez that she saw Mr. Guerrier touching K.L.'s stomach. The report indicates that J.S. told Ms. Sanchez that Mr. Guerrier told one female student, "What if I turn off the lights and tell you to undress?" The report indicates that J.S. told Ms. Sanchez that she did not recall which student Mr. Guerrier made this comment to. The report indicates that Mr. Del'Valle, an adult male student, told Ms. Sanchez that he observed Mr. Guerrier flirting with female students and making sexual remarks in class. The report indicates that Mr. Del'Valle told Ms. Sanchez that Mr. Guerrier would ask his female students what they would do for a grade. The report indicates that Mr. Del'Valle told Ms. Sanchez that he saw Mr. Guerrier pull a student's pants from behind during class and then ask the young lady where she was going. The report indicates that Mr. Del'Valle told Ms. Sanchez that Mr. Guerrier was always looking at the female students when they walked by and would rub his shoulder and arm against them. The report indicates that G.C., a minor female student, told Ms. Sanchez that she saw Mr. Guerrier rub K.L.'s belly area and say, "let me lick that belly ring of yours." The report indicates that G.C. told Ms. Sanchez that Mr. Guerrier is always brushing himself up against the female students. The report indicates that G.C. told Ms. Sanchez that Mr. Guerrier told a story in class about a student who had reported him and that that student was mad because he had not had sexual relations with her. The report indicates that G.C. told Ms. Sanchez that she once asked Mr. Guerrier for help with a lesson and that he pulled her G-string when she was getting up from the chair and pulled her back down. Mr. Guerrier testified at hearing that he did not do any of the things he was accused of. Mr. Guerrier said that his accusers had a motive to fabricate their stories because they were very poor students. He said that some of them slept in class, others texted throughout class, and others did not show up at all. He stated that some of them had no grades in his grading book and that he had no basis to give them a grade. He stated the students went to a counselor and fabricated the stories.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint against Jean-Baptiste Guerrier. DONE AND ENTERED this 20th day of June, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2016.
The Issue The issue is whether Respondent should be dismissed from his employment with Florida A & M University, as proposed in a termination letter dated August 19, 1999.
Findings Of Fact Based upon all of the evidence, including the stipulation of the parties, the following findings of fact are determined: In this employee termination case, Petitioner, Florida A & M University (FAMU), seeks to terminate the employment of Respondent, Calvin C. Miles, Jr., on the ground that he sexually harassed three female students and retaliated against two students in violation of Rule 6C3-10.103, Florida Administrative Code. Because FAMU is a part of the State University System, the Board of Regents was also identified as a Petitioner. Respondent has denied all allegations. FAMU has a non-discrimination policy and harassment complaint procedure codified in Rule 6C3-10.103, Florida Administrative Code. Paragraph (6)(b) of the rule prohibits sexual harassment while paragraph (11)(a) prohibits retaliation. Respondent was subject to this policy and procedure, and on August 26, 1998, he signed a paper indicating that he had read and understood the same. On August 22, 1997, Respondent was hired as General Manager of WAMF, a radio station owned and operated by FAMU and which employed a number of FAMU students. Whether he was considered a non-instructional or instructional employee is not clear. In any event, the station had been without a full-time manager "for a while," and Respondent was told to come in and "put in place some policies and format . . . and move the station in the direction that [FAMU] thought it should go." He was also told that the station should be operated as a teaching facility. FAMU agrees that some of Respondent's decisions in implementing these directives "caused some people to bristle." Respondent's immediate supervisor was Dr. Hawkins, Director of FAMU's Division of Journalism. As such, Dr. Hawkins was required to prepare Respondent's annual evaluations. The first evaluation was prepared on September 29, 1998, and was transmitted to Respondent with a letter of the same date. In his letter, Dr. Hawkins concluded that Respondent's "first year here has been a mixed bag." While he acknowledged that Respondent had "turned up the level of professionalism at the station substantially and in rather quick fashion," he noted other matters of concern. Among these was a concern that at least three female students said that you had made inappropriate remarks to them. While none of these students have filed a complaint, I believe I have a responsibility to mention them now. In addition to the comments of these students, other female students have said that they just plan to stay away from the station so they do not have to be bothered. This is not the climate we want. This letter placed him on official notice that some female students perceived his conduct towards them as offensive and having an improper sexual connotation. In response to his evaluation, Respondent wrote Dr. Bryant a lengthy letter dated October 22, 1998. As to the allegations of sexual misconduct, Respondent "strongly suggest[ed] that the University conduct a thorough investigation of all complaints of this nature." During his tenure with FAMU, Respondent had two or three meetings with the Dean of the School of Journalism, Media, and Graphic Arts, Dean Ruggles, and his immediate supervisor, Dr. Bryant, regarding the foregoing complaints of sexual misconduct. Respondent was urged to use "extreme caution," to reassess his behavior with female students, and warned that "if these allegations were taken to the complaint stage" by a student and found to be substantiated, there would be severe consequences. In addition, on at least one occasion, Respondent met with the Director of FAMU's Office of Equal Opportunity Programs regarding a complaint by another student. Therefore, it is fair to infer that Respondent was well aware of on-going accusations being made against him, and that he should be extremely cautious in his behavior around female students. After formal complaints of sexual harassment were filed by three female students in February 1999, FAMU's Office of Equal Opportunity Programs conducted an investigation. On May 11, 1999, the President of FAMU notified Respondent that the findings of the investigation revealed that Respondent had violated Rule 6C3-10.103, Florida Administrative Code, and that FAMU intended to terminate his employment. Respondent then availed himself of the right to have an "investigatory interview" by a University Personnel Committee on July 13, 1999. When the committee determined that no new facts had been presented, Respondent was dismissed from employment effective August 26, 1999. This appeal ensued. Although the termination letter does not identify the specific allegations which form the basis for the termination, in a Joint Prehearing Stipulation filed by the parties, FAMU has alleged that Respondent "engaged in conduct and actions toward[s] [Symphony] Parson, [Deanna] McKinley[,] and [Jackeline] Pou that rose to the level of sexual harassment in violation of Rule 6C3- 10.103(6)(b), Florida Administrative Code." FAMU further alleged that Respondent "exhibited behavior towards Ms. Parson and Ms. Maria Williams, a witness in this matter, that rose to the level of retaliation as set forth in [Rule] 6C3-10.103(11)(a), F.A.C." However, there was no evidence regarding retaliation against Maria Williams, who was not a witness in this case, and that portion of the charges has been disregarded. Parson, McKinley, and Pou testified at the final hearing, and although Respondent disputed the accuracy of their allegations, their testimony has been accepted as being the most persuasive on these issues. Findings with respect to those allegations are set forth below. Deanna McKinley Deanna McKinley (McKinley) enrolled at FAMU in the fall of 1996 and was a senior at the time of hearing. On September 1, 1998, McKinley began working at WAMF and hosted an Inspirational Gospel Morning Show using the on-air name of "Deanna Devine." Respondent was her supervisor. Throughout her employment at the radio station, McKinley felt "uncomfortable" around Respondent. This was because he would stare at her breasts, always place his hands on her shoulders when speaking to her, squeeze her shoulders, touch her hand in the Disc Jockey (DJ) booth, and stand extremely close to her while the two spoke. She was especially uncomfortable "being in the same studio with him, because the studio was in a different part of the building, it was locked, it was dark, [and] usually [she] was the only one there." Although she disliked Respondent's conduct and on occasion had told him that she disapproved of it, McKinley was under the impression that unless she tolerated Respondent's actions, she would not be allowed to continue as a DJ or "make progress" at the station. Besides the foregoing conduct, Respondent made personal remarks of a sexual nature to McKinley. For example, when she would bend over, he would say something like "Don't bend over like that, you will get someone excited." He also made a comment about how "adorable" and "kissable" she was, and that if he were her man, he "would just kiss [her] all the time." Once, when McKinley remarked ". . . little old me?", Respondent stared at her breasts and replied "Nothing on you is little, Deanna. But that's all right. It's all good." In January 1999, McKinley accidentally dropped something on the floor in the studio and bent over to pick it up. Respondent again stated "You should not bend over like that, Deanna, you may get someone excited." This latest incident triggered a decision by McKinley to leave the radio station. It is fair to infer from the evidence that McKinley perceived the radio station to have a hostile working environment, and that Respondent's conduct unreasonably interfered with her educational performance and ability to work at the station. On February 1, 1999, McKinley submitted her letter of resignation to the radio station. On February 11, 1999, she filed a complaint with FAMU's Office of Equal Opportunity Programs. Symphony Parson Symphony Parson enrolled at FAMU in the fall of 1997 with a major in broadcast journalism. She began working at WAMF that same year as a music director and on-air personality. Respondent was her supervisor. In April 1998, and while on duty at the station, Parson was taking a telephone message for the station secretary late one afternoon when Respondent came up behind her and began rubbing her shoulders and then moved his hand onto her breast. She told him to stop, "cursed him," and then left the station. In November 1998, Parson was in the station "writing on the file cabinet" when Respondent came up behind her and "brushed up against her" rubbing his shoulders against her. She again "cursed him out." A month later, he repeated the same conduct. According to Parson, she felt "violated" and "horrible" whenever this conduct occurred. Respondent also engaged in inappropriate conversations with Parson when she was on duty at the station. For example, he asked her if she was having sex with her boyfriend, and he told her how "cute" and "sexy" she was. These conversations made her feel extremely uncomfortable and led Parson to try to avoid Respondent whenever possible. At the same time, however, Parson felt that she had to tolerate this conduct to keep her position at the station. It is fair to infer from the evidence that Parson found the station to have a hostile working environment, and that Respondent's conduct unreasonably interfered with her educational performance and ability to work at the station. On February 8, 1999, Parson filed a charge of sexual harassment against Respondent with the Equal Opportunity Office. A few days later, Respondent was placed on administrative leave. When he returned to his office to clean out his personal items, he passed by Parson and said "You're dead." Parson reported this to the police, was forced to get a cell phone out of fear for her personal being, and asked her parents to temporarily move into her apartment. Jackeline Pou Jackeline Pou (Pou) enrolled in FAMU's journalism program in August 1996. She began working at WANF in September 1997. Respondent was her supervisor. While working at the station, Respondent would sometimes brush his body against Pou or touch her shoulders, which made her feel uncomfortable. Almost on a daily basis, he would make comments about how pretty she was or make comments about her "eyes". When he spoke to her, he would stare at her breasts. Once, she observed him staring at her "behind when [she] was walking away." In the summer of 1998, and just after Pou finished speaking on the telephone with a friend, Respondent asked who she was speaking with. When Pou responded "It's none of your business," Respondent said, "It couldn't have been a guy or the seat would have been wet." Respondent's conduct made Pou feel intimidated and uncomfortable, and she disliked being alone in the radio station with Respondent during the evening hours. Besides creating a hostile work environment, such conduct also unreasonably interfered with Pou's educational performance and ability to work at the station. On February 11, 1999, Pou filed a complaint of sexual harassment against Respondent with FAMU's Office of Equal Opportunity Programs. Respondent's contentions Respondent has steadfastly denied all allegations of sexual misconduct since they first surfaced in 1997 or 1998. At hearing, Respondent contended that he was an unpopular figure among the students due to his strong disciplinary measures. While this may be true, it does not justify his actions towards McKinley, Parson, and Pou. He suggested that McKinley's complaint was motivated by her displeasure with his disciplinary measures and failure to obtain her a parking pass. Respondent further suggested that Parson bore him ill-will after he demoted her to a different position at the station. He also contended that out of revenge, the three women met and conspired to file false complaints in an effort to have him removed from the station. Finally, Respondent suggested that each of the complainant's testimony was full of inconsistencies and lacked specificity as to certain dates and times. These contentions have been considered by the undersigned and rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida A & M University enter a final order confirming the dismissal of Respondent as an employee. DONE AND ENTERED this 29th day of August, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 29th day of August, 2000. COPIES FURNISHED: Bishop C. Holifield, General Counsel Florida A & M University Suite 300, Lee Hall Tallahassee, Florida 32307-3100 Avery D. McKnight, Jr., Esquire Ruth N. Selfridge, Esquire Florida A & M University Suite 300, Lee Hall Tallahassee, Florida 32307-3100 Calvin C. Miles, Jr. 501 Blairstone Road, Apartment 123 Tallahassee, Florida 32301
Findings Of Fact Introduction At all times relevant hereto, respondent, Michael A. Graham, was a middle school teacher at West Miami Junior High School (WMJHS) in Miami, Florida. He is under a continuing contract as a teacher for petitioner, School Board of Dade County (Board). He has been an employee in the school system since 1975 and a full-time teacher since 1981. Graham holds bachelor and master degrees from the University of Miami and is currently taking course work at Florida International University towards a second master's degree. On January 12, 1988 the Board voted to suspend Graham without pay for thirty days effective January 20, 1988 for "just cause and misconduct in office." On July 1, 1988 the Board issued a Notice of Charges containing six counts of alleged misconduct. 1/ The charging document alleged that respondent failed to disclose on his job application dated September 24, 1981 that he had been previously arrested on numerous occasions, (b) intentionally exposed a student, I.M., to unnecessary embarrassment, (c) intentionally exposed a student, V.E., to unnecessary embarrassment or disparagement, (d) intentionally committed a battery on U.C., a student, (e) continually and intentionally refused to discontinue uttering profane and/or vulgar language in his classroom during school years 1985-86, 1986-87 and 1987-88, and (f) continually and intentionally refused to discontinue excessive tardiness and excessive absences during the same school years. These charges will be taken up separately below. Filing A False Application (Counts I and II) During the course of his employment with the Board, Graham has filled out various applications and other informational forms. Relevant to this proceeding is an application for an instructional position filed with the Board on September 24, 1981. The application asked the following question: Have you ever been convicted of anything other than minor traffic violations? Graham responded in the negative. Sometime after Graham filed the above application, the Board had an occasion to run a background check on him. Among other things, the Board uncovered the fact that Graham had been arrested on February 29, 1976 for resisting an officer without violence to his person and disorderly conduct, both misdemeanors. The first charge was nolle prossed while Graham was found guilty of the second charge and received a suspended sentence. Certified copies of these records have been introduced into evidence as petitioner's exhibit 10. Although petitioner did not introduce into evidence certified copies of other arrests, there was testimony, without objection, that Graham had been arrested for the following charges: 12/17/71 - public drunkenness 6/05/74 - theft 5/14/76 - worthless checks 4/08/77 - "warrant arrests" 5/18/77 - worthless checks 9/11/79 - worthless checks 9/17/81 - aggravated battery 11/05/82 - worthless checks 2/21/86 - worthless checks During a conference with a school administrator on August 21, 1987, Graham acknowledged that, with the exception of the May 14, 1976 arrest which he did not remember, and the April 8, 1977 matter which he stated involved a voluntary return on his part to the State of Indiana, all other arrests occurred. However, there is no evidence that Graham was convicted of any of these charges, and his testimony that all charges were later dropped was not contradicted. At hearing Graham explained that he thought the question concerning prior arrests on the employment application meant whether his civil rights had ever been taken away. Since they had not, he stated he believed his negative answer was appropriate. Exposing Students to Embarrassment or Disparagement (Counts III and IV) It is alleged that in school year 1986-87, respondent exposed I.M., a seventh grade female student, to "unnecessary embarrassment or disparagement." The student did not appear at hearing but gave post-hearing deposition testimony. As clarified at hearing, this charge stems from alleged off-color remarks about I.M.'s clothing made by Graham to I.M. in front of the class. I.M. was a student in Graham's history class in school year 1986-87. While in class on May 11, 1987, I.M. left her desk to go to the restroom. She was wearing tight fitting pants. When she returned, Graham remarked in a loud voice, and in front of the class, that her pants were so tight he "could see her crack and count the hairs." Graham also made her perform a "fabric test" to ascertain whether she could pinch the cloth on the pants without pinching her skin. If I.M. pinched both skin and cloth, this confirmed that the pants were too tight. After Graham made his comments and required I.M. to take the "fabric test," I.M. became embarrassed, felt "cheap," began crying and left the room. She reported the incident to her counselor and prepared a written statement which is attached to her deposition. Also, she described the incident to a school investigator the same day, giving essentially the same version of events described above. This account is deemed to be more accurate and credible than a slightly different version of events given by I.M. by deposition some fifteen months later. Graham recalled the incident differently. According to his recollection, when I.M. returned from the bathroom to the classroom, he told her she had "inappropriate clothing," and if she disputed this, she would be given a hall pass to visit the principal. If the principal approved the pants, she could wear them to school. Otherwise, Graham told her not to wear them to his class in the future. Graham contended also that he said "Your clothing is too tight around the hips and crotch" and denied using the words "hairs" or "crack." He conceded he may have asked her to perform a "fabric test." However, this version of events is not deemed to be credible and is hereby discredited. Student V.E. is a fundamentalist Christian who was in Graham's American History class for the first three days of school year 1987-88. On the first or second day of class Graham gave a class assignment requiring the students to use the Bible as a historical reference but to explain the story without the (i ideas of miracles and deity. V.E. understood this to mean that she was to "take all miracles" out of the story and to "not have God in it." During class that day, V.E. asked a question about a Bible parable being discussed by Graham and, after she gave the biblical version of what happened, Graham asked her if she believed in magic. V.E. felt "bad" and "intimidated" by Graham's question. When she went home that evening, V.E. told her mother about the class assignment. The mother was upset and prepared a letter for Graham and the assistant principal questioning the subject matter of the assignment. V.E. was told by her mother to hand carry a copy of the letter to Graham the next day. Before she could do this, the assistant principal told Graham that V.E.`s mother had sent a letter. When she entered the classroom the next day, V.E. was asked by Graham if she had a letter for him. After being handed the letter, Graham asked V.E. why she told her mother about the assignment and added "I'm pissed." This episode took place in front of the entire classroom. This caused V.E. to be very "upset" and "embarrassed." She immediately transferred out of Graham's class. Graham countered that there was no "homework assignment" per se and that he was merely seeking to obtain "critical thinking" from his students. According to Graham, his discussion was consistent with the approved curriculum and was intended to have the students reconcile biblical stories with other theories of evolution of men. Graham believed that V.E. had misunderstood the discussion as being an attack on religion when in fact it was not. He added that, of all the students, only V.E. reached that erroneous conclusion. He conceded that he "may have" used the words "I'm pissed" but contended that he was justified in questioning her in front of the entire classroom because students frequently hurried off to other classes once the end-of-period bell rang. Battering Urbano (Count IV) In school year 1986-87, Urbano was a fifteen year old male student. He has since departed the state. It is alleged that Graham committed battery on Urbano. According to Graham, who gave the only eyewitness account of the entire fray, Urbano was still a student when the incident occurred but was in the process of withdrawing from school and moving to California. Urbano had been in several classes taught by Graham and had a history of disruptive conduct. Urbano returned to the campus one day to speak with a girlfriend who was in Graham's classroom. Urbano entered the classroom during a change in classes. Not wanting a confrontation, Graham requested the girl to ask Urbano to leave. When she did this, Urbano began cursing Graham and slowly backed into the hallway outside of Graham's classroom. As Graham attempted to close his door, Urbano blocked the door and pushed Graham who responded by pushing Urbano out of the doorway. Urbano then threw a four pound textbook into Graham's chest. After Graham asked Urbano to follow him to the principal's office, Urbano drew back his fist to strike Graham. At that point, and in self-defense, Graham struck Urbano with a blow to the side of his face. In retaliation, Urbano threw a karate kick into Graham's left knee. Graham followed by administering a second blow to Urbano's face. A female physical education teacher then approached the melee, grabbed Urbano on the shoulder and escorted him to the principal's office. According to Graham, Urbano was immediately suspended from school. This was not contradicted. There is no evidence that Graham was criminally charged with battery or disciplined by the school for the incident. Using Profane and Vulgar Language in Class (Count V) It is charged that in school years 1985-86, 1986-87 and 1987-88 Graham was given direct orders to discontinue "uttering profane and/or vulgar language while in the performance of assigned duties as a classroom teacher," and that respondent "continually and intentionally refused to discontinue" doing so. The allegations stem from disciplinary action taken in the fall of 1985. On October 17, 1985 respondent participated in a conference for the record with WMJHS principal Kavenaugh for using "very salty language" in the classroom. Neither Kavenaugh or Graham could recall what words were actually used by Graham. As noted in finding of fact 11, Graham used the words "I'm pissed" while talking to student V.E. in September, 1987. About the same time, he recited a "parable" in V.E.'s class which went generally as follows: A large flock of birds immigrated south one winter but one bird's wings froze, and it fell to the ground. A horse came along and deposited cow shit on the bird. Although the cow shit did not smell good, it kept the bird warm. A cat then came upon the fallen bird, wiped the cow shit off of its wings and ate it. The moral: not everyone who shits on you is your enemy, and not everyone who does you a favor is your friend. Graham acknowledged reciting the above story in class but claimed he used the word "chip" instead of "shit." However, V.E. stated she heard the word "shit," and this version of the events is accepted as being more credible. Principal Kavenaugh gave some vague testimony about other incidents of vulgarity but could not give specifics as to when this occurred or what was said. Other than the order to quit using "very salty language" in October 1985, there is no evidence of any other orders given to Graham by a principal or administrative officer directing him to refrain from using vulgarity or profanity. Excessive Tardiness and Absences (Count VI) The notice of charges alleges that in school years 1985-86, 1986-87 and 1987-88 Graham was "given direct orders to discontinue his excessive tardiness and/or excessive absences," and that he "continually and intentionally refused to discontinue" doing so. Assistant principal Sotolongo authored memoranda to respondent on May 27, 1986 and March 25, 1987 regarding class absences. The first concerned respondent sitting in the teacher's lounge ten minutes after class had started on May 23, 1986. For this infraction, Graham received a reprimand. The assistant principal stated that Graham was "periodically" absent from class but could not recall the number of times this occurred or the dates of such absences. The second memorandum was prompted by Graham being absent from school during the afternoon of March 24, 1987. Graham's explanation of having to see a doctor for a workers' compensation injury was not accepted as being satisfactory. Principal Kavenaugh authored a memorandum on May 6, 1986 concerning punctual attendance by Graham. The memorandum was prepared after Graham had been late to school at least ten times between January 10, 1986 and May 5, 1986. Respondent promised to make an "extra effort" to comply with attendance requirements. There is no evidence that, after the May 6, 1986 memorandum, Graham was late for school or that he refused to comply with attendance requirements. Miscellaneous Graham was told by principal Kavenaugh on one occasion "to be courteous and free of sarcasm" while teaching his students. This order was memorialized in a memorandum dated June 19, 1987. There is no evidence he disobeyed this order. On November 10, 1987 Graham was placed on prescription for one item of performance. This meant he had to correct a deficiency in professional performance and responsibilities. The prescription was prompted primarily by the V.E. incident and the parable given in the history class, both occurring in September, 1987. There is no evidence that Graham did not fulfill the terms of the prescription. According to Dr. D. Patrick Gray, who was accepted as an expert in professional ethics, performance appraisal and professional or personnel management, Graham violated the teachers' code of ethics by intentionally exposing a student to unnecessary embarrassment or disparagement, unreasonably denying a student access to a diverse point of view, and failing to keep the confidence of personally identifiable information concerning a student. He opined further that, given respondent's conduct as described in the Notice of Charges, Graham's effectiveness as a teacher had been seriously impaired.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of those charges in Counts I and II and a portion of Count III. All others should be dismissed. Respondent should also be suspended without pay for thirty days as proposed by the agency in its suspension notice effective January 20, 1988. DONE AND ORDERED this 19th day of September, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 19th day of September, 1988.
