Findings Of Fact At all times relevant to this inquiry Respondent has held Florida Teaching Certificate No. 145121, issued by the Department of Education for the State of Florida, covering the area of Art. That certificate is valid through 1993. Respondent had been employed by the Duval County School Board for a period of twenty-seven years at the time of hearing. He had been assigned as an art teacher at Jefferson Davis Junior High School in that school system for the last twenty-six years of his teaching duties. Sherry Hoefling-Tobia was a student of the Respondent in the second semester of the 1971-72 school year and for all of the 1972-73 school year. She was also a member of the yearbook staff which the Respondent sponsored in the 1972-73 school year. The student was born on October 10, 1957. She attended the classes described in the eighth and ninth grade. At times the student Sherry Hoefling-Tobia, and other students, would stay after class in the Respondent's classroom while attending junior high school. The student Sherry Hoefling-Tobia while a student in the Duval County School System confided in the Respondent concerning her relationship with her family. During the summer of 1973 the student Sherry Hoefling-Tobia was enrolled in an art summer school where Respondent taught. Respondent did not teach her per se but did take photographs of the student, and other students who were enrolled in the program. Respondent also gave her rides to and from the camp. After the student Sherry Hoefling-Tobia finished her studies at Jefferson Davis Junior High in the ninth grade, she attended high school in Duval County and graduated following her completion of the eleventh grade in the school year 1974-75. While in high school she would visit the Respondent at Jefferson Davis Junior High. After graduating from high school and while attending Florida Community College of Jacksonville, a junior college, Sherry Hoefling-Tobia entered into a sexual relationship with the Respondent. Having considered the testimony and exhibits presented, this is the first occasion wherein the evidence is clear and convincing that the Respondent and Sherry Hoefling-Tobia had a sexual relationship.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which dismisses the administrative complaint against the Respondent. DONE and ENTERED this 29th day of May, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1991. APPENDIX CASE NO. 90-4929 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1 through 3 are subordinate to facts found. Paragraph 4 is subordinate to facts found with the exception that the date of birth is October 10, 1957. Paragraph 5 is not necessary to the resolution of the dispute. Paragraphs 6 and 7 are subordinate to facts found. Paragraph 8 in the first sentence is not necessary to the resolution of the dispute. The remainder of Paragraph 8 through Paragraph 11 are not accepted Paragraph 12 is not necessary to the resolution of the dispute. Paragraph 13 is subordinate to facts found. Paragraphs 14 through 19 are not accepted. Paragraphs 20 and 21 are subordinate to facts found. Paragraphs 22 through 25 are not accepted, with the exception of Paragraph 24 which is subordinate to facts found. Paragraph 26 is subordinate to facts found. Paragraph 27 is not accepted. Paragraph 28 is not necessary to the resolution of the dispute. Paragraph 29 is subordinate to facts found in the suggestion of sexual intercourse with the Respondent during summer 1975 and is not necessary to the resolution of the dispute as it suggests a relationship with another person beyond the time of her experience beyond graduation from high school. Paragraph 30 is not necessary to the resolution of the dispute, nor are the first two phrases in Paragraph 31. The last phrase in Paragraph 31 is not accepted. Paragraphs 32 and 33 are not necessary to the resolution of the dispute. Paragraph 34 is not accepted in its suggests Respondent abused Sherry Hoefling-Tobia while she was a student. Paragraphs 35 through 37 are not accepted. Paragraphs 38 and 39 are not necessary to the resolution of the dispute. Paragraphs 40 through 42 are not accepted. Paragraphs 43 and 44 are not relevant given the facts found. Respondents's Facts Paragraphs 1 and 2 are subordinate to facts found. Paragraph 3 and 4 are not necessary to the resolution of the dispute. Paragraphs 5 through 9 are subordinate to facts found. Paragraphs 10 through 16 are not necessary to the resolution of the dispute. Paragraphs 17 and 18 are not relevant. Paragraph 19 is subordinate to facts found. Paragraphs 20 through 21 are not relevant. Paragraph 22 is subordinate to facts found. Paragraphs 23 through 26 are not necessary to the resolution of the dispute. Paragraph 27 and 28 constitute argument. Paragraph 29 is not necessary to the resolution of the dispute. Paragraphs 30 and 31 constitute argument. Copies furnished: Lane Burnett, Esquire 331 East Union Street, Suite 2 Jacksonville, FL 32202 Stephen J. Donohoe, Esquire 437 East Monroe Street, Suite 1 Jacksonville, FL 32202 David A. Hertz, Esquire Duval Teachers Union 1601 Atlantic Boulevard Jacksonville, FL 32207 George A. Bowen, Acting Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Jerry Moore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
The Issue The issue is whether Walter Gilbert should be terminated from employment by the Sarasota County School Board.
Findings Of Fact The Sarasota County School Board is the agency responsible for the administration of the Sarasota County School System. Mr. Gilbert is a 53-year-old man who has worked for the Board since 1998. He has been employed as a security aide since 2000, and was so employed during the 2004-2005 school year. It is his job to protect students at Sarasota High School. Mr. Gilbert has been a football coach, has been active in the Youth Football League, and is prominent in the community. He is married, has seven children, and is a grandfather. D.B. is a 2006 graduate of Sarasota High School. She was born November 26, 1987. She was 17 years old in the winter and spring of 2005, when the events that will be related herein, occurred. Sarasota High School is a large school and comprises numerous buildings. Approximately 2500 students attend the school. The campus includes a field house, a football field, the original building, a cafeteria, a library, and numerous classrooms. D.B. has been an acquaintance of Mr. Gilbert for several years. She frequently talked to him, and his long-time friend John Jones (Mr. Jones), beginning in the ninth grade. She would talk to Mr. Gilbert and Mr. Jones, who is also a security aide, almost every day. She was advised by Principal Hradek not to talk to Mr. Jones so much. Principal Hradek counseled Mr. Gilbert on at least one occasion to act professionally in his conduct with regard to students. Before Christmas 2004, D.B. and Mr. Gilbert discussed lingerie. Sometime after these discussions Mr. Gilbert presented her with lingerie. This occurred around Christmas 2004. D.B. described this lingerie on some occasions as three thongs, and on at least one other occasion, two thongs and a pair of "regular" panties that did not fit her. D.B. said Mr. Gilbert on at least one occasion asked her to show him her underwear, which she was wearing. She showed him the thong underwear by pulling it upwards over her pants although on another occasion she said she did this by removing, or at least lowering, her pants. In January 2005 D.B., engaged in fellatio with Mr. Gilbert under a stairwell in Building 13 of Sarasota High School during the school day. The stairwell was not readily accessible to students. Subsequently, during the spring of 2005, she had sexual intercourse in the Building 13 stairwell with Mr. Jones, in the Building 13 maintenance room with Mr. Jones, in the Building 13 stairwell with Mr. Gilbert, in a Building 13 maintenance storeroom with Mr. Gilbert, in a Building 13 maintenance room with Mr. Jones, in a coach's office in the field house with Mr. Gilbert, and in the field house bathroom with Mr. Gilbert. Also during this period, she and Mr. Gilbert were in an unused school resources office in Building 5 together but did not engage in sex acts. When they left that room they went into an elevator but only kissed while on the elevator. On one occasion, Mr. Gilbert took her into a room in Building 5 that had a chair in it. D.B.'s clothes were removed and Mr. Gilbert attempted intercourse but was unable to do so. Thereafter Mr. Jones entered the room and had intercourse with D.B. while Mr. Gilbert watched. As the end of the 2004-2005 school year approached, she ended her relationship with Mr. Gilbert but continued engaging in sex acts with Mr. Jones. All of the sexual activity between Mr. Gilbert and D.B., and Mr. Jones and D.B. was consensual. All of the sexual activity took place on campus, during school hours, and in places generally inaccessible to students. Mr. Gilbert and Mr. Jones were gentle and kind with her, according to D.B. She did not wish to cause them trouble with the authorities. Near the end of the 2004-2005 school year, Assistant Principal Downes became aware of rumors that D.B. was having a sexual relationship with a member of the school staff and as a result called D.B. into his office. When confronted by him, she denied the allegation. She also denied it to the police and to her mother. Eventually, she admitted to her mother that she had a sexual relationship with Mr. Jones and the appropriate authorities were notified and an investigation ensued. Subsequently, she revealed her relationship with Mr. Gilbert and participated in a controlled telephone conversation with him while in the company of Detective Corrine Stannish. After the revelation of these encounters D.B. met with Detective Stannish, Deputy Brian Woodring, who is the School Resource Officer, and a Sarasota Police Department evidence technician on the Sarasota High School Campus. This occurred after the end of the school year in 2005. D.B. was asked to describe to the officers the site of each sexual encounter. After some initial confusion over whether she was going to Building 13 or 14, buildings which are mirror images of each other, she led the officers to Building 13, and to the other places in which she had encounters with Mr. Gilbert and Mr. Jones. The places where D.B. led the officers were places that students would not normally access. Many of the sites were locked. D.B. was able to describe with remarkable precision the interior of these sites before she entered them with the officers. The evidence technician used a "black light" in an effort to locate semen. Semen fluoresces when exposed to a black light. No residue of semen was found. Subsequent to a report from a custodian during August 2005, Assistant Principal Downes and Deputy Woodring discovered keys in Mr. Gilbert's locker in the field house. These keys included two Sarasota High School master keys, a golf cart key, an elevator key and a gate lock key. The master keys would open Building 13. Although, D.B. offered contradictory testimony with regard to the description of lingerie presented to her by Mr. Gilbert, and offered confusing and sometimes contradictory testimony with regard to the location and the identity of the participant with regard to some encounters, and preliminarily denied certain aspects of her activities to her assistant principal, police officers, and her mother, on the whole it is proven by a preponderance of the evidence that D.B. had sexual liaisons with Mr. Gilbert during the time she was a minor student at Sarasota High School.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Sarasota County, Florida, uphold the termination of Walter Gilbert's employment. DONE AND ENTERED this 7th day of June, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 7th day of June, 2006. COPIES FURNISHED: Arthur S. Hardy, Esquire Matthews, Eastmoore, Hardy, Crauwels, & Garcia, P.A. Post Office Box 49377 Sarasota, Florida 34230-6377 Robert E. Turffs, Esquire Robert E. Turffs, P.A. 1444 First Street, Suite B Sarasota, Florida 34236-5705 Dr. Gary W. Norris Superintendent of Schools Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3365 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue In Case No. 88-3425, Mr. Bradley Thomas challenges the termination of his employment at the Florida School for the Deaf and the Blind. The issue is Case No. 88-5675 is whether Mr. Thomas committed the acts alleged by the administrative complaint, and, if so, what penalty may be appropriate.
Findings Of Fact Bradley Thomas holds Florida Teaching Certificate #486268, valid through June 30, 1993. Mr. Thomas is certified to teach secondary levels, vocational education and printing, and was initially employed by the Florida School for the Deaf and the Blind (FSDB) in 1980. Mr. Thomas taught phototypesetting in the FSDB Vocational Department. Mr. Thomas was described by his immediate supervisor as highly-motivated and conscientious. He has received satisfactory and above-satisfactory performance evaluations. Mr. Thomas is 57 years old and has been deaf since the age of 12. He communicates through signing and speech. According to section 242.331(4), Florida Statutes, the Board of Trustees of the Florida School for the Deaf and the Blind is authorized to appoint and remove teachers "as in its judgement may be best". By Rule 6D- 4.002(2)(b), Florida Administrative Code, the Board of Trustees has delegated responsibilities related to employment and termination of academic personnel to the President of FSDB. By letter from FSDB President Robert Dawson, dated February 15, 1986, such authority has been delegated to Samuel R. Visconti, Director of Personnel for the FSDB. The Board of Trustees has entered into a collective bargaining agreement with the Florida School for the Deaf and the Blind Teachers United, an affiliate of the Florida Teaching Profession-NEA and the National Education Association. Article 13, section E, of the 1986-89 agreement between the Board of Trustees and the FSDB Teachers United, FTP-NEA, in relevant part, provides that Mr. Thomas may not be discharged from employment by the Board of Trustees except for "just cause", which is defined to mean job- related incompetence or misconduct. The professional competence of Mr. Thomas as a teacher is not at issue in this proceeding. During the second semester of the 1986-87 school year, Holly Middlebrooks was enrolled with five other students in Mr. Thomas' class. At the time of the hearing, Ms. Middlebrooks was 19 years old and a senior at FSDB. On more than one occasion, Mr. Thomas "rubbed" Ms. Middlebrooks' back and shoulders during class, in a massaging manner, which made her uncomfortable and confused. The contact occurred while Ms. Middlebrooks was seated at and using a computer terminal and while she entered and left the classroom. Although she attempted to convey her discomfort with Mr. Thomas' touching by repositioning herself in her chair as she worked at the computer, she did not instruct Mr. Thomas to stop. Ms. Middlebrooks saw Mr. Thomas touch other students in a similar manner. Although other students indicated to Ms. Middlebrooks that Mr. Thomas discussed sexual topics in class, she did not hear and could not recall specific incidents of sexually-oriented language on Mr. Thomas' part. Nadine Lents was enrolled with four or five other students in Mr. Thomas' class during the second semester of the 1986-87 term and for the full 1987-88 school year. At the time of the hearing, Ms. Lents was 18 years old. On occasion, Mr. Thomas would massage Ms. Lents' neck and shoulders while she worked at the computer terminal. At times she feared that he would touch her breasts but he did not. She did not instruct him to stop. On at least one occasion, Mr. Thomas rubbed her leg while she sat at the terminal and she instructed him to stop, to which he replied that there was no cause for her concern. Mr. Thomas "often" hugged Ms. Lents, sometimes pressing himself against her breasts or in a manner which she found to be "too hard", and she would push Mr. Thomas away. Ms. Lents sometimes would lightly hug Mr. Thomas as a means of greeting, but was careful to maintain distance. Mr. Thomas discussed sexual matters with Ms. Lents. He asked her if she "liked oral sex", talked about the size of her breasts, and discussed other sexual matters in vulgar terms. The sexual discussions sometimes made Ms. Lents uncomfortable and embarrassed. During both the 1986-87 and 1987-88 school terms, Karen Warfel was enrolled with "about six" other students in Mr. Thomas' class. At the time of her testimony at the administrative hearing, Ms. Warfel was 20 years old and had graduated from the FSDB. More than once, Mr. Thomas rubbed her back under blouses which she described as "loose". Once, Ms. Warfel instructed Mr. Thomas to stop, and he complied with her request, but Mr. Thomas subsequently resumed touching Ms. Warfel in a similar manner and she did not stop him. Mr. Thomas also occasionally rubbed Ms. Warfel on her leg, "above the knee", in an attempt "to calm me down when I get frustrated on the computer". The physical contact with Mr. Thomas made her feel uncomfortable. Ms. Warfel would, on occasion, request a piece of candy from a supply which Mr. Thomas kept in his desk drawer. Mr. Thomas would ask Ms. Warfel to kiss his cheek prior to giving her candy, and Ms. Warfel would comply with his request. Sometimes Mr. Thomas would tickle Ms. Warfel near her rib cage or below her belt and to the sides of her abdomen, in an area Ms. Warfel described as near her ovary. Mr. Thomas discussed sexual matters in the classroom in Ms. Warfel's presence, including discussing his sexual relationship with his wife. Ms. Warfel was embarrassed by Mr. Thomas' conduct. Marisol Eschevarria-Sola was enrolled in Mr. Thomas' class during the first semester of the 1986-87 school year and the first semester of the 1987-88 school year. There were approximately five students in the class. At the time of her deposition, Ms. Eschevarria-Sola was 20 years old. Mr. Thomas, at least once, touched or stroked Ms. Eschevarria-Sola's leg, around her knee and thigh, and also touched her back. The physical contact, which occurred while she was seated at the computer console, made her uncomfortable. She expressed her discomfort when such touches occurred. Mr. Thomas explained that he was attempting to warm his hands. She saw Mr. Thomas touch other students in her class in like manner. At least once, Mr. Thomas requested that Ms. Eschevarria-Sola kiss him in exchange for a pencil she wanted to borrow. Although she was uncomfortable with the situation, she complied with his request. On another occasion, Mr. Thomas requested that he be permitted to kiss her and she complied. Ms. Eschevarria-Sola recalled Mr. Thomas discussing sexual matters in class, including his relationship with his wife, but could not specifically recall the details of the discussion. Mr. Thomas also joked about the bodies of the students in his class. Ms. Eschevarria-Sola was embarrassed by the jokes or language. Students at the FSDB are required to attend a course entitled "Talking About Touching", which provides instruction related to self-protection from potential physical abuse. Students are taught to classify physical contact as "good", "bad" or "confusing". "Good" touches would include such positive contact as a pat on the back. "Bad" touches would include touches which are physically uncomfortable and negatively perceived by the recipient, such as slapping or inappropriate sexually-oriented contact. "Confusing" touches are those which may be positively intended but which are perceived by the recipient to be inappropriate or which make the recipient uncomfortable. Students are taught that "confusing" and "bad" touches should be reported to responsible authorities at the school. The record is unclear as to whether the students alleging that Mr. Thomas' touches were "confusing" had taken the course prior to being in Mr. Thomas' classroom. Some students at the FSDB may have reached majority. Students may remain enrolled at the FSDB beyond the age of students enrolled in other high schools. A teacher is held to the same standards of classroom behavior regardless of the students ages. Mr. Thomas had been present during an FSDB staff meeting during which reference to appropriate and inappropriate classroom conduct was made by supervisory personnel, and consequences of improper conduct were discussed. Officials at the FSDB became aware of allegations related to the classroom conduct of Mr. Thomas, when, on May 24, 1988, the allegations were reported to Mr. Robert Dawson, President of the FSDB, by a female student, Marisol Eschevarria-Sola. Ms. Eschevarria-Sola had, on the previous evening, participated in a dormitory gathering with other female students during which Mr. Thomas' conduct was discussed. (Some students are enrolled at the FSDB on a residential basis and live in dorms at the school.) At the direction of the FSDB President Robert Dawson, the allegations were immediately investigated by Ms. Debra Boles, Assistant Principal for Academic Instruction. Ms. Boles initially interviewed five hearing-impaired female students, including Ms. Eschevarria-Sola and Ms. Warfel, who provided information substantially similar to their testimony at the administrative hearing. The initial interviews were solely between the individual students and Ms. Boles, who is skilled at signed communication. The student interviews indicated that some students were "confused" by Mr. Thomas' conduct. Ms. Boles immediately reported her findings to Mr. Dawson, who directed that Mr. Thomas be placed on administrative leave with pay pending further inquiry into the allegations. On May 24, 1988, Ms. Boles verbally informed Mr. Thomas and his immediate supervisor that Mr. Thomas was being placed on administrative leave with pay pending further investigation. Ms. Boles explained that there were allegations of inappropriate physical contact made by unidentified female students of Mr. Thomas. Ms. Boles informed Mr. Thomas that such inappropriate contact included touching female students "on the back, on the shirt or on the thighs. " By letter dated May 24, 1988, Mr. Dawson confirmed that Mr. Thomas was placed on administrative leave with pay, effective May 25 through June 8, 1988, while under investigation for "inappropriate Staff/Student Relationships" constituting violation of referenced sections of the Florida Administrative Code related to the Code of Ethics of the Education Profession in Florida. At Mr. Dawson's direction, Ms. Boles, on or about May 27, 1988, interviewed 29 students, all of whom are hearing-impaired, who had been students of Mr. Thomas at some time during their enrollment at the FSDB. The interviews were conducted individually. The interviews between Ms. Boles and the individuals were conducted through a registered interpreter. Of the 29 interviewed, 22 of the students expressed no concern related to Mr. Thomas' classroom conduct. Among the students interviewed were Ms. Middlebrooks and Ms. Lents, who provided information substantially similar to their testimony at the administrative hearing. Ms. Boles provided the information gained through the student interviews to Mr. Dawson. The matter was referred to the FSDB Personnel Director for further action. Pursuant to the aforementioned letter of delegation, Samuel R. Visconti, Director of Personnel for the FSDB, is responsible for employee disciplinary actions, including employment termination procedures. At the time Mr. Visconti was informed of the allegations, Mr. Thomas had been placed on administrative leave and the school was investigating the matter. Mr. Visconti was aware of the recommendations made by Dr. Randall, Mr. Dawson and Ms. Boles. Ms. Boles recommended that Mr. Thomas' employment at the FSDB be terminated for violation of professional standards. Dr. Randall recommended that Mr. Thomas' employment at the FSDB be terminated due to inappropriate conduct in the classroom. Dr. Randall has substantial experience with the deaf and observed that the physical contact which occurred in Mr. Thomas' classroom was not of the type which one hearing- impaired person would use to gain the attention of another. Mr. Dawson recommended that Mr. Thomas' employment at the FSDB be terminated. Mr. Dawson, who has extensive experience with the deaf, believed that the physical contact, sexual discussions, and attempted equalization of the teacher-student relationship had rendered Mr. Thomas ineffective as a teacher. According to Mr. Visconti, the termination procedure at FSDB requires notification to the employee of the intended action which is predicated on the allegations of either incompetence or misconduct. Prior to termination, the employee may or may not be placed on administrative leave during the school's inquiry into the allegations. Following the school's investigation, the employee is contacted and offered the opportunity for a predetermination hearing at which the employee may provide information relevant to the proposed disciplinary action. Within five days following the hearing, the employee is notified in writing, and perhaps verbally, of the school's decision. Mr. Visconti contacted Mr. Thomas either late in the afternoon of June 6 or early in the morning of June 7, 1988, to arrange a predetermination hearing. The communication between Mr. Visconti and Mr. Thomas was through telephone and TDD, a device that permits the transmission of apparently written communication through telephone lines. Mr. Visconti is not hearing-impaired. The record does not indicate whether Mr. Visconti understands signed communication. By agreement between Mr. Visconti and Mr. Thomas, the conference was scheduled for the afternoon of June 7, 1988. During the TDD communication, Mr. Visconti explained to Mr. Thomas that the school had completed the investigation of the allegations of improper classroom conduct, and restated the allegations. Mr. Visconti explained that Mr. Thomas was being offered the opportunity to meet with Mr. Visconti and present "his side of the story...." Mr. Thomas was informed that he could provide information orally or in writing, and was further informed that he could "bring anyone with him that he felt would help him in supporting anything that he wanted to present...." Mr. Thomas and Mr. Visconti agreed that Dr. Randall would serve at the meeting as interpreter. Mr. Visconti received from Ms. Boles, a package of materials, dated June 7, 1988. The package included Ms. Boles' notes taken during or subsequent to her interviews with the students. Present at the June 7 meeting were Mr. Visconti, Mr. Thomas, Dr. Randall, and Mr. Thomas' wife. Prior to the meeting, Mr. Visconti informed Mr. Thomas that the sexually-related allegations would be specifically addressed and inquired as to whether Mrs. Thomas would be embarrassed. Mr. Thomas indicated that the meeting could proceed. At that time, Mr. Visconti restated the incidents of inappropriate conduct upon which the school intended to base the disciplinary action and explained the authority under which the FSDB was acting. Mr. Thomas attempted to address the allegations at that time, but offered no witnesses. At the conclusion of the meeting, Mr. Visconti informed Mr. Thomas that a decision would be issued within several days. On the morning of June 8, 1988, Mr. Thomas contacted Mr. Visconti and requested an additional meeting to offer further explanation. The meeting, held that afternoon, was attended by Mr. Thomas, Mr. Visconti, and Dr. Randall. Mr. Thomas offered a typewritten statement, suggesting a rationale for the accusations made against him, which apparently reiterated information he had provided at the prior conference. Upon the conclusion of the June 8, 1988 meeting, Mr. Visconti terminated Mr. Thomas' employment, effective immediately. Mr. Thomas was officially dismissed by letter of June 10, 1988 from Mr. Visconti. The June 10 letter states that he was dismissed from employment for "doing the following to female students: rubbing backs, tickling backs under student's blouses, rubbing student's thighs, asking sexually related questions of students, discussing sexually related topics regarding your personal life, and asking for kisses in exchange for items such as pencils or pieces of candy." The letter informed Mr. Thomas of his right to appeal the determination through the administrative process and his union grievance procedure. Mr. Visconti determined that, based upon the information and recommendations presented to him by Dr. Randall, Mr. Dawson, Ms. Boles and Mr. Thomas, that just cause existed for the termination of Mr. Thomas' employment at the FSDB. Mr. Visconti determined that Mr. Thomas had violated the Code of Ethics as set forth in administrative rules and that the improper classroom conduct had rendered Mr. Thomas ineffective as a teacher and had placed students at risk. At the administrative hearing, Mr. Thomas sought to explain the physical contact as serving to gain the attention of, or to calm, hearing- impaired students. Mr. Thomas claims that he touched Ms. Middlebrooks' back as a means of addressing the frustration she supposedly felt at the difficult computer work required in the class and stated that he did not know she found it objectionable. Mr. Thomas testified that Ms. Lents instigated the hugging incidents, and that he told her to stop, but she continued. Mr. Thomas claimed that he once touched Ms. Warfel's back under her blouse on a day when Ms. Warfel wore a prohibited bare midriff blouse to class and that his hand accidently touched her bare skin while he was reminding her that such blouses were prohibited. Mr. Thomas denied that he requested a kiss from Ms. Warfel, but suggested that Ms. Warfel kissed him because he was her "favorite teacher". Mr. Thomas denied tickling Ms. Warfel. Mr. Thomas explained that he possibly touched Ms. Eschevarria-Sola's leg as a means of gaining her attention while she sat at the computer console, but claimed he never touched the inside of her thigh. Mr. Thomas denied that Ms. Eschevarria-Sola kissed him or that he kissed her. As to sexually-oriented conversations, Mr. Thomas denied having made such remarks. Mr. Thomas' testimony was less credible than that of the students who testified at the hearing. At the administrative hearing, Mr. Thomas offered no rationale to suggest the reason behind the student's allegations. The typewritten statement provided to Mr. Visconti on June 8 by Mr. Thomas suggests that the allegations were the work of Senior class students, supposedly disappointed with his decision not to invite them to his home for a social event, as he had apparently done on an occasional and irregular basis in previous years. However, those students testifying generally had favorable opinions of Mr. Thomas, other than as to his specific conduct to which they objected. There is no evidence to support the inference that the allegations were untruthful and that they were intended as retribution for the omitted social activity. Evidence was introduced indicating that hearing-impaired persons are more likely to touch each other than are non-hearing-impaired persons. Such touches are to gain another's attention or to express emotion. The evidence does not support the suggestion that Mr. Thomas' classroom conduct was designed to gain the attention of the students or express emotion. Ms. Boles testified that some of Mr. Thomas' classroom behavior indicated the potential for sexual abuse by Mr. Thomas, however, the testimony to this point was not persuasive. Ms. Boles' opinion was, at least in part, based upon her discussions with an independent psychologist who serves as a consultant to the school on matters related to sexual abuse prevention. According to Ms. Boles, the consultant stated that a "psychosexual evaluation" of Mr. Thomas was necessary to determine the potential for sexual abuse. The school did not follow the consultant's recommendation. Although Mr. Thomas' behavior was inappropriate, the evidence does not suggest that Mr. Thomas sexually abused students and the testimony related to Mr. Thomas' potential for sexual abuse is not credible.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Trustees for the Florida school for the Deaf and the Blind enter a Final Order finding that just cause exists for terminating the employment of Bradley Thomas. It is further RECOMMENDED that the Education Practices commission enter a Final Order permanently revoking teaching certificate, #486268, held by Bradley Thomas. DONE and RECOMMENDED this 19th day of September, 1989, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 19th day of September, 1989. APPENDIX CASE NOS. 88-3425 and 88-5675 Proposed findings of fact were filed by the Florida School for the Deaf and the Blind, Respondent, Case No. 88-3425 and Betty Castor, as Commissioner of Education, Petitioner, Case No. 88-5675. The following constitute rulings on proposed findings of facts submitted by the parties. The proposed findings of fact are adopted as modified in the Recommended Order except as follows: Florida School for the Deaf and the Blind, Respondent, Case No. 88-3425 4. Reference to contact with the Department of Health and Rehabilitative Services rejected, immaterial. 6. Reference to the Department of Health and Rehabilitative services rejected, immaterial. Reference to conversations with "Dr. DiAmatto" rejected as non-corroborated hearsay. 15. Rejected, irrelevant. Last sentence rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. 20. Reference to witness' testimony related to sexual content of discussion is rejected, not supported by the evidence. The testimony indicates that the witness was told by others that the discussion related to sex. 26. Rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. Rejected, not supported by the weight of the evidence. The testimony cited does support the proposed finding. Reference to the Department of Health and Rehabilitative Services rejected, immaterial. Betty Castor, as commissioner of Education, Petitioner, Case No. 88-5675 7. Reference to contact with the Department of Health and Rehabilitative Services rejected, immaterial. 9. Reference to the Department of Health and Rehabilitative Services rejected as immaterial. Reference to conversations with "Dr. DiAmatto" rejected as non-corroborated hearsay. 15. Reference to witness' testimony related to sexual content of discussion is rejected, not supported by the evidence. The testimony indicates that the witness was told by others that the discussion related to sex. Rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. Rejected, unnecessary. 29. Characterization of testimony as evasive and inconsistent is rejected, unnecessary. COPIES FURNISHED: William J. Sheppard, Esq. 215 Washington Street Jacksonville, FL 32202 Barbara J. Staros, Esq. State Board of Education Knott Building Tallahassee, FL 32399 Betty J. Steffens, Esq. 106 South Monroe Street Post Office Box 11008 Tallahassee, FL 32302 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, FL 32399 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, FL 32399 Robert Dawson, President Florida School for the Deaf and the Blind 207 San Marco Avenue St. Augustine, FL 32084
The Issue Whether disciplinary action should be taken against Respondent's educators certificate.
Findings Of Fact In the 2000-2001 school year, Respondent, Elizabeth Weisman, held a Florida Teaching Certificate No. 475382. The certificate covered the areas of elementary education and mathematics and was valid through June 30, 2005. When the events herein occurred, Respondent was employed as a dropout prevention teacher at Second Chance School in Tallahassee, Florida. The school is part of the Leon County School District. There is no evidence that Respondent has been disciplined by Petitioner on any prior occasion since she began teaching in Leon County in October 1980. Second Chance School is a school for children with disciplinary problems and who have a history of being extremely disruptive and cannot be handled in a regular school setting. Ms. Weisman was in a difficult position when she started teaching at Second Chance School. She was assigned to teach outside her field and was replacing a teacher who was not as strict a disciplinarian or as demanding of performance as Ms. Weisman. In general, her students did not react well to the increase in discipline and expectations of performance and likely caused increased referrals to the principal's office. Both Ms. Weisman and the students had to adjust to each other On April 6, 2001, J.M. entered Respondent's classroom. Respondent asked him to leave her classroom. He was not supposed to be in the classroom because he had been referred to the principal's office the day before for discipline. J.M. attempted to comply with Respondent's request, but a number of students entering the room blocked him from leaving. Respondent made a shooing motion with her hands to J.M. and raised her foot to indicate for J.M. to leave the room. The gestures were done in a playful manner and were intended as such. While Ms. Weisman's foot was raised, she accidentally brushed or pushed J.M.'s buttocks with her foot. J.M. could feel the push. However, it did not cause him to lose his balance or cause any harm to him whatsoever. The evidence did not demonstrate that J.M. was unduly embarrassed or otherwise affected academically by the incident. Indeed, the incident gave J.M. a good story to tell to others at school. The evidence did not demonstrate that the push was inappropriate or violated any state rules or statutes governing teachers. There was no evidence that Ms. Weisman was less effective as a teacher due to this incident. W.F. testified that on two occasions he witnessed Respondent state to the class that they were "acting like jackasses." J.F.'s testimony was vague and inconsistent. Specifically, W.F. testified that on the first occasion, Respondent stated to the class that they were "acting like jackasses" after class members refused to return to their seats during an altercation between two students occurring outside the classroom. The classroom students were generally cheering the fight on. With respect to the second instance, W.F. testified that Respondent made the statement after W.F. and several of his classmates tricked Respondent into placing her hand on a pencil sharpener covered with glue. W.F. conceded the description was an accurate description of the behavior of the students at the time. At no time did Respondent call an individual student an improper name. Although W.F. testified he was embarrassed by Ms. Weisman, W.F.'s testimony is not persuasive on this point. Nor is it realistic to conclude any significant embarrassment given the bold nature of W.F.'s behavior which preceded these comments. W.F. also testified on direct examination that he witnessed Respondent call the class "a bunch of rat bastards." Again W.F.'s testimony was vague and inconsistent. During cross-examination, however, W.F. testified that the remark was made to a specific female student during a verbal altercation between the student and Respondent. However, Respondent denies ever using or knowing the term "rat bastard." Given Respondent's demeanor, the inconsistency, and the unreliability of the other evidence, Respondent's testimony is the more credible. There was no credible evidence that any student was ever affected in any way by these incidences. No evidence of any change in grades or reduced test scores was introduced at the hearing. An increase in disciplinary referrals was noted by the principal, but that increase was not shown to be tied to these incidences. The increase, if any, was more likely to be due to the fact that she was a new teacher, teaching out of field, who was more strict with her students and demanded more from them. Moreover, statistics supporting this perceived increase in disciplinary referrals was not offered at the hearing. Indeed, later testing showed Ms. Weisman's students improved their test scores. However, the testing was for a different year and class. It was not clear that the same students were being tested. The improvement does show that Ms. Weisman is an effective teacher.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 23d day of December, 2002, in Tallahassee, Leon County, Florida. 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 23d day of December, 2002. COPIES FURNISHED: Matthew K. Foster, Esquire Edward T. Bauer, Esquire Brooks, Leboef, Bennett & Foster, P.A. 863 East Park Avenue Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 John O. Williams, Esquire Williams & Holz, P.A. 211 East Virginia Street The Cambridge Centre Tallahassee, Florida 32301 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400
The Issue Should Respondent, Burl Jenkins, be disciplined by the State of Florida, Education Practices Commission, for alleged misconduct in association with his position as a certified teacher?
Findings Of Fact Stipulated or Admitted Facts: Respondent holds Florida Educator's Certificate No. 2597, covering the areas of Specific Learning Disabilities and Social Science, which is valid through June 30, 2002. Respondent was at all times material to the allegations of the administrative complaint an employee of the Columbia County School System, as an ESE Teacher at Melrose Elementary School. While employed as a teacher at Melrose Elementary School Respondent received a letter of reprimand from his principal, Jack Rankin. Other Findings: Both Respondent and Vickie Toni Crafton are teachers in the Exceptional Education Department of Melrose Elementary School and have been since the early 1990s. As such they have performed their duties nearby each other. They had adjacent classrooms. Over the years Respondent and Ms. Crafton have discussed the academic circumstances and behavior of their students. Additionally, they have discussed topics concerning their family members. Those conversations about family members were casual. The conversations included the subject of Myeesha Charmana Ellis, Ms. Crafton's daughter, who had attended Melrose Elementary School. Ms. Ellis was born on October 2, 1980. Among the conversations between Respondent and Ms. Crafton were those involving the subject of dating. Those conversations did not include sexual issues. Not all remarks which Respondent made to Ms. Crafton were well received. On one occasion when Ms. Crafton was walking away from Respondent, he commented about the manner that Ms. Crafton walked by stating, "I would like some fries with that shake." Although Ms. Crafton interpreted the remark as being an inappropriate remark from one professional to another professional, one teacher to the other, she did not pursue the matter further with anyone in authority, notwithstanding her discomfort. Ms. Crafton simply looked back at Respondent, shook her head, turned around and kept walking. This event took place sometime around the years 1993 or 1994. Ultimately, Ms. Crafton expressed her displeasure to Respondent concerning his remark and asked that he not repeat the conduct. She received an apology from Respondent for the incident. In 1993 Ms. Crafton purchased a home and was discussing her new home with Respondent, in particular the subject of the spacious countertops in the home. Respondent remarked that he "sure would like to lay Ms. Crafton on the countertop." She did not like that comment. Ms. Crafton looked at Respondent in return and walked away. Again, Ms. Crafton did not tell anyone about Respondent's comments believing that she could handle the matter by herself. In 1996 Ms. Crafton was outside of her classroom on the steps yawning. Respondent was also outside on the sidewalk. He commented that he "sure would like to get over into that," while the two teachers were engaged in conversation. Ms. Crafton went back into her classroom and closed the door. She took the comment to mean that Respondent would like to put his penis in her mouth. Ms. Crafton did not report the comment by Respondent to anyone, believing, as before, that this was an issue that she could deal with herself without going to the school administration to complain. On another occasion Respondent remarked to Ms. Crafton that he would like to "mix cream with the chocolate." This occurred when the two teachers were engaged in conversation outside the classroom. As before, no one else was present. Ms. Crafton considered Respondent's comment to be an inappropriate remark from one professional to another. She interpreted the comment as one involving black and white individuals. Ms. Crafton is black. Respondent is white. What exactly Respondent meant by his reference to mixing cream with chocolate was not something that Ms. Crafton indicated she would allow her mind to countenance. Nonetheless she was offended by the remark. On September 17, 1998, another incident occurred between Ms. Crafton and Respondent which upset Ms. Crafton. On that date Myeesha, Ms. Crafton's then teenage daughter, came to the mother's classroom. Ms. Crafton took her daughter next door to Respondent's classroom and commented to Respondent, "Look how tall she has gotten. She has really grown up from here, going from the first grade on up to the fifth grade" and so forth. Respondent then put his hand on Ms. Crafton's shoulder and put his other hand on the daughter's shoulder, turned the two face to face, looked down at their breasts and said "what is wrong with this picture." Ms. Crafton deemed this to be a reference to the respective breast sizes of the mother and daughter. This made Ms. Crafton angry because she believed that Respondent had made inappropriate sexual comments directed to her daughter in the past and felt that this was "The straw that broke the camel's back." As a consequence, Ms. Crafton made a written complaint to Jack Rankin, principal for Melrose Elementary School. In response Mr. Rankin placed a letter of reprimand in Respondent's school personnel file. In the afternoon the incident happened with the daughter, Respondent offered his apology to Ms. Crafton and conveyed an apology to Myeesha through Ms. Crafton. Ms. Crafton remained upset by Respondent's more recent remarks directed to her and her daughter. On September 17, 1998, Myeesha was a ninth grade student at Lake City Christian Academy. The daughter also felt that the Respondent was comparing the breast size of the two women and deemed the remark to be unusual. The daughter was shocked that Respondent had made the comment. The remarks that have been attributed to Respondent and reported here constitute inappropriate sexual innuendo. Other Facts: The student K.P. is an ESE student who was 13 years old at the time the hearing was conducted, enrolled in Richardson Middle School, part of the Columbia County School system. In the school year of 1999-2000 K.P. attended Melrose Park Elementary School. Respondent was her teacher at Melrose Park. At times relevant to this inquiry K.P., as an ESE student has needed assistance with learning disabilities and behavior problems. As an ESE student K.P. is classified as EMH and EH. K.P. has accused Respondent of inappropriately touching K.P. on her breast and thighs, on some occasions when the lights were out in the classroom. It was established in the hearing that K.P. does not enjoy a good reputation for truthfulness, so much so that she is not deemed a credible witness concerning her accusations against Respondent. N.N., the only witness who has supported K.P.'s testimony concerning the inappropriate touching alleged to have occurred, has made contradictory statements concerning the alleged touching which places N.N.'s credibility in question, to the extent that she is not found to be credible when testifying that Respondent inappropriately touched K.P. Other evidence offered did not rehabilitate the testimony presented by K.P. and N.N. Finally, testimony from K.D., and A.J., who like N.N. and K.P., were students at Melrose Park Elementary School during the time in question, established that K.P. has falsely accused others of sexual acts or inappropriate touching, further undermining K.P.'s credibility in alleging that Respondent had inappropriately touched K.P. on her breasts and thighs.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 231.28(1)(c), Florida Statutes, suspending Respondent's Teaching Certificate for a period of 30 days, and dismissing Counts 1, 2, and 4 through 7. DONE AND ENTERED this 19th day of December, 2001, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 19th day of December, 2001. COPIES FURNISHED: Ron Weaver, Esquire 913 North Gadsden Street Tallahassee, Florida 32301 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32302 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent held Florida Teaching Certificate No. 139016 covering the area of history and qualifying him to teach grades 7 through 12. From on or about January 27, 1988, until August 29, 1989 the Respondent was employed by the Board as a teacher at Sandalwood Junior/Senior High School, teaching 8th grade gifted students ranging in age from 13 to 14 years and 11th and 12th grade advanced placement history students ranging in age from 16 to 18 years. Respondent is presently employed by the Board, assigned to the Media Center in Jacksonville, Florida where he was assigned on August 29, 1989. Prior to his present employment with the Board, the Respondent had been employed by the Florida Community College of Jacksonville (FCCJ) for 21-1/2 years as a teacher/administrator. Before assuming his teaching duties at Sandalwood, Respondent had read the Code of Ethics of the Education Profession and understood and accepted the obligations and responsibilities placed on him by the code. On June 21, 1989, S.L.W. ran away from her home in North Carolina and while standing outside of a local fast food restaurant, a short distance from her home, an individual called Adrian Freeman offered her a ride. S.L.W. was not acquainted with Freeman before he offered her a ride. Freeman learned from S.L.W. that she had run away from home and offered to help her and not tell anyone. S.L.W. spent the night at Freeman's house and while there she became intoxicated and "passed out." While S.L.W. was passed out, Freeman sexually assaulted her. The next day, June 23, 1989, S.L.W. decided to leave Freeman's house and he drove her to the bus station. At first, S.L.W. was going to Myrtle Beach but because the bus for Jacksonville, Florida left earlier she decided to go to Jacksonville. Before S.L.W. left for Jacksonville, Freeman made arrangements with the Respondent for him to meet S.L.W. in Jacksonville and find her a place to stay. Upon arriving in Jacksonville, S.L.W. was met at the bus station by Respondent. The Respondent told S.L.W. that he was a high school teacher. S.L.W. told Respondent that she was in the tenth grade and a runaway. Respondent then told S.L.W. that she would be staying at the home of Lee Daniels. Respondent then bought S.L.W. some food. When S.L.W. finished eating he carried her to the home of Lee Daniels but they were told to come back later. Respondent and S.L.W. later returned to the home of Daniels around 10:00 a.m. Respondent showed S.L.W. to her room and told her to take a shower. After taking she shower she put on her clothes and got under the cover. At this point, Respondent returned to the room with an alcoholic beverage for S.L.W. Respondent then told S.L.W. to remove her clothes item by item and once she was undressed began to massage her body. Later Respondent attempted sexual intercourse with S.L.W. and, although Respondent did not have an ejaculation he did penetrate S.L.W.'s vagina with his penis. Respondent then left Daniels' home and was seen by S.L.W. on only two other occasions. There was no physical contact between them on these occasions. S.L.W. remained at Daniels' home for approximately three weeks. Eventually, S.L.W. was picked up by a State Trooper at a bar and through the Jacksonville Sheriff's Department was returned to her mother. S.L.W. identified Respondent for the sheriff's department as the person who sexually assaulted her by pointing him out in a high school year book. Based on this identification, Respondent was arrested and charged with lewd and lascivious assault upon a minor. Respondent's conduct involving S.L.W. was immoral, reflects on his character, not only as an individual but more specifically as a teacher, and is in violation of the Duval County Teacher's Tenure Act and the Code of Ethics of the teaching profession. Although the publicity of Respondent's involvement with S.L.W. created by several newspaper articles and television stories and by word of mouth of the students, teacher and parents of Sandalwood seriously impaired his effectiveness as a teacher at Sandalwood, there was insufficient evidence to show that Respondent's effectiveness as a teacher had been seriously impaired in the Duval County School System as a whole.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, RECOMMENDED that the Board enter a Final Order finding Respondent guilty of having violated Section 4(a) of the Duval County Teacher Tenure Act and terminating his employment with the Board. DONE AND ENTERED this 12th day of July, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6704 Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-4. Adopted in Findings of fact 1, 3, 2 and 4, respectively. 5-7. Rejected as not being material or relevant to this case or not being supported by any substantial competent evidence in the record. 8. Adopted in Finding of Fact 5. 9-10. Adopted in Finding of Fact 2. 12-55. Adopted generally in Findings of Fact 6 through 19, otherwise rejected as not being material or relevant, or being redundant or subordinate, or not supported by any substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Adopted in Finding of Facts 2 and 3. 3.-4. Adopted generally in Finding of Fact 17, otherwise rejected as not being material or relevant. Rejected as not being material or relevant. Covered in Preliminary Statement. 7.-10. Adopted generally in Findings of Fact 6-17, otherwise rejected as not being material or relevant, or redundant or subordinate, or not supported by any substantial competent evidence in the record. 11.-15. Adopted in Findings of Fact 19, otherwise rejected or not being material or relevant, or being redundant or subordinate, or not being supported by any substantial competent evidence in the record. 16. Rejected as not being supported by any substantial competent evidence in the record. See Findings of Fact 10 through 18. COPIES FURNISHED: Dr. Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207 Gail A. Stafford, Esquire 421 West Church Street, Suite 715 Jacksonville, Florida 32202 David A. Hertz, Esquire 1601 Atlantic Boulevard Jacksonville, Florida 32207 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
The Issue Whether Respondent, The School Board of Gadsden County (School Board or Respondent), violated the Florida Civil Rights Act of 1992,1 by 1 Unless otherwise indicated, all references to the Florida Statutes, Florida Administrative Code, and federal laws are to the current versions, which have not substantively changed since the time of the alleged discrimination. discriminating against the employment of Ronald D. Jones (Petitioner) because of his race, gender, or age, or in retaliation for his engagement in protected activities.
Findings Of Fact Petitioner is a 62-year-old black male who, in the past, has been a substitute teacher for the School Board. Petitioner was eligible to receive a temporary teaching and professional teaching certificate for social sciences, grades 6 through 12, from October 12, 2017, through October 12, 2020, but not for certificates in other educational areas. The School Board is the governing body responsible for the administration of public schools in Gadsden County, Florida. Petitioner’s Discrimination Complaint is based upon the fact that he was not hired for a full-time position at Gadsden County High School for which he applied between August 2019 and January 2020. In his Discrimination Complaint, Petitioner alleges: I have been discriminated based on my sex (male) and my race (black). I also believe I have been experiencing retaliation since 2008 when I filed a complaint with the Florida Commission on Human Relations (FCHR) in 2008. I began working for the School Board of Gadsden County (Gadsden County) in January 2008 as a Substitute Teacher. I substituted in an English position for Gadsden (County) High School on or around January 2019-June 2019. Between August 2019-January 2020, I applied for several positions with Gadsden County but was not hired for any position. Instead, the jobs were filled with individuals outside of my protective class. These positions were for the Graduation Coach position, Teacher on Special Assignment position, and several positions in the Social Studies department. For example, when Mr. Plewa quit during the first week of school in 2019, I substitute taught in the Social Studies Position from August 2019–January 2020, until Gadsden County High School hired a teacher. Mr. Knight, an individual with no experience working within Gadsden County School System and a recent college graduate, was hired for the position. I am currently employed with Gadsden County and have not seen any changes within my workplace. Petitioner has worked as a substitute teacher at different schools within the Gadsden County School District for various periods of time since at least March 2007. He has applied for numerous positions with the School Board over the years, from bus driver to deputy superintendent. This case is the second case that Petitioner has filed against the School Board alleging employment discrimination. His first case against the School Board (First Case) alleged discrimination based on his gender which was tried before the undersigned in 2010 and ultimately resulted in a Final Order dismissing his claim. See Jones v. Gadsden Cty. Sch. Bd., Case No. 10-8570 (DOAH Jan. 19, 2011; FCHR Apr. 13, 2011). Petitioner did not file any exceptions to the Recommended Order in that case or appeal the Final Order. He contends, however, that one of the reasons that the School Board did not hire him is in retaliation against him for filing that case. Prior to 2017, Petitioner’s teaching certificate had been revoked due to a criminal conviction. In a subsequent application, Petitioner disclosed the conviction. This prompted a review by the Office of Professional Practices Services of the Florida Department of Education. On October 7, 2019, the Department of Education issued a letter (Eligibility Letter) to Petitioner regarding his application for his Florida Educator Certificate, stating: Your Application for a Florida Educator Certificate or Athletic Coaching Certificate was referred to the Office of Professional Practices Services by the Bureau of Educator Certification. The Office of Professional Practices Services is charged with reviewing the background history and/or alleged misconduct of persons seeking a Florida educator certificate. The Office of Professional Practices Services has conducted its review and determined that at this time, further action by this office is not warranted. For any questions specific to the review conducted by the Office of Professional Practices, contact the Office of Professional Practices Services at 850-245- 0438. For questions regarding the processing of your application for certification, contact the Bureau of Educator Certification at 1-800-445-6739. As explained by School Board Human Resources Director Sandra Robinson, the Eligibility Letter indicates that the Department of Education conducted a review and that “no further action was required,” meaning that Petitioner was again eligible to apply for a teaching certificate. Ms. Robinson further explained that actual teaching certificates, however, are not issued by the Department of Education until an applicant has been hired for a teaching position. Further, according to Ms. Robinson, the Eligibility Letter means that Petitioner is only eligible to apply for an Athletic Coaching Certificate. The terms of the Eligibility Letter, however, do not limit Petitioner’s eligibility for just an Athletic Coaching Certificate because it also references a Florida Educator Certificate. In the fall of 2019, Gadsden County High School Principal Pamela Jones, a black female, hired Petitioner to fill in as a part-time substitute teacher for a social studies class. Prior to this hiring, Petitioner had interviewed with Principal Jones at the school’s job fair. Between late 2019 and January 2020, Petitioner applied for several full-time instructional positions at Gadsden County High School, including graduation coach, special assignment teacher, and six social studies positions. As part of the application process, Petitioner indicated on his application that he had a prior criminal conviction. The application also asks applicants to provide details of any criminal history that is revealed, but on his applications, Petitioner only indicated “will explain.” As a result of Petitioner’s revelation of a criminal background in his applications, Petitioner’s status appeared as “ineligible” in the School Board’s application database. During all pertinent time periods, Gadsden High School Principal Pamela Jones was responsible for making the final hiring decisions at Gadsden County High School, subject to approval of the School Board. Although Petitioner provided Principal Jones with a copy of the October 7, 2019, Eligibility Letter, which she understood made Petitioner eligible to receive a teaching certificate, she did not hire Petitioner for any of the positions because his name came up as “Ineligible CR” (“CR” standing for criminal record) in the Gadsden County School system. School Board Human Resources Director Sandra Robinson had a similar explanation regarding the effect of the “Ineligible CR” as did Principal Jones. While Ms. Robinson acknowledged that Petitioner was eligible for a teaching certificate, she testified that the Department of Education has no bearing on the School Board’s application process. While acknowledging that the School Board has hired teachers with criminal backgrounds, and advising that Petitioner might be able to obtain a job by further explaining his criminal record when referencing it in his School Board applications, Ms. Robinson was unable to explain a clear path as to how Petitioner might be able to obtain a position with the School Board with a criminal record referenced on his applications. Considering the views of both Principal Jones and Human Resources Director Robinson, together with their understandings of the meaning of the Eligibility Letter, it is found that it was a mistake not to consider Petitioner eligible for an interview or hire for the vacant positions for which he applied just because Petitioner’s applications revealed a criminal background. Further, while it is apparent that the School Board should address its application process to clarify a path to employment for those who may have criminal backgrounds, it is found that the fact that Petitioner was deemed ineligible for employment was not unlawful discrimination or retaliation as alleged in Petitioner’s Discrimination Complaint. Rather, the evidence fell short of demonstrating unlawful discrimination and, instead, revealed a mistake in the School Board’s application process. The chart below, provided in the School Board’s Proposed Recommended Order and supported by the evidence, lists the names, age, race, and gender of the teachers hired for the positions for which Petitioner applied: Final candidate Position Age Race Sex O’Hara Black Special Assignment 47 Black Male Stephanie Dauphin Social Studies 23 Black Female Devonte Knight Social Studies 27 Black Male Tomeka Lightfoot Graduation Coach 44 Black Female Albert Plewa Social Studies 29 White Male Dominga Robinson Social Studies 31 Black Female Erin Shields Social Studies 33 Black Female Laquadra Simmons Social Studies 38 Black Female Ciara Stephenson Social Studies 32 Black Female Petitioner acknowledged that Principal Jones hired males and females, black teachers and white teachers, and does not dispute the fact that the School Board has hired teachers over the age of 65 during the timeframe of his discrimination claims. Rather than providing evidence of discrimination, Petitioner admitted that he assumed discrimination anytime someone was hired for a position he had applied for that was of a different race, sex, or age from Petitioner. For instance, Petitioner claims that he was not hired because of his race, sex, and age, but acknowledged that for each position for which he was not hired, he simply alleges discrimination based on whatever protected characteristic(s) he did not share with the final candidate, i.e., he chose the one that applied. For example, if a black female was hired, Petitioner alleges he was not hired because of his sex. If a white male was hired, then Petitioner contends he was not hired because of his race. In sum, Petitioner failed to present sufficient evidence to show that the School Board treated similarly situated applicants or employees outside Petitioner’s protected class of race, sex, or age more favorably. Rather, the only evidence Petitioner presented to support the allegation that Principal Jones’s or the School Board’s hiring decisions were discriminatory was “the fact they never hired me.” Petitioner also claims that he was not hired out of retaliation for filing his First Case against the School Board over 12 years ago. Petitioner produced no evidence supporting this claim, and admitted that he had no evidence that Principal Jones even knew that he had filed the charge prior to her decision not to hire him. The School Board proffered two reasons that it did not hire Petitioner: (1) his application status in its database indicated that he was “ineligible” because of his criminal history, and (2) Principal Jones did not believe he could effectively manage a classroom full-time, as evidenced by his performance as a substitute. The first proffered reason–that Petitioner’s affirmative response to a question regarding his criminal history rendered him ineligible–was a mistake. While it was a mistake not to consider Petitioner for an interview or potential hire in disregard of his Eligibility Letter, that mistake does not show that the School Board discriminated against Petitioner as alleged, nor does it make that purported reason for not considering Petitioner’s application mere pretext. It was merely a mistake in the application process. Future use of that process after this case to exclude applicants with criminal backgrounds who have otherwise been cleared by the Department of Education may very well constitute pretext in view of the fact that the School Board should now be aware of the shortcomings of its process. Pretext, however, is not found in this case because the evidence does not suggest that Principal Jones or the School Board were aware that, under the circumstances, it was a mistake to exclude Petitioner’s applications. The second reason–that Petitioner was not considered or hired because of concerns regarding his ability to manage a classroom–is supported by the evidence. During the 2019-2020 school year, current Gadsden County Schools Superintendent Elijah Key served as a Vice Principal at Gadsden County High School. While there, Mr. Key observed a number of classroom management issues with Petitioner, including the fact that a large number of student disciplinary referrals were coming from Petitioner’s classroom and Petitioner was inconsistent with meting out discipline to students. The specific examples from Mr. Key’s testimony based on his observations provided credible evidence that Petitioner lacked control over his classroom. At the times they were made, Mr. Key reported his observations to Principal Jones, and suggested that they needed to find another substitute or hire a new teacher to take over Petitioner’s class because of the lack of classroom control. At the final hearing, Principal Jones testified that, even if Petitioner was not excluded from hire because of his criminal background, she probably would not have hired Petitioner based on her own observations and her administrator’s observations of Petitioner’s inability to manage his classroom. In the words of Principal Jones, “- - if you can’t manage the classroom, you can’t teach the students.” Petitioner failed to provide evidence refuting the testimony of Principal Jones's assessment that, even if Petitioner was eligible to obtain a teaching certificate, she probably would not have hired him because of his inability to manage a classroom.
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 and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 30th day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S JAMES H. PETERSON, III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2021. William Breen Armistead, Esquire Coppins Monroe, P.A. 1319 Thomaswood Drive Tallahassee, Florida 32308 Ronald D. Jones 1821 McKelvy Street Quincy, Florida 32351 Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
