The Issue Whether Respondent is guilty of immorality and unprofessional conduct as is more specifically alleged in the Administrative Complaint dated February 25, 1991.
Recommendation Accordingly, it is RECOMMENDED that a final order be entered permanently revoking the Florida teaching certificate of Robert M. Dodd, Jr. DONE and ENTERED this 14th day of October, 1991, in Tallahassee, Leon County, Florida. K. N. AYERS 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 14th day of October, 1991. Copies furnished: Robert J. Boyd, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400 Robert M. Dodd 38124 Townview Avenue #106 Zephyrhills, Florida 33540 Jerry Moore, Administrator Professional Practices Services 325 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400
The Issue The issues in this case are whether Respondent violated the Principles of Professional Conduct for the Education Profession, specifically Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), Florida Administrative Code, and, if so, what disciplinary action should be taken against him pursuant to Section 231.2615(1)(i), Florida Statutes.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Chavero holds a Florida Educator's Certificate that is currently valid. Chavero was employed as a public school teacher in the Dade County School District at all times pertinent to this proceeding. In the 1999-2000 school year, Chavero taught English and math at Braddock. All of his students were enrolled in an Alternative Education Program known as the STARS Program. The STARS Program is offered as a last resort to students who, because of bad behavior, poor grades, or other problems, need extra assistance and attention to remain in school. If a student in the STARS Program fails to perform satisfactorily, he or she may be expelled. Chavero believed that student misconduct and a general lack of discipline at Braddock (and other schools) were preventing pupils from learning and teachers from teaching. Consistent with his pedagogic philosophy, Chavero aspired to teach his students not only the content of a course but also such social skills as proper behavior, dress, and manners. Braddock's Principal, Dr. Donald Hoecherl, disagreed with Chavero's view that behavior and social skills should be taught in the classroom. Principal Hoecherl told Chavero not to teach his students how to conduct themselves in socially acceptable ways. Apparently, the principal's admonition reflected the administration's sensitivity to the perceived "low self-esteem" of students in the STARS Program. Chavero was expected to be flexible and to refrain from confronting students or "coming on too strong" with them. This type of teaching was completely out of character for Chavero. Predictably, he was not able to abandon the authoritarian style that suited his personality and beliefs. As a result, Chavero developed a reputation as a strict disciplinarian — but "nothing out of the ordinary," in the words of V. D., a former student who testified against him at hearing. Transcript ("T-") 49. Indeed, according to this same student, Chavero's classroom rules were "pretty much the same" as other teachers'. T-49. Students began to complain, however, that Chavero was making too frequent use of a form of punishment called an “exclusion.” An exclusion is a temporary in-school suspension that the teacher may impose when a student is disrupting the class. Upon being excluded, the misbehaving student must leave the classroom and spend the remainder of the period in detention at another location. Assistant Principal Jane Garraux investigated the student complaints and concluded that Chavero’s use of the exclusion was excessive. She also determined that most of Chavero’s students (as many as 70 percent) were failing his classes. By comparison, other teachers in the STARS Program were giving passing grades to between 80 and 95 percent of their students. Following her investigation, the assistant principal initiated an evaluation of Chavero in November 1999 that led to the identification of performance deficiencies in the area of classroom control. He was placed on a 90-day performance probation and, as a result, needed to correct the identified deficiencies within that period or face termination of employment. See Section 231.29(3)(d), Florida Statutes. While on performance probation, Chavero was observed and evaluated several times. In the opinion of his assessors, Chavero’s performance continued to be unsatisfactory. In February 2000, he resigned. 2/ The Commissioner sought to prove that, in the months leading to his resignation, Chavero: (a) refused, on occasion, to answer students’ questions about lessons and assignments; (b) used the exclusion tool excessively, in relation to other teachers in the STARS Program; (c) demanded more from his students in terms of academic performance and classroom decorum than his colleagues were requiring; and (d) became angry and raised his voice in class at times. This is not a proceeding to terminate Chavero’s employment, however, and poor performance does not constitute a basis for discipline under Section 231.2615, Florida Statutes — not, at least, without more than has been shown here. 3/ Therefore, even if all the general deficiencies in Chavero’s performance that the Commissioner attempted to prove at hearing were found to have existed, none amounts to a violation either of Rule 6B-1.006(3)(a) or of Rule 6B- 1.006(3)(e), Florida Administrative Code. There were, however, two specific occasions on which Chavero allegedly lost his temper and threatened the physical safety of a student or students. Together, these particular instances are the heart of the Commissioner’s case against Chavero and therefore require closer scrutiny. The First Period Incident On January 27, 2000, Chavero gave his first period class a mid-term examination. Near the end of the period, Chavero allowed the students who had completed the test to talk quietly, provided they would not bother the few who were still working. V. D. and J. A., who were sitting together in the back of the room, began conversing with one another. The class soon began to get loud, and Chavero told the students to be quiet. He held up V. D. and J. A. as an example of how he would like the class to behave, saying: "Why can't you guys whisper like J. A. and V. D." The class momentarily calmed down but quickly became noisy again. Chavero began to get angry. He told the students to lower their voices. V. D. continued to talk, and Chavero yelled at her to be quiet. Instead of obeying, V. D. denied that she had been talking loudly, which caused Chavero to yell at her some more. V. D. asked Chavero not to scream at her; he did not stop. At some point during this exchange, V. D. said to Chavero: “What the f*** is your problem?” Enraged, Chavero slammed his fist on a desk and moved quickly toward V. D. Some students, including V. D. and J. A., recall that as Chavero approached V. D., he raised his open hand, palm facing forward, as if to strike her. A number of other students, however, in written statements prepared on January 27, 2000, made no mention of the teacher’s raised hand. For his part, Chavero adamantly denied having raised his hand against V. D. V. D.’s immediate reaction suggests that she was not intimidated or frightened by Chavero’s rapid approach, regardless where his hand was. V. D. testified that she “lost [her] temper,” “got up and . . . exchanged a few words” with Chavero. T-55. More important, it is undisputed that Chavero did not touch V. D. Rather, he returned to his desk at the front of the class to write a “referral” — that is, a written account of V. D.’s misconduct that would be provided to the assistant principal for further handling. V. D. gathered her belongings and left the room. The Commissioner failed to prove, by clear and convincing evidence, that Chavero intended either to hit V. D. or to cause her unnecessary embarrassment or disparagement; that V. D. suffered any physical or emotional injury or felt embarrassed or degraded; or that V. D. was in danger of likely being harmed in Chavero’s classroom on January 27, 2000. As a result, it cannot be said without hesitancy that the conditions in Chavero's classroom that day were harmful to learning or to a student's mental or physical health or safety. The Third Period Incident R. G. was a student in Chavero’s third period math class. R. G.’s academic performance was extremely poor, and he frequently was excluded for bad behavior. He was defiant and aggressive, openly challenged Chavero’s authority, and, on at least one occasion, threw staples at the teacher. One day — the precise date of this event is not clear, but it apparently occured after January 27, 2000 — R. G. was in Chavero’s class, sitting in the back, not doing his assignment. Because R. G. was refusing to do his schoolwork, Chavero wrote a referral to send him to the assistant principal. R. G. testified that before Chavero wrote the referral, he had insulted R. G. by saying that his (R. G.’s) mother was raising an animal. However, another of Chavero’s former students named F. V., who witnessed this particular incident and testified at hearing on the Commissioner’s behalf, did not hear Chavero make this remark to R. G. Indeed, F. V. testified that he had never heard Chavero make rude or disrespectful comments to his students, nor had he observed Chavero become angry with the class. Chavero denied having insulted R. G., and the evidence supports his denial. After Chavero had filled out the referral, R. G. rose from his seat and approached Chavero’s desk. R. G. reached out to snatch the referral from Chavero’s hand in a manner that, according to F. V., was apparently intended “just to . . . annoy” Chavero. T-93. Specifically, as R. G. grabbed for the referral, he made a feint toward Chavero’s grade book. As F. V. explained, it was well known that Chavero “didn’t like it when people touched [his] grade book.” T-93. In the process, R. G. may have hit Chavero’s hand, although he denied having done so. Reacting to R. G.’s provocative act, Chavero slapped R. G.’s hand away. R. G. was neither injured nor embarrassed by this. Rather, he became angry and began yelling and cursing at Chavero, insulting him. Both R. G. and F. V. recalled that Chavero then said to R. G., “Oh, hit me if you’re a man,” or words to that effect. Chavero, however, testified that his exact statement to R. G. was: “[I]f you try to be physical you’ll get in trouble.” T-124. Chavero was the most credible witness of the three. After Chavero warned R. G. not to become physical, R. G. left the classroom. The Commissioner failed to prove, by clear and convincing evidence, that Chavero intended either to harm R. G. or to cause him unnecessary embarrassment or disparagement; that R. G. suffered any physical or emotional injury or felt embarrassed or degraded; or that R. G. was in danger of likely being hurt in Chavero’s classroom on the day of the third period incident. To the contrary, it appears that R. G.’s aggressive and provocative behavior may have threatened Chavero’s physical safety. Consequently, it cannot be said without hesitancy that the conditions in Chavero's classroom that day were harmful to learning or to a student's mental or physical health or safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Administrative Complaint against Respondent Armando M. Chavero. DONE AND ENTERED this 15th day of February, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 15th day of February, 2001.
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment pursuant to Sections 231.36(1)(a) and 231.35(6)(a), Florida Statutes.
Findings Of Fact Respondent has been employed as a social studies teacher at Bell High School since 1988. He is employed under a professional services contract for instructional personnel. At all times material to this proceeding, Respondent has received satisfactory performance appraisals. He was selected Bell High School Teacher of the Year and Gilchrist County Teacher of the Year in 1996. Respondent's competency as a teacher is not at issue here. It is undisputed that Respondent is an effective teacher except as alleged by Petitioner in this case. 1998/1999 School Year On January 26, 1999, Superintendent Thomas (Superintendent) wrote a letter recommending Respondent for the James Madison Fellowship Program. In the letter, the Superintendent stated that Respondent is an outstanding teacher who is academically strong in the field of social studies, American History, and American Government. The letter recounts Respondent's involvement as the senior class sponsor and in developing a cultural exchange program and a junior achievement program. Respondent was the senior class sponsor in the Fall of 1998. In the first days of school, Respondent prepared and presented the seniors with a detailed letter containing information, including, but not limited to, officer duties and responsibilities. The section on officer duties and responsibilities stated, in part, that the senior sponsor reserved the right to remove officers for incompetence or inappropriate behavior. Subsequently, a certain female student was elected senior class president. She and Respondent had a personality conflict from that time forward. Part of the problem involved the student's initiation of class projects without Respondent's approval, which was contrary to Respondent's procedures outlined in the letter referenced above. Respondent often found fault with the senior class president's performance of her duties and her inability to devote full time to her elected position because of extracurricular activities. On several occasions, Respondent made comments to the senior class president that embarrassed her in front of other students and teachers, embarrassing her to the point of tears. One time Respondent told the student that he was not going to chaperon "some damn carwash" and miss his football game. The student complained to her parents about the way Respondent treated her. In November 1998, the student and her parents requested a parent/teacher conference with Respondent. The assistant principal also attended the meeting. After Respondent offered to shake the father's hand, the conversation almost immediately resulted in a heated discussion between the student's father and Respondent. During the conversation, Respondent informed the parents that he had students in his class that were more important than their daughter's feelings and that if the daughter was going to complain to her parents, she was fired from her position as senior class president. The student's father then accused Respondent of being disrespectful of the daughter and objected to Respondent's use of curse words in front of the daughter. Respondent stated that he did not consider "damn" a curse word. On November 9, 1998, the parents made a written complaint about Respondent's conduct before and after the parent/teacher conference. They requested that the letter be placed in Respondent's personnel file. Respondent responded with a letter dated November 8, 1998. He claimed that he had been summoned to the office for a meeting with a hostile parent for which he had been completely unprepared. Respondent denied that he had ever cursed the student. Respondent stated that he did not ever intend to be "bushwhacked" again. Respondent later told the principal that the student was fired as class president. The principal said that she would not be removed from her elected office. Respondent then resigned his position as senior sponsor. In January 1999, Respondent wrote a letter to the Superintendent and members of the school board. The letter outlined a series of events and incidents alleged by Respondent to represent the inadequacies of the school system. For example, the letter includes, but is not limited to, the following: (a) allegations of nepotism and incompetent teachers; (b) allegations that a student broke the nose of Respondent's daughter after a coach told her to hit the student if he sexually harassed her again; (c) allegations that a coach had walked into the girls locker room while they were changing; and (d) allegations that the coach had retaliated against Respondent by falsifying his daughter's grades because Respondent complained about the locker room incident. Apparently the Superintendent did not reply in writing to Respondent's January 1999 letter or require any employee to write a letter of apology. Nevertheless, competent evidence indicates that the Superintendent investigated Respondent's concerns and properly resolved all issues, including the disciplining of employees where necessary. Respondent was responsible for the establishment of a World War II (W.W. II) Monument on the grounds of the Gilchrist County Courthouse in honor of the veterans who fought in that war. Respondent often invited veterans to speak in his class regarding their wartime experiences. Mr. Cody Bennett, a W.W. II veteran, spoke to Respondent's class approximately 16 times. On one occasion, the principal questioned whether Mr. Bennett had signed in at the office and whether Respondent had requested pre-approval of Mr. Bennett's presentation according to the school's policy. Bell High School policy requires a visitor to sign in at the main office and to be approved by an administrator. The policy states that guest speakers should be pre-approved by an administrator. Mr. Bennett's class presentation was not pre-approved by an administrator. Because Mr. Bennett had not signed in at the office before visiting Respondent's classroom, Respondent signed him in as he was leaving the campus. 1999/2000 School Term In the Fall of 1999, Respondent requested another male teacher to demonstrate something for Respondent's students. The male teacher agreed and went into Respondent's class. Respondent then requested his colleague to show the class the "three point stance" of a football player. After the teacher bent over with his hands on his knees, Respondent asked the teacher to spell the word "r-u-n." As the class burst out laughing, the embarrassed teacher quickly left the class. The teacher later realized that he had been requested to demonstrate a homosexual act in front of the class. Respondent made the same request of another male teacher. After asking his colleague to show the class a football lineman's position (knees bent ready for a block), Respondent requested the teacher to spell the word "r-u-n." Once again the class burst out laughing. The second teacher did not fully understand the inappropriate joke until he left Respondent's classroom. By letter dated October 22, 1999, the principal of Bell High School wrote a letter to Respondent reprimanding him for the inappropriate sexual implication of Respondent's behavior. The principal directed Respondent to write letters to the teachers, apologizing for his conduct that constituted extreme misconduct for a teacher. The principal warned Respondent that such conduct in the future could result in discharge. The principal noted in his October 22, 1999, letter that Respondent had shown a negative attitude toward the principal as Respondent's supervisor. The principal stated that he expected Respondent to show a more positive attitude in the future. The principal placed the letter of reprimand in Respondent's personnel file. As requested by the principal, Respondent wrote letters of apology dated October 22, 1999, to the teachers. Both letters stated Respondent's regrets for causing his co- workers embarrassment for the incident that he referred to as a "spontaneous practical joke." Respondent admits that the practical joke was in bad taste and demonstrated a lapse of judgment on his part. During the hearing, the teachers testified that they maintained good professional and personal relationships with Respondent despite the incidents. One day before class in April 2000, one of Respondent's students told him that she needed to leave his class early to attend a school softball game. Respondent was unnecessarily harsh and embarrassed the student when she reminded him during class that she had to leave the class. In chastising the student, Respondent emphasized that the student did not need softball to graduate but that she did need his class. The incident was videotaped because a group of students were about to make a class presentation at the time. The student's parent wrote a letter to Respondent, complaining about Respondent's treatment of the student. The complaint alleged, among other things, that Respondent had humiliated the student about her work and yelled and screamed at the student for interrupting class when leaving for the game. Respondent replied to the parent's complaint by letter dated April 28, 2000. Respondent objected to being slandered by a student. He stated that the student's grade for incomplete work would stand as recorded. Respondent admitted that he did not like interruptions in his class due to sports events. He said he would no longer give the student a "mild scolding" to enhance her performance. According to Respondent's letter, he felt the parent's letter was hostile, unfounded, and personally insulting. On May 1, 2000, the principal advised Respondent that he was transferring the student out of Respondent's class due to the strained relationship on the part of the student. The letter requested that Respondent furnish the principal with the student's grades and a copy of the videotape of the incident involving the student's interruption of class. Respondent complied with the principal's request to provide the principal with the student's grades. There is no persuasive evidence that Respondent altered the student's grades before doing so. However, there is competent evidence that Respondent never complied with the principal's request to produce the videotape. 2000/2001 School Term Petitioner requires its teachers to maintain a portfolio containing examples of assignments and student work samples. One purpose of the portfolio is to assist supervisors in assessing the teachers' performance at the end of the year. On May 2, 2001, the teachers at Bell High School were advised that their portfolios would be due on May 18, 2001. Respondent did not turn in a portfolio by the required date. Toward the end of the 2000/2001 school year, the fire alarm was activated at Bell High School. The record is unclear whether the alarm was the result of a planned fire drill or a false alarm due to recurring problems with the fire alarm system. In any event, Respondent did not interrupt his class to take his students outside as required by school policy. In June 2001, the assistant principal at Bell High School and Respondent met to review Respondent's end-of-the- year performance evaluation. Petitioner's signature on the evaluation would have indicated only that the assistant principal had reviewed it with Respondent. During the meeting, the assistant principal explained that Respondent's score would have been higher but for Respondent's failure to turn in a portfolio and his failure to take his class outside during a fire alarm during semester exams. Respondent disagreed with the assistant principal over his evaluation, in part, because a one-point higher would have resulted in an increase in Respondent's salary. The assistant principal responded to Respondent's objections stating, "You made it easy." Because he did not agree with the evaluation, Respondent told the assistant principal that he was wasting Respondent's time and that he did not "want to listen to any more of this." Respondent then requested that he be dismissed so that he could attend a school board meeting. Respondent started to leave the room. When the assistant principal requested Respondent to return to discuss the evaluation, Respondent stated, "Why listen to more of this bullshit?" Respondent then told the assistant principal that he was a "spineless lizard." Respondent then wrote "I do not concur" on the evaluation and without signing his name on the evaluation, left the room. By letter dated June 6, 2001, the principal of Bell High School reprimanded Respondent for his inappropriate, unprofessional, and insubordinate conduct toward the assistant principal. The principal reminded Respondent that he previously had been reprimanded for his attitude to the former principal. The principal stated that such conduct in the future could result in discharge. The principal's letter of reprimand directed Respondent to write a letter of apology to the assistant principal. Before the letter was placed in Respondent's personnel file, Respondent signed it, including the statement "I spoke only the truth." On June 6, 2001, Respondent wrote a one-sentence letter of apology to the assistant principal. The letter simply stated, "I am sorry." Respondent subsequently wrote a letter dated June 8, 2001, directed to the principal and others, including the Superintendent, but not including the assistant principal. Respondent's letter listed a number of incidents in which Respondent felt that he had been unfairly treated. Respondent's June 8, 2001, letter asserts that a teacher twice called him a "son of a bitch" without receiving a reprimand. That incident involved a situation where Respondent told a teacher that he was not going to engage in a battle of wits with an unarmed person. The teacher then called him a "son of a bitch." Respondent asked his colleague to repeat what she said in front of witnesses and she did. The principal subsequently counseled with Respondent and the teacher, giving them both a verbal reprimand, and telling them not to make such inappropriate comments to each other in the future. In his June 8, 2001, letter, Respondent requested an investigation of each of the incidents. Respondent also stated in the letter that he was sorry if he hurt the assistant principal's feelings. The assistant principal never received a copy of the letter containing Respondent's apology. The Superintendent subsequently performed an investigation. By letter dated October 11, 2001, the Superintendent advised Respondent that the issues raised in his June 8, 2001, letter had been reviewed. Competent evidence supports the Superintendent's conclusion in the letter that the former or current principal at Bell High School had properly addressed each of Respondent's concerns. 2001/2002 School Term On August 6, 2001, the Superintendent signed and issued to Respondent a Professional Service Contract of Employment for Instructional Personnel of the Public Schools for the 2001/2002 school term. The contract states that Petitioner had determined that Respondent had satisfactorily completed all requirements of law for such a contract. On August 10, 2001, Respondent signed a form indicating that he had received a copy of Bell High School's Teacher Handbook. The handbook included an emergency plan that required teachers to keep their classroom doors locked each period of the day. The policy was created as a safety measure after the "Columbine" shooting spree. Respondent generally followed the locked-door policy. However, occasionally he would leave the door open so that students could go and come from the restroom without interrupting the class. Respondent also left his door open for about 10 or 15 minutes in the morning because one student from another school zone arrived late every morning and Respondent did not want the class interrupted. Despite the inconvenience to Respondent in having his class interrupted, leaving the door open was contrary to established policy. Sometime prior to August 15, 2001, Respondent extended an invitation to Brett Hillman to visit his class. Mr. Hillman was a former student of Respondent and on leave from active military service. When Mr. Hillman arrived on campus, he was arrested for trespassing on school property. Respondent subsequently wrote a letter dated September 14, 2001, to the county judge assigned to hear the criminal trespass case against Mr. Hillman. Respondent's letter explained to the judge that he felt responsible because he had neglected to have Mr. Hillman's visit to the campus approved through the office. An assistant state attorney subsequently wrote a letter dated October 18, 2001, advising the principal that Mr. Hillman's case was resolved in a deferred prosecution procedure. The assistant state attorney explained the problems associated with the prosecution not being aware of Respondent's invitation for Mr. Hillman to visit Respondent's classroom. One of Respondent's classes in the Fall of 2001 was an eighth-grade American History class. The students ranged in ages from 14 to 17. The following incidents occurred with students in that class. Several times Respondent asked students if they had a date for the weekend. If the student replied that he or she did not, Respondent would respond, "Oh, I didn't think so" or "Ha-Ha, I didn't think so." On one occasion, Respondent replied, "I figured not because you're so ugly." The regularity in which Respondent made these statements and manner in which the students understood them indicates that the students were not offended and understood that Respondent was joking. On at least one occasion, Respondent discussed the difference in Democrats and Republicans with two of his students. Respondent told the students that Democrats are asses, not donkeys, and Republicans are elephants. The evidence is not clear and convincing that Respondent made this comment intentionally to slander or make a profane statement about either of the political parties. At times, Respondent used inappropriate language in an attempt to motivate his students individually. For example, Respondent called one student who was rather large, "Bigun," meaning no disrespect to the student. However, on at least one occasion, Respondent told "Bigun" that he was lazy and should drop out and shovel shit if he did not want to stay in school. On another occasion, Respondent told "Bigun" to get his fat ass out of his (Respondent's) class. Respondent told a bashful student that if he did not want to participate in class, he could get the hell out of the class, drop out, and flip burgers. Respondent made this comment because the student did not want to read out loud in class. Respondent also made the following statements to students: (a) a student should drop out and get a job flipping burgers so she would not be on welfare for others to support; (b) a student should get out of school and stop stinking it up if they did not want to learn; (c) two students were a pain in the ass because they had not finished a report and did not want to learn; (d) it was bullshit for a student not to want to participate in a project; (e) a student should shut up; and (f) a student should get the hell out of here. Sometimes Respondent made inappropriate comments to the class at large. Respondent told the class he knew he was an asshole but the class would have to live with it because he did. Respondent also said he "could be a nice person, but just don't piss him off." Respondent would remind his class that if they dropped out of school and got a job, their boss would yell at them and tell them to get off their fat ass. Respondent made some of these comments in the context of a lesson on illiteracy. Nevertheless, Respondent's choice of words to make his point regarding the importance of an education in getting and keeping a good job was inappropriate. On two occasions, Respondent told a student to "get the hell out of this classroom" if the student did not want to learn. The second time that Respondent made this statement, the student left the class, spoke to the principal, and spent a couple of days in the In-School Suspension (ISS) room. When the student returned to Respondent's class, Respondent learned that the student had spoken to the principal. Respondent then stated, "All this crap is happening all over again." On another occasion, Respondent used the word "damn" in a conversation with a student. During the conversation, Respondent also stated, "[t]his is my class and I'm running the show here. And if you don't want to go along with it, you can get out." After making this statement, another student in the same area of the classroom started laughing and making fun of the first student. In discussing the First Amendment to the United States Constitution, Respondent told his students that they could say anything because they had a right to freedom of speech. To make his point, Respondent told the class that they could curse each other or him outside of class and he would not write them up because of their right to speak freely. However, there is no clear and convincing evidence that Respondent condoned student use of curse words in class. On September 11, 2001, the atmosphere in Respondent's class was emotionally charged as everyone learned about the attack on New York City. Later in response to a student's questions, Respondent used the words "rag heads," referencing the terrorists responsible for the collapse of the World Trade Center towers. Respondent used the same terms in discussing the terrorists with the principal. In the Fall of 2001, one eighth-grade student complained to his mother that Respondent was singling him out and embarrassing him in class. The mother told her son to tough it out for another week because Respondent might have been having a bad day. The student later complained again to his mother about Respondent's embarrassing treatment in the classroom. Based on the student's repeated complaints, the mother sent a message to Respondent asking him to call at his convenience. After receiving the message, Respondent immediately returned the mother's call. During the conversation, Respondent stated that the student was "not completing his work. I chewed him out really good yesterday so maybe he'll do something today." When the mother inquired about the student's allegations that Respondent was singling the student out in class and embarrassing him to the point of tears in front of the other students, Respondent replied, "Yes, that's true, but I am a hard teacher and I am not gonna cuddle and baby [the student] in my classroom. He either does what I say or he fails." When the mother questioned whether Respondent had told his students to quit school and stop wasting Respondent's and the school's time if they did not want to work, Respondent admitted that he had made such a statement. When the mother asked Respondent not to embarrass her son in front of the class, Respondent stated, "[y]ou wouldn't call up your doctor or your lawyer and harass them, and I don't expect you to do this to me." When the mother responded that she was just trying to find out what was going on, noting that Respondent was chewing her out, Respondent replied, "If there is nothing else, I have a class to teach so you can make an appointment like everybody else" then hung up the phone. Respondent appeared to be angry when he returned to the classroom after speaking with the mother. Respondent then requested to see the student's work folder. After making a derogatory comment about the work in the folder, Respondent told the student to get it organized and tossed it down on the student's desk, causing the papers to fall on the floor. There is no clear and convincing evidence that the folder hit the student in the chest, but the incident did cause the student embarrassment in front of his classmates. The mother subsequently called the assistant principal to complain about Respondent's unprofessional behavior. Specifically, the mother stated that Respondent had hung up on her and that she wanted her son removed from Respondent's class. After receiving written complaints from the mother and her son, both of which contained allegations that Respondent used curse words in class, the assistant principal gave the information to the principal. Based on the complaints from the mother and her son, the principal initiated an investigation on October 11, 2001. He first talked to several students in the class. The students did not know why they were being questioned. Without naming Respondent, the students were asked whether any teachers used profanity in the classroom. The students named Respondent as the only teacher who did so. Each student was talked to separately, sequestered, and asked to write a statement concerning Respondent's conduct in the classroom. There is no competent evidence that the students were unduly influenced or coached regarding the content of their statements. Two students, who did not want to get involved, were allowed to return to class. The student's initial statements and the mother's statement were submitted to the Superintendent. Because the statements warranted further investigation, the Superintendent appointed a committee to look into the matter. Respondent sent a memorandum dated October 16, 2001, to the members of the school board. In the memorandum, Respondent complained that he was being harassed because students from his at-risk class were being summoned from class to provide statements regarding his classroom activities without his knowledge. According to Respondent, the administration's current investigation was consistent with past personal attacks on Respondent. Respondent demanded that Petitioner provide him with all written statements by students, teachers, and parents and any notes in the possession of administrators but not included in his personnel file. He demanded that Petitioner refer the alleged harassment to the Educational Practices Commission. He insisted that he receive prior notification of any subsequent investigations. The Superintendent appointed an outside investigator as soon as he learned that Respondent believed the investigation was politically motivated and in retribution for Respondent running against the Superintendent in the most recent election. During the investigation, Petitioner once again pulled the students who had signed previous statements from class. At that time, Petitioner requested the students to sign affidavits that their initial statements were true. The only other times that Petitioner pulled students from class in relation to this case was to speak with an investigator or attorney in preparation for trial. On one occasion a student asked to call her father. At that point Petitioner's counsel stopped talking to the student. On or about October 15, 2001, Respondent called the Superintendent at home one night, demanding copies of all documents being considered in the investigation. During this conversation, Respondent told the Superintendent that the investigation was all a bunch of crap, that the principal at Bell High School was an idiot, and that he (Respondent) was not interested in the Superintendent's bullshit procedures. When the independent investigation was completed, the Superintendent reviewed all of the information. He considered Respondent's years of service, his satisfactory performance evaluations, and his personnel file, which contained two letters of reprimand. The Superintendent concluded that termination of Respondent's employment was appropriate after considering all aggravating and mitigating factors. By letter dated October 29, 2001, Respondent was invited to a meeting to discuss the allegations against him, which at that point included misconduct in office and/or gross insubordination. Specifically, the letter stated that Respondent had: (a) used profane or obscene language; encouraged or condoned student's use of profanity; intimidated and embarrassed students; and (d) continued refusal to obey direct orders from school board personnel. The Superintendent's letter advised Respondent of his rights under the Collective Bargaining Agreement, giving him a five-day notice of the meeting scheduled for November 5, 2001. The purpose of the meeting was to allow Respondent an opportunity to rebut the allegations against him. In a letter dated November 1, 2001, Respondent objected to the meeting scheduled for November 5, 2001, because it did not provide him with a five-day notice from the time that he received the October 29, 2001, letter. Respondent also requested that the Superintendent furnish Respondent with copies of certain documents, including his personnel file, all written complaints from students, parents, and teachers, and a copy of Petitioner's policies. Respondent's November 1, 2001, letter stated that the eighth-grade class had been exploited and that the student's affidavits had been solicited under duress. There is no persuasive evidence to support these allegations. Respondent claimed that the classroom was hostile and not conducive to effective education. Respondent asserted that he was not certified to teach the eighth-grade class because it was not a mainstream class. He requested that he be assigned to teach another class for that time block. By letter dated November 1, 2001, the Superintendent rescheduled the meeting for November 7, 2001, to ensure that Respondent was given adequate notice. The Superintendent also reminded Respondent that he had been furnished a copy of his entire personnel file and copies of affidavits obtained during the preliminary investigation. The Superintendent's letter enclosed a copy of the parent's letter that initiated the investigation. The letter sets forth the conditions under which a copy of Petitioner's policies would be made available to Respondent. Finally, the Superintendent's November 1, 2001, letter denied Respondent's request for reassignment as premature. However, that request was subsequently granted. On November 4, 2001, Respondent wrote a letter to the Superintendent. The letter states, among other things, that a student had called his home to tell him that his daughter was threatening other students. Respondent demanded a written explanation from the Superintendent regarding the persons who assisted the student in using the office phone to make the call and insisting that the Superintendent investigate the incident. There is no persuasive evidence that Respondent's daughter ever threatened her classmates. Respondent attended the meeting with the Superintendent on November 7, 2001. During the meeting, the Superintendent granted Respondent's request for additional time to respond to the allegations in writing. Respondent made his written response in a letter dated November 12, 2001. In Respondent's November 12, 2001, letter, Respondent apologized for using certain inappropriate words in class but argued that technically they were not defined as "profanity." He denied that he had ever disobeyed a direct order but apologized for offending the Superintendent in a heated conversation. He denied intimidating and embarrassing students, claiming that he only administered warranted admonishments. Respondent could not recall what he had said to students about the terrorists on September 11, 2001. He condoned the division of the word "assassination" into syllables to help the students learn to spell it. He denied that he called a student fat but admitted that he may have used the work lazy. Respondent accused a student of using the word ass instead of donkey to describe Democrats, stating that he thought nothing of the student's comment at the time. By letter dated December 7, 2001, the Superintendent suspended Respondent's employment with pay. The letter stated that the suspension would be effective until Petitioner's next board meeting on December 11, 2001. Respondent and another school employee ran against the Superintendent for the elected position of Superintendent of Gilchrist County Schools in 2000. The Superintendent was reelected in the first primary. There is no persuasive evidence that the Superintendent's investigation and ultimate decision to recommend suspension of Respondent's employment was politically motivated. There have been other incidents where the Superintendent has had to discipline teachers for using profanity. There has been no situation where the Superintendent has failed to take some disciplinary action against these teachers. The type of discipline in each incident was decided on a case-by-case basis, depending on the circumstances. Petitioner has a policy entitled "Profane or Obscene Language," which states as follows in pertinent part: Under no condition shall any School Board employee be permitted to use profane or obscene language in his or her relationship with students. Any employee who uses profane or obscene language while speaking to, communicating with or in the presence of students shall be guilty of misconduct in office, conduct which seriously reduces his/her effectiveness as an employee and failure to comply with a School Board rule. On every occasion in which a violation of this policy has been brought to the attention of the Superintendent, he has issued some form of discipline. There is no policy requiring the Superintendent to inform anyone about the discipline of another teacher. During the public input period of the hearing, the general public was given an opportunity to present oral or written communications. Five individuals spoke on Respondent's behalf. Some of these witnesses could not believe that Respondent would engage in the conduct of which he was accused but conceded that if Respondent had behaved in such inappropriate conduct, it might change their opinion of him. Two citizens testified on behalf of Petitioner during the public input period. One witness was a former student of Respondent who presented credible testimony that Respondent called him a "swinging dick" on one occasion and threw the student's shoe out the window on another occasion because the student had his foot on his desk. The other public input witness testifying for Petitioner was the father of a former student. This witness presented credible evidence that Respondent engaged in degrading and humiliating behavior toward his family, by insulting them during a parent/teacher meeting. During this meeting, Respondent accused the father of not having the ability to comprehend or deal with the situation and that the father was not mentally capable of carrying on a conversation with him. Respondent used many posters as visual aides in his classroom. For example, Respondent had pictures of every president of the United States up on the walls. One of Respondent's classes in 1992 hung President Clinton's picture upside down until the assistant principal required Respondent to turn the picture right side up in 1998. Respondent routinely placed a Groucho Marx nose on the picture of the President when the class was studying about that president. There is no clear and convincing evidence that Respondent used the nose to disparage one president over another. However, there is competent evidence that Respondent did not immediately remove the nose from President Clinton's picture when the assistant principal requested him to do so. In the Fall of 2001, the principal found one poster on the outside of Respondent's classroom door. The posted depicted a crying baby and a picture of the official seal of the United States Democratic Party, with the caption "Don't be a cry baby." The principal removed the picture from Respondent's door because the principal did not believe the poster was politically neutral. In prior years, the principal twice instructed Respondent to remove a car tag from his bulletin board. The car tag showed a person urinating on President Clinton's name. The second time that Respondent was directed to remove the tag, he covered the tag with a paper containing the word "censored" on it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order dismissing Respondent from his employment as a teacher in the Gilchrist County School System. DONE AND ENTERED this 26th day of June, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 26th day of June, 2002. COPIES FURNISHED: Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Don Thomas, Superintendent Gilchrist County School Board 310 Northwest 11th Avenue Trenton, Florida 32693-3804 William H. Andrews, Esquire Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203 Dan Taylor Post Office Box 657 Bell, Florida 32619-0657
The Issue Whether Respondent, Teresa Wimmer, violated Florida Administrative Code Rules 6A-10.080, the Code of Ethics of the Education Profession in Florida (Code of Ethics), or 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida (Principles of Professional Conduct), as alleged in the Hernando County School Board’s March 9, 2015, notice of recommendation of termination, and March 24, 2015, modification of that notice; and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Hernando County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. § 1012.22(1)(f), Fla. Stat. Respondent has been a teacher at Pine Grove for roughly 11 years. During the 2014-2015 school year, Respondent was a teacher of first-grade students, with a class of approximately 18 students. As a classroom teacher, Respondent was expected to comply with the 2014-2015 Staff Handbook. Among the provisions applicable to Respondent was the following: TOUCHING STUDENTS Employees are advised that they should not touch students in any way except for the protection of the health, safety and/or welfare of a student or for protection of themselves. Respondent has been the subject of several disciplinary proceedings over the years. In September 2004, Respondent was involved in an employee conference for grabbing a student’s arm on two occasions to correct misbehaviors, the result of which appeared to be a reprimand. The report of the employee conference was to remain in the school file for one year. In January 2006, Respondent was involved in an employee conference for making derogatory comments regarding a student and allowing classmates to do the same. Respondent was required to re-read the Code of Ethics and Professional Practice forms and write a letter of apology to the student and parents. The employee conference report closed with “[a]ny further behaviors involving embarrassment to students will result in further disciplinary action.” In September 2013, Respondent was involved in an incident that is of more direct relevance to this proceeding. In that instance, Respondent was accused of roughly handling students in her classroom. As a result, she was offered, and accepted, a Stipulation for Employee Discipline and Last Chance Agreement (Stipulation). In the Stipulation, Respondent acknowledged that she “engaged in misconduct by having inappropriate and unprofessional interactions with students in her classroom” and that such conduct “warrants disciplinary action up to and including termination.” In lieu of termination, the School Board and Respondent agreed that she would be suspended for ten days and, thereafter, serve a probationary period for the remainder of the 2013-2014 school year. The Stipulation further provided that Respondent “agrees that she will not engage in the conduct which gave rise to this Stipulation at any time or any place so long as she is an employee of the Hernando County School District. Further, [Respondent] understands that if she does engage in misconduct, it will result in disciplinary action, up to and including termination.” Respondent successfully completed the terms of her probation without incident. School principals, assistant principals, guidance counselors, and persons in similar duties are trained in Crisis Prevention Intervention (CPI), which is an approved method of restraining or transporting completely out-of-control students or removing children from the classroom. CPI training is not provided as a matter of course to classroom teachers. Respondent has not received CPI training. Holding a student’s hand is not a CPI hold. There is nothing inherently inappropriate with a teacher taking a student by the hand and walking with the student. The 2014-2015 Staff Handbook provides, in the section entitled “Return of Students to Classroom (Authority of the Teacher),” that: Teachers should follow their school’s procedure for the removal of students who are acting out. Suggestions include: having an adult accompany the student from the class or requesting an administrator to come to the class. (emphasis added). The routine procedure for removal of a disruptive or unruly student from the classroom is for the classroom teacher to call the office, whereupon Ms. Johnson, Ms. Kasten, or a guidance counselor, each of whom are trained in CPI, would go to the room, try to calm the student, and, if warranted, take the student to the office. Despite the procedure described above, Ms. Kasten testified that teachers, on occasion, “would bring the student down for me to talk to or the guidance counselor to talk to.” In such instances, “[t]hey would just walk them down” to the office. Although the teacher would usually call the office first, the evidence did not support a finding that a call was required or necessary, or that it happened in each event. Although the timing of those other events of taking students to the office was described as generally occurring “during their planning period or whatever, if they were at specials or whatever,” the preponderance of the evidence supports a finding that the act of walking a student to the office, per se, does not constitute a violation of the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook and that the school has not previously determined it to be so. Among the reasons for having teachers call the office for assistance with disruptive students is to limit those periods in which a teacher may leave students unattended or, as in this case, leave a co-teacher responsible for up to 36 students while the disruptive student was walked to the office. However, Ms. Tyree testified that there have been times when she would ask Respondent to “keep an eye on [her] class” while she went to attend to other things, and vice versa. There was no suggestion that asking a co-teacher to watch over a class was improper, as long as “your class is covered.” In the weeks prior to February 4, 2015, J.S., a student in Respondent’s classroom, had become increasingly disruptive in the classroom. The behaviors ranged from J.S. talking in “baby-talk” and rolling crayons on his desk, to choking another student with a lanyard. Respondent did not know why J.S.’s behavior had spiraled out of control, but indicated to Ms. Kasten that it was creating a problem for her ability not only to teach J.S., but to teach the other students in her classroom. The office was called on three occasions to deal with J.S., and Ms. Kasten went to the class to address the situations. On two occasions, J.S. remained in the classroom after Ms. Kasten’s intervention. On one occasion, Ms. Kasten removed J.S. from the classroom. On the occasion when Ms. Kasten removed him from Respondent’s classroom, J.S. was walking around the room and disturbing the other students. Ms. Kasten could not get J.S. to listen to her. Thus, she decided to take J.S. to the office. She did not employ her CPI training or use a CPI hold, but took him by the hand “with the idea of keeping him from getting away.” During the walk to the office, J.S. “was pulling a little bit” to try and get away.1/ There was no suggestion that the actions of Ms. Kasten in taking J.S. by the hand and walking him to the office were inappropriate or contrary to the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook. On the afternoon of February 3, 2015, Ms. Kasten met with Respondent to discuss the behavior of J.S. in her classroom. Respondent was upset and frustrated with J.S.’s unruly behavior and wanted to know what could be done about it. Ms. Kasten suggested that the two of them could work to develop a behavior plan for J.S. and indicated that she would bring a plan to Respondent the next day for them to work on. The incident that forms the basis of this proceeding occurred on February 4, 2015. As students were entering the class for the day, Respondent heard screaming and the words “stop hitting me.” She turned and saw J.S. striking a female student with his fists. Respondent was able to verbally quell the disturbance. However, after initially returning to his seat, J.S. went to the back of the room where he began kicking table legs and other items. Respondent asserted that prior to her taking the student to the office, she called Ms. Kasten to advise her that she would be doing so and received permission from Ms. Kasten. Ms. Kasten had no recollection of having received any such call. The telephone records admitted at the hearing do not reflect that any calls were placed between Respondent’s line and the office.2/ There was no evidence to support a finding that the telephone records maintained by the school were unreliable. The greater weight of the evidence indicates that Respondent did not receive prior approval before taking the student to the office on the morning of February 4, 2015. However, the issue of whether Respondent received or did not receive permission to take J.S. to the office, and whether the act of doing so violated any school policy, was not pled as a basis for Respondent’s termination. On her way out of the classroom with J.S., Respondent passed through the classroom of her co-teacher, Ms. Tyree, with whom she shared a paired classroom, and stated to her something to the effect of “[c]an you watch my class? They told me to take [J.S.] to the office.” Although not a frequent occurrence, it was not unusual for Respondent and Ms. Tyree, as paired teachers, to watch one another’s classes while the other was out for short periods. In this case, Respondent’s class was covered while she walked J.S. to the office. Respondent took J.S. by the hand and tucked his arm inside her arm. Although J.S. did not want to go to the office, his resistance was described by Ms. Tyree as “verbal like ‘I don't want to go, I don't want to go.’ But there wasn't a, like, a tug of war going on there.” Respondent indicated that she took J.S. by the hand in order to keep him safe. Given J.S.’s actions of physically assaulting a fellow student, followed by continued physical agitation at the back of the room, Respondent’s concern for safety, not only for J.S., but for the other students in her charge, was warranted. The walk to the office was captured by the school’s video system. The video covered the time from 8:33:00 to 8:33:58. Respondent and J.S. are clearly visible in the video for approximately 30 seconds, from frame 08:33:04 to frame 08:33:32. The video is somewhat grainy, and certain details are not readily observable. However, the video is consistent with Respondent’s statement that she was holding J.S. by the hand. Thus, the preponderance of the evidence supports that Respondent was holding J.S. by the hand as she walked with him to the office and not by the “wrist area,” as surmised by Ms. Johnson. At frames 08:33:12 and 08:33:13, J.S. appears to briefly resist Respondent’s efforts to take him to the office by trying to remove his hand from Respondent’s hand as they walked side-by-side. Despite his resistance, Respondent was not “pulling/dragging” J.S. during those frames. At frames 08:33:18 and 08:33:19, J.S. appears to briefly pull away from Respondent. The action was that of J.S., not of Respondent. Respondent did not release J.S., but neither did she pull or drag J.S. The action at frames 08:33:18 and 08:33:19 is entirely consistent with that described by Ms. Kasten when giving the account of her earlier walk to the office with J.S. -- which did not involve a CPI hold -- when J.S. “was pulling a little bit” to try and get away. Despite J.S.’s efforts to pull away in both instances, neither Respondent nor Ms. Kasten was “pulling/dragging” J.S. during their walks to the office. For the remainder of the walk to the office, Respondent and J.S. walked side-by-side at a consistent pace. The evidence suggests that J.S. was vocal in his reluctance to be taken to the office, consistent with the description of his verbal resistance when being taken from the classroom as described by Ms. Tyree. The verbal resistance apparently continued, as evidenced by the reaction of the boy using the walker, who comes into the picture at frame 08:33:22. However, J.S.’s verbal protestations did not involve pulling or dragging and do not form the basis of a violation of the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook. Respondent’s actions, though firm, did not appear to be aggressive. They were consistent with the description offered by Ms. Tyree, who testified that, as to the Respondent’s walk through her classroom, “there wasn't an altercation of, like, dragging or, you know -- it wasn't -- she was walking, he was walking. But he wasn't happy, you could tell that he didn't want to.” As Respondent entered the office with J.S., Ms. Kasten, the elementary assistant, was in the office, though on the other side of the office. Respondent approached the office with J.S. The door to the office opens out. It occasionally slams, and Ms. Kasten has seen it slam on students. In order to ensure J.S.’s safety, Respondent placed both of her hands on his arms to move him through the door and into the office. Respondent yelled for Ms. Kasten to “take him.” Ms. Kasten observed that Respondent was trying to get J.S. into the doorway to someone who could help. Although Respondent’s calls for Ms. Kasten to take J.S. were loud, her tone of voice was not pled as a basis for Respondent’s termination. Upon their entry into the office, Ms. Kasten went over to Respondent and J.S. J.S. stopped resisting once he saw Ms. Kasten. There was no evidence that J.S. was physically harmed in any way, i.e., there were no bruises, scratches, or marks of any kind. Respondent indicated to Ms. Kasten that J.S. had come to class very angry and was physically fighting with his female cousin. Ms. Kasten’s contemporaneous statement of the incident indicated that J.S. was “very upset that he had a fight with his sister.”3/ There was no suggestion that J.S. was upset about his walk to the office with Respondent. Ms. Kasten took J.S. off to the side and talked with him. After J.S. calmed down, Ms. Kasten advised Respondent that she would handle the situation from there, and Respondent left the office. J.S. was ultimately kept in the in-school suspension room for an hour or two. Ms. Kasten reported the incident to Ms. Johnson, who was not in her office or out front and did not witness the event. Shortly thereafter, in a conversation regarding other matters, Ms. Johnson reported to Ms. Martin at the District office that Respondent “brought a student in yelling and dragging.” Ms. Johnson was instructed to immediately remove Respondent from student contact. Ms. Johnson called to Respondent’s classroom and left a message with Respondent that she needed to speak with her. The following day, a meeting was convened to discuss the incident. Present at the meeting were Ms. Johnson, Respondent, and Respondent’s union representative. The confidential secretary to the school principal, Mr. Deen, was also in attendance to take minutes of the meeting. During her February 5, 2015, interview regarding the incident, Respondent indicated that “I was keeping him safe. I was holding his hand at first and he was okay. Then he started pulling away from me and I wanted to make sure he didn't hurt himself.” Her statement is consistent with the video. During the meeting, Respondent remained adamant that she had called Ms. Kasten and received the instruction to bring J.S. to the office. In conjunction with the investigation of the incident by Petitioner, Ms. Johnson reported the incident to the Department of Children and Families. The School Board received nothing from the Department of Children and Families to suggest that it found wrongdoing on the part of Respondent. Ms. Johnson believed, based on the information conveyed to her, that there was no reason for Respondent to remove the disruptive student from the classroom and that such action did not follow the protocol for the school for the removal of an unruly student. The alleged breach of protocol involved in taking the child to the office was not pled as a basis for Respondent’s termination. On February 18, 2015, Respondent was advised of the opportunity for a pre-determination meeting to be held the following week. Respondent took advantage of the opportunity. The pre-determination meeting was held on February 25, 2015. In attendance were Respondent, Ms. Martin, labor counsel Tom Gonzales, Ms. Johnson, and Joann Hartage, who appeared to be representing Respondent. Ms. Martin’s secretary, Sherrie Kudla, was also in attendance to take minutes of the meeting. During the pre-determination meeting, Respondent gave her account of the incident and was questioned, primarily by Ms. Martin. In addition to questions regarding the walk to the office, Ms. Martin asked about interviews of Respondent’s students undertaken by Ms. Johnson, which Ms. Martin found to be “very concerning.” Among the issues raised by Ms. Martin was “their perception [] that you yell and get aggravated with students and that you’re mean to [J.S.].” Although Respondent stated that she had read the statements, she was not involved in the interviews, and had no opportunity to ascertain the accuracy of the statements. More to the point, whether Respondent yelled or was a mean teacher was not pled as a basis for Respondent’s termination. At the conclusion of the pre-determination meeting, Ms. Martin conferred with the school superintendent, and the decision was made to recommend to the School Board that Respondent be terminated from employment. By letter dated March 9, 2015, Respondent was advised that, as a result of her “pulling/dragging a student to the front office,” the District determined that she had violated rules 6A-10.080(2) and (3), rules 6A-10.81(3)(a) and (3)(e), and the School Board Policy/Staff Handbook; that she was suspended with pay; and that she had the right to appeal the recommendation of termination. On March 23, 2015, Respondent appealed the recommendation of termination. By letter dated March 24, 2015, Respondent was notified that the recommendation to the School Board would be modified to one of suspension without pay, effective April 22, 2015, and referral of her appeal to the Division of Administrative Hearings. At the April 21, 2015, meeting of the School Board, the School Board authorized that this case be referred to the Division of Administrative Hearings, whereupon this case ensued. Ultimate Findings of Fact Based upon the facts as set forth herein, Petitioner failed to prove, by a preponderance of the evidence, that Respondent engaged in an incident of “pulling/dragging a student to the front office.” The preponderance of the evidence supports a finding that Respondent walked J.S. to the office and, despite J.S.’s verbal protestations and brief efforts to resist, did so in a safe and effective manner. Any “pulling” was brief and on the part of J.S., not on the part of Respondent. There was no “dragging.” The preponderance of the evidence demonstrates that a teacher’s act of walking an unruly or disruptive student to the office is not, in and of itself, a violation of any applicable procedure or standard and has not been determined to be so in the past. The preponderance of the evidence demonstrates that there is nothing inherently inappropriate or improper with a teacher taking a student by the hand and walking with the student. Issues of whether Respondent received telephonic approval to take J.S. to the office, should have left Ms. Tyree to watch her class, spoke to Ms. Kasten in a loud voice, or was loud or mean with her students were not pled as bases for Respondent’s termination, and, thus, cannot form the basis for any disciplinary sanction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Hernando County School Board, enter a final order: dismissing the March 9, 2015, notice of recommendation of termination; reinstating Respondent to a position equivalent to that previously held with the Hernando County School Board; and to the extent there is a statute, rule, employment contract, or collective bargaining agreement that authorizes back pay as a remedy for Respondent’s wrongful termination/suspension without pay, Respondent should be awarded full back pay and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 25th day of August, 2015, in Tallahassee, Leon County, Florida. S GARY EARLY 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 25th day of August, 2015.
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Lloyd Wright, was a teacher employed by the St. Lucie County School District at Westwood High School. Tenecia Poitier was, during the 1986-1987 school year, a student of Respondent in his world history class. In early February, 1987, she filed a complaint against him with school officials because, she says, she got tired of his repeated comments to her of a sexual nature. Reportedly, on one occasion, Respondent indicated to her that he was going to "... fuck her brains out." This comment was overheard by another student in the class, Tony Lee, who believed Respondent was only joking with her. No follow-up action was taken by Respondent on this threat. Ms. Poitier also alleges that on one occasion, while in the school library, Respondent came over and sat down next to her and touched her on the leg. This was observed by Felicia Newton who was sitting across the library table from Ms. Poitier and who, because she was sitting out somewhat from the table, could see Respondent touch her on the outside of the leg. The hug Respondent also gave Ms. Poitier was more of a friendly hug than one with sexual overtones as was the touch. When Ms. Poitier told him to stop, he did and immediately thereafter left the table. Respondent has never hugged or touched Ms. Newton and she has never heard any other girl say Respondent has hugged or touched them except Ms. Poitier, who had told her prior to the library incident that she didn't like the way Respondent was always touching her. On one other occasion, according to Ms. Poitier, when she got chocolate on her pants in class, she asked to go to the rest room to wash it off. In response, she claims, Respondent grabbed her "butt" and commented, "Girl, I want that thing" or words to that effect. Ms. Poitier claims that when he did that, she "cussed him out." Ms. Poitier filed her complaint with school officials after reporting the incident to her father. It would appear, however, that the complaint was motivated by fear of punishment herself, as Respondent contends that on the day prior to the complaint, he observed her doing her math homework in his history class and confiscated and destroyed it. When he did this, she became irate and indicated she was going to tell her father. With that, Respondent summoned a representative of the administration and had her ejected from class. He also wrote a letter to her counselor complaining that she refused to follow class rules and was disruptive and requested she be taken out of his class because she was not doing the required work. There is ample independent testimony from others, including Ms. Poitier herself; that she curses frequently in class and her reputation for telling the truth is not good. In addition, Respondent had notified Ms. Poitier that she had been denied membership in the Millionaire's Club which he sponsored, because she would not follow club rules. She was also dismissed from membership in the Pep Club because of her forgery of Respondent's name to hall passes. Neither these latter actions nor the allegations of her removal from class, testified to only by Respondent, were corroborated by independent evidence. Ms. Poitier denies being put out of the Pep Club and claims she quit the Millionaire's club to join another one. Ms. Poitier indicates, on the other hand, that she was written up because she had threatened to tell her father what Respondent had said and done to her. Her veracity being successfully attacked, however, it is found that Respondent's story is more believable. Respondent, Ms. Poitier claims, also hugged other girls and touched at least one, Ms. McGee, on the leg when she came up to his desk on one occasion. In fact, she claims, he will touch any girl who will put up with it. McGee, on the other hand, denied that Respondent touched her on the leg as alleged by Poitier, but contends he did hug her around the shoulder from the side on one occasion. More significant, however, is the fact, admitted by the Respondent, that early one morning, while driving his mother to the grocery store, he saw Ms. McGee walking with two boys, one of whom was her brother. Respondent drove up beside them, waved and blew his horn to get their attention, and then told her he was going to take her to the woods. He claims he did not mean the comment to be taken literally but more as a joke like the kids would make. He did not believe that McGee took the comment seriously but, in fact she did, and the comment was totally inappropriate for a teacher to make to a female student under any circumstances. Other students, such as Eugenia Lunsford, report improper comments by Respondent to them or others. Ms. Lunsford claims she heard him tell girls, in the classroom, that he liked them and ask them if he could have a chance with them. She contends she heard him state that he'd like to "fuck" Cochina Hall and Tenecia Poitier. Ms. McGee remembers Respondent stating he would like to do something sexual to her, and on one occasions, when she asked him to stop peeling a grapefruit in class, he asked her if he could touch her. He never did, however, except to give her a hug. She considers the term "touch" to mean a sexually oriented touching of a girl's private parts. She also recalls an incident where she saw Respondent pull Ms. Foster's shirt away from her body by the pocket and look down the front. She thinks he was looking at her breasts. Ms. Foster, however, denies this incident happened. In light of this, Ms. McGee's testimony is suspect and, like Ms. Poitier, her credibility is slight. There is no evidence that by any of the hugs that he gave the various girls he in any way committed any inappropriate touching of the breasts or any place else or that though unwelcome, they were sexual in nature. The report by Ms. Lunsford of Respondent's touching Ms. Foster's "butt" was denied by Ms. Foster. In substance, Ms. Lunsford's testimony is not credible and Ms. Foster considers Respondent a good teacher. She would not fear going back into his class. Tony Lee, who heard Respondent make the inappropriate comment to Ms. Poitier, also heard him say to a female student, "Pull your pants down and let me touch you." At the time, Respondent and a group of female students were laughing and joking together and he does not feel that Respondent's comment was seriously made. In fact, Respondent frequently joked with his students, both male and female, making suggestive comments, and everyone knew they were jokes. Lee knows of no incident where Respondent ever attempted to follow up on these comments. He denies ever hearing that Respondent attempted to touch Ms. McGee. To the contrary, she allegedly told Lee she had attempted to touch Respondent and Lee told her she was crazy to do that. Only one parent had direct knowledge of Respondent's relationship with his students. At one parent/teacher night, Mrs. Johnson was attending Respondent's presentation to a group of students and parents when he reportedly stopped in mid- sentence and ogled one or more female students who came into the room. Mrs. Johnson felt his stare, which, she claimed, constituted a visual undressing of the girls, was inappropriate and embarrassing. Her comments were endorsed by her daughter Josephine, who would not want to go back into Respondent's class. In this incidents however, Respondent neither said anything to or about these girls nor did he attempt to touch them. Petitioner presented testimony to establish that at one time, Respondent humiliated a male student in his class by implying he was a homosexual. Both the student and his mother were permitted to testify to this incident without objection by Respondent. This is, however, irrelevant to the issues framed by the Notice of Charges and in any case, the student admits that he and another student were smirking at allegedly inaccurate statements made by Respondent during his lecture, misconduct and out-of-line behavior in and of itself. Assuming, arguendo, that Respondent's reaction to the student was inappropriate, it has no relevance to the conduct complained of in the Notice of Charges. Other present and former students of Respondent indicated that he had a good rapport with his students and is a good teacher. None of these individuals including, Ms. Shaw, Ms. Donovan, Ms. Fuller, Ms. Frazier, and Ms. Diaz have ever seen him be improper or sexual in orientation with students notwithstanding numerous observations. He is not known by these people to flirt with or improperly touch students or to make suggestive comments to them though he would hug from time to time. The extent of his familiarity would be comments like, "Hey, baby. How ya doin'?," or words to that effect, comments readily admitted by Respondent. According to Ms. Frazier, a student in Respondent's class with Ms. Poitier, some students would speak improperly to Respondent by cussing at him. Usually, he would warn them but if they got out of hands he would write them up. Respondent is described by some, and by himself, as a friendly, outgoing, caring person who tries to get his students to achieve their potential. He is a tough taskmaster who expects his students to do their best. By his own admission, he tries to relate to his students by speaking their language and using their phrases. He tries to get his students to relate to him by relating to them and in 9 1/2 years as a teacher he has never before been told this was improper. He admits to hugging his students from the side and to touching them on the arm or head in encouragement while teaching. He rides up and down the aisles in his classroom on a rolling chair so he can sit next to students who are having trouble to help them. He uses flattery, even personal comments such as "You are beautiful" in an effort to motivate his students and denies that any of his comments or touchings were salacious or sexually oriented. From an evaluation of the evidence, it becomes clear that Respondent did not touch or handle his female students in a lewd, lascivious, or indecent manner. It is equally clear, however, that on several occasions he did make lewd, lascivious, or indecent comments to female students which could be construed as advances though it is doubtful he would have followed through on them. These comments, however, in the expert opinion of Ms. Bretherick, an experienced teacher, are never appropriate for a teacher to make to a student. A teacher who made such comments would be ineffective as a teacher. Exposure to such a teacher adversely effects the students' capacity to learn the subject matter and clouds or distorts the concept of the teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore; RECOMMENDED that the Respondent, Lloyd Wright, be discharged from employment with the St. Lucie School District because of misconduct in office. RECOMMENDED this 27th day of July, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 27th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1366 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. By Petitioner Petitioner, by letter, specifically declined to submit proposed findings of fact. By Respondent Accepted and incorporated Finding of Fact. Irrelevant. Accepted and incorporated Finding of Fact. Accepted and incorporated Finding of Fact. Accepted as to the ultimate fact that the comment was made. Motivation is irrelevant. Irrelevant. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Irrelevant. Irrelevant. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. First sentence is. Accepted and incorporated in the Finding of Fact. Second Sentence is irrelevant to the issues. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted. Accepted. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. Accepted and incorporated in Finding of Fact. COPIES FURNISHED: George R. Hill, Superintendent School Board of St. Lucie County 2909 Delaware Avenue Fort Pierce, Florida 33450 Jack Gale, Esquire The Boston House 239 South Indian River Drive Fort Pierce, Florida 33450 Lorene C. Powell, Esquire Asst. Gen. Counsel FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Daniel B. Harrell, Esquire First Citizens Federal Building 1600 South Federal Highway, Suite 200 Fort Pierce, Florida 33450 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JULY TERM 1988 LLOYD WRIGHT, Appellant, DOAH CASE NO: 87-1366 CASE NO. 87-2723 v. SCHOOL BOARD OF ST. LUCIE COUNTY, FLORIDA, Appellee. / Decision filed December 28, 1988 Appeal from the School Board of St. Lucie County. Lloyd Wright, Fort Pierce, pro se appellant. Daniel B. Harrell of Gonano, Harrell & Sherrard, Fort Pierce, for appellee. PER CURIAM. AFFIRMED. HERSEY, C.J., DOWNEY and ANSTEAD, JJ., concur. MANDATE from DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT This cause having been brought to this Court by appeal, and after due consideration the Court having issued its opinion; YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this Court, and with the rules of procedure and laws of the State of Florida. WITNESS the Honorable George W. Hersey, Chief Judge of the District Court of Appeal of the State of Florida, Fourth District, and seal of the said Court at West Palm Beach, Florida on this day DATE: January 13, 1989 CASE NO.: 87-2723 COUNTY OF ORIGIN: School Board of St. Lucie Co. T.C. CASE NO.: 87-1366 STYLE: Wright v. School Board of St. Lucie Clyde Heath Clerk of the District Court of Appeal of the State of Florida, Fourth District ORIGINAL TO: School Board of St. Lucie county cc: Lloyd Wright, pro se Daniel B. Harrell, Esquire
The Issue The issue in this case is whether just cause exists to discipline Respondent based on allegations that she used inappropriate language when talking to students in violation of the Code of Ethics and/or the Principles of Professional Conduct, and if so, what discipline should be imposed.
Findings Of Fact The School Board is responsible for hiring, firing, and overseeing all employees for public schools within Duval County. In addition to the regular K-12 classes, the School Board has created the Bridge for Success program. The Bridge operates at eight sites within the Duval County school system. One of those sites is Ribault High School (“Ribault”). The Bridge is a new program, created to assist students who have fallen behind their chronologically-aged peers due to academic or other problems. The program is an innovative approach aimed at helping students who have fallen behind catch up with their peers and graduate from high school at about the same time as others of their same age. Many of the students in the Bridge program have behavioral issues as well as academic struggles. They can be a difficult group of students to teach. The goal of the Bridge program is “to promote and graduate” those students, to improve their attendance, and to teach them how to function as students. At its inception, there were 864 students in the program, distributed among the eight campuses. There were 108 students assigned to Ribault. By the end of the first school year, only 75 to 80 students remained in the program at Ribault. Some students had dropped out of school, some had moved to a different school, and it was difficult midway through the school year to replace those who had left. At all times relevant hereto, Quiller was a math teacher in the Bridge program at the Ribault location. She was hired for that position just prior to the 2013-2014 school year, the final year of the Bridge program. She had been teaching in the Duval County school system as a mathematics teacher for 21 years. Quiller is a graduate of Ribault and has very strong ties to the school. Quiller was chosen as a teacher for the Bridge program for many reasons: she was a graduate of Ribault and held a special place in her heart for the school and its students; she was certified in grades six through 12 for math, a less than common certification; she had a master’s degree in Guidance, giving her a better background and training for facing the Bridge students; she had been previously assigned to an alternative school for behavioral problem students; and, she demonstrated the kind of caring personality necessary for the challenges of teaching such students. When Quiller was hired, she mistakenly thought her position would be in the area of guidance. However, she was hired to teach math, partly in recognition of her status as a certified teacher in that area. She was hired to teach several math classes in the Bridge program, including Algebra I and II, Math for College, and Geometry. At the beginning of the 2013-2014 school year, the Bridge was not entirely ready for implementation at Ribault. There was a shortage of books and other materials and the program had not yet filled all the required staff positions. The start- up of the program was a challenge for both the teachers and school administrators. Also, the students in the Bridge program were not always cooperative or interested in school. No one denies that it was a difficult situation for all involved. Despite the lack of materials and adequate staff, Quiller’s classes began relatively well. She was a very strict teacher, demanding participation by all students regardless of their level of interest. She expected and required each student to be fully prepared when they entered the classroom. For example, the students were expected to have pen/pencil and paper, to have their homework completed, and to be ready for class. She was, however, very frustrated at times because many of the students seemed to ignore the fact that they were being given a second chance. They continued to demonstrate the kind of behavior that caused them to fall behind in the first place. As a result of their behaviors, many of the students in her classes were failing. Most of the students who testified at final hearing were in agreement that the classroom was fairly unruly, but agreed that Quiller was a stern disciplinarian and reacted promptly to quell any disruptions. Conversely, one student said the class was always quiet and that Quiller would make anyone making noise leave the classroom. Principal Davis began getting some complaints about Quiller beginning in September 2013, a month or so after commencement of the school year. The first complaints were relayed to her from assistant principal Micheau. During the first pep rally of the year (in late August), Micheau had been sitting with a group of students who were being disciplined and therefore, could not attend the rally. The students brought up unsolicited complaints about Quiller, saying that Quiller had used profanity towards her students. Micheau relayed these allegations to Principal Davis and Davis instructed Micheau to meet with Quiller and remind her that such language was not acceptable. Micheau met with Quiller and attempted to explain-- without being accusatory--that it was improper to use such language in front of students. Quiller denied ever having used inappropriate language with students; Micheau took Quiller at her word at that time. Sometime later, Micheau heard loud talking emanating from Quiller’s classroom area. When she investigated, she saw Quiller standing in the hallway next to her room. She was yelling loudly at a student and was obviously very upset. Micheau attempted to call her over and calm her down, calling out her name over and over, “Ms. Quiller. Ms. Quiller. Ms. Quiller.” Quiller yelled at Micheau to reprimand the student rather than her, saying, “You [Micheau] need to talk to these damn kids!” Micheau, shocked at Quiller’s language and her anger, removed the student from the classroom, and went back to her office. A few weeks later, Micheau was in her office adjacent to Quiller’s classroom. She and Rita Franklin, who was at the school that day as a School Improvement Coach, heard a loud commotion outside the office and went to investigate. When they came out of the office, they saw the school security guard already moving toward the sounds emanating from Quiller’s classroom. Upon arrival at the classroom, Micheau and Franklin heard Quiller talking very loudly to her students. She threatened to throw one student’s test paper into the trash. She told the students that the work they were being asked to do was third-grade work and they still could not get it right. She referred to the students as “hooligans” or “hoodlums.” When Quiller saw Micheau and Franklin outside her door, she reduced the volume and changed the content of her comments to the students. Quiller’s demeanor and actions were inconsistent with professional behavior by a teacher. Quiller denies making any of the alleged statements, except for the comment about some of the work being third-grade level. According to Quiller, that comment was made about some supplemental work she had assigned to an algebra project; she told the students it was third-grade work so they should not be intimidated by it. As to the comments about being flunkies, Quiller maintains that all she said was that the boys were flunking her class, although that would not have been an appropriate thing to say in front of other students. While Quiller seems to be generally honest and forthright, the most credible evidence is that she made remarks to the students along the lines of what Franklin and Micheau reported. Crimley, the security guard who was also present during one of the outbursts, heard Quiller say something about “getting this kid out of my damn class.” Crimley usually went into Quiller’s classroom three-to-five times a day but never heard her curse at students during those visits. Crimley attempted to testify at final hearing that some students had recanted their accusations against Quiller because “it had gone too far” and they did not want Quiller to be sanctioned. That testimony was not allowed due to its hearsay nature, but it is also inconsistent with the testimony of the students who testified at final hearing. On another occasion, Quiller was talking loudly to a student named Wayne and one or two other male students. The boys were doing some sort of vulgar dance and were attempting to enter the classroom at about the time the tardy bell was ringing. Quiller said something to the effect of “you are a bunch of flunkies and you need my class” and “your dirty ass can’t come into my class.” Both Micheau and another teacher, Ms. Crowden- Richardson, heard those comments. By the end of the first semester, i.e., about the time of the winter break from school, Principal Davis began getting additional complaints from students and their parents about Quiller. T.C., who was likely about to fail Quiller’s class, remembers hearing Quiller saying such things as “you kids can’t remember [sh--],” and “[N---s] always coming into my class and sleeping,” and she said students were coming into her class when high on drugs. C.F., who had a D and C on his first two grade reports from Quiller's class, heard Quiller say, “Y’all don’t do [sh--],” and also that students had been “smoking weed.” A.P., a D and F student in Quiller’s class, reported that Quiller told the class to “shut the [f---] up,” told kids to get their “ass” out of the classroom, and referred to students as “[N---s].” A.P. said these things were not yelled in anger, but in a normal tone of voice. F.H., an admittedly problem student, remembers Quiller telling a student to “Sit your ass down and come to class on time.” She also heard Quiller say, “[N---], please,” or some such comment. None of the aforementioned students’ testimony was individually very persuasive. Each of the students was struggling in class and had received their poor grades just prior to the time of the comments they reported hearing. It is certainly possible they had an axe to grind with Quiller. One student (D.R.) who testified that he never heard Quiller make such comments was passing the class, had regular attendance, and generally commended Quiller for being strict and stern with problem students. Nonetheless, the students’ description of Quiller’s comments and behavior was fairly consistent. The things they reported Quiller saying were very similar to contemporaneously written statements from them and other students. The alleged remarks were similar in nature to one another but not exactly the same, so the comments did not seem rehearsed or planned. The students were very direct and unwavering when testifying at final hearing. The greater weight of the evidence supports the contention that Quiller used inappropriate language in her classroom. In the letter notifying Quiller of her termination from employment, it is alleged that Quiller made the following inappropriate communications: “Kids do not do [sh--],” “You all should know this [sh--] already,” “Shut the [f---] up,” “Get out of my [f---ing] class,” “You do not do your [f---ing] work,” “You little [N---s],” and “You are all some lazy [N---s] for coming to class late.” There was not enough credible testimony to support all of the allegations that each of those things was said to students or in the presence of students. There was, however, sufficient evidence to support that some of those statements had likely been made. The contemporaneous written statements by students and staff support the verbal recollections made at final hearing, at least in part. While the students were making disparaging comments about Quiller, she was in turn making complaints to school administration concerning the program. She lamented the lack of materials and raised concerns about her own safety in the classroom. More than once, Quiller walked out of her classroom as she became too frustrated to teach. It was undoubtedly a very difficult situation for Quiller and other teachers. All in all, the Bridge program had elements of success as well as some problems. Some of the students were able to graduate with their classmates, some were able to catch up to those in their age cohorts, and some came to the realization that school simply would not be appropriate for them. The program gave students a good chance to make up for past failures. But it was not a panacea and did not work for everyone. Quiller asked that certain students be removed from her classes because she believed they were poisoning the other students. Some were removed, some were not. Quiller gave far more D's and F's to her students than other teachers in the program. Many of her students began to receive passing grades after Quiller was replaced, however. Quiller maintains that the low grades were given because the students earned them, i.e., they were not issued as punishment or retribution for bad behavior. But the students’ subsequent success under a different teacher suggests otherwise. Quiller appeared unemotional and stoic when discussing the allegations against her. Some of her responses to questions at final hearing seemed to be aimed at avoiding the allegations rather than denying them. She had undeniably been placed in a very trying and vexatious situation and tried to make the best of it, but she very well may have crossed the line at times with her words and behavior. It is impossible to place oneself in the environment in which Quiller was working, but it is easy to see that the classroom problems she faced could drive a person to outbursts on occasion. As opined by Davis and Micheau, there is never a valid reason to curse at students, but there are times when doing so could be more understandable. Quiller had been reprimanded in the past for using profanity in the presence of students. She received discipline on two separate occasions for her language. While she denied the allegations, there is some support for the premise that Quiller, on occasion, used profanity around or directly to her students. Even those who support her recognized that Quiller would sometimes use profanity, albeit fairly innocuous and restrained in nature. There is a strong suggestion in the testimony that Quiller was using such language in the hopes it would resonate with these students, described as the worst of the worst. However, there is no acceptable rationale for using such language around students. Quiller was placed in an almost untenable situation with the students assigned to her classes. They were unruly and generally well behind academically. She did not have all the tools needed to work with the students and her classes were too large. Nonetheless, she was expected to maintain her composure and professionalism. While that is easy to say without “walking a mile in her shoes,” it is still a prerequisite for teaching that the teacher act professionally and not do anything to disparage the students. Quiller was by all accounts a good teacher prior to her involvement in the Bridge for Success program. She received a most difficult teaching certification and had favorable annual reviews for most of her time as a teacher. She was sought and hired as a teacher at Ribault on the basis of her distinguished career and training. She is not a bad person or a bad teacher. However, she succumbed to a harsh situation and failed to maintain her decorum. Quiller’s prior disciplinary history included the following: December 2001--A written reprimand (Step II discipline) for using profanity in the presence of students; April 2013, 11 years later--A verbal reprimand (Step I) for making an inappropriate comment to a student; October 2013--A written reprimand (Step II) for using profanity and derogatory language in the presence of students; and February 26, 2014--The notice of termination at issue in the present case (Step IV). The School Board began its recent discipline of Quiller with a Step I verbal reprimand followed by a Step II written reprimand. Due to the nature of Quiller’s conduct, the School Board did not believe it had to follow the Step II discipline with Step III discipline, i.e., suspension without pay. Rather, it went directly to the most severe and extreme level of discipline, Step IV--Termination of employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Duval County School Board, rescinding its termination of the employment of Joyce Quiller and, instead, suspending her for a period of time without pay and reassigning her to a less-challenging position. DONE AND ENTERED this 16th day of July, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 16th day of July, 2014. COPIES FURNISHED: Wendy Byndloss, Esquire Assistant General Counsel City of Jacksonville Office of the General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Stephanie M. Schaap, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Dr. Nikolai P. Vitti, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207 Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether the Education Practices Commission should revoke or otherwise discipline the Respondent’s educator certificate for allegedly making disparaging or embarrassing comments to and about students in his classroom, including calling them idiots or dumb.
Findings Of Fact The Respondent has a bachelor’s degree in astrophysics and a master’s degree in physics from the University of Central Florida. He has worked for Disney World’s education programs and at the Orlando Science Center. When he decided to go into teaching, he got a temporary certificate in February 2013. He started teaching at East River High School in Orange County in April 2013, as an end-of-the-year replacement. When he completed his master’s degree, the certificate was made permanent, and he holds Florida Educator Certificate 1191412 in the area of physics, valid through June 30, 2019. He was hired as a full- time science teacher at East River in the fall of 2013. In September 2013, a student complained that the Respondent insulted the school band and some of its members. The Respondent wrote a letter in response to the charge in which he denied any knowledge of what he might have said to insult any student or disparage any extracurricular activity of any student and absolutely denied any intent to insult or disparage the band or any band member. He also made an impassioned statement of his deep concern for his students and of the many ways in which he had been supporting the extracurricular activities of his students. The only other evidence on the subject was in the form of hearsay statements written by students who did not testify. Some of the students wrote that they never heard the alleged insults and disparagements. The evidence was insufficient to support a finding that there were any insults or disparagements. The September 2013 band complaint was found by the school administration to be unconfirmed. Nonetheless, the Respondent was given a letter of guidance, also called a directive to: exercise good judgment when engaging in discussions with students; use positive, encouraging comments to motivate and inspire students; take appropriate measures in discussions with students, so as not to expose a student to unnecessary embarrassment or disparagement; and protect all students from conditions harmful to learning and mental and/or physical harm. A letter of guidance or directive is not disciplinary in nature. In January 2014, a female student complained that the Respondent made her feel uncomfortable by standing close to her and by staring at her chest. The only evidence on the subject was in the form of hearsay statements written by students who did not testify. The evidence was insufficient to support a finding of fact in this case. Nonetheless, the January 2014 complaint was found by the school administration to be confirmed, and the Respondent was given another letter of guidance or directive to: consider in advance how to respond to various situations involving students and always maintain respectful distance so as not to invade personal space of individual students; and exercise care and professional judgment when engaging with students so that others would not perceive or misinterpret his behavior as inappropriate. No other incidents came to the attention of the school’s administration until May 27, 2014. Meanwhile, the Respondent’s performance as a teacher for 2013/2014 was evaluated by the school’s administration to be highly effective. On May 27, 2014, a student named Tanner Hearn complained to the school’s administration that the Respondent had been unfair, mistreated him, made negative comments about him, and called him names. The Tanner Hearn complaint was triggered by events beginning at the end of April or early May of 2014. Tanner wanted to raise a grade he got on one of his assignments. His mother, who is a teacher, suggested that Tanner ask the Respondent if he could redo the assignment. The Respondent refused because the assignment was 2-3 weeks late. After the refusal, Tanner told his mother that the Respondent had allowed other students to redo assignments to raise their grades. Tanner’s mother advised Tanner to ask again. The Respondent again refused. After the second refusal, now believing the Respondent was treating her son unfairly, Tanner’s mother advised him to e-mail the Respondent, which he did three times. Each communication with the Respondent was more demanding than the last. Finally, Tanner’s mother e-mailed the Respondent to support her son and strongly suggested that the Respondent let Tanner redo the assignment rather than make them set up a parent- teacher meeting with guidance and the school’s administration. The Respondent defended himself and refused to budge. The Respondent testified that his policy on redoing assignments evolved during the school year. Earlier in the year, he allowed student assignments to be reopened after the due date. Later, he settled on a policy that requests to redo an assignment had to be made before the due date. He testified that Tanner knew the policy and acknowledged it during a discussion they had earlier in the school year when Tanner was considering dropping physics. In late May 2014, when Tanner and his friends were at his house discussing the Respondent’s perceived unfairness towards him, the discussion turned to negative comments and name- calling by the Respondent directed towards Tanner previously during the school year. Tanner’s mother overheard the discussion. She thought the negative comments and name-calling were inappropriate and evidence of the Respondent’s unfairness towards her son. Mrs. Hearn called East River’s assistant principal, whom she knew personally, to complain and demand that something be done. This triggered an investigation by the school. As part of the investigation, the school’s administration interviewed numerous students to see if they ever heard the Respondent call any student derogatory names or embarrass or disparage them. Some students answered in the affirmative and reported what they remembered hearing. Others answered in the negative. Rachel Johnson, one of the students who reported hearing the Respondent call Tanner names, also stated that the Respondent embarrassed her by insulting her religion in the course of a discussion about a film he showed in class. The school’s administration investigated this new charge as well. Several students gave statements saying no improper commentary occurred. No other student statements corroborated the new charge. In her statement to the school’s administration, Rachel Johnson also complained that the Respondent gave exams early, contrary to school policy. No other student statements or testimony supported this charge. The school concluded its investigations in late August 2014. The school’s administration found that the Tanner Hearn and Rachel Johnson charges were confirmed by the investigation. The Respondent was given another letter of guidance or directive, this time accompanied by a reprimand, for failure to follow the approved exam schedule, improper use of video, and negative comments made to students. The Respondent testified that he disputed the reprimand and it was withdrawn, but there was no other evidence that it was withdrawn. In December 2014, Rachel Johnson gave another statement, which included a charge that the Respondent called her a dumb blonde and a stereotypical female. No witness statements corroborated this charge. Rachel Johnson testified in support of the charge. There was no other testimony or evidence in support of the charge. Only a few of the students who gave written statements testified at the hearing. Several testified that on occasion the Respondent would call certain students names like idiot, jackass, and stupid. They testified that the Respondent seemed to do this mostly to the three football players in the class, especially Tanner Hearn. There also was testimony that the Respondent would sometimes ask for a volunteer to answer a question but say something like, “anyone but Tanner since he won’t know the answer.” The context of these kinds of comments by the Respondent was not clear from the evidence. Probably, some were made out of anger or frustration after Tanner disrupted the class or acted out. Some were made jokingly as part of banter back and forth. The impact of these kinds of comments by the Respondent on Tanner and the other students also was not clear from the evidence. No student complained about them at the time they were made. Often, Tanner would appear to shrug them off and say something like, “ha, ha, very funny.” Tanner testified that, however he may have responded at the time, he was affected by the comments, and they made him less likely to participate in class. Some of the students testified that the comments were not made in a joking manner and that they were embarrassed for Tanner and sometimes said to him something like, “I can’t believe he said that to you.” Rachel Johnson testified in support of her anti- religion and dumb blonde charges. There was no other testimony in support of those charges. The Respondent denied them. After the investigations began in May 2014, Tanner’s demeanor and attitude towards school changed markedly. Before the investigations, he was a good if not a model student. He had a positive and enthusiastic attitude about school earlier in the year, especially during football season. During the investigations, he seemed to some to be quieter and less enthusiastic. In his mother’s words, the controversy of the investigations put a damper on the last few weeks of the school year. The precise reason for Tanner’s change of attitude towards school during the investigations is not clear. He and his mother agreed that he was not confrontational, and he did not want his mother to complain to the school. In addition, Tanner soon found himself the subject of another investigation. When the Respondent started hearing rumors that Tanner was telling other students he was going to get the Respondent fired, the Respondent told the school’s administration and asked for an investigation. Tanner testified that he asked the school’s administration what he should do at that point that he was advised to stop talking about the investigations. These developments may have been factors in Tanner’s change of demeanor at the end of the school year. The Respondent testified that he was not guilty of any of the charges. East River’s assistant principal testified that the Respondent admitted to her during the investigation that he called Tanner Hearn an “idjiout” (a variation of the word idiot). The Respondent testified that he did not remember making that admission. The evidence was clear and convincing that the Respondent called Tanner and other students names like idiot, jackass, or stupid on occasion during the course of the 2013/2014 school year. Sometimes this was done out of anger or frustration after Tanner disrupted the class or acted out. Sometimes the words were spoken loud enough to be overheard. Sometimes, it was done in a joking manner, as part of banter back and forth. The evidence was not clear and convincing that the Respondent reasonably knew or should have known that the student involved would be embarrassed or humiliated. None of the other charges against the Respondent were proven by clear and convincing evidence. The Respondent continued teaching at East River during the 2014/2015 school year. The school’s administration evaluated the Respondent’s performance as a teacher for the 2014/2015 school year to be effective. The Respondent did not return to teaching after the 2014/2015 school year because the investigations and their outcomes took a toll on him and he felt burnt out on teaching.
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. DONE AND ENTERED this 15th day of December, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 15th day of December, 2016. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Melissa C. Mihok, Esquire Melissa C. Mihok, P.A. Suite 445 201 East Pine Street Orlando, Florida 32801 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1999), to terminate Respondent's employment as a non-instructional employee for alleged misconduct consisting of sexual harassment, inappropriate touching, and inappropriate comments. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner employs Respondent as a security guard at the Alternative Learning Center High School (the "ALC"). Petitioner has employed Respondent in the capacity since November 21, 1995. The ALC includes a High School and Middle School. At all times material to this proceeding, Petitioner employed Respondent at the High School. Respondent has also worked continuously for the Department of Juvenile Justice from July 16, 1993. The Department employs Respondent as a group leader at the Price Halfway House. The Price Halfway House is a level six facility for delinquent youths between the ages of 14 and 18. Before Petitioner suspended Respondent from his employment with the Board, Respondent worked at the ALC from 7:00 a.m. until 2:30 p.m. each school day. Respondent then worked at the Price Halfway House from 3:00 p.m. until 11:00 p.m. Petitioner gave Respondent good performance assessments throughout Respondent's employment at the ALC. Respondent attained a rating described as an "effective level of performance observed." The ALC principal never had cause to question Respondent's professional conduct. The principal described Respondent's position as a "very tough position." Respondent deals with students who have discipline problems, and Respondent rarely has occasion to deal with students in a positive manner. Students at the ALC have violated the rules or code of conduct at their geographic school or have been arrested for a criminal felony offense. The ALC is an alternative to expulsion from the geographic school. The ALC is a "lock-down facility." Classrooms are locked while class is in session. Students are not allowed to move outside the classroom without permission. A student who has obtained permission to move outside the classroom cannot do so before personnel outside the classroom are notified by two-way radio of the student's movement. Group movement to and from school and during lunch is closely monitored by school personnel. Respondent's duties at the ALC consisted of monitoring activity on the school campus to ensure that students and faculty enjoyed a safe environment. Respondent's duties required him to monitor students for weapons, drugs, fights, gang behavior, and similar activity. Respondent interceded disruptive behavior by students, including fights and escorted students to the administrative offices for discipline and other matters. Petitioner maintains a policy that prohibits employees from engaging in sexual harassment of another employee or student. The policy defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other inappropriate verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment includes conduct that has the purpose or effect of unreasonably interfering with a student's educational performance or creating an intimidating, hostile, or offensive school environment. The policy lists examples that include repeated remarks with sexual or demeaning implications and unwelcome or inappropriate physical contact such as unnecessary touching. Respondent was aware of the policy. The Allegations On June 28, 1999, two female students at the High School reported to the principal at the Middle School that Respondent made inappropriate sexual comments to them and touched them in a sexual manner. The two students are Kimberly Battle and Stephanie Day. The principal of the Middle School is Mr. Charles Dailey. Ms. Battle and Ms. Day told Mr. Dailey that toward the end of the 1998-1999 school year and during summer school Respondent touched them on their buttocks and made inappropriate sexual comments to them. However, Ms. Battle is the only complainant who testified at the hearing. Ms. Day did not testify at the hearing. A representative from a home for unwed mothers represented that Ms. Day did not want to testify in the action and preferred to "drop the charges." The ALJ excused Ms. Day from her subpoena on the basis of a note from Ms. Day's physician recommending that she not be required to testify until she is "six weeks postpartum." Ms. Battle claims that Respondent violated the school policy prohibiting sexual harassment through repeated incidents of inappropriate comments and unnecessary touching. The incidents allegedly occurred during the regular school year and during the summer school session. Respondent allegedly made inappropriate sexual comments to Ms. Battle in the hallway of the high school towards the end of the 1998-1999 school year. Respondent allegedly said "look at that butt" and "I'm going to get that." Ms. Battle claims that Respondent made similar comments to her during the 1998-1999 school year while she was on the bus ramp before and after school. Respondent allegedly continued to make inappropriate comments throughout the 1999 summer school session. Ms. Battle also claims that Respondent repeatedly touched her buttocks with his hand and said it was a mistake. On June 23, 1999, Ms. Battle and Ms. Day told Ms. Elsa Rosado, the school bus aide, that Respondent was "a pervert or something, and he was all nasty." Ms. Rosado told the bus driver and spoke with Ms. Day's mother. On Friday, June 25, 1999, Ms. Battle claims that Respondent pulled up her skirt on two separate occasions in the high school. She claims Respondent pulled up her skirt the first time in the break room at approximately 12:18 p.m., and did so the second time in the office of the School Resource Officer after 1:00 p.m. During the second alleged incident, Ms. Battle claims that Respondent pulled out the waistband of her underwear and looked inside her underwear. On Friday, June 25, 1999, Ms. Battle rode the school bus to the Middle School. She intended to report Respondent to Mr. Dailey. Mr. Dailey was not at school that day. On Monday, June 28, 1999, Ms. Battle and Ms. Day reported the alleged incidents to Mr. Dailey. Mr. Dailey reported the allegations to Petitioner. Petitioner investigated the allegations, and this proceeding ensued. The Hallway and Bus Ramp Petitioner failed to show by a preponderance of the evidence that Respondent made inappropriate comments to Ms. Battle or touched her unnecessarily while she was in the high school hallway or bus ramp. Ms. Battle claims that Respondent engaged in those incidents when "everybody was around" including students, teachers, the principal, and assistant principal. Ms. Battle could not say whether any of the people around at the time heard the alleged comments or saw any unnecessary touching. Petitioner did not call any witnesses that verified the alleged comments or touching. The school principal testified that repeated inappropriate comments or touching by Respondent in the hallway or on the bus ramp would have been observed by either the principal, assistant principal, or some other staff member. The school principal, assistant principal, guidance counselor, school resource officer, and the classroom teacher for Ms. Battle each testified that Respondent consistently conducted himself in a professional manner for more than five years. None of those individuals observed the comments or behavior alleged by Ms. Battle. Ms. Battle was uncertain of the frequency of the alleged comments and touching. She first estimated that Respondent made inappropriate comments on approximately 10 occasions but revised that estimate to "about three or four, two or three, somewhere around there." Ms. Battle's testimony was vague and inconsistent regarding the content of the comments allegedly made by Respondent and the specifics surrounding on alleged touching. Lifting the Skirt Petitioner failed to show by a preponderance of the evidence that Respondent touched Ms. Battle unnecessarily by lifting her skirt and committing the other acts and comments alleged by Ms. Battle. Respondent was not present in school at the time of the second alleged touching. At the time of the first alleged touching, Respondent was either not at school or was in the process of leaving school. Ms. Battle claims that Respondent lifted her skirt the first time in the school break room while she was on break at approximately 12:18 p.m. She claims that the second incident occurred later the same day in the office of School Resource Officer sometime after 1:00 p.m. The school principal authorized Respondent to leave school with Mr. Eugene Robinson between 12:00 noon and 12:30 p.m. to perform plumbing repairs in Mr. Robinson's home. Respondent did so and worked on the repairs continuously until after 3:00 p.m. when Respondent left for his second job. Mr. Robinson was well known to the principal. Mr. Robinson had been an employee of Petitioner for over 40 years including 32 years as an administrator. Before retiring, Mr. Robinson was an assistant principal for the ALC. Mr. Robinson had an emergency plumbing problem in his home on June 25, 1999. He knew that Respondent had skills as a plumber and that the school resource officer, Mr. Robinson's son- in-law, had used Respondent as a plumber previously. Mr. Robinson went to the ALC High School between 12:00 noon and 12:30 p.m. on June 25, 1999. Mr. Robinson requested that the principal authorize Respondent to leave campus, and the principal granted the request. Respondent left school immediately with Mr. Robinson. The two drove separate cars to Mr. Robinson's house. After leaving school, Respondent took 15 minutes to stop at his house to pick up his tools and proceeded directly to Mr. Robinson's house where he worked until approximately 3:30 p.m. Respondent then went to his second job. Respondent did not sign the "sign-out" log when he left school on June 25, 1999, in violation of school policy. Although the policy required staff to sign the log when they came and left school, staff occasionally failed to do so. The guidance counselor, for example, was in school from June 22 through June 30, 1999, but failed to sign in. Even if Respondent were present after 12:00 noon on June 25, 1999, Petitioner failed to show by a preponderance of the evidence that Respondent committed the acts alleged by Ms. Battle. The allegations are inconsistent with several aspects of the evidentiary record. Students began summer school at 8:30 a.m. and ended their day at 1:30 p.m. The same classroom teacher had the same students all day. Students took a 15-minute break sometime around noon to get a drink and a snack at the break room. Ms. Battle's class took their break from 12:00 noon until 12:15 p.m. Two other classes took their break at the same time. Each teacher escorted his or her class to the break room. The principal dispensed change at the vending machines that were in close proximity to the break room. Students purchased drinks and food from the vending machine and then went into the break room to eat and drink. The break room door remained open. The principal located himself by the doorway in the hall. The assistant principal and Respondent positioned themselves inside the break room to monitor the students. Ms. Battle testified that the assistant principal gave her permission to remain in the break room for a couple of minutes after the other students left because she was about three minutes late getting to her break. Ms. Battle's regular break was over at 12:15 p.m. Between 12:15 p.m. and 12:30 p.m., Respondent had either already left school with Mr. Robinson or was involved in the process of obtaining approval from the principal and preparing to leave with Mr. Robinson. Ms. Battle testified that she "distinctly remembered" the assistant principal allowing her to remain in the break room after others had left. She also claims that the assistant principal and principal were outside of the break room the first time that Respondent allegedly lifted her skirt. Ms. Battle claims that she could hear the principal and assistant principal talking in the hallway outside of the break room. However, the assistant principal was in Massachusetts attending a wedding and was not present at school on June 25, 1999. Ms. Battle did not tell anyone of the alleged incident in the break room at that time. She returned to her classroom. She later obtained permission from her classroom teacher to go to the principal's office to request permission to go to the Middle School to speak with Mr. Dailey. The principal was not available, and Ms. Battle returned to her classroom. Ms. Battle claims that her classroom teacher later excused Ms. Battle to go to the bathroom. Ms. Battle claims that before she entered the bathroom Respondent signaled for her to come over to him by the office of the School Resource Officer. It was between 1:00 p.m. and 1:30 p.m., and classes for the day were almost over. Inside the office of the School Resource Officer, Ms. Battle claims that Respondent stood between the closed door and Ms. Battle. Ms. Battle claims that Respondent held the door handle with his left hand behind his back and indicated that the elbow of Respondent left arm was bent at more than 90 degrees. However, there was insufficient distance between the door handle and the wall to accommodate Respondent's elbow. Respondent allegedly lifted Ms. Battle's skirt with his right hand, pulled back her underwear with a finger of his right hand, and then released the door handle and placed his left hand on his groin while he looked at her "private area." Ms. Battle claims that she told Respondent her teacher would be mad at her and that she needed to return to class. Respondent allegedly allowed Ms. Battle to leave. Ms. Battle claims she returned to her classroom, sat in the back of the class, put her head down and cried. Ms. Battle claims Respondent relieved Ms. Battle's classroom teacher for the final 15 minutes of class because the classroom teacher had to attend to some other business. According to Ms. Battle, Respondent sat in the back of the classroom. Ms. Battle turned around to look at him and claims that Respondent "made his private area jump" without thrusting his hips or pelvis. Contrary to Ms. Battle's testimony, Ms. Battle's classroom teacher made Ms. Battle sit directly in front of her desk at all times to control her behavior. The teacher never allowed Ms. Battle to sit in the back of the class. Ms. Battle's teacher personally taught class on June 25, 1999. Ms. Battle sat directly in front of her desk at all times. Ms. Battle never appeared disturbed the entire day. The teacher never observed Ms. Battle put her head down on her desk, cry or otherwise appear distraught. Although Respondent did sit in for the teacher occasionally, it was never for more than two or three minutes. Whenever a student is not in class, staff maintain radio contact with each other concerning the student's location. When Ms. Battle left her classroom to go to the bathroom, her classroom teacher notified the front office, and staff monitored her movement by radio. The bathroom is in plain view of the front desk of the administrative offices. The door of the office of the School Resource Officer is visible from the front desk of the administrative office. Staff members would have known by radio contact of Ms. Battle's movement from her classroom and would have monitored her movement closely. Procedural Deficiencies Petitioner's investigation of the charges made by Ms. Battle and Ms. Day suffered from several deficiencies. The investigation did not include statements from either Mr. Dailey, Mr. Robinson, or Ms. Battle's classroom teacher. When Mr. Dailey told Mr. Robinson of the charges against Respondent, Mr. Robinson informed Mr. Dailey that Respondent was working on a plumbing problem at Mr. Robinson's house on June 25, 1999. Mr. Dailey did not tell Mr. Robinson to disclose the information to anyone else and did not relay the information to Petitioner's investigator. A statement from Mr. Dailey presumably would have uncovered the information from Mr. Robinson and led to a statement from Mr. Robinson. When Respondent disclosed in his predetermination conference that he was with Mr. Robinson on June 25, 1999, Petitioner did not obtain a statement from Mr. Robinson. Mr. Dailey was not friendly with Respondent. Their friendship had ended in 1998 over a disagreement concerning a female teacher. Mr. Dailey "banished" Respondent from the Middle School where Mr. Dailey was principal. On Monday, June 28, 1999, Ms. Battle and Ms. Day informed Mr. Dailey of the charges against Respondent. Mr. Dailey interviewed the two together rather than separately. Ms. Battle and Ms. Day had discussed the matter together the preceding weekend and that Monday morning before meeting with Mr. Dailey. On Monday morning, June 28, 1999, Ms. Battle and Ms. Day obtained permission to leave the High School to talk to Mr. Dailey in the Middle School. The guidance counselor at the High School observed the two students sign out. They obtained a pen from Respondent to sign out and did not display any apprehension in Respondent's presence. Rather, they exchanged "high fives." Ms. Battle and Ms. Day completed written statements for Mr. Dailey in the same room. They later gave collective statements to Petitioner's investigator and police investigators.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the underlying factual allegations; finding that there is not just cause to terminate Respondent's employment; and reinstating Respondent with back pay from the date of his suspension. DONE AND ENTERED this 28th day of September, 2000, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September 2000. COPIES FURNISHED: Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Bruce Harter, Superintendent Lee County School Board 2055 Central Avenue Boulevard Fort Myers, Florida 33901-3916 Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman and Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089
The Issue Whether Respondent committed the acts alleged in the Administrative Complaint dated February 27, 2012, and filed with DOAH on March 14, and, if so, the discipline that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida. At all times relevant to this proceeding, Respondent has been employed as a classroom teacher at Blanche Ely High School (the school), which is a public school in Broward County. In 2008, Karlton Johnson became the principal of the school and was the principal at all times relevant to this proceeding. On or shortly before December 3, 2008, three of Respondent's students submitted a written statement to Sabrina Elsinger, who was an assistant principal at the school. The written statement accused Respondent of making racially inappropriate statements to the students, who were of Haitian descent. In response to the written statement, Ms. Elsinger met with Respondent and prepared a "Meeting Summary" which included the following: On 12/04/2008 at 2:45 pm we met to discuss students allegations of unfair treatment and "bullying" by you within your classroom. During this meeting, I shared with you the following student allegations: You said "I wish they would put you in a boat and send you back where you came from." Students are told to shut up when speaking out of turn. A student was told to stand in a corner near the garbage can because "that's where he belongs." Students feel bullied by you. You allow students from other origins to [sic] bully them. I also shared with you the following expectations: You will speak to the students with kindness and professionalism. You will call for security for student removal when a student is unruly. Students will feel equity within the diverse population of your classroom. No disciplinary action was taken against Respondent for these alleged statements. Petitioner did not present competent evidence that Respondent made the statements attributed to her. In a separate incident, Respondent was accused of engaging in an inappropriate discussion with another teacher about religion in front of a classroom of students. Respondent received a Record of Counseling for that alleged incident, but no discipline was imposed against her.1 Respondent and Mr. Johnson are African-Americans. Phil St. Jean's mother is African-American and his father is of Caribbean descent. Mr. St. Jean, who is of a dark complexion, was 18 years old at the time of the formal hearing and had graduated from the school. During the 2010-2011 school year, Mr. St. Jean was in a remedial class taught by Respondent for students who had not passed the FCAT. Respondent frequently had Mr. St. Jean removed from the class for his alleged misconduct, primarily talking too much. Respondent believed that she was justified in removing him from her class. Mr. St. Jean believed that Respondent was picking on him, treated him unfairly, and blamed him for things he had not done. Mr. St. Jean decided to record a video of Respondent as proof of Respondent's unfair treatment of him. Mr. St. Jean did not think the administration would believe that Respondent was mistreating him without the video. On May 6, 2011, Mr. St. Jean walked into Respondent's classroom just before class was to start. He had an iPod concealed in his hands that recorded Respondent without her knowledge or permission. Several other students were present in the classroom, including Kevin Eason and Laila Santiago. After he entered the classroom, Respondent went up to Mr. St. Jean, pointed a pointer at him and stated "You've got one time, chocolate." That scene was captured on video. The other students in the classroom laughed when Respondent made the comments to Mr. St. Jean. Respondent testified that she was engaging in banter with Mr. St. Jean and that she did not intend her statement to be a racial slur. In her defense, Respondent points out that there were no white students present when she made the comments. That testimony lacks credibility and is rejected. The video and the testimony of Mr. St. Jean establish that Respondent's comments were made in a threatening manner and were intended to be a warning to Mr. St. Jean to behave. Respondent's use of the term "chocolate" was a reference to Mr. St. Jean's complexion and is properly viewed as being a racial slur. After he caught Respondent's comments on video, Mr. St. Jean inadvertently stopped recording. Respondent thereafter called Mr. St. Jean a "little chocolate boy" and described him as being "the dark chocolate nobody likes to eat." Respondent's comments to Mr. St. Jean caused the other students in the classroom to laugh at Mr. St. Jean. Respondent made Mr. St. Jean the butt of the joke. While he did not react to Respondent's comments, Mr. St. Jean testified, credibly, that he was humiliated, embarrassed, and deeply hurt by them.2 Mr. St. Jean showed his mother the video recording of Respondent later that night. The next school day, Mr. St. Jean's mother went to the school to address her concerns about her son's behavior and academic performance in Respondent's classroom and the inappropriate comments discussed above. Assistant Principal Heidi Jones called Mr. Johnson to join the meeting with Mr. St. Jean and his mother. Mr. Johnson had not previously been aware of any problems between Mr. St. Jean and the Respondent, and he did not know the nature of the meeting beforehand. Mr. Johnson brought Respondent to join the meeting. Respondent did not have any documentation of Mr. St. Jean's disciplinary issues, had not followed the discipline matrix, and had never contacted his mother regarding any issue with his behavior or performance in her classroom. After discussing disciplinary issues with her son, Mr. St. Jean's mother asked Respondent directly whether she had called her son a name. At that point, unaware that there was a video recording, Respondent denied calling Mr. St. Jean a name and left the meeting. Mr. St. Jean and his mother then showed Mr. Johnson the video recording and downloaded it onto Mr. Johnson's work computer. Respondent's conduct impaired her effectiveness in the school system.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order find Leslie Rainer guilty of misconduct in office and that it suspend her employment without pay for a period of five school days. It is further recommended that the final order require Leslie Rainer undergo diversity training to be determined by the School Board within 60 days of the entry of the Order. It is further recommended that Leslie Rainer's fringe benefits (such as health insurance) not be disturbed during the period of suspension. DONE AND ENTERED this 22nd day of October, 2012, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2012.
