The Issue In Case No. 88-3425, Mr. Bradley Thomas challenges the termination of his employment at the Florida School for the Deaf and the Blind. The issue is Case No. 88-5675 is whether Mr. Thomas committed the acts alleged by the administrative complaint, and, if so, what penalty may be appropriate.
Findings Of Fact Bradley Thomas holds Florida Teaching Certificate #486268, valid through June 30, 1993. Mr. Thomas is certified to teach secondary levels, vocational education and printing, and was initially employed by the Florida School for the Deaf and the Blind (FSDB) in 1980. Mr. Thomas taught phototypesetting in the FSDB Vocational Department. Mr. Thomas was described by his immediate supervisor as highly-motivated and conscientious. He has received satisfactory and above-satisfactory performance evaluations. Mr. Thomas is 57 years old and has been deaf since the age of 12. He communicates through signing and speech. According to section 242.331(4), Florida Statutes, the Board of Trustees of the Florida School for the Deaf and the Blind is authorized to appoint and remove teachers "as in its judgement may be best". By Rule 6D- 4.002(2)(b), Florida Administrative Code, the Board of Trustees has delegated responsibilities related to employment and termination of academic personnel to the President of FSDB. By letter from FSDB President Robert Dawson, dated February 15, 1986, such authority has been delegated to Samuel R. Visconti, Director of Personnel for the FSDB. The Board of Trustees has entered into a collective bargaining agreement with the Florida School for the Deaf and the Blind Teachers United, an affiliate of the Florida Teaching Profession-NEA and the National Education Association. Article 13, section E, of the 1986-89 agreement between the Board of Trustees and the FSDB Teachers United, FTP-NEA, in relevant part, provides that Mr. Thomas may not be discharged from employment by the Board of Trustees except for "just cause", which is defined to mean job- related incompetence or misconduct. The professional competence of Mr. Thomas as a teacher is not at issue in this proceeding. During the second semester of the 1986-87 school year, Holly Middlebrooks was enrolled with five other students in Mr. Thomas' class. At the time of the hearing, Ms. Middlebrooks was 19 years old and a senior at FSDB. On more than one occasion, Mr. Thomas "rubbed" Ms. Middlebrooks' back and shoulders during class, in a massaging manner, which made her uncomfortable and confused. The contact occurred while Ms. Middlebrooks was seated at and using a computer terminal and while she entered and left the classroom. Although she attempted to convey her discomfort with Mr. Thomas' touching by repositioning herself in her chair as she worked at the computer, she did not instruct Mr. Thomas to stop. Ms. Middlebrooks saw Mr. Thomas touch other students in a similar manner. Although other students indicated to Ms. Middlebrooks that Mr. Thomas discussed sexual topics in class, she did not hear and could not recall specific incidents of sexually-oriented language on Mr. Thomas' part. Nadine Lents was enrolled with four or five other students in Mr. Thomas' class during the second semester of the 1986-87 term and for the full 1987-88 school year. At the time of the hearing, Ms. Lents was 18 years old. On occasion, Mr. Thomas would massage Ms. Lents' neck and shoulders while she worked at the computer terminal. At times she feared that he would touch her breasts but he did not. She did not instruct him to stop. On at least one occasion, Mr. Thomas rubbed her leg while she sat at the terminal and she instructed him to stop, to which he replied that there was no cause for her concern. Mr. Thomas "often" hugged Ms. Lents, sometimes pressing himself against her breasts or in a manner which she found to be "too hard", and she would push Mr. Thomas away. Ms. Lents sometimes would lightly hug Mr. Thomas as a means of greeting, but was careful to maintain distance. Mr. Thomas discussed sexual matters with Ms. Lents. He asked her if she "liked oral sex", talked about the size of her breasts, and discussed other sexual matters in vulgar terms. The sexual discussions sometimes made Ms. Lents uncomfortable and embarrassed. During both the 1986-87 and 1987-88 school terms, Karen Warfel was enrolled with "about six" other students in Mr. Thomas' class. At the time of her testimony at the administrative hearing, Ms. Warfel was 20 years old and had graduated from the FSDB. More than once, Mr. Thomas rubbed her back under blouses which she described as "loose". Once, Ms. Warfel instructed Mr. Thomas to stop, and he complied with her request, but Mr. Thomas subsequently resumed touching Ms. Warfel in a similar manner and she did not stop him. Mr. Thomas also occasionally rubbed Ms. Warfel on her leg, "above the knee", in an attempt "to calm me down when I get frustrated on the computer". The physical contact with Mr. Thomas made her feel uncomfortable. Ms. Warfel would, on occasion, request a piece of candy from a supply which Mr. Thomas kept in his desk drawer. Mr. Thomas would ask Ms. Warfel to kiss his cheek prior to giving her candy, and Ms. Warfel would comply with his request. Sometimes Mr. Thomas would tickle Ms. Warfel near her rib cage or below her belt and to the sides of her abdomen, in an area Ms. Warfel described as near her ovary. Mr. Thomas discussed sexual matters in the classroom in Ms. Warfel's presence, including discussing his sexual relationship with his wife. Ms. Warfel was embarrassed by Mr. Thomas' conduct. Marisol Eschevarria-Sola was enrolled in Mr. Thomas' class during the first semester of the 1986-87 school year and the first semester of the 1987-88 school year. There were approximately five students in the class. At the time of her deposition, Ms. Eschevarria-Sola was 20 years old. Mr. Thomas, at least once, touched or stroked Ms. Eschevarria-Sola's leg, around her knee and thigh, and also touched her back. The physical contact, which occurred while she was seated at the computer console, made her uncomfortable. She expressed her discomfort when such touches occurred. Mr. Thomas explained that he was attempting to warm his hands. She saw Mr. Thomas touch other students in her class in like manner. At least once, Mr. Thomas requested that Ms. Eschevarria-Sola kiss him in exchange for a pencil she wanted to borrow. Although she was uncomfortable with the situation, she complied with his request. On another occasion, Mr. Thomas requested that he be permitted to kiss her and she complied. Ms. Eschevarria-Sola recalled Mr. Thomas discussing sexual matters in class, including his relationship with his wife, but could not specifically recall the details of the discussion. Mr. Thomas also joked about the bodies of the students in his class. Ms. Eschevarria-Sola was embarrassed by the jokes or language. Students at the FSDB are required to attend a course entitled "Talking About Touching", which provides instruction related to self-protection from potential physical abuse. Students are taught to classify physical contact as "good", "bad" or "confusing". "Good" touches would include such positive contact as a pat on the back. "Bad" touches would include touches which are physically uncomfortable and negatively perceived by the recipient, such as slapping or inappropriate sexually-oriented contact. "Confusing" touches are those which may be positively intended but which are perceived by the recipient to be inappropriate or which make the recipient uncomfortable. Students are taught that "confusing" and "bad" touches should be reported to responsible authorities at the school. The record is unclear as to whether the students alleging that Mr. Thomas' touches were "confusing" had taken the course prior to being in Mr. Thomas' classroom. Some students at the FSDB may have reached majority. Students may remain enrolled at the FSDB beyond the age of students enrolled in other high schools. A teacher is held to the same standards of classroom behavior regardless of the students ages. Mr. Thomas had been present during an FSDB staff meeting during which reference to appropriate and inappropriate classroom conduct was made by supervisory personnel, and consequences of improper conduct were discussed. Officials at the FSDB became aware of allegations related to the classroom conduct of Mr. Thomas, when, on May 24, 1988, the allegations were reported to Mr. Robert Dawson, President of the FSDB, by a female student, Marisol Eschevarria-Sola. Ms. Eschevarria-Sola had, on the previous evening, participated in a dormitory gathering with other female students during which Mr. Thomas' conduct was discussed. (Some students are enrolled at the FSDB on a residential basis and live in dorms at the school.) At the direction of the FSDB President Robert Dawson, the allegations were immediately investigated by Ms. Debra Boles, Assistant Principal for Academic Instruction. Ms. Boles initially interviewed five hearing-impaired female students, including Ms. Eschevarria-Sola and Ms. Warfel, who provided information substantially similar to their testimony at the administrative hearing. The initial interviews were solely between the individual students and Ms. Boles, who is skilled at signed communication. The student interviews indicated that some students were "confused" by Mr. Thomas' conduct. Ms. Boles immediately reported her findings to Mr. Dawson, who directed that Mr. Thomas be placed on administrative leave with pay pending further inquiry into the allegations. On May 24, 1988, Ms. Boles verbally informed Mr. Thomas and his immediate supervisor that Mr. Thomas was being placed on administrative leave with pay pending further investigation. Ms. Boles explained that there were allegations of inappropriate physical contact made by unidentified female students of Mr. Thomas. Ms. Boles informed Mr. Thomas that such inappropriate contact included touching female students "on the back, on the shirt or on the thighs. " By letter dated May 24, 1988, Mr. Dawson confirmed that Mr. Thomas was placed on administrative leave with pay, effective May 25 through June 8, 1988, while under investigation for "inappropriate Staff/Student Relationships" constituting violation of referenced sections of the Florida Administrative Code related to the Code of Ethics of the Education Profession in Florida. At Mr. Dawson's direction, Ms. Boles, on or about May 27, 1988, interviewed 29 students, all of whom are hearing-impaired, who had been students of Mr. Thomas at some time during their enrollment at the FSDB. The interviews were conducted individually. The interviews between Ms. Boles and the individuals were conducted through a registered interpreter. Of the 29 interviewed, 22 of the students expressed no concern related to Mr. Thomas' classroom conduct. Among the students interviewed were Ms. Middlebrooks and Ms. Lents, who provided information substantially similar to their testimony at the administrative hearing. Ms. Boles provided the information gained through the student interviews to Mr. Dawson. The matter was referred to the FSDB Personnel Director for further action. Pursuant to the aforementioned letter of delegation, Samuel R. Visconti, Director of Personnel for the FSDB, is responsible for employee disciplinary actions, including employment termination procedures. At the time Mr. Visconti was informed of the allegations, Mr. Thomas had been placed on administrative leave and the school was investigating the matter. Mr. Visconti was aware of the recommendations made by Dr. Randall, Mr. Dawson and Ms. Boles. Ms. Boles recommended that Mr. Thomas' employment at the FSDB be terminated for violation of professional standards. Dr. Randall recommended that Mr. Thomas' employment at the FSDB be terminated due to inappropriate conduct in the classroom. Dr. Randall has substantial experience with the deaf and observed that the physical contact which occurred in Mr. Thomas' classroom was not of the type which one hearing- impaired person would use to gain the attention of another. Mr. Dawson recommended that Mr. Thomas' employment at the FSDB be terminated. Mr. Dawson, who has extensive experience with the deaf, believed that the physical contact, sexual discussions, and attempted equalization of the teacher-student relationship had rendered Mr. Thomas ineffective as a teacher. According to Mr. Visconti, the termination procedure at FSDB requires notification to the employee of the intended action which is predicated on the allegations of either incompetence or misconduct. Prior to termination, the employee may or may not be placed on administrative leave during the school's inquiry into the allegations. Following the school's investigation, the employee is contacted and offered the opportunity for a predetermination hearing at which the employee may provide information relevant to the proposed disciplinary action. Within five days following the hearing, the employee is notified in writing, and perhaps verbally, of the school's decision. Mr. Visconti contacted Mr. Thomas either late in the afternoon of June 6 or early in the morning of June 7, 1988, to arrange a predetermination hearing. The communication between Mr. Visconti and Mr. Thomas was through telephone and TDD, a device that permits the transmission of apparently written communication through telephone lines. Mr. Visconti is not hearing-impaired. The record does not indicate whether Mr. Visconti understands signed communication. By agreement between Mr. Visconti and Mr. Thomas, the conference was scheduled for the afternoon of June 7, 1988. During the TDD communication, Mr. Visconti explained to Mr. Thomas that the school had completed the investigation of the allegations of improper classroom conduct, and restated the allegations. Mr. Visconti explained that Mr. Thomas was being offered the opportunity to meet with Mr. Visconti and present "his side of the story...." Mr. Thomas was informed that he could provide information orally or in writing, and was further informed that he could "bring anyone with him that he felt would help him in supporting anything that he wanted to present...." Mr. Thomas and Mr. Visconti agreed that Dr. Randall would serve at the meeting as interpreter. Mr. Visconti received from Ms. Boles, a package of materials, dated June 7, 1988. The package included Ms. Boles' notes taken during or subsequent to her interviews with the students. Present at the June 7 meeting were Mr. Visconti, Mr. Thomas, Dr. Randall, and Mr. Thomas' wife. Prior to the meeting, Mr. Visconti informed Mr. Thomas that the sexually-related allegations would be specifically addressed and inquired as to whether Mrs. Thomas would be embarrassed. Mr. Thomas indicated that the meeting could proceed. At that time, Mr. Visconti restated the incidents of inappropriate conduct upon which the school intended to base the disciplinary action and explained the authority under which the FSDB was acting. Mr. Thomas attempted to address the allegations at that time, but offered no witnesses. At the conclusion of the meeting, Mr. Visconti informed Mr. Thomas that a decision would be issued within several days. On the morning of June 8, 1988, Mr. Thomas contacted Mr. Visconti and requested an additional meeting to offer further explanation. The meeting, held that afternoon, was attended by Mr. Thomas, Mr. Visconti, and Dr. Randall. Mr. Thomas offered a typewritten statement, suggesting a rationale for the accusations made against him, which apparently reiterated information he had provided at the prior conference. Upon the conclusion of the June 8, 1988 meeting, Mr. Visconti terminated Mr. Thomas' employment, effective immediately. Mr. Thomas was officially dismissed by letter of June 10, 1988 from Mr. Visconti. The June 10 letter states that he was dismissed from employment for "doing the following to female students: rubbing backs, tickling backs under student's blouses, rubbing student's thighs, asking sexually related questions of students, discussing sexually related topics regarding your personal life, and asking for kisses in exchange for items such as pencils or pieces of candy." The letter informed Mr. Thomas of his right to appeal the determination through the administrative process and his union grievance procedure. Mr. Visconti determined that, based upon the information and recommendations presented to him by Dr. Randall, Mr. Dawson, Ms. Boles and Mr. Thomas, that just cause existed for the termination of Mr. Thomas' employment at the FSDB. Mr. Visconti determined that Mr. Thomas had violated the Code of Ethics as set forth in administrative rules and that the improper classroom conduct had rendered Mr. Thomas ineffective as a teacher and had placed students at risk. At the administrative hearing, Mr. Thomas sought to explain the physical contact as serving to gain the attention of, or to calm, hearing- impaired students. Mr. Thomas claims that he touched Ms. Middlebrooks' back as a means of addressing the frustration she supposedly felt at the difficult computer work required in the class and stated that he did not know she found it objectionable. Mr. Thomas testified that Ms. Lents instigated the hugging incidents, and that he told her to stop, but she continued. Mr. Thomas claimed that he once touched Ms. Warfel's back under her blouse on a day when Ms. Warfel wore a prohibited bare midriff blouse to class and that his hand accidently touched her bare skin while he was reminding her that such blouses were prohibited. Mr. Thomas denied that he requested a kiss from Ms. Warfel, but suggested that Ms. Warfel kissed him because he was her "favorite teacher". Mr. Thomas denied tickling Ms. Warfel. Mr. Thomas explained that he possibly touched Ms. Eschevarria-Sola's leg as a means of gaining her attention while she sat at the computer console, but claimed he never touched the inside of her thigh. Mr. Thomas denied that Ms. Eschevarria-Sola kissed him or that he kissed her. As to sexually-oriented conversations, Mr. Thomas denied having made such remarks. Mr. Thomas' testimony was less credible than that of the students who testified at the hearing. At the administrative hearing, Mr. Thomas offered no rationale to suggest the reason behind the student's allegations. The typewritten statement provided to Mr. Visconti on June 8 by Mr. Thomas suggests that the allegations were the work of Senior class students, supposedly disappointed with his decision not to invite them to his home for a social event, as he had apparently done on an occasional and irregular basis in previous years. However, those students testifying generally had favorable opinions of Mr. Thomas, other than as to his specific conduct to which they objected. There is no evidence to support the inference that the allegations were untruthful and that they were intended as retribution for the omitted social activity. Evidence was introduced indicating that hearing-impaired persons are more likely to touch each other than are non-hearing-impaired persons. Such touches are to gain another's attention or to express emotion. The evidence does not support the suggestion that Mr. Thomas' classroom conduct was designed to gain the attention of the students or express emotion. Ms. Boles testified that some of Mr. Thomas' classroom behavior indicated the potential for sexual abuse by Mr. Thomas, however, the testimony to this point was not persuasive. Ms. Boles' opinion was, at least in part, based upon her discussions with an independent psychologist who serves as a consultant to the school on matters related to sexual abuse prevention. According to Ms. Boles, the consultant stated that a "psychosexual evaluation" of Mr. Thomas was necessary to determine the potential for sexual abuse. The school did not follow the consultant's recommendation. Although Mr. Thomas' behavior was inappropriate, the evidence does not suggest that Mr. Thomas sexually abused students and the testimony related to Mr. Thomas' potential for sexual abuse is not credible.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Trustees for the Florida school for the Deaf and the Blind enter a Final Order finding that just cause exists for terminating the employment of Bradley Thomas. It is further RECOMMENDED that the Education Practices commission enter a Final Order permanently revoking teaching certificate, #486268, held by Bradley Thomas. DONE and RECOMMENDED this 19th day of September, 1989, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1989. APPENDIX CASE NOS. 88-3425 and 88-5675 Proposed findings of fact were filed by the Florida School for the Deaf and the Blind, Respondent, Case No. 88-3425 and Betty Castor, as Commissioner of Education, Petitioner, Case No. 88-5675. The following constitute rulings on proposed findings of facts submitted by the parties. The proposed findings of fact are adopted as modified in the Recommended Order except as follows: Florida School for the Deaf and the Blind, Respondent, Case No. 88-3425 4. Reference to contact with the Department of Health and Rehabilitative Services rejected, immaterial. 6. Reference to the Department of Health and Rehabilitative services rejected, immaterial. Reference to conversations with "Dr. DiAmatto" rejected as non-corroborated hearsay. 15. Rejected, irrelevant. Last sentence rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. 20. Reference to witness' testimony related to sexual content of discussion is rejected, not supported by the evidence. The testimony indicates that the witness was told by others that the discussion related to sex. 26. Rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. Rejected, not supported by the weight of the evidence. The testimony cited does support the proposed finding. Reference to the Department of Health and Rehabilitative Services rejected, immaterial. Betty Castor, as commissioner of Education, Petitioner, Case No. 88-5675 7. Reference to contact with the Department of Health and Rehabilitative Services rejected, immaterial. 9. Reference to the Department of Health and Rehabilitative Services rejected as immaterial. Reference to conversations with "Dr. DiAmatto" rejected as non-corroborated hearsay. 15. Reference to witness' testimony related to sexual content of discussion is rejected, not supported by the evidence. The testimony indicates that the witness was told by others that the discussion related to sex. Rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom. Rejected, unnecessary. 29. Characterization of testimony as evasive and inconsistent is rejected, unnecessary. COPIES FURNISHED: William J. Sheppard, Esq. 215 Washington Street Jacksonville, FL 32202 Barbara J. Staros, Esq. State Board of Education Knott Building Tallahassee, FL 32399 Betty J. Steffens, Esq. 106 South Monroe Street Post Office Box 11008 Tallahassee, FL 32302 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, FL 32399 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, FL 32399 Robert Dawson, President Florida School for the Deaf and the Blind 207 San Marco Avenue St. Augustine, FL 32084
Findings Of Fact Introduction At all times relevant hereto, respondent, Lawrence J. Ferrara, was an instructional employee of petitioner, School Board of Palm Beach County, Florida (School Board or petitioner). When the relevant events herein occurred, Ferrara was a classroom teacher under a continuing contract assigned to John I. Leonard High School (JIL) in Lake Worth, Florida. He has been employed as a classroom teacher with petitioner since August 16, 1965 and received his continuing contract of employment in June, 1969. He holds teaching certificate number 150262 issued by the State Department of Education and is certified in the areas of American Government and social studies for grade levels 7 through 12. Respondent received a bachelor of education degree from the University of Miami. His first assignment with petitioner was in school year 1965-66 at Lantana Junior High School. He remained there through school year 1967-68. At the end of that year, Ferrara was placed on a fourth year annual probationary contract because he had insufficient control of his classes. He transferred to John F. Kennedy High School for school year 1968-69, and received a continuing contract of employment at the end of that school year. Respondent then transferred to Boynton Beach Junior High School for the 1969-70 school year. Ferrara desired to teach at the high school level because he preferred to teach students having greater maturity and interest in learning. He secured an assignment to JIL in September, 1970, where he remained until his suspension in 1986. Ferrara was initially assigned to the social studies department teaching American History to the eleventh grade. He remained in that position until the fall of 1981. During this period of time, Ferrara's evaluations showed steady improvement in his performance, and Ferrara characterized the 1980-81 school year as the happiest and most enjoyable year in his teaching career. In fact, he referred only two students to the dean for disciplinary reasons during the entire year, and both were referred during the final week of school. Prior to the 1981-82 school year, Ferrara had a reputation as a good teacher, and his relationship with other faculty members was favorable. JIL sits on a forty acre campus in Lake Worth, Florida. During the relevant years the school had a student enrollment ranging in size from 2,200 to 2,850 students. Most recently its faculty numbered approximately 145. The principal is the chief administrator at JIL. In dealing with employees, the principal follows guidelines set out in the collective bargaining agreement with the Classroom Teachers Association (CTA), School Board policy, administrator's directives and the JIL Teacher and Student Handbooks. There are several assistant principals, including deans, who have been given authority to counsel with and reprimand employees. Among other things they are responsible for discipline of students. There are also guidance counselors who may counsel with other staff members and students as the need arises. The principal designates department chairmen who have authority to reprimand or evaluate teachers, and to recommend course assignments within the department. In the case at bar, Ferrara was assigned to the social studies department, which had approximately sixteen teachers. Its chairman was responsible for reviewing lesson plans of all teachers to insure that curriculum objectives were being met. This action is mandated by the School Board. At JIL lesson plans were required to be prepared one week in advance. In addition, faculty were required to prepare emergency lesson plans to be used by substitute teachers if the regular teacher was absent. Finally, the department head issued textbooks to each teacher who was obligated to turn in the books (or monies from the student) at the end of the semester or school year. According to the CTA-School Board contract introduced into evidence as petitioner's exhibit 9, and which is applicable to Ferrara's employment, Subsection A1. of Article II provides that "teachers are expected to serve on school committees, self-evaluation and accreditation committees, attend meetings and workshops . . . such service (to be) on a voluntary basis . . " Subsection A2. provides that "employees shall assume reasonable responsibility for the safe return of all school property." Subsection F4. of the same Article requires employees to "assume the responsibility for taking a positive approach to discipline and to maintain constructive classroom control." Subsection B1. of Article III prescribes a duty day for faculty at JIL of seven and one-half consecutive hours per day. Subsection B2. requires that an employee obtain approval from the principal to leave the school premises for personal reasons during the defined duty hours. Subsection E4. of the same Article provides that "the teacher shall be responsible for the preparation of daily lesson plans to be made available to the substitute in the absence of the teacher. Such plans shall be made in advance at all times." The School Board has also promulgated various "local" rules which pertain to suspension and dismissal of employees, as well as the rehabilitation process to be following once a teacher is cited for deficiencies. They apply to Ferrara's employment. School Year 1981-82 In the spring of 1981, Ferrara heard rumors that he was being reassigned the following school year from exclusively teaching eleventh graders to teaching ninth grade American Government classes as well. At the same time he learned that the teacher of an advanced history class was leaving JIL at the end of the school term. Ferrara approached the social studies de- partment head, Catherine Thornton, concerning the vacancy but was told the vacant slot had been promised to a new teacher named Martin. Ferrara then met with the JIL principal, Dr. Munroe, in June, 1981 and asked that his teaching assignment not be changed. During that meeting he criticized Munroe's selection of athletic coaches to teach in the social studies department. Ferrara considered the department as a dumping ground for coaches and other unqualified teachers. Ferrara's request was turned down and he was reassigned to teach three periods of ninth grade American Government classes and two periods of eleventh grade American History the following year. Moreover, JIL was on double sessions at that time, and Ferrara was switched from the early session (6:45 a.m. to 2:15 p.m.) to what he considered to be the less desirable second session that ran from 9:45 a.m. to 5:15 p.m. He was also required to teach during the last three periods of the second session. Ferrara was extremely displeased, and felt that he was being treated as the new teacher who was typically given the lower grade assignment and the afternoon shift. In an effort to get the new assignment changed, Ferrara met with the department head and later with Dr. Munroe. After having no success, he met with the area superintendent and finally the school superintendent. Their advice was to take the assignment, be evaluated and then see what happens. Ferrara thereafter approached five of the seven members of the school board seeking their assistance in overriding the reassignment decision. This too was unsuccessful. At one of the meetings in Dr. Munroe's office on September 4, one administrator said that if Ferrara was unhappy with the new assignment then maybe he should quit. By this time Ferrara had engaged the services of an attorney, and after he and his attorney were unsuccessful in persuading the administration to change the assignment, he instructed the attorney to file a civil rights action in federal court. This was done on July 29, 1982. The lawsuit sought, among other things, the reassignment of Ferrara to his former teaching assignment in the eleventh grade. That suit has remained pending since then, and at time of final hearing, was on rehearing of an order of the Eleventh Circuit Court of Appeals which affirmed the trial court's earlier dis- missal of the action. Charles L. Thornton (no relation to the department chairman) replaced Dr. Munce as principal at JIL in October, 1981. He had previously served as dean of boys at JIL in 1970-71 and recalled that he frequently visited Ferrara's eleventh grade class that year because Ferrara was having a "hard time" with his students. Before he left JIL in September, 1971, Thornton told the then principal of JIL that they had "problems" with Ferrara because of his inability to control his students. This was borne out by Ferrara's 1970-71 evaluation which cited Ferrara for deficiencies in no less than five areas, most of which were attributable to the fact that Ferrara was then an inexperienced high school teacher. When Thornton returned to JIL in October, 1981, he learned that Ferrara had hired an attorney to challenge the school's decision to reassign Ferrara to the ninth grade classroom. Even so, when Ferrara approached Thornton about changing his assignment, Thornton told Ferrara that no teacher assignments would be made mid-stream in the semester, but he would "revisit" the matter at the end of the semester. His denial was confirmed in a written memorandum to Ferrara. He also told Ferrara the change was not to be considered a demotion and that he would keep the same title, salary and number of work hours. At the end of the first semester, Thornton did not change respondent's course assignment because it would have disrupted the master schedule and he had some concern about respondent's performance. Unquestionably, ninth grade students are less mature and more difficult to control from a disciplinary standpoint than other students, but the subject matter of their coursework is easier than the subjects taught to higher grade levels. Although Ferrara considered his new assignment as being the most undesirable of all assignments in the social studies department, other teachers stated that it made no difference to them as to which group of students they were assigned to teach. During the batter part of the first semester, Ferrara was absent due to illness on several occasions. In the second semester he took a leave of absence for the entire semester due to illness apparently brought on by job stress. According to Ferrara, teachers assigned to the first session, which he preferred, were allowed to leave the school around 2:15 p.m. each day. Ferrara's classroom faced the parking lot and he could see them through his windows departing the school while he was required to remain there teaching until 5:15 p.m. He also acknowledged having "problems" with students during the last three periods of each day, and when coupled with the aggravation of seeing his colleagues leaving early, it induced a physical ailment which led to his taking the lengthy sick leave. During his second semester absence, Ferrara prepared no regular or emergency lesson plans for his substitute, although he was responsible for doing so for the entire year. His substitute contacted him for assistance, but Ferrara declined to offer any, saying it was the substitute's responsibility to do the work. It is noteworthy that Ferrara's substitute had some disciplinary problems when she took over his class, but after receiving assistance from the deans, she had only "minor" problems the remainder of the semester. Thornton prepared an annual evaluation of Ferrara in June, 1982, and gave him an overall rating of satisfactory. However, he found Ferrara deficient in the following areas: discipline of students, attending required extracurricular activities, teaching in a manner in which all students in the class could comprehend and relating in a more positive manner with his peers. Other than Ferrara's use of "various methods and materials," Thornton made no comments concerning Ferrara's areas of strength. The first deficiency was based upon Ferrara's inability to control the classroom environment. More specifically, Ferrara referred more students to the dean than any other classroom teacher at JIL, and for what appeared to be minor infractions. These included talking out of turn, squeaking a chair, going to the pencil sharpener without permission and leaving one's desk without permission. On some occasions Ferrara would refer entire groups of students. In all, Ferrara's referrals constituted around 25 percent of all referrals made by the 145 JIL faculty members. The dean of students was asked by Ferrara on at least three occasions to visit his classroom because his class was out of control. The dean observed that Ferrara had very little control over his students, managed the class "poorly," and concluded that very little learning was taking place. The dean discussed with Ferrara how to handle minor classroom infractions and advised Ferrara to review the JIL Handbook provisions regarding discipline. However, Ferrara was not responsive to these suggestions. Ferrara was also criticized because his students had difficulty in understanding "his approach to teaching." This was apparent from the fact that Ferrara had an extremely high rate of failure for his students. Ferrara himself conceded that his teaching performance began deteriorating in the 1981-82 school year and never again reached the level of performance achieved by him prior to that year. The evaluation noted that Ferrara did "not have an effective relationship with associates." This was confirmed through testimony that after his reassignment became effective, Ferrara would not speak to most of the members of the department, and no longer socialized with staff at the department's workroom. Even Ferrara acknowledged that after September, 1981 he became "reserved," did not talk to colleagues arid appeared unhappy and upset. Thornton required mandatory attendance by faculty at only two school functions each year: open house when parents, students and faculty met at the school, and graduation. Ferrara attended neither saying graduation was "too sentimental" and that he was always ill whenever open houses were held. Ferrara was given a copy of the above evaluation by Thornton, reviewed it and signed it on June 8, 1982. However, he told Thornton he disagreed with the contents of the evaluation. At their meeting, Thornton acknowledged to Ferrara that he had sufficient knowledge of the subject matter, and found Ferrara to be well-versed in his subjects. School Year 1982-83 Because of problems with Ferrara in 1981-82, the department chairman recommended that Ferrara be assigned to teach five ninth grade American Government classes in school year 1982-82. This recommendation was approved by the assistant principal for curriculum who draws up the semester schedule, and later by Thornton. While teaching a class in November 1982, respondent caught a student, K. B., mimicking him in class, grabbed the student by his arm and escorted him to his seat. He did so with such force that it left bruise marks on the student's arm. Ferrara was counseled by Thornton following this incident. In January, 1982, respondent gave a student an F in her coursework for disciplinary reasons. This is contrary to school board policy and resulted in the issuance of a memorandum by Thornton to Ferrara on January 21, 1983. Various former students of Ferrara during the 1982-83 school year testified concerning their impression of his teaching style and manner. Their comments included statements that he "wasn't normal" and was "different" from other teachers. It was established that he would not answer questions from many students, either ignoring them or telling them the answer was in the textbook. He called them "stupid," "immature" and "jackasses" on a number of occasions, that he `hated" teaching them, and told them he should be teaching a higher grade level but was being punished by the administration. It was further established that Ferrara frequently yelled in class, and that his efforts to discipline students were unsuccessful. After awhile, some students would make deliberate efforts to provoke Ferrara by beginning coughing, spells or squeaking their chairs, knowing that his efforts at discipline were merely a "show" and that they need not obey him. Ferrara would also frequently discuss in class his lawsuit against the school board without relating it to the subject matter. His most common teaching technique was to give students a reading assignment from the textbook and have the students answer the review questions at the end of the chapter. Only occasionally did he give a lecture. Most students indicated they did not learn a great deal in his class, and found the instruction boring. It was established that cheating frequently occurred when tests were given, and answer sheets were passed around while Ferrara was in the room. Many believed he was punishing them by keeping the windows shut and the air-conditioner turned off on hot days. Indeed, on one day in late April, Thornton went to Ferrara's class and found it extremely "hot" with the air-conditioner off and the windows closed. Ferrara was teaching the class wearing a sweater. Thornton ordered that the windows be opened to avoid having a student pass out from the heat. Ferrara justified his actions by contending the air-conditioner was frequently inoperative and that the windows often times stuck. This was disputed by the building maintenance chief. He also stated that he kept the windows closed because of traffic noises emanating from a nearby street. However, he conceded that he kept the students in a hot room on at least one occasion as punishment. Because of complaints made by parents and students to Thornton during the first semester, a conference was called by Thornton with respondent on January 28, 1983. At that time he gave Ferrara written notice that his behavior was "inappropriate," and that he must regain control of his classroom. On April 20, 1983, Thornton had a conference with Ferrara concerning an allegation that he had called a student an "ass." After Ferrara admitted this was true, Thornton told him not to call students such names again, that it would not be tolerated and that he should refer to the teacher's Code of Ethics which proscribed such conduct. On May 23, 1983, Thornton found two of Ferrara's students wandering in the hallway without a hall pass. They had been told to leave Ferrara's class, and that he did not care where they went. During the school year, Ferrara continued to disregard the requirement to complete lesson plans. On occasions when Ferrara was absent, the substitutes found no regular or emergency lesson plans available. Instead, the substitutes had to write their own plans and give assignments, without having any idea when Ferrara would return. The assignments completed by the students for the substitute teacher were thrown in the waste basket when Ferrara returned because he found them ungraded. However, substitute teachers do not normally grade papers. During the school year the dean of students continued to receive numerous discipline referrals from respondent. The reasons for referral were generally minor, which indicated Ferrara did not have proper control of his classes. In contrast, his substitute teachers did not experience this type of problem when they substituted for Ferrara. Some of the referred students were those who had no other disciplinary problems with other teachers. On some occasions, entire groups were once again referred to the dean. In short, there was no improvement in respondent's classroom management from the prior year. At the same time, the guidance counselors continued to receive numerous requests from students to transfer out of his classes. At the end of school year 1982-83, the department chairman wrote Thornton a memorandum which listed by teacher the number of textbooks missing or not returned to the teacher. Ferrara had sixty-three textbooks missing, which was far in excess of other department staff. In addition, although he returned twenty-three of forty-eight new textbooks assigned to him at the beginning of the semester for one course, seventeen were so defaced with obscenities that they were unusable. Ferrara did not deny that he lost the textbooks, but stated that some books were smaller than normal classroom size, and could be easily carried out of class in a concealed fashion by a student. He feared that if he began searching students, he would suffer possible repercussions from doing so. Despite these losses, Ferrara refused assistance from the area director of secondary education in creating a system of inventory and control for textbooks. In his annual evaluation prepared on May 26, 1983, Ferrara was cited for deficiencies in the following areas: teaching techniques, classroom environment, teacher attitudes and professional standards and work habits. In addition, Thornton attached to the evaluation a typed sheet containing specific recommendations for improvement in each of the four areas. The sheet noted that Thornton was "willing to provide (Ferrara) whatever assistance necessary in each of the . . . cited areas." Thornton also noted that Ferrara has strength in the areas of knowledge and understanding of the subject matter, appearance, educational qualifications and in adherence to the defined duty day. Thornton and Ferrara held several meetings concerning the annual evaluation. Each deficiency was discussed, and Thornton made suggestions on how to improve in those areas. However, Ferrara was not receptive to these suggestions, and complained of unfair treatment in his course assignments. He also repeatedly discussed his lawsuit. He continued to maintain he was better suited to teach the eleventh grade even though he was certified to teach both the ninth and eleventh grades. Thornton advised Ferrara he was responsible to his students no matter what other problems he believed he had, and that he should work to improve his performance. School Year 1983-84 In school year 1983-84, Ferrara's teaching assignment did not change. In fact, unlike the prior two years, Ferrara did not request a change in his teaching assignment. He also did not request a transfer to another school although these were procedures for doing so. 1/ Ferrara's failure to control his classroom continued into the new school year. During the year the assistant principal (dean) in charge of discipline visited Ferrara's classroom at least ten to fifteen times after Ferrara requested his assistance in regaining control of the classroom. On his visits the dean found a "hostile" atmosphere, and verbal exchanges taking place between Ferrara and his students. He concluded that no learning could take place in this atmosphere. The dean noted that no other regular teacher or substitute had such classroom management problems. Ferrara's referrals to the dean represented a larger number than all other faculty members combined. The dean also observed Ferrara telling his students that he did not like teaching immature ninth graders. Similar observations were made by another JIL dean. Ferrara was counseled by the dean who told him that students felt Ferrara did not like them, and that his discipline techniques were unfair. Testimony by Ferrara's students confirmed that his teaching style did not change. He continued to call them names such as "stupid" and "immature" and told them he did not enjoy teaching ninth graders. His lawsuit was also a frequent subject of class discussion. The students also complained that Ferrara refused to open the windows on hot days when the air-conditioning was inoperative because of outside noise. The latter complaint was noteworthy since Thornton had previously given written instructions to Ferrara on September 16 and 26, 1983 concerning complaints about Ferrara keeping the room too hot. During the year, a parent requested that she and her daughter meet with Ferrara and a school counselor concerning a problem the daughter was having in Ferrara's class. At the conference, Ferrara dwelled primarily on his lawsuit against the school board and did not seem concerned with the real purpose of the conference. This prompted a complaint by the parent against Ferrara. Students continued to request transfers out of Ferrara's classroom at an increasing rate. Although two guidance counselors advised Ferrara of these complaints, they observed no change in his behavior. Based upon student and parent complaints about a high failure rate, Ferrara was instructed by Thornton in October, 1983 to furnish each student with a mid-marking report (progress reports) advising them they were not performing to expectations. This report would alert students and parents that a student was in danger of failing. Although such reports are required by school board policy, Ferrara frequently did not prepare these reports. In fact, he advised Thornton he felt they were unnecessary and would not prepare them unless Thornton allowed teachers to complete them during class time. There were thirty-six weeks during school year 1983-84. All teachers were required to prepare lesson plans for each of those weeks, and to turn them in prior to the beginning of each school week. The plans were then filed, and in the event a teacher was absent, the substitute teacher would use the plans and instruct the class without a break in continuity. Ferrara was absent for three weeks in the spring of 1984. However, he left no regular or emergency lesson plans for his substitute. During his absence, the substitute had no disciplinary problems. When he unexpectedly returned to class after this absence, the students booed him, and then, according to the substitute, the "entire class went out of control." Ferrara thereafter required his students to repeat the work previously done for the substitute. Ferrara continued to ignore repeated requests by the department chairman to make lesson plans available. These requests were in the form of memoranda to all department personnel on August 25, October 5, November 17 and December 7, 1983 and January 17, 1984. As of February, 1984 he had turned in only three weeks' plans for the preceding twenty-week period. The department chairman wrote him a memorandum on February 10 requesting that such plans be filed. Even so, in June, 1984 the department chairman reviewed the lesson plans filed by department staff for the prior year. She found that Ferrara had completed plans for only five of the thirty-six weeks during the just completed school year. Of those completed most were generally unsatisfactory. Ferrara did not deny this, but pointed to the fact that two or three other department teachers were also continually tardy in filing their plans. This was confirmed by the department chairman. Ferrara began to come to work late and leave early during the school year although he was warned several times to adhere to the defined duty days. He also had the second highest rate of textbook losses for the social studies department. Because of Ferrara's continuing performance problems, Thornton placed Ferrara on a remedial program known as the Notice, Explanation, Assistance and Time (NEAT) procedure effective April 25, 1984. This procedure is designed to provide assistance to teachers having performance problems. Basically, it provides the teacher with an explanation of any deficiencies, assistance and guidance in the cited areas, and an "adequate" period of time in which to correct them. Its main purpose is to salvage an employee's career. In his letter, Thornton told Ferrara he was being placed on the NEAT procedure because of deficiencies in the following areas: inability to use acceptable teaching techniques; inability to maintain a positive classroom environment; inability to establish and maintain a professional and effective working relationship with parents, students and colleagues; and failure to submit proper records, including, but not limited to, progress reports and lesson plans, as required by the school center, the School Board and state law. Ferrara was given until October 16, 1984 to "fully correct these deficiencies." The two met in a conference May 4, 1984 to discuss the procedure and Ferrara's responsibility to correct the deficiencies by the established date. It was pointed out to Ferrara that he would be given time off to visit other personnel while seeking assistance, and that three individuals on the county staff were available for consultation on his noted deficiencies. Ferrara viewed the NEAT procedure as a "charade" and a way for the School Board to fire him. Although he admitted he resented being placed on NEAT, Ferrara stated he respected the system and did not intend to ignore it because he knew that to do so would give grounds to the Board to dismiss him. On May 30, 1984, Thornton prepared an annual evaluation reflecting the same deficiencies as were used to place Ferrara on the NEAT procedure. It also noted that Ferrara's areas of strength were his educational qualifications and his use of good oral and written language. Ferrara was given a copy of the evaluation and, although he disagreed with its contents, signed it on May 30, 1984. School Year 1984-85 On August 21, 1984, Ferrara met with Thornton and the assistant principal and discussed various types of assistance that were available to him which had not yet been provided. Ferrara told Thornton he was not interested in any assistance and walked out of Thornton's office. On October 22, 1984, Thornton advised Ferrara by letter that the following deficiencies required corrective action: continued failure to submit timely lesson plans; continued inability to establish positive rapport with staff, parents and students; continued failure to maintain a positive classroom atmosphere; and a continued deficiency in his teaching techniques. Ferrara was also told that there had been "some improvement in (his) performance," and that Thornton believed he was "making an effort to improve (his) performance, and because of this, the time for correcting his deficiencies under the NEAT procedure was being extended until the end of the school year. During the school year Ferrara's classroom management problems continued. For example, one guidance counselor observed that most of the students visiting her were students in Ferrara's classes. In fact, over half of the students she gave counseling to desired to transfer out of Ferrara's class and sought her assistance in doing so. The dean of students observed that some 35 percent to 40 percent of total disciplinary referrals by all teachers came from Ferrara, including six students at one time. This dean found most of the referrals unnecessary, and ones that could have been handled by Ferrara. In addition, she was called to Ferrara's classroom about four times each semester to calm down the class. It was established that the students deliberately "egged" Ferrara on, particularly when he made personal comments about them. Other credible testimony established that Ferrara's class was out of control on many occasions, and that this disruption affected the amount of learning that took place in the classroom. One dean suggested to Ferrara that he observe other teachers so that he might improve his classroom performance. In teacher-parent conferences, Ferrara preferred to discuss his personal problems with the school board administration rather than the problems that the student was experiencing. In other instances, Ferrara would not respond to requests by parents to contact them. On September 19, 1984, at Thornton's request, the area administrator, H. W. Berryman, visited Ferrara's classroom to observe and monitor Ferrara. This was the only teacher observation that Berryman had performed as an area administrator. On that particular day Ferrara needed some ten minutes to get the class started. Berryman noted that during Ferrara's lecture, only a few students were attentive, and that most were note-passing, carrying on conversations and creating mild disruptions which Ferrara failed to stop. However, Berryman complemented Ferrara on his knowledge of the subject matter and said his overall delivery was reasonably good. He suggested Ferrara take less time to "start-up the class, and to take steps to insure that his class was more attentive during the lecture. On October 4, 1984, Ferrara was observed by another administrator, Dr. Mona Jensen, for the purpose of assessing his teacher performance. This was also done at Thornton's request. Jensen is a consultant certified by the Florida Performance Measurement System (FPMS) and a trainer of other administrators in the use of FPMS. The FPMS utilizes a form for evaluating teacher performance by recording the types of effective and ineffective behaviors observed in four areas: management of student conduct, instructional organization, presentation of subject matter and communication skills. Dr. Jensen monitored Ferrara in these four areas and provided Thornton and Ferrara with a copy of her written report. Among other things, she observed a negative interaction between Ferrara and his students, and that there was a lack of positive reinforcement on the part of Ferrara. Some of his comments were caustic in nature, and he never smiled in class. Like Berryman, she observed students talking to one another and not participating in the activity. She recommended that improvements be made in all areas which her report addressed. On October 29, 1984, Ferrara was observed by Lois Biddix, who is also a FPMS certified state trainer. Biddix used the same type of form as did Jensen in evaluating Ferrara. On her visit, Biddix observed students talking to one another, and participating in activities unrelated to the lesson. She described the class as sedentary and lethargic, with students suffering from boredom and frustration. She attributed this to Ferrara's lack of enthusiasm and failure to introduce new content into the lesson. These observations were consistent with those made by Berryman and Jensen, and her recommendations for improvement were in the same areas as those of Jensen. Dr. Jensen returned to Ferrara's class for a second observation on January 31, 1985. While Ferrara spoke clearly and directly on that day, and had good communicative skills, Dr. Jensen found most students did not participate in the discussion. She also found a lack of positive reinforcement on the part of Ferrara. During the lecture, Ferrara demonstrated anger at a remark made by a student, and told the student that if she wanted a confrontation, he would gladly accept her challenge. Dr. Jensen's evaluation and notes were given to Ferrara after the visit. The recommendations for improvement were basically the same as those proposed by her in October, 1984. A number of Ferrara's 1984-85 students testified at final hearing. Their testimony painted a picture of continued class management problems. For example, it was confirmed that groups of students would collectively begin coughing at one time or squeaking their chairs in harmony to antagonize Ferrara or test his mettle. It was also confirmed that he continued to call freshmen "stupid" and "immature," that he told his students he hated teaching ninth graders and that the school administration was wrong in making him teach that level of students. He also discussed his pending lawsuit during class hours and referred to the school administration in a negative manner. On at least one occasion he discussed the qualifications or lack thereof of another department teacher. It was further pointed out that Ferrara refused to give credit for assignments given by his substitute teacher. There were complaints that Ferrara punished the students for talking by making them sit in a hot classroom without opening the windows or running the air-conditioning. There was also a "lot" of cheating during class even though Ferrara was present in the room. The general consensus of most students was that the class was boring, and that they did not learn a great deal in this type of environment. Ferrara was required to spend 7 1/2 hours each day on campus. 2/ During the year, he did not always arrive at school on a punctual basis or spend the required number of duty hours at school. On April 11, 1985, the department head wrote Thornton a memorandum criticizing Ferrara for his repeated tardiness, and leaving before 2:15 p.m. After Thornton notified Ferrara about this complaint, there was an improvement on his part. During the second semester of the school year, a guidance counselor, Elizabeth Konen, approached Ferrara and told him that the parents of one of his students desired a parent-teacher conference to discuss their child. Ferrara told Konen he did not have time to meet with parents. Konen found this to be the usual response of Ferrara whenever such a request was made. On another occasion, he wrote a note to Konen stating he had no time to meet with parents, but after Thornton intervened and ordered a conference, Ferrara attended. In December 1984, Thornton requested that Ferrara produce proof that he gave his students progress reports as required by Board policy. Ferrara could produce only two such reports, although he claimed four others had also been given reports. This was after Ferrara had been previously criticized on October 21, 1984 for the same deficiency. On January 8, 1985, Thornton again gave written notice to Ferrara that he give timely progress reports to all students who were failing or working below expectation. Even after this second warning, a student, S. Z., complained to Konen in February, 1985 that she had not been given a progress report by Ferrara. This was brought to Thornton's attention in a letter written by S. Z.'s mother. On March 25, 1985, Thornton wrote respondent a letter outlining his continued areas of "serious deficiencies," and his lack of improvement in those areas since being placed on the NEAT procedure. He was warned that unless there was "significant improvement," Thornton would have no choice except to recommend he be terminated. Ferrara was urged to implement the suggestions outlined in the letter, and was told that "any reasonable assistance" requested by him would be given. Despite receiving numerous criticisms for failing to turn in lesson plans, respondent did not turn in any lesson plans during the entire school year 1984-85. However, he did turn in a complete set of plans at the end of the year, but they did not indicate what part of the unified curriculum objectives had been met. On June 10, 1985, Ferrara was given his annual evaluation for the school year. It noted numerous continued deficiencies in three broad areas: classroom environment, teacher attitudes and professional standards and work habits. The only noted areas of strength were knowledge of the subject matter and use of proper grammar and written language. In his meeting with Thornton, Ferrara was told, among other things, that he should not make unprofessional remarks to his students, that he must adhere to defined duty days, that he must file lesson plans and progress reports on a timely basis, and his attitude with peers should improve. School Year 1985-86 Despite Ferrara's failure to correct all deficiencies by the end of school year 1984-85, Thornton made a decision to give Ferrara one last chance to rehabilitate himself under the NEAT procedure. On August 19, 1985 Thornton advised Ferrara by letter that the NEAT procedure was being extended until November 1, 1985 and that he must correct all deficiencies by that date. This gave, Ferrara a total of sixteen academic months under the remedial program. The letter also stated that if the deficiencies were not corrected by November 1, Thornton would make a recommendation to the Superintendent of Schools concerning Ferrara's employment status. Respondent had been criticized for giving an unusually high rate of failing grades to his students during prior years. It was established that his failure rate was substantially higher than for other teachers in school years 1981-82 and 1982-83. For example, his failure rates in 1981-82 and 1982-83 were 24 percent and 33 percent, respectively. In 1983-84, it was a little more in line (18 percent) with that of the other teachers to whom he was compared. After the first semester of school year 1985-86 had ended, Thornton reviewed Ferrara's grades and found the failure rate had been substantially reduced. Indeed, it was then slightly over 10 percent, thereby supporting Ferrara's contention that he had improved in this cited area of deficiency. On November 18, 1985, a thirty minute evaluation of Ferrara's class was conducted by Sandra Cowne, an assistant principal at JIL. Among other things, Cowne found that Ferrara still had no up-to-date lesson plan book. She noted that Ferrara was in need of improvement in four areas of performance. All other areas indicated satisfactory performance. On December 2, 1985, D:. Jensen visited Ferrara's classroom to monitor and evaluate his performance. The purpose of the visit was to determine if Ferrara had implemented the recommendations for improving instruction previously made after her earlier visits. Dr. Jensen asked to meet with Ferrara just prior to the hour of observation but he refused saying he didn't want to discuss anything. She then asked for his lesson plan and was given a plan that was too brief and had insufficient detail. During the actual observation, she found that Ferrara had not added any positive teaching behaviors to his technique although she had suggested this to him after her earlier observations. According to Dr. Jensen, Ferrara's main deficiency was that he failed to provide motivational or positive reinforcement to his students. She concluded that Ferrara was an ineffective teacher, ranking below average due to his lack of positive behaviors. A copy of her evaluation and notes was given to respondent. H. W. Berryman made a second visit to Ferrara's classroom on December 10, 1985 for a repeat evaluation. Berryman initially noted that Ferrara had heeded his prior advice from September, 1984, and had speeded up the start-up time for beginning his instruction. However, Berryman continued to be concerned with the lack of involvement by a large majority of the students in the classroom. Although he found that Ferrara had "in-depth content knowledge" of the subject matter, he concluded that Ferrara had "serious negative attitudinal problems in reacting to all of the students assigned to his classes." Several of Ferrara's students testified about their experiences in Ferrara's classroom during the first semester. They confirmed that respondent's teaching techniques had not changed from prior years. For example, it was established that the usual disruptions occurred during his class, such as students sleeping, passing notes, talking and generally being inattentive. Ferrara again called his freshmen students "immature" and "childish," and told them that he had been demoted to the freshman class because the school board could not fire him. It was pointed out that once he told the students that they were immature, Ferrara would lose control over the class. There were continuing complaints that the classroom was too hot, and that Ferrara told the students if they were unhappy about the room temperature to complain to the administration. On one occasion, he refused to move his classroom to an adjacent empty room even though a student had vomited on the floor and the stench remained after the area was cleaned. It was also established that Ferrara continued to talk in class about his pending lawsuit and the problems he was having with the school administration. During the first semester, Ferrara continued to send large numbers of students to the dean for minor infractions. He also sent as many as six at a time. Ferrara was now disciplining his students before referral by making them write repetitious sentences. However, this is considered to be an inappropriate form of discipline. This form of discipline prompted complaints from both students and parents to the administration. It was confirmed through testimony of an assistant principal that respondent's classroom control had not improved over a three- year period. This observation was concurred in by various guidance counselors who received visits from Ferrara's students. During the first semester of the school year, there was no improvement in respondent's professional relationship with his peers. He refused to speak to most colleagues, and openly expressed his disdain for the department chairman. When respondent was in the department workroom, the atmosphere was hostile and uncomfortable. Similarly, like in other years Ferrara did not attend open house. He also failed to provide adequate lesson plans as previously ordered on a number of occasions. At the end of the first semester, Thornton concluded that sixteen academic months was a sufficient time to allow Ferrara to correct his deficiencies. Finding that respondent was "damaging" his students, that no improvement in Ferrara's performance or attitude had occurred, that he was making no contribution to the school program, and that he was still besieged with student and parent complaints, Thornton concluded that disciplinary action was justified. Thornton did acknowledge that Ferrara had improved in the areas of adhering to duty hours, issuing progress reports, taking roll call and reducing the number of failures. Even so, he concluded that this was insufficient to satisfy his overall teaching performance deficiencies. Moreover, he found that Ferrara's effectiveness as a teacher had been impaired. Thornton accordingly recommended that Ferrara be terminated. Ferrara's suspension without pay became effective on February 19, 1986 and he has remained in that status since that time. Respondent's Case Ferrara traced all of his problems to what he perceived to be an uncalled for demotion to the ninth grade classroom in school year 1981-82. He felt it to be unjust, and an action which ignored the seniority he had attained over the years. He acknowledged that once the reassignment occurred he became demoralized and bitter and was never the same teacher again. Ferrara did not deny that he called students names. He also conceded that he had problems maintaining classroom discipline, but suggested he was being paid to teach, not to discipline. Ferrara further admitted he yelled at students, and sent a great many to the dean's office, but blamed much of this on a small group of students who always instigated trouble in his classroom. Ferrara asserted his classroom discipline would actually improve at times during this period, but that each time Thornton sent a note criticizing him, he became demoralized and would again lapse into his prior ways. Although Ferrara considered the NEAT procedure a means by which petitioner could fire him, he contended he attempted to correct his deficiencies. However, it was Ferrara's contention that only through reassignment to the eleventh grade could he actually improve and correct his deficiencies. He believes Thornton to be biased since Thornton is a defendant in Ferrara's lawsuit. However, independent administrators confirmed that the deficiencies cited in Thornton's memoranda were real, and that Ferrara had made no visible effort to correct most of them. Moreover, contrary to his assertions, Ferrara was accorded adequate notice, sufficient means and ample time to correct his cited deficiencies. In this regard, the School Board satisfied all regulations pertaining to the rehabilitation and dismissal of an employee. Ferrara also pointed out that Thornton prepared a special file called the "Larry Ferrara Drawer" in November, 1982 so that Ferrara's actions and performance could be documented. However, Ferrara's teaching performance was in issue by this time, and Thornton was simply conforming with various state, local and union requirements that potential disciplinary action have a well-defined paper trail. Ferrara did not deny he missed all graduations and open houses from 1981 through 1985. He justified his absence from graduation ceremonies on the ground they were too "sentimental," and stated he was always ill whenever open houses were scheduled. Ferrara denied that students were punished by keeping the room hot. He blamed the heat on an often inoperative and inadequate window air- conditioning unit in his classroom, and windows that were difficult to open. This was denied by the school maintenance chief. Various students corroborated Ferrara's claim that the air-conditioner did not always work, but it is found that Ferrara sometimes punished his students in this manner. Ferrara attempted to repudiate the testimony of former students who testified for petitioner at final hearing by offering favorable testimony of other former students. However, the latter testimony either pertained to time periods too remote to be relevant to this proceeding, or was discredited by more persuasive and credible testimony from petitioner's witnesses. Ferrara contended he prepared all required lesson plans but waited until the end of the school year to turn them in. However, even it this were true, this was contrary to school policy since such plans were required to be turned in the week before they were to be used. Ferrara suggested that most of his difficulties were caused by his creating "waves" at JIL. As noted above, he believed Thornton and the administration were biased against him because he had sued them, and because he had publicly criticized various school policies and individuals in the news media. But it was never established that such animosity existed, or if it did, that it played a role in the dismissal process. Finally, Ferrara professed a sincere desire to continue in the teaching profession, albeit at a more mature grade level. He does not wish to be terminated after a twenty-one year career. He desires to be reinstated at JIL and allowed to teach the eleventh grade as he did during the years 1970- 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of incompetency (inefficiency), misconduct in office, gross insubordination and willful neglect of duties as set forth in the Conclusions of Law, and that he be dismissed as-an employee of the Palm Beach County School Board. DONE and 0RDERED this 11th day of August, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1986.
Findings Of Fact Introduction At all times relevant hereto, respondent, Jack E. Ferrell, was a teacher at Parkway Junior High School (PJHS) in Miami, Florida. He holds Florida Teacher's certificate Number 107694 issued by petitioner, Department of Education, Education Practices Commission (Commission). The certificate was reissued in 1987 and covers the areas of health education, physical education and mathematics. With the exception of a short break in the 1960s, respondent has been a teacher in Dade County, Florida since 1959. He taught at PJHS from school year 1967-68 until January 10, 1986 when he was reassigned to administrative duties at a Dade County School Board area office. The school has a racial composition of at least ninety percent black students. On February 18, 1986, Ferrell retired rather than face disciplinary action by the Dade County School Board which might have culminated in his dismissal and loss of retirement benefits. As a condition of accepting his resignation, the School Board stipulated that Ferrell would not be rehired by that school district. At the same time, the charges which prompted his retirement were referred to the Commission. On November 10, 1987, or some twenty-one months later, an administrative complaint was issued against Ferrell charging him with various violations of general law and agency rules. As amended on March 8, 1988, the complaint alleges that Ferrell, who is white, (a) used excessive corporal punishment on a black student and called that student a "nigger" on December 20, 1985, (b) called a black student a "dummy, gorilla and nigger" on December 18, 1985, (c) showed unprofessional conduct at a parent-teacher conference on December 19, 1985, (d) failed to follow school policies and procedures, used unprofessional conduct and defied school personnel, all of which resulted in a letter of reprimand on April 15, 1985, (e) argued with a fellow teacher on June 5, 1984, (f) was guilty of direct insubordination by refusing to accept a student into his classroom on December 14, 1984, and (g) committed battery upon another teacher on April 23, 1982. 1/ These charges will be discussed separately hereinafter. The December 20 Incident On December 20, 1985 Ferrell was teaching a mathematics class when J.W., then a fourteen year old black student, was brought to his classroom by Mr. Robertson, a school security guard. The student had been caught skipping class earlier and was sent to Roy Scott, an administrative assistant, who gave a "shot" (paddling) to J.W. and several other students. When J.W. entered Ferrell's class, Ferrell asked him "What happened to you?" J.W., who was upset and teary eyed from his paddling, responded "I just got a shot." Ferrell replied "You should have been suspended." J.W. then said words to the effect "Don't worry about me," and went to his desk which was in the back corner of the classroom. Ferrell, who did not hear J.W.'s last remark, asked "What did you say?" When J.W. did not respond Ferrell went to the student's desk and lifted it slightly once or twice and again asked him to repeat his comment. J.W. would not respond and told Ferrell to leave him alone. Using both hands, Ferrell picked up J.W. by his shirt and asked him to repeat his comment. During the process of picking up J.W., Ferrell's hands ended up around the upper chest area or lower part of J.W.'s neck. J.W., who by now was angry and even more upset, tried to break loose but Ferrell pushed him against the wall resulting in J.W. accidentally bumping his head. After Ferrell asked J.W. what he intended to do, J.W. threatened to tell his mother but Ferrell replied that he didn't care. When J.W. again attempted to break away, Ferrell pushed him against the wall a second time. At that point, Ferrell thought he heard J.W.'s shirt tear and released the student. He told a security guard to take J.W. to the principal's office. He later gave J.W. a detention for coming to class without a book. Although at hearing J.W. claimed that Ferrell had called him a "nigger" and "boy," this contention is rejected since J.W. did not allege this in his initial statements and interviews, and nearby students who witnessed the event did not hear Ferrell use those words. 2/ After J.W. related the event to the school administrators, the administrators concluded that J.W. was "okay," and he was sent to his next class, a physical education class. During the interview, one of the school officials noted a small bump on the back of J.W.'s head where it had struck the wall and accordingly reported Ferrell to the Department of Health and Rehabilitative Services for child abuse (excessive corporal punishment) However there is no evidence that formal charges were ever filed against Ferrell by the agency or state attorney. According to J.W., the bump "hurt" and stayed on his head for "about a week." However, he did not ask for nor was he given medical assistance for his injury. In a meeting later that day, Ferrell admitted to the assistant principal in charge of administration, Kenneth Jaworski, that he had pushed J.W. against the wall, that the child may have bumped his head, and that his hands may have slid up around J.W.'s throat area. At that time, Ferrell blamed the incident on a "wise" statement made by the student. In early January, 1986, or some two to three weeks later, school officials contacted J.W.'s mother and told her of the incident. According to school policy, a teacher should never place his hands on a student unless he is in fear of bodily harm from a student or unless a student is about to inflict bodily harm on another student. Since neither situation was present, Ferrell violated school policy. Had Ferrell considered J.W.'s conduct to be disruptive or defiant, Ferrell should have either referred him to the principal's office or contacted a security guard who would escort J.W. to the principal's office. These procedures are outlined in the faculty handbook, and Ferrell was aware of such policies. Finally, under School Board Rule 6Gx13-5D- 1.08 appropriate corporal punishment was considered to be paddling. If corporal punishment was justified, only two persons designated by the principal at PJHS were authorized to administer such punishment and then only under certain conditions prescribed within the rule. Ferrell was not one of the two designated hitters. At hearing, Ferrell contended that he was simply "restraining" J.W. when the student attempted to leave the room and that he did not physically pull the student up with his hands or deliberately shove his head against the wall. He did concede it was possible that J.W.'s head could have accidentally hit the wall during the confrontation. Ferrell strongly disagreed with the contention that his actions equated to excessive corporal punishment and characterized it instead as an effort on his part to restrain the student from leaving class. It was his contention that the definition of corporal punishment was vague but was generally interpreted only to be paddling. He also said his actions were necessary in order to maintain control and discipline in his classroom. The December 18 Incident During the first semester of school year 1985-86, N.W. was a twelve year old black student at PJHS enrolled in Ferrell's sixth period mathematics class. Around 7:00 a.m. on the morning of December 18, N.W. was standing with two other black female students outside the school building when Ferrell walked by on the way into his classroom. There may have been as many as ten or twenty other black students who were within hearing distance of Ferrell but the exact number, if any, is unknown. One of the students, S.W., called out to Ferrell "Do you have a brother named Fred?" Ferrell replied "No, do you have a brother named Dummy?" He also asked S.W. if she was in his class. The student then retorted "No, but you remind me of Fred Flintstone." Ferrell replied "You remind me of a nigger." The evidence is conflicting as to whether Ferrell used the word "gorilla" during the incident, but it is found he did not. N.W. told her mother of the incident that day. Even though she was extremely upset with Ferrell, the mother chose not to bring the matter up until after the Christmas holidays. On January 9, 1986 N.W.'s mother met with Ferrell and a counselor, who was also black, to discuss her daughter's poor grades and the name-calling incident that occurred on December 18, and to request that her daughter be transferred out of Ferrell's classroom. At the conference, Ferrell acknowledged to both N.W. and the counselor that he had used the word "nigger." However, he explained that he was from North Carolina, that the word was always used to describe blacks and that the term was not used in a derogatory sense. In a conference with the principal, Fred Damianos, Ferrell freely admitted he had used the word "nigger" in his exchange with the three black students but, as he had told the mother, stated the word was a common one in North Carolina and was not meant to be derogatory. The principal did not consider this to be justification for his conduct and had a letter of reprimand placed in Ferrell's file. At hearing, Ferrell agreed his use of the word showed a lack of good judgment and could have offended the students in question. Direct Insubordination On December 14, 1984 Ferrell sent N.C., a female student, to Jaworski's office for using profanity in class. She had already been sent out of class on several prior occasions for disciplinary reasons. Ferrell did not want her back in class until after a parent-teacher conference had been held. However, Jaworski was "extremely busy" at the time and sent her back to the classroom with a note requesting that Ferrell take her, and they would talk about the student's situation later on. When N.C. returned to his class, Ferrell refused to accept her and sent her back to Jaworski's office with a note saying he would not admit her. Jaworski considered Ferrell's refusal to accept N.C. to be in defiance of his authority and therefore direct insubordination. Jaworski explained that, under then-existing school procedures, if the student continued to be a disciplinary problem, Ferrell should have prepared another referral slip rather than simply refusing to accept her. Jaworski discussed the incident with Ferrell that afternoon and later placed a memorandum describing the matter in Ferrell's file. However, the memorandum did not constitute disciplinary action since Jaworski had no authority to discipline Ferrell. Ferrell considered N.C. to be a persistently disruptive student who had to be removed from the classroom. He also felt his conduct in the matter was consistent with the school's Code of Student Conduct which authorized a teacher to temporarily remove that type of student from the classroom, request a parent-teacher conference, and to send the student to a predesignated area determined by the school principal. In Ferrell's view, Jaworski overreacted to the situation and had failed to give consideration to all the facts before the memorandum was written. Angry Parent-Teacher Conference On December 19, 1985, Ferrell held a parent-teacher conference with a Mr. and Mrs. Sterling and a school counselor. The conference concerned the Sterlings' son, R.S., who had been a disciplinary problem in one of Ferrell's classes. The mother carried a small baby with her to the conference. The four (plus baby) met in the counselor's 8'x 10' office which was approximately twenty feet from Jaworski's office. After the meeting had been underway for some time, another administrator asked Jaworski to check out the loud voices emanating from the counselor's office. When Jaworski went over to see what was happening, he found what he considered to be a "heated" meeting taking place. He described Ferrell's tone of voice as being loud and aggressive. After a few minutes had passed, Ferrell stood up and, in an irritated manner, said words to the effect "I can't add anything else, I don't know what else to say" and departed the meeting. As Ferrell left, Mr. Sterling said he had heard that Ferrell was "prejudiced." Upon hearing this comment, Ferrell returned to the doorway and said "If you believe that, you're as immature as that baby." At that point Jaworski, who was still standing near the office, felt that there was going to be a physical confrontation between Ferrell and Mr. Sterling and placed his arm across the doorway to prevent Ferrell from entering the room. Ferrell then left the area. However, Ferrell did not "physically push" Jaworski as alleged in the complaint. At hearing Ferrell admitted the conference "did not go well" and that, at one point, he and Mr. Sterling may have been "trying to out talk the other." Ferrell's contention that he did not use "threatening" words at any time was corroborated by Jaworski. Ferrell also pointed out that between September 5, 1985 and January 10, 1986, he had twenty-six parent-teacher conferences and only this conference drew a complaint from administrators. Even so, Ferrell was cited for unprofessional conduct in a memorandum prepared by Damianos on January 9, 1986. Battery on a Teacher On April 23, 1982 Ferrell was involved in an altercation with another teacher named Bellis. The incident occurred around 9:00 a.m. that day when some students left Bellis' classroom and congregated in the hallway outside of Ferrell's classroom. Because this disturbed his class, Ferrell first complained to Bellis, who did nothing about the matter. Ferrell then complained to the principal (Mr. Hanna) A short time later, the three men met in the hallway in front of Ferrell's classroom and, when Bellis turned and began walking away, Ferrell grabbed his upper bicep and told Bellis to turn around and tell Hanna the truth about the situation. Because Ferrell had touched him, Bellis filed criminal battery charges against Ferrell. However, there is no evidence that Ferrell was ever prosecuted for this crime. Even so, Ferrell was administratively charged with battery by school administrators and was suspended from school without pay for ten days. Ferrell contends he accepted the punishment only because he was promised a reassignment to another school. The promised reassignment did not materialize. Failure to Follow School Policy, Etc. The complaint alleges that Ferrell was guilty of "tearing up three discipline referrals in front of (Damianos) during a fit of anger." In the spring of 1985, a new countywide school policy was implemented requiring teachers to contact the student's parents before referring the student to the principal's office for "minor infractions." This policy was explained to all PJHS teachers, including Ferrell, at a faculty meeting on March 26, 1983. However, Ferrell had referred three students to the principal's office during the week preceding the meeting without first making such parent contact. By March 27, Ferrell had contacted the three sets of parents, albeit after the referrals had already been sent to the principal's office. On March 27, Ferrell and Damianos met in the school cafeteria to discuss the three referrals and the need to follow the new procedure. When the meeting ended, Ferrell was "upset," but not in "a fit of anger," and as he walked out of the cafeteria, he tore up the referrals and threw them in the wastebasket. Damianos considered this to be "unprofessional conduct" and "immature" and Ferrell's way of showing the administration that he was "upset." Ferrell justified his tearing up the forms on the ground the forms were no longer necessary since they failed to comply with the new school directive. He added that he meant no disrespect towards Damianos. Ferrell admitted being late to his classroom a few times in the spring of 1985 due to heavy traffic and parent- teacher conferences that lasted beyond the school starting hour. He also acknowledged that he had told another teacher (Scott) that Jaworski was "fat and lazy." In hindsight, Ferrell realizes he may have been "a little off base" for doing so. Unfortunately for Ferrell, his comments were relayed to Jaworski. Ferrell was charged with having received a letter of reprimand dated April 15, 1985 for various matters, including those discussed in findings of fact 17-19. He was also placed on two weeks' prescription in May, 1985 and satisfactorily completed all conditions by the prescribed time. Other than Ferrell's admission of being late, calling Jaworski certain names, and tearing up the three referral forms, there was insufficient evidence to support findings concerning any other incidents which form the basis for the reprimand and prescription. Incident on May 4, 1984 The complaint charges that Ferrell and Bellis supposedly had another altercation on June 4, 1984 albeit one of a purely verbal nature. No specifics are of record, and Ferrell's contention that he was completely exonerated was not contradicted. Indeed, the assistant principal did not dispute this contention and admitted that Bellis was an "unusual" person who had a tendency to lie. Loss of Teacher Effectiveness According to the testimony of various administrators, Ferrell's conduct in its totality, if shown to be true, has resulted in the loss of his effectiveness as a teacher in the public school system. Ferrell's Case Ferrell contended that all allegations were either untrue or exaggerated. He suggested the School Board of Dade County began compiling a paper trail in 1984 in an effort to dismiss him. According to Ferrell, this began when Ferrell met with the area superintendent in July, 1984 after the second Bellis incident. The superintendent told him that if one more incident occurred, Ferrell was "through as a teacher in Dade County." Ferrell also attributed many of his problems to a personality conflict with Jaworski and Damianos. Ferrell admits that he is a strict disciplinarian in class and assigns a great deal of homework. As a result, he is unpopular with many students. Ferrell's reputation as a strict disciplinarian was corroborated by one administrator who described Ferrell's class discipline as "extremely good." Ferrell also describes himself as "blunt," "frank," "to the point," and "very firm" in dealing with students, parents and teachers. However, these characteristics have tended to cause strained relations with his counterparts. Except for the December 18, 1985 incident, Ferrell denies ever using derogatory terms during his lengthy school tenure. This was corroborated by Jaworski and Damianos to the extent that they had contact with Ferrell while they were at PJHS. Indeed, they stated that Ferrell never gave any prior hint of racial bias. Ferrell was also described as an adequate teacher in terms of teaching skills as evidenced by his continuous receipt of satisfactory annual evaluations during his tenure with the school system. Further attributes included his never being absent and a willingness to stay after regular school hours to tutor students. Finally, Ferrell was offered the opportunity by Damianos in both 1984 and 1985 to teach extra classes because of the principal's confidence in his capabilities. Ferrell has not taught since his retirement in February, 1986 but wishes to retain his teacher's certificate. He thinks revocation of his certificate is too harsh a penalty given his otherwise satisfactory twenty-five year tenure as a teacher.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Jack E. Ferrell be found guilty of violating Subsections 231.28(1)(c), (f) and (h), Florida Statutes (1987), as more specifically discussed in the conclusions of law, and that his teaching certificate be suspended for three years retroactive to his date of retirement in February 1, 1986. DONE AND ORDERED this 4th day of May, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1988.
