The Issue Whether Sharon V. Eaddy (Respondent) committed the acts alleged in the Notice of Specific Charges filed by the Miami-Dade County School Board (the School Board) on August 29, 2014, and whether the School Board has good cause to terminate Respondent’s employment as a paraprofessional.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Campbell Drive Center is a public school in Miami-Dade County, Florida. During the 2013-2014 school year, the School Board employed Respondent as a paraprofessional pursuant to a professional service contract. At all times material hereto, Respondent’s employment was governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. The School Board assigned Respondent to a Pre-K special education classroom at Campbell Drive Center taught by Pascale Vilaire. Respondent has worked at Campbell Drive Center as a paraprofessional for 13 years. During the 2013-2014 school year, 14 special needs students were assigned to Ms. Vilaire’s classroom. Those students were between three and five years of age. L.H., a four-year-old boy who was described as being high functioning on the autism spectrum, was one of Ms. Vilaire’s students. L.H. had frequent temper tantrums during the 2013-2014 school year. Prior to the conduct at issue in this matter, Respondent had had no difficulty managing L.H.’s behavior. There was a conflict in the evidence as to the date the conduct at issue occurred. The undersigned finds that the conduct occurred April 9, 2014, based on the Incident Information admitted into evidence as Petitioner’s Exhibit 4, on the testimony of Yamile Aponte, and on the testimony of Grisel Gutierrez.1/ Ms. Aponte had a daughter in Ms. Vilaire’s class and often served as a parent-volunteer. Ms. Aponte was at Campbell Drive Center’s cafeteria on the morning of April 9, 2014. Present in the cafeteria were Ms. Vilaire, Respondent, some of Ms. Vilaire’s class (including L.H.) and students from other classes. When Ms. Aponte entered the cafeteria, L.H. was crying and hanging on to a trash bin. Ms. Vilaire was attending to another student. Respondent was trying to deal with L.H. to prevent him from tipping over the trash bin. Respondent led L.H. by the wrist back to a table where they sat together. Ms. Aponte approached them and offered L.H. a milk product referred to as a Pediasure. Because L.H. was allergic to milk, Respondent told Ms. Aponte that L.H. could not have the product. When Ms. Vilaire lined up her class to leave the cafeteria, L.H. threw a tantrum because he was still hungry. Ms. Aponte testified that Respondent grabbed L.H. by the wrist and pulled him up. Ms. Vilaire observed the entire interaction between L.H. and Respondent in the cafeteria. Ms. Vilaire did not witness anything she thought was inappropriate or caused her concern. Petitioner failed to establish that Respondent became physically aggressive toward L.H. in the cafeteria by dragging him across the floor or otherwise grabbing him inappropriately. Paragraph nine of the Notice of Specific Charges contains the allegation that while in the cafeteria, “Respondent forcefully grabbed L.H. and dragged him across the floor.” Petitioner did not prove those alleged facts. After the class finished in the cafeteria, the students lined up to go back to the classroom. Ms. Vilaire was at the front of the line, and Respondent was ten to fifteen feet behind at the end of the line with L.H. Ms. Aponte was part of the group going from the cafeteria to the classroom. During the walk back to the classroom, Ms. Vilaire did not see or hear anything between Respondent and L.H. she thought was inappropriate. She did not hear anything that diverted her attention to Respondent and L.H. At the time of the conduct at issue, Barbara Jackson, an experienced teacher, taught first grade at Campbell Drive Center. While Ms. Vilaire’s class was walking from the cafeteria to the classroom, Ms. Jackson had a brief conversation with Respondent about getting food for her class from McDonald’s. Ms. Jackson did not hear or see anything inappropriate between Respondent and L.H. After stopping to talk with Ms. Jackson, Respondent resumed walking to Ms. Vilaire’s classroom. L.H. continued to cry and attempted to pull away from Respondent. L.H. wanted to be the leader of the line, a position that is rotated among the class members. Ms. Vilaire led the other class members into the classroom while Ms. Aponte, Respondent, and L.H. were still outside. While still outside, they saw Grisel Gutierrez, a teacher at Campbell Drive Center. L.H. began to throw himself on the ground on top of his backpack. Ms. Aponte and Ms. Gutierrez saw Respondent grab L.H. forcefully by the arm and hit him on his shoulder with a slapping sound.2/ After Respondent returned L.H. to the classroom, L.H. tried to push over a bookcase containing books and toys. To prevent L.H. from pushing over the bookcase, Respondent grabbed L.H. by his hands and held them behind his back. Ms. Vilaire witnessed the interaction between Respondent and L.H. in the classroom and thought Respondent acted appropriately. Petitioner failed to establish that Respondent acted inappropriately towards L.H. while in the classroom. Ms. Aponte reported what she had seen to the school principal the day of the incident. Respondent learned that Ms. Aponte had complained against her the day of the incident. After school the day of the incident, Respondent angrily confronted Ms. Aponte and asked her why she had lied. Rounett Green, a security guard at Campbell Drive Center, stepped in to end the confrontation between Respondent and Ms. Aponte. There was no evidence that Respondent attempted to threaten Ms. Aponte. Respondent did not use inappropriate language towards Ms. Aponte. Respondent did not make physical contact with Ms. Aponte. L.H.’s mother heard about the alleged interactions between Respondent and L.H. When L.H. returned home after school, the mother examined L.H. and found no bruises or other unusual marks on L.H.’s body. At its regularly scheduled meeting on June 18, 2014, the School Board suspended Respondent’s employment and instituted these proceedings to terminate her employment.
Recommendation The following recommendations are based on the foregoing Findings of Fact and Conclusions of Law: It is RECOMMENDED that the Miami-Dade County School Board, enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate the employment of Sharon V. Eaddy. DONE AND ENTERED this 15th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2015.
The Issue At issue is whether the Respondent committed the offenses set forth in the Administrative Complaint dated July 30, 2002, and if so, whether his employment should be terminated.
Findings Of Fact Mocombe has been employed by the School Board as a social studies teacher since 1997, when he graduated from Florida Atlantic University. He began his career substitute teaching at Sunrise Middle School (Sunrise), and later moved into a full-time position at Lauderhill Middle School (Lauderhill). In the years following graduation, while working as a teacher, Mocombe continued his studies at Florida Atlantic University and attained a master's degree and a Ph.D. He also received three formal reprimands, and a reputation as a person who could engage in adolescent behavior toward peers and insubordinate behavior to his principal without suffering any meaningful consequence. Mocombe calls himself a brilliant teacher, whose teaching philosophy is informed by his belief that "Revolution comes first. I'm a Marxist." Also a high priority for Mocombe is hedonism. Mocombe is known at Lauderhill as a "player," a term defined by one witness as "[S]omeone who has a lot of women and a lot of women [who] know about each other," a characterization which Mocombe embraces. Although married, Mocombe had a sexual relationship with a teaching colleague at Lauderhill by the name of Belinda Hope (Hope). He also was attracted to a first year teacher by the name of Kim Barnes (Barnes). Specifically, said he wanted to "get into her pants," during the 2000-2001 school year. Mocombe has no sense of boundaries in the workplace. He freely offers his opinions on religion, politics, and sex, some intended to be humorous, some not. Mocombe is aware of his need to be the center of attention and to shock people. He testified, "Even in school, I used to go walking around and said I was God just to get a reaction out of people." Most adults tread carefully, or not at all, around such deeply personal subjects. The training and ethics of the teaching profession emphasize respect for the dignity and worth of each individual, irrespective of his political and religious beliefs, or lack thereof. Teachers are educated to understand that sophomoric jokes about sex are not to be inflicted upon unwilling listeners. These lessons are reemphasized annually in sexual harassment training provided to all teachers employed by the School Board. Mocombe did not benefit from this training. He was known at Lauderhill for a constant stream of crude references to sex. He made no secret of his view that a woman's role is to have babies and serve men sexually. In addition, Mocombe would mock organized religion in the presence of colleagues who take their faith seriously. He often spoke of starting his own church, in which he would be known as Prophet Paul and the prerequisite for all women seeking to join the church would be to have his baby. Such comments, as well as his propensity to refer to women as "bitches" and "whores," were deeply offensive to some, but they kept silent. Lauderhill was an ideal environment for Mocombe. The atmosphere at the school is sexually charged to an extent inappropriate to the serious business of teaching children who are at a fragile stage of their own sexual development. Adolescent sexual banter consumes a great deal of time in and out of Lauderhill's teachers' lounge. At least in Mocombe's class, cursing and horseplay in the presence of the teacher-- even with the teacher--is acceptable. Unrebutted testimony placed an assistant principal in the main office discussing "sex, among other things," with Mocombe and other members of Lauderhill's staff in the main office at a time when at least one person not employed there could hear their discussion. Phillip Patton (Patton) was Mocombe's principal, first at Sunrise and later at Lauderhill. Patton's patience with Mocombe's behavior was seemingly boundless. In the lax atmosphere at Lauderhill, some of Mocombe's colleagues regarded his frequent references to sex, as well as to religion, politics, and the appearance of female colleagues, as harmless banter. Others, such as Marrisa Cooper (Cooper) who testified on Mocombe's behalf, felt that it was not the school's responsibility to deal with harassment; rather, the person at whom the harassment was directed should have the "balls" to deal with it. Cooper explained that it was understood at Lauderhill that Mocombe [believed] "that women are there to have children, which everyone always disagrees with statements because he always makes these general statements about women, and a lot of people take them as being belittling or degrading women. I don't take it personal because you are not talking to me, I know what I am made of and the way I am, so I never take them personally. But again, everybody maybe don't have the balls that I have." Others at Lauderhill were offended by Mocombe's conduct, but kept their silence, believing that Patton would not impose meaningful discipline on him. In fact, Patton's patience with Mocombe ran out only when Barnes and another teacher, Tracey Bryant (Bryant) put their complaints in writing, at which time Patton was required by School Board policies and procedures to forward the complaints for follow- up by trained investigators. The charges at issue here arise out of Mocombe's interaction with three individuals, student Hudson Mortimer (Mortimer), and the above-mentioned teachers Bryant and Barnes. Each situation is discussed separately in paragraphs 16 through 77, below. Hudson Mortimer: At the time of the incident alleged in the Administrative Complaint, Mortimer was a sixth grader at Lauderhill and a student of Mocombe's. Mortimer shares Mocombe's high opinion of himself as a teacher. Although Mortimer testified at the behest of the School Board, he volunteered, "I don't think he should get his license suspended." On October 11, 2001, Mocombe and Mortimer were "playing with each other." More particularly, Mortimer was "cracking" on his teacher, calling him "ugly and stuff." Mortimer's and Mocombe's accounts of the incident are consistent, and create a picture of two kids on the same level, playing together when they should be working. The incident began with Mortimer and Mocombe trading good natured insults, which included adolescent name-calling, using phrases such as "ugly-ass," while tossing whatever object was at hand at one another. Eventually Mocombe tossed a marking pen at Mortimer which hit the student over one eye, causing minor injury. The School Board contends that this incident constitutes the imposition of inappropriate discipline of sufficient severity to warrant termination. Pursuant to School Board rules and policies requiring that events which may give rise to litigation be documented, Patton, through a staff member, sent an accident report form to Mocombe for him to fill out. Mocombe refused, saying, "I'm not filling out anything, it was an accident. Patton wants to, he can fill it out himself." Patton took no disciplinary action against Mocombe for his refusal to comply with this routine and entirely appropriate request that he follow a reasonable School Board policy. This was not the first time, nor would it be the last, that Mocombe was given to understand that there would be no meaningful consequence to him for ignoring rules which he did not wish to follow. Tracey Bryant: Bryant is a 13-year teacher. Her complaint against Mocombe arises out of an incident which she characterizes as sexual harassment, and which occurred in the teachers' lounge at Lauderhill on April 5, 2001. At the time of the incident, Bryant was one of about a half dozen teachers present in the lounge. While conversing with a colleague, she was interrupted by Mocombe who asked, "Ms. Bryant are you pregnant?" Stunned, she coldly told him, "No." Referring to Bryant and to another teacher then present, Mocombe commented to the effect that their "butts were getting to be alike---hanging." Bryant quickly left the room. Here, as with the incident involving Mortimer, Mocombe and the alleged victim tell similar stories. Both agree that Mocombe was intending to be jocular in his interaction with them. But while Mocombe's alleged student victim supports the manner in which Mocombe interacts with him in general, and in particular is not offended by the allegedly inappropriate conduct set forth in the Administrative Complaint, Bryant felt "humiliated and disrespected" by Mocombe's comments about her size. In addition, Bryant was aware of Mocombe's history of making what she viewed as inappropriate comments about and to females. She had heard him make numerous comments she regarded as inappropriate in the workplace to Hope, a good friend of hers with whom Mocombe would eventually have an acrimonious break-up. When the offensive comment about Bryant's size was directed to her personally, she complained, in writing, to Patton. The conflict between Bryant and Mocombe continued at the hearing. At one point, Mocombe snickered during legal argument being made by the School Board attorney while Bryant was on the witness stand. Mocombe was provoked by a comment made to him by the School Board's attorney (who in turn was admonished to direct his comments to the tribunal, and not to parties or witnesses) and said of the School Board's charges against him, "I find it baffling and humorous, yes." Bryant immediately jumped in to say, "That's how he is, yes. No remorse or nothing." Bryant's reading of Mocombe's attitude is accurate. During his testimony, Mocombe supplied details of the incident which were not presented in the School Board's case, and which reflect a lack of understanding of why his conduct was so offensive. After having months to reflect on why Bryant brought these charges, Mocombe remains unembarrassed by his faux pas of assuming--and saying aloud to a roomful of colleagues--that Bryant's weight gain was due to pregnancy. He volunteered during his testimony that rather than drop the subject after Bryant made her displeasure clear, Mocombe persisted, discussing his exchange with Bryant about Bryant's weight with another colleague, Vicki Drane. While not denying the substance of Bryant's account of the incident in the teachers' lounge, Mocombe argues that Bryant is out to get him because of his break-up with Hope. However, neither Mocombe nor any of his witnesses offered any type of corroboration in support of his assertion that Bryant and others conspired to avenge his spurned lover by getting him fired. After carefully observing Bryant's demeanor under oath, and considering the entire record, the undersigned finds no evidence to suggest that Bryant's testimony was untruthful, or that her complaint was motivated by anything other than her own distress at Mocombe's callous behavior in calling attention to her weight gain, behavior which hurt and embarrassed her in front of her colleagues. Kim Barnes: Barnes met Mocombe in the office at Lauderhill, where she was being interviewed for what would become her first teaching job. As previously noted, the School Board provides annual training to its employees regarding sexual harassment and other types of conduct inappropriate in the workplace. But Barnes' first contact with Lauderhill employees in their main office, where the administrative staff, including the principal, have their offices, suggested an atmosphere inconsistent with what is to be expected in a well managed place of learning. Mocombe acknowledges that he wanted to "impress" Barnes in order to "get into her pants." This is his account of his first meeting with Barnes in the school office: The first -- the very first interaction I had with Ms. Barnes were the beginning of the last school year. We were in teacher planning. She came in for an interview and we were all in the student office discussing sex among other things. Q. Who was we? A. Ms. Cooper, Ms. Mayo, who was the office manager, the assistant principal at that time, Mr. King, myself, and Ms. Barnes. And I made the reference about I want six children. My actual reference was my goal is to have as many little Mocombes running around so I can start my own revolution, take over the world, my own Marxist revolution and indoctrinate them. And she made the reference that she wanted to have five children. I thought hey, we could work out if that's the case. (Transcript page 276, lines 2-19). In hindsight, it was a mistake for Barnes to tell Mocombe the number of children she might like to have. The above-mentioned defense witness, Cooper, was an office worker at Lauderhill and was present and participated in the discussion of "sex among other things." Cooper, knowing of Mocombe's obsession with sex, deemed that Barnes, having joined the discussion to the extent of remarking that she would like to have five children, had granted consent for Mocombe to make sexual advances. Barnes' account of the conversation is slightly different. She recalls telling Mocombe she might like to have five children in response to a direct question by him. Perhaps she voluntarily "made the reference," as Mocombe recalls. This is the type of minor discrepancy to be expected from witnesses asked to recall the details of an event which took place months ago. What is important is that Mocombe did not then and does not now see why the comments which he freely admits making are utterly inappropriate to the time and place where he made them. Although Cooper considers herself a friend of Mocombe, in giving testimony on his behalf, she volunteered that on the day of the Barnes' job interview, Cooper commented to Barnes that Mocombe was "no good." Counsel for Respondent did not suggest what issue this testimony goes to, but the testimony offered on Mocombe's behalf, taken together, suggests a belief by Mocombe and his friends that Barnes was on notice that as a "player," Mocombe was unable to relate to professional women in a professional way, and that he was not expected to do so by his colleagues or supervisors. Barnes was hired and began work at Lauderhill in the fall of the 2000-2001 school year. In the beginning, Mocombe confined his comments to Barnes to acknowledging her presence, usually in terms of her looks, such as, "Hi, sexy." Over time, the comments became more graphic. Mocombe would remark on the size of Barnes' breasts, her "phat (pretty hot and tender) ass" and would state his desire to have sex with her in stunningly offensive terms. In November 2000, Barnes expressed her distress about Mocombe's conduct to Reginald Edwards (Edwards), a substitute teacher who also works as a Baptist pastor. Edwards reported Barnes' concerns to principal Patton. Patton did nothing to follow up. Barnes also expressed her distress to her assigned teaching mentor, Arnetta Davis (Davis). Davis advised her that Mocombe was well known for this type of conduct, and recommended that she try to "nip it in the bud." Barnes is not an aggressive personality, but she tried to make Mocombe understand that she did not appreciate his comments. Mocombe was not deterred. Her efforts to nip Mocombe's conduct in the bud having failed, Barnes conferred again with Davis. Davis confirmed what Barnes had come to suspect: Mocombe conducted himself in this manner because he had been doing so for as long as he had been teaching, with no more than a wrist slap ever imposed. Barnes came to hold a reasonable belief that, in Davis' words, "apparently everyone knew about it, [Mocombe's inappropriate behavior] it was just how he was, and everyone just basically looked a blind eye about it." Davis could not provide Barnes with any assurance that if she complained to Patton, Mocombe would experience any meaningful consequence. Worse, Davis confirmed Barnes' fear that she, Barnes, might be deemed a troublemaker and be "blackballed" if she complained. Barnes was in no position to be blackballed. At the time she began her employment at Lauderhill, she had not yet received her permanent teacher's certificate. Moreover, she needed a summer teaching job and believed she was not likely to get one by being a "troublemaker." Based upon Davis' advice, and her own observation that Mocombe's constant sex talk was part of the landscape at Lauderhill, Barnes reasonably feared that Mocombe would continue to be protected by Patton, and that her own career might be seriously impaired if she sought to avail herself of School Board policies and procedures designed to provide employees recourse from sexual and other types of harassment. Davis' advice to Barnes was reasonable. Davis had witnessed Mocombe conduct himself in an unprofessional and disruptive manner at faculty meetings with no apparent consequences. Interestingly, at least by the time of the hearing, Mocombe's perception of his relationship with Patton differs from the perception shared by most of Lauderhill's professional staff. Mocombe came to feel that Patton would go out of his way to write [Mocombe] up for anything which Patton believed to be a challenge to his authority. But the totality of the evidence suggests that at all times material to this case, the belief widely held by Lauderhill staff that Patton's patience with Mocombe was practically unlimited, is closer to the truth. By March of 2001, Mocombe's conduct toward Barnes had escalated. One day, Barnes came in to the teachers' lounge to check mail. About a half dozen teachers were present. Mocombe freely--indeed proudly--described this incident: he said, for all to hear, "I can't stand up because my dick is hard, or I'm hard." Davis was coming to believe that she could no longer ethically ignore Mocombe's conduct toward Barnes. Around the time Bryant made her written complaint to Patton, Davis went to Patton on Barnes' behalf. Patton in turn went to Barnes and told her that she had to put her complaints about Mocombe into writing if anything was to be done. Barnes did so. By way of defense, Mocombe suggests that Barnes was the aggressor, pursuing him to consummate a physical relationship. Mocombe says he chose not to have sex with Barnes. This excerpt from Mocombe's testimony fairly summarizes his theory of the case: The same reason she was inquiring of Mr. Edwards about me, and she found out about my dealings with women. I turned her down, all right. If that's what you want to ask, we didn't have sex because I didn't want to have sex. Q. She wanted sex but you didn't? A. I didn't say that. I just said we didn't have sex. I chose not to have sex. I didn't say -- Q. Did you ask her? A. We came close a couple of times in the classroom. Q. To have sex with her? A. That's what you want. Yeah, we did. We came close a couple of times in the classroom. Every day for 20 to 25 days in the classroom with this woman, and you think -- maybe you [sic] blind. Yeah, I'm a good looking man. You must be out of your mind. (Transcript page 310, lines 6-24). Mocombe also claimed, with reference to Barnes, "This girl hugged me every morning in the lounge" and that on at least five occasions she voluntarily engaged with him in activities which, if done by teenagers, would be called "making out." Mocombe never attempted to reconcile this testimony with his admission that he wanted to "get into [Barnes'] pants." Moreover, there are numerous ways in which the colorful incidents recounted by Mocombe, if they occurred, could be corroborated. For example, Mocombe claims he said to Barnes in the presence of two teachers, one of whom testified at the hearing, that he confronted Barnes after learning she had filed a complaint. As he described the scene, "I was like, hell, no. I didn't do anything to this heifer. I was like just Friday you were kissing me." Leaving aside the use of Mocombe's highly derogatory term "heifer," had Mocombe said such a thing in the heat of this particular moment, it surely would have made an impression upon Barnes and the other witnesses. Yet none of them was questioned about it. Rather, Mocombe expects the trier of fact to accept his version because, as he put it, "Come on now. Hey, I'm a good looking man. Not only that, I'm intelligent too I don't know what [sic]. So she is ridiculous. But you know what, she got that off. They set me up. It's good. I like that." Upon receipt of the written complaints from Bryant and Barnes, Patton, in accordance with School Board procedure, informed Mocombe of the charges and instructed him not to contact either complainant. According to Patton, Mocombe's response to the accusations was nonchalant. In fact, Mocombe was enraged. He ignored Patton's no-contact directive and approached both Barnes and Bryant in an effort to convince them to drop their complaints. This is how Mocombe described the scenes when he made his unauthorized approaches to Barnes and Bryant: "You know what the fuck, I'm sorry whatever [sic], just cancel this shit. . . . And then I went over to Tracey Bryant, and I was like what, you were having a bad day. I was asking you are you pregnant. She was like, yeah, she was having a bad day. Ms. Russell asked me to apologize. I like apologized. And that was it. That was it. And Ms. Bryant said she was going to drop it, and then that was it. " Elsewhere in his testimony, Mocombe described the post-complaint encounter with Barnes in more detail: ". I walked to her classroom . . . I was like what the fuck is your problem. Are you a psycho. What's the [sic] fuck. You know what, I actually said you are a fucking nut bag. What the hell is this. She was like---she sat on the desk. She got on the desk and was like I'm afraid of you Mocombe. I was like what the fuck is wrong with you. I am like are you a psycho. I am like are you psychotic." Because Mocombe is not charged with insubordination or any other infraction based upon his disregard of the instruction that he not communicate with Barnes and Bryant, ordinarily testimony about these communications would be irrelevant and inadmissible. But, Mocombe did not object to testimony about these communications from School Board witnesses, and was eager to talk about these encounters himself. Mocombe appears to view his accounts of these incidents as exculpatory. To the contrary, if Barnes had ever pursued a sexual relationship with Mocombe, one would expect that his tirade about her complaint would have taken a very different form. Mocombe's testimony on cross-examination provides additional insight into Mocombe's sense of entitlement to disregard basic standards of civility and respect towards colleagues, and to view any attractive co-worker as a potential sex partner. This passage, which summarizes Mocombe's view of the charges against him, is instructive on that point, and also contains an additional admission that he was seeking to have sex with Barnes: Can you get to the real issue here? I don't believe Mortimer is the actual issue here. The actual issue is regarding Kim Barnes and Tracey Bryant. Simply add that on to show some kind of -- that I'm an ineffective teacher. I'm a brilliant teacher. Even Patton will admit to that fact, and nothing here has anything to do with my ability to teach. Because I'll be frank, I'm a brilliant teacher, I'm 27 years old. Continue. Q. Thank you. Let's then go on to the major issue. The heifer as you described Ms. Barnes, you were just seeking to have sex with her; is that right? A. For the most part, yes. (Transcript page 295, lines 11-24). On this and several other occasions during his testimony, Mocombe stated, "I'm 27," in contexts which suggested that in his view, his youth exempts him from standards of conduct which apply to older people. The law makes no such distinction. The common thread which runs through the testimony of witnesses for both sides is that Mocombe believes his youth, good looks and personality exempt him from the constraints of middle class morality, to the extent that it demands that teachers exhibit basic respect for all persons, whether or not, in the teacher's opinion, such respect is deserved. Mocombe is a young man of obvious intelligence and charisma, and Patton did him a disservice in turning a blind eye to his refusal to conform his conduct to the requirements of the standards of his profession. Even at the hearing, Mocombe was unable to control his desire to articulate, in crude terms, his contempt for those he disrespects. This exchange from Mocombe's cross-examination is illustrative: Q. All right. And you also touched her body parts; is that correct? A. Sure. Don't you touch your wife? (Transcript page 298, lines 6-8). Asked at the hearing if he acted inappropriately toward Barnes, Mocombe replied, "According to her I did. No, I honestly don't think so, no. I thought it was in jest. . . . I thought it was just we were something. I didn't just fall off the turnip truck for Christ's sake. I have a Ph.D. in philosophy. Anyway. No, I don't feel I acted inappropriately to Ms. Barnes." Mocombe has had months to think about it, but he continues to adhere to the belief that he is entitled to give free rein to his hedonistic impulses, and to express them in the crudest possible terms. Based upon the undersigned's careful observation of the parties and witnesses under oath, and throughout the hearing, and after careful consideration of the record as a whole, the suggestion by Mocombe and his witnesses that Barnes pursued Mocombe and was a willing participant in make-out sessions with him is expressly rejected. Neither has Mocombe proven a conspiracy by the friends of his former lover to destroy Mocombe's career. Even if School Board witnesses are motivated in whole or part by affection for Hope, and there was no competent evidence to support this view, the question of whether Mocombe may be lawfully terminated must be determined with reference to his conduct, and not the joy, or lack thereof, which witnesses may feel at the outcome. Prior disciplinary history: There is a theme which runs through the incidents which give rise to Mocombe's current difficulties. The common denominator is immaturity. Mocombe does not have an adult understanding of how his behavior offends contemporary standards of appropriate workplace behavior, and the corrosive impact of his coarse language and preoccupation with sex upon the professional environment which the public has a right to expect in its schools. In his short teaching career, he has received three reprimands, all relating to incidents in which he was unable to follow well known rules of acceptable workplace communication. Mocombe received his first reprimand while still a substitute teacher at Sunrise, where Patton was principal. He was reprimanded for using inappropriate language in the presence of students. The reprimand, dated January 5, 1999, included a directive requiring him to enroll in a teacher training class. On April 11, 2000, Mocombe was reprimanded for unprofessional and profane comments made toward his former lover, Hope. Mocombe's tirade occurred in Patton's presence. Mocombe screamed at Hope such comments as, "Fuck you, you bitch--yeah I fucked you, you ain't nothing but a damn whore; you're nothing but a good fuck; I am gonna put my foot up your ass." The letter of reprimand regarding this incident cited Rule 6B-1.006 which requires that educators refrain from engaging in "harassment or discriminatory conduct which unreasonably interferes with an individual's performance or professional or work responsibilities or with the orderly process of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment. " The letter specifically warned that further misconduct of any nature could result in termination of employment. On January 10, 2001, Mocombe received a letter of reprimand for sending a chain letter to all of his teaching colleagues at Lauderhill in violation of well-established school board policy prohibiting the use of the in-house email system for communications unrelated to work. Mocombe's testimony revealed a complete lack of understanding that he has done anything wrong. Instead, he believes he is being "railroaded" in these proceedings. Based upon his prior disciplinary history, and the manner in which his defense was conducted, the conclusion is inescapable that if reinstated, Mocombe would continue to exhibit, during working hours, his passion for "revolution, education, and hedonism" in whatever manner he pleases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order discharging Mocombe from further employment in the Broward County Public Schools. DONE AND ENTERED this 14th day of March 2003, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 14th day of March, 2003. COPIES FURNISHED: Robert F. McKee, Esquire Kelly & McKee 1718 East 7th Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316-1924 Dr. Franklin L. Till, Jr., Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
The Issue Whether Respondent engaged in the conduct alleged in the Superintendent of Schools' Notice of Suspension and Recommendation for Dismissal from Employment. If so, whether such conduct provides the School District of Palm Beach County with "just cause" to take disciplinary action against Respondent pursuant to Section 231.36, Florida Statutes. If so, what specific disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Palm Beach County, Florida. Respondent's Certification Respondent previously held a temporary, non-renewable teaching certificate (Certificate Number 618674) issued by the Florida Department of Education certifying that he was eligible to teach biology in grades six through twelve in the State of Florida. The certificate's "validity period" was July 1, 1995, through June 30, 1997. Respondent's Employment with the School District At all material times to the instant case, Respondent was employed by the School District as a biology teacher in the ESOL program at Atlantic Community High School. The ESOL program is designed to meet the special needs of students whose native language is not English. The Collective Bargaining Agreement As a teacher employed by the School District, Respondent was a member of a collective bargaining unit represented by the Palm Beach County Classroom Teachers Association (CTA) and covered by a collective bargaining agreement between the School District and the CTA (CTA Contract), effective from July 1, 1995, to June 30, 1997. Article II, Section M, of the CTA Contract addresses the subject of "discipline of employees." It provide as follows: Without the consent of the employee and the Association [CTA], disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Association representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Association representative. An employee against whom action is to be taken under any Section and his/her Association representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and his/her Association representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, 1/ progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall not be placed in the employee's personnel file and shall not be used to the further detriment of the employee after twelve months of the action/inaction of the employee which led to the notation. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension With Pay. A suspension with pay may be issued to an employee when appropriate in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension with pay shall be placed in writing, dated and signed by the giver and receiver of the Megha P. suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension Without Pay. A suspension without pay may be issued to an employee when appropriate, in keeping with provisions of this Agreement, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken include either a suspension or dismissal, the grievance shall be initiated at STEP TWO. Megha P. was a student at Atlantic Community High School during the 1995-96 and 1996-97 school years. Megha was a ninth grader during the 1995-96 school year. Respondent was Megha's biology teacher during the first semester of that school year. On the day of her final examination in Respondent's class, Megha arrived at school early, approximately three hours before the examination was scheduled to commence. Shortly after her arrival at school that day, she was approached by Respondent, who asked her to accompany him to his classroom to help him with some paperwork. Megha complied with Respondent's request. After Megha and Respondent walked into the classroom, Respondent closed the classroom door behind them and told Megha to sit on his lap. Megha refused. Respondent then forced her to sit on his lap. While Megha was on his lap, Respondent fondled her buttocks and breasts. Megha tried to stand up and walk away, but Respondent physically restrained her and she was unable to escape his grasp. As he was restraining her, Respondent demanded that Megha give him "hugs and kisses." Megha told him "no." Respondent, however, persisted. He told Megha that "all the girls" give him "hugs and kisses" and that she should do the same. Megha responded that she did not care what "all the girls" did. Despite Respondent's persistence, Megha never gave Respondent the "hugs and kisses" he had requested. Megha was involved in another incident with Respondent during the first semester of the following school year. She was not a student of Respondent's at the time. On this subsequent occasion, Megha went to Respondent's classroom to purchase a bagel. (Respondent was selling bagels at school to raise money for a class trip.) When Megha entered the classroom, Respondent commented to her that she always wore loose fitting pants without a belt. Megha replied that she did not like wearing belts. Respondent then suddenly pulled down Megha's pants. Megha quickly pulled up her pants and left the classroom. Following this incident, Respondent, on several occasions, invited Megha to his classroom, but Megha declined his invitations. Suchi H. When she was in the ninth grade at Atlantic Community High School, Suchi H. was a member of a student organization (the Asian Club) sponsored by Respondent. On a club outing to the beach, during the taking of a group photograph, Respondent, who was standing next to Suchi, put his hand on the side of her breast and kept it there. Respondent's uninvited advance made Suchi feel very uncomfortable. Lovely R. During the first semester of the 1996-97 school year, Lovely R. was a student in Respondent's class. She was in eleventh grade at the time. Lovely was once late to Respondent's class on the day of an examination and Respondent told her to come back to the classroom later in the day to take the examination. Lovely did as she was told and returned to Respondent's classroom later that day. Upon entering the classroom, she locked the door behind her pursuant to Respondent's instructions. Respondent then gave Lovely a copy of the examination, along with the answer key. When asked by Lovely why he had given her the answers to the examination, Respondent replied that he was her friend and would do anything for her. Acting without Lovely's consent, Respondent thereupon moved his hands down her body, touching her neck, shoulders, breast and buttocks. He also tried to kiss her on the face, but was unsuccessful as Lovely turned her head away from him. Not wanting to be subjected to any more of Respondent's advances, Lovely told him that she had another examination she had to take (a story she made up) and left the classroom. Before this incident, Lovely had been receiving A's for her work in Respondent's class. After the incident, she received, undeservedly, F's from Respondent. Alexis G. During the first semester of the 1996-97 school year, Alexis G. was a tenth grade student in Respondent's class. One day during the semester, Respondent asked Alexis to stay after school so that she could show him a homework assignment she had done. He told her that if she did not see him after the end of that school day, she would not receive any credit for having done the assignment. At the end of the school day, Alexis went to Respondent's classroom. After she entered the room, Respondent locked the door behind her. He then directed Alexis to a table in the back of the room and told her to lie down on it. Following Respondent's instructions, Alexis got on the table and laid down on her stomach. Respondent proceeded to caress Alexis' back, breasts and buttocks and press his body against hers. He then asked Alexis to take her clothes off. Alexis told him "no" and screamed at him to get off of her. Respondent responded by moving away from Alexis. With Respondent off of her, Alexis stood up and left the classroom. On a subsequent occasion, acting in accordance with Respondent's instructions, Alexis visited Respondent in his classroom before her sixth period class. When she arrived, Respondent was alone. Following Respondent's directives, she gave him a massage. Chrisly A. In 1996, when she was in tenth grade, Chrisly A. was a student in Respondent's class. One day in class, Respondent approached Chrisly and told her that he wanted to speak to her during sixth period that day to discuss her grades. When Chrisly expressed concerns about missing her sixth period class, Respondent gave her a pass to show to her sixth period teacher. Chrisly went to Respondent's classroom after her fifth period class that day as Respondent had asked her to. After Chrisly entered the classroom, Respondent locked the door behind her. He then began to talk with Chrisly about her grades, as he had said he would earlier that day when he had requested her to meet with him. After a short period of time, however, he abruptly changed the subject of their discussion when he told Chrisly that he liked her and that he wanted to be her boyfriend and have sex with her. In addition, he asked Chrisly when she had her menstrual period. Respondent then forced Chrisly to sit in his lap. While Chrisly was on his lap, he stroked her neck, breasts and stomach and made her kiss him. He asked Chrisly to take off the shirts she was wearing so he could see her body, but she refused. Chrisly tried to get up from Respondent's lap, but Respondent held on to her and would not let her go. Finally, after someone knocked on the classroom door, Respondent permitted Chrisly to leave. Effectiveness By engaging in the conduct described above with Megha, Suchi, Lovely, Alexis, and Chrisly, Respondent has impaired his effectiveness as a teacher in the school system and as a member of the community. Aftermath Neither Megha, Suchi, Lovely, Alexis, nor Chrisly immediately reported Respondent to school authorities. Respondent's highly inappropriate conduct with these students, however, was ultimately brought to the authorities' attention. Following an investigation conducted by the School Board's Police Department, the School Board's Department of Employee Relations determined, based upon the findings of the investigation (which were contained in a written report prepared by the investigating officer), that a pre-disciplinary meeting should be held with Respondent. Such a pre-disciplinary meeting was held on April 7, 1997. Present at the meeting were representatives of the School District, a representative of the Palm Beach County Teachers Association, Respondent and his attorney. During the meeting, Respondent declined the opportunity to make a statement. On or about April 8, 1997, the Superintendent of Schools sent Respondent a Notice of Suspension and Recommendation for Dismissal from Employment, which read as follows: Based upon substantial information presented to me, I hereby inform you that I have found probable cause sufficient to warrant recommendation for your suspension without pay and dismissal from employment with the School District as an ESOL instructor. You are charged with committing misconduct sufficient to constitute just cause under the 1995-1997 collective bargaining agreement between The School District of Palm Beach County, and the Palm Beach County Classroom Teachers Association, based upon your repeated inappropriate behavior with students. Specifically, on numerous occasions you made sexual advances towards female students. Such conduct constitutes a violation of Section 231.36(1)(a), Florida Statutes (1995), School Board Rules and Regulations, and the Code of Ethics for the Education Profession in Florida, Chapter 6B- 1, Florida Administrative Code. Please be advised that I will recommend at the April 23, 1997, meeting of the School Board of Palm Beach County, Florida, that the School Board suspend you without pay effective April 24, 1997, and that termination of employment will become effective upon the expiration of fifteen (15) days thereafter. This action is taken in accordance with Sections 230.23 and 230.33, Florida Statutes. The April 23, 1997, School Board meeting will be held in the Board Room at 3300 Forest Hill Boulevard, West Palm Beach, Florida at 5:00 p.m. You or your representative have the right to attend this meeting and present an oral statement or documentation to show why you should not be suspended without pay and/or terminated. If you intend to speak before the School Board, please immediately notify Ms. Alicia Bell, Clerk, at (407) 434- 8139, of your intention to make a presentation at that meeting. Pursuant to School Board Policy 3.27, you have the right to request a formal hearing contesting the recommendation for your suspension without pay and dismissal. If you desire to request a formal hearing, you must put your request in writing and submit it within fifteen (15) days from receipt of this letter to Cynthia S. Prettyman, General Counsel, School District of Palm Beach County, 3318 Forest Hill Boulevard, C-302, West Palm Beach Florida 33406-5813. Failure on your part to timely request a hearing will be deemed a waiver of your right to a hearing on the matter, and all material allegations and charges made against you shall be deemed true by the School Board for purposes of entering a final order in this matter. By letter dated April 22, 1998, Respondent, through counsel, requested a hearing on the matter. The letter from Respondent's counsel read as follows: Our office has been retained for the purpose of representing Mr. Prakash Pathmanathan before the School Board of Palm Beach County, Florida with respect to the issues raised in the Superintendent's letter dated April 8, 1997, charging Mr. Pathmanathan with inappropriate behavior with students. Mr. Pathmanathan denies that there is any basis to support the Superintendent's recommendation for suspension without pay, and contests the recommendation for his dismissal. Mr. Pathmanathan requests that a hearing be conducted with respect to all issues raised by the charges described above and his defense to the charges, and requests that the hearing be conducted pursuant to the provisions of Section 120.57(1), Fla. Stat., before an Administrative Law Judge appointed by the Division of Administrative Hearings. Neither Mr. Pathmanathan, I, nor any other representative for Mr. Pathmanathan will make a presentation at the School Board meeting scheduled for April 23, 1997, when the Board will consider the propriety of the recommendation for suspension without pay, and recommend Mr. Pathmanathan's dismissal from employment. Accordingly, we request that the matter be placed on the Board's consent agenda. The matter was subsequently referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the hearing Respondent had requested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing him as an employee of the School Board. DONE AND ENTERED this 4th day of December, 1998, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1998.
The Issue Whether Petitioner is entitled to an unpaid leave of absence from employment as a teacher of the Flagler School District, from July 1, 1996 until expiration of her commission as School Board member on November 19, 1996.
Findings Of Fact Petitioner is a teacher employed by the Flagler County School District. Petitioner has been employed for more than three years, has been recommended by the School Board and reappointed and has become eligible for, and has received, a Professional Services Contract with tenure. Petitioner has been employed by the Flagler County School System for six years. She is enrolled in the Florida Retirement System, and her eligible employment under that system consists entirely of her service in the Flagler County School System. Petitioner was appointed by the Governor as a School Board member on or about September 5, 1995. She had just begun School Year 1995-1996 as an elementary teacher at Bunnell Elementary School. Petitioner was appointed to serve as a School Board member until November 19, 1996. Her appointment expires upon the election and start of a member to fill the remaining two years of the term of a deceased member of the School Board. Following her appointment to the School Board, Petitioner applied for a leave of absence as teacher in order to take her position as a School Board member. Petitioner sought an unpaid leave of absence from the time of her appointment to the School Board until the end of the 1995-1996 School Year. The Superintendent recommended that her request be approved and the School Board approved it. At that time, the Superintendent made clear to her that any leave of absence beyond June 30, 1996 would be subject to the School Board's approval, notwithstanding the Superintendent's current or future recommendations. Petitioner's request for leave of absence near the commencement of School Year 1995-1996 presented no administrative inconvenience to the School District, and minimal disruption of the routine of her students. Petitioner was tendered renewal of her teaching contract for the 1996- 1997 School Year, apparently effective August 13, 1996. Petitioner timely applied to the Superintendent for an extension of her leave of absence as a teacher for that part of School Year 1996-1997 that overlapped the time up to the expiration of her term as a School Board member, November 19, 1996. The Superintendent recommended that Petitioner's request for extension of leave of absence without pay for the applicable portion of School Year 1996- 1997 be granted. In considering Petitioner's request for an extension of her leave of absence into School Year 1996-1997, the Superintendent considered the requirements of efficient operation of the School District, including tentative discussions with his staff about possible positions suitable to Petitioner's experience upon her projected return November 19, 1996 from her requested extended leave of absence. The position to which Petitioner has been appointed at Bunnell Elementary School commencing August 13, 1996 is not being held open by Respondent, but has been filled by another teacher irrespective of these proceedings. There is a tentatively identified position suitable to Petitioner's experience. Mr. Bowen, Director of Personnel, Transportation, and Insurance, opined that if the tentatively identified position were not filled until November 19, 1996, it might be disruptive to good education of the particular type of students targeted for the program. The School District has no imminent need to fill the tentatively identified position, but there is no guarantee it still will be available on November 19, 1996. In the interim, other positions may open through maternity leave, illness, death, etc. or they may not. On average, there are three or four teaching positions that open and that must be re-filled every school year. There is no evidence that a position which opens, if any, will be one for which Petitioner is qualified. If there is no position for which Petitioner is suitable available on November 19, 1996 she cannot be placed in Flagler County. Seniority has no effect; suitability by educational qualifications and credentials does. If Petitioner's leave of absence is not approved and she fails to commence work on August 13, 1996, she will forfeit her contract as a teacher. If, after November 19, 1996, Petitioner is neither a School Board member nor a teacher on approved leave of absence, she will no longer be covered by the Florida Retirement System. If Petitioner is denied leave and returns to the position which is now available she will lose no employment benefits. The Superintendent recommended to the Respondent Board that the extension of Petitioner's leave of absence be approved because of the extraordinary circumstance of her gubernatorial appointment to the position of School Board member, and because the requested leave period was for such a short portion of School Year 1996-1997, (approximately 96 days including weekends and autumn holidays when no teaching occurs), that it was acceptable within his expert educator administrative experience. On April 23, 1996, the Respondent School Board voted to refuse the Superintendent's recommendation to extend Petitioner's leave of absence without pay for the additional time she would otherwise be teaching. Petitioner's request was the only recommended leave request not approved at that School Board meeting. An extended leave for over one school year has not been granted by the Flagler County School Board since 1978. The Respondent Board had no evidence before it other than the Superintendent's recommendation when it considered the extension of Petitioner's leave. During the Superintendent's thirteen-year experience which has been since 1983, the Board has always accepted his recommendations with respect to leaves of absence. Due to the death of another School Board member and the inability of Petitioner to participate in the vote, only three Board members participated in the vote on the Superintendent's recommendation for extension of Petitioner's leave of absence. Member Dance moved that the leave be denied because the Board had never before granted an extended leave for an employee to accept a full time salaried position. The motion was approved by two members, Ms. Dance and Mr. Marier. The only "concerns" expressed by Ms. Dance and Mr. Marier, who testified at formal hearing, related to speculation and assumptions that Petitioner presented a case of first impression, certainly for their School Board and probably for the State of Florida, and that if Petitioner were granted an extended leave of absence, it might be difficult to administer the system in the event of a deluge of similar requests from teachers requesting leave without pay to take other salaried positions. Ms. Dance has served on the School Board for twelve years and felt that in a growing school system, such as the Flagler County School District, it is inefficient to remove teachers and then attempt to have positions made available to them upon return from leave. If extended leave is granted, Petitioner will not teach for roughly 96 days of the 1996-1997 School Year and will only teach in Flagler County if re- employed in a position actually available on November 19, 1996. See, Findings of Fact 12-16 supra. Superintendent Kaupke shared Ms. Dance's concern for orderly administration but still recommended approval of extended leave for Petitioner. On average, leaves of absence of varying duration are recommended and granted for a dozen or more teachers each School Year, and there are three to four permanent teacher replacements each year without any significant effect on efficiency of the system or disruption of the education of even elementary school students. In the past, the Superintendent has consistently denied requests of employees to take other salaried positions and the School Board has not granted any. In one instance, a teacher lied to Dr. Kaupe about his reason for requesting a leave of absence without pay and took a salaried teaching position in another state. The Superintendent would not have recommended a leave of absence be granted had he known the true circumstances. During her employment as a teacher, Petitioner also worked part-time in a separate job as a child care apprenticeship instructor. The School Board has no rules, policies or past precedents which forbid dual employment by school teachers, so long as the second job does not interfere with their responsibilities under their teaching contracts with the School Board. For the balance of 1996, all regular School Board meetings are scheduled to be held at 7:30 p.m. on the third Tuesday of each month. Although this schedule is subject to change, at the time of formal hearing herein, there were no scheduled events for School Board members during a school teacher's normal duty hours. Petitioner's requested extended leave of absence was volitional, but was not submitted for the purpose of accepting another salaried position which would physically prevent the performance of her duties as a teacher. Rather, it was submitted in order to conform to the requirements of Section 112.313(10) F.S. and the holding in Wright v. Commission on Ethics, 389 So.2d 662 (Fla. 1980).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Flagler County enter a Final Order granting Petitioner's request for extension of unpaid leave of absence through November 19, 1996. DONE AND ENTERED this 8th day of August, 1996, in Tallahassee, Florida. ELLA JANE P. DAVIS, 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 8th day of August, 1996.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as a school monitor on the grounds alleged in the Notice of Specific Charges filed September 5, 2002.
Findings Of Fact At all times material hereto, Petitioner was a duly- constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Section 4B of Article IX, Constitution of the State of Florida and Section 230.03, Florida Statutes. At all times material hereto, Petitioner employed Respondent as a school security monitor and assigned her to work at Horace Mann, which is a public school located within the school district of Miami-Dade County, and, as will be discussed below, to a temporary duty location. Respondent is a non-probationary "educational support employee" within the meaning of Section 231.3605, Florida Statutes, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system . . . who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 231.1725. . . . "Employee" means any person employed as an educational support employee. "Superintendent" means the superintendent of schools or his or her designee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . In the event a superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement. Respondent’s employment with Petitioner began on April 12, 1993. At the times material to this proceeding, Respondent was a member of the United Teachers of Dade (UTD) collective bargaining unit. On October 22, 2001, Metro-Dade Police arrested Respondent on charges of aggravated battery and violation of probation. Respondent remained incarcerated from the date of her arrest until May 15, 2002. Respondent admitted that she had engaged in a fight while she was on probation and that she had thereby violated the terms of her probation. Respondent did not report to work between October 22, 2001, and May 15, 2002. Respondent sent a letter to Petitioner dated December 3, 2001, and addressed "to whom it may concern." The letter reflects that Respondent had previously entered a plea to a charge of domestic violence for which she had been placed on probation. It also reflected that that she was in jail after violating the conditions of her probation by having engaged in a fight. Respondent's letter represented that she would be released from jail on February 4, 2002, and makes it clear that she wanted to retain her employment, if possible. Carolyn Blake was the principal of Horace Mann at the times material to this proceeding. Ms. Blake learned of Respondent’s arrest within days of its occurrence. Shortly thereafter, Ms. Blake forwarded her home telephone number to Respondent and sent Respondent a message to call her collect from jail so that she and Respondent could discuss Respondent’s employment intentions. On December 26, 2001, Respondent placed a collect call to Ms. Blake at Ms. Blake’s home. Ms. Blake accepted the collect call from Respondent. During the ensuing telephone conversation Respondent told Ms. Blake that she would be released from jail by February 4, 2002, and that she hoped to return to work. Ms. Blake told Respondent she should consider resigning from her employment with Petitioner because of the number of days she had been absent without authorized leave. On January 14, 2002, Ms. Blake attempted to communicate with Respondent through a memorandum sent to Respondent's home address. The memorandum reflected that Respondent had been absent from her worksite since October 19, 2001, and that the absences had impeded the effective operation of the worksite. The memorandum requested that Respondent select from among four options and to notify her worksite within three days of the date of the notice regarding her employment intentions. The four options were to (1) notify the worksite of the date she intended to return to work; (2) apply for leave of absence; (3) resign; or (4) retire. The January 14, 2002, memorandum, further advised Respondent that her absences would continue to be unauthorized until she communicated directly with Ms. Blake as to her employment intentions. Petitioner's leave policies do not permit a leave of absence for an incarcerated employee. At the times material to this proceeding, Respondent was not eligible for a leave of absence under Petitioner’s leave polices. On March 11, 2002, Respondent was directed to report to a conference-for-the-record (CFR) scheduled for March 28, 2002, at the School Board’s Office of Professional Standards (OPS) to address, among other things, Respondent’s arrest; her violation of School Board rules dealing with employee conduct; her excessive absenteeism; and her future employment status with Petitioner. The notice that instructed Respondent to attend the CFR was mailed to Respondent's home address. On March 28, 2002, Respondent was still incarcerated, and she did not attend the scheduled CFR scheduled for that day at OPS. On March 28, 2002, a CFR was held at OPS in Respondent’s absence. At the CFR held on March 28, 2002, Respondent’s employment history with the School Board was reviewed, including the number of days that Respondent had been absent from her worksite, with special emphasis on the number of days she had been absent without authorized leave. On March 28, 2002, Ms. Blake recommended that Respondent’s employment with the School Board be terminated due to Respondent’s excessive absenteeism and because of the adverse impact Respondent’s absenteeism was having on the operation of the school site. As of March 28, 2002, Ms. Blake had received no communication from Respondent since their telephone conversation on December 26, 2001. Despite having Ms. Blake’s home telephone number and knowing that she would accept a collect call, Respondent made no effort to contact Ms. Blake after Respondent learned that she would not be released from jail on February 4, 2002. By notice dated April 23, 2002, Respondent was directed to appear on May 8, 2002, at a meeting at OPS to address the employment action that had been recommended by Ms. Blake. This written directive was sent by mail to Respondent's home address. As of May 8, 2002, Respondent was still incarcerated. Because of her incarceration, Respondent did not attend the meeting and had not reported to her worksite. On May 8, 2002, the scheduled meeting was held at OPS. As a result of the meeting, the Superintendent recommended that the School Board terminate Respondent's employment and scheduled the recommendation to be considered by the School Board at its meeting of June 19, 2002. On May 16, 2002, the day after she was released from jail on May 15, 2002, Respondent called Ms. Blake, who instructed her to meet with an administrator at the regional office. Respondent complied with that directive and was ordered by the administrator to report to an alternative work site pending the School Board’s action on the recommendation to terminate her employment. Respondent refused to comply with the order to report to an alternate worksite because she did not want to jeopardize her claim for unemployment compensation benefits. From October 22, 2001, through May 15, 2002, Respondent was incarcerated and was absent from work without authority. From May 16, 2002, through June 19, 2002, Respondent was absent without authority and either failed or refused to report to work. For the school year 2001-2002, Respondent accumulated 142 unauthorized absences. On June 19, 2002, the School Board suspended Respondent and initiated dismissal proceedings against Respondent on the following grounds: excessive absenteeism and/or abandonment of position; willful neglect of duty; and violation of School Board rules dealing with employee conduct. Respondent’s family received Ms. Blake’s memorandum and the notices of scheduled meetings that were mailed by Petitioner to Respondent’s home address while Respondent was incarcerated. Respondent testified that she did not see the memorandum and notices until after she was released from jail. There was no justification for Respondent’s failure to contact Ms. Blake after Respondent learned she would not be released from jail on February 4, 2002. There was no justification for Respondent's failure to attempt to comply with Petitioner's leave policies. There was no justification for Respondent’s refusal to report to the alternate worksite as instructed by the administrator at the regional office.
Recommendation Based upon the foregoing findings of act and conclusions of law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Facts and Conclusions of Law set forth herein. It is further RECOMMENDED that the final order find Respondent guilty of excessive absenteeism, gross insubordination, and willful neglect of duty as alleged in Counts I and II of the Notice of Specific Charges. It is further RECOMMENDED that the final order sustain Respondent's suspension without pay and terminate her employment as a school monitor. DONE AND ENTERED this 10th day of December, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2002.
The Issue Whether Respondent, Derek E. Andrews, should be terminated for his absence without leave from April 12, 2007, until the end of the 2006-2007 school year.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing in this matter the following Findings of Facts are made: Respondent, Derek E. Andrews, is a school teacher employed by the School Board of Seminole County, Florida. William Vogel is, and has been, Superintendent of Public Schools for the School District of Seminole County, Florida, for all times material to the occurrences relevant to this case. Pursuant to Section 4, Article IX, Florida Constitution, and Sections 1001.30, 1001.31, 1001.32, 1001.33, 1001.41, and 1001.42, Florida Statutes (2006), the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida. The relationship of the parties is controlled by Florida Statutes, the collective bargaining agreement, and School Board policies. Respondent's supervising principal for the 2006-2007 school year was Dr. Shaune Storch. Respondent had been granted a leave of absence that expired on March 30, 2007. Respondent's leave for the period March 16, 2007, through March 30, 2007, was an extension of a previous leave as requested by Respondent. Subsequent to the expiration of Respondent's leave on March 30, 2007, Respondent's supervising principal attempted to contact Respondent regarding his intentions for the remainder of the 2006-2007 school year. Respondent did not meet with his supervising principal or otherwise respond to her letter of April 5, 2007. Article XVI, Section I.2. of the collective bargaining agreement, provides that any teacher who is willfully absent from duty without leave shall forfeit compensation for the time of the absence and be subject to discharge and forfeiture of tenure and all other rights and privileges as provided by law. Respondent was absent without leave from April 2, 2007, through the end of the school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent, Derek E. Andrews, guilty of the allegations stated in the Petition for Termination and that his employment be terminated. DONE AND ENTERED this 20th day of September, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 2007. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Derek E. Andrews Post Office Box 62 Tangerine, Florida 32777-0062 Dr. Bill Vogel Superintendent of Schools Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Honorable Jeanine Blomberg Interim Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Maria E. Tuma, a teacher in the Dade County School System, has been grossly insubordinate or has willfully neglected her duties as a teacher so that she should be dismissed from employment by the School Board of Dade County?
Findings Of Fact The Parties Petitioner, The School Board of Dade County, is the authority that operates, controls, and supervises all free public schools in the Dade County School District, "[i]n accordance with the provisions of s. (4) (b) of Article IX of the State Constitution ...". Section 230.03(2), F.S. Respondent, Maria E. Tuma has been employed by the School Board of Dade County for 24 years. She presently holds a continuing contract of employment. Since 1983, Ms. Tuma has been employed at Naranja Elementary School, Air Base Elementary School, Palm Lakes Elementary School and Ojus Elementary School. Ms. Tuma possesses many of the talents of a good teacher as evidenced by the myriad awards her art students have won and the numerous commendations for teaching art she has received over the years. But beginning in 1983 with her employment at Naranja and until and through a leave of absence commenced in 1995 while employed at Ojus, Ms. Tuma's employment history has been chronically troubled. Naranja On October 31, 1983, Ms. Maedon Bullard, Principal of Naranja Elementary School issued a notice to Ms. Tuma, who was then employed as an art teacher at the school. The notice reads, in part, A parent brought to my attention that you distributed pocket Bibles to some students this date, October 31. * * * This is in violation of School Board Policy (citations omitted). I urge you to review this policy and to adhere strictly to its contents. THIS IS THE SECOND TIME YOU HAVE BEEN GIVEN THIS NOTICE. Petitioner's Exhibit No. 3. On the same day, October 31, 1983, Mrs. Bullard gave Ms. Tuma a copy of a memorandum with attachment on the subject of "Religion in the Public Schools." Dated October 25, 1977, the memorandum is from Ralph D. Turlington, Commissioner of Education in the State of Florida. The essence of the memorandum is a warning to school districts and teachers not to create an unconstitutional preference for one religion over another. With regard to the distribution of Bibles, the memorandum states, The distribution of free Bibles to children in the public schools tends to impair the rights of children to be free from governmental action which discriminates against the free exercise of religious belief. When in practice only a particular kind of religious literature is in fact distributed, "the school board's use of the school system as a means of distribution amounts to its placing, at least in eyes of children and perhaps their parents, its stamp of approval upon [that version], thus creating an unconstitutional preference for one religion over another." (citations omitted.) Petitioner's Ex. No. 2, p. 4 and 5. The memorandum further indicated that the Commissioner would not condone any violation of the law. Air Base On May 13, 1985, while Ms. Tuma was a teacher at Air Base Elementary School, a conference-on-the-record was held. In addition to others, present were Ms. Tuma and the school's principal, Mr. Turano. The conference was called because of complaints that Ms. Tuma had made statements to a student about praying and having faith. Ms. Tuma was instructed that it is a violation of federal law, school board policy and students' civil rights to engage in religious activity in the classroom. Ms. Tuma was warned that if her religious activity in the classroom continued, she could be cited for gross insubordination and could lose her teacher certification. Ms. Tuma promised to abide by school board policies in the future. Palm Lakes: Religion in the Classroom Again On October 24, 1985, it was reported that Ms. Tuma, then an art teacher at Palm Lakes Elementary School, hit a student on the neck with a pencil and cut a lock of hair with a scissors as discipline for fighting with another student. The complaint was assigned Case No. P-2607 by the Dade County Public School's Special Investigative Unit ("SIU,") and investigated. The investigator for the Special Investigative Unit reached the conclusion that the complaint was substantiated. On October 31, 1985, a complaint conference with Ms. Tuma was conducted by Palm Lakes Principal Steven Lovelass. In addition to the complaint about striking the student with a pencil and cutting his hair, other complaints were discussed at the conference. These included that Ms. Tuma discussed the Bible during class, made references to the devil and made references to her church. On December 4, 1985, Ms. Tuma was asked by her employer to undergo a medical examination to determine her "fitness to properly carry out [her] assigned duties." Petitioner's Ex. No. 8. One week later, Ms. Tuma was evaluated by Charles C. Barton, M.D., a psychiatrist. Dr. Barton reported that Ms. Tuma was religiously preoccupied, suffered from impairment of insight and judgment and recommended intervention and possible medication. On December 23, 1985, Ms. Tuma, on her own initiative, was seen by another psychiatrist, Francisco A. Campos, M.D. She related to Dr. Campos that "she does not feel that she needs to see a psychiatrist, but feels that she has to do it in order for her to keep her job." Petitioner's Ex. No. 10. Dr. Campos found her to be preoccupied with religious material and in need of treatment directed toward improving her ego strength and coping skills. Dr. Campos' written opinion was forwarded to Dr. Patrick Gray, then the Executive Director of the School Board's Office of Professional Standards. In the meantime, on December 10, 1986, a conference-on-the-record was held with Ms. Tuma in the office of the Superintendent for the North Area of Dade County. In attendance were Ms. Tuma; her principal, Mr. Lovelass; Superintendent Marvin Weiner; Ms. Doretha Mingo, Area Director; and Supervisor for the Office of Professional Standards, Mr. James E. Monroe. The conference was held to discuss, among other problems, the report in SIU Case No. P-2607 and Ms. Tuma's "continual acts of refusal to comply with both written and verbal directives to cease and desist from instructing (teaching) your students about your religious beliefs, to include issuing Bibles and other religious materials to your students." Petitioner's Ex. No. 12. On January 28, 1986, the principal at Palm Lakes, Mr. Lovelass, forwarded his recommendation in SIU Case No. P-2607 to the Area Superintendent for the North Area of Dade County. On the bases of the substantiation of the complaint after investigation, and Ms. Tuma's statement at the conference-for- the-record that she could not comply with all of the established School Board rules because of personal and religious views, Mr. Lovelass "strongly" recommended that Ms. Tuma, "be separated from employment with the Dade County Public Schools for [among others] misconduct in office and gross insubordination." Petitioner's Ex. No. 11. On February 4, 1986, a memorandum was written to Ms. Tuma by James E. Monroe, Supervisor for the Office of Professional Standards. The memorandum summarized the conference-on-the-record held the previous December 10. Under the heading "ACTION TO BE TAKEN," Mr. Monroe wrote the following to Ms. Tuma: During the conference Mr. Weiner expressed concern relative to your continual failure to comply with administrative directives. He expressed further concern relative to its adverse impact upon your effectiveness as a classroom teacher as reported, by the principal. Mr. Weiner stated that upon receipt of the principal's recommendation for disciplinary action, he would forward his recommendation to the Superintendent of Schools. You were informed that your future employment would be determined upon a review of the facts presented in this conference. You were also informed that the recommen- dations made by the Principal and Area Super- intendent will be reviewed by the Superinten- dent of Schools; approval of the recommended discipline would necessitate action by The School Board of Dade County, Florida. You were informed of the likelihood of this recommendation being presented to the School Board at its next regularly scheduled meeting. Petitioner's Ex. No. 12. On March 7, 1986, Dr. Gray, Assistant Superintendent for the School Board's Office of Professional Standards, by letter to Ms. Tuma, directed her to cease and desist all proselytizing of religion in the classroom. She was further directed in the letter: not to advise students with regard to powers of the devil or hell; not to read from the Bible, advocate the Bible, advocate membership in her church; and, not to make disparaging remarks against any group of people on the basis of race, religion, sex or national origin. The admonishment was repeated in the letter with a warning in unmistakable terms, "I repeat, you are specifically directed to cease any of the above activities; your failure to do so will be con[si]dered to be misconduct in office and gross insubordination, and will subject you to severe disciplinary action by The School Board of Dade County, Florida." Petitioner's Ex. No. 13. On March 20, 1986, Ms. Tuma received a document under the signature of Mr. Lovelass denominated, "Record of Observed Deficiencies/Prescription for Performance Improvement." Petitioner's Ex. No. 14. The deficiencies listed in the document related to non-compliance with School Board rules and policies and provisions of the labor contract that resulted from collective bargaining conducted between the School Board and the teachers' union. Deficiencies also related to non-compliance with published school-site rules and policies consistent with School Board rules and provisions of the contract. The document also provided a prescription or directive. Part of the prescription was for Ms. Tuma to review the Code of Ethics and Principles of Education Profession found in Chapter 6B-1 of the Florida Administrative Code. Another part was to take a "School Law Course," which Ms. Tuma was allowed to take during the summer of 1986. On May 28, 1986, a conference-on-the-record was conducted by Mr. Lovelass with Ms. Tuma to discuss her prescription and employment status. Ms. Tuma was directed to complete the prescription and comply with all directives. Further, she was warned that her upcoming evaluation and recommendation as to future employment were contingent upon "continued professional efforts in remediating all ... prescriptive activities by [the fall of 1986]. In Ms. Tuma's annual evaluation for the 1985/86 school year, her overall summary rating was "unacceptable." In the category of professional responsibility, too, she was rated "unacceptable." Nonetheless, she was recommended for employment to give her the opportunity to remediate her performance deficiencies through completion of the prescription. Due to the unacceptable rating, Ms. Tuma did not receive the step increase in her salary to which she was otherwise entitled. Ultimately, Ms. Tuma was given until October, 1986 to complete the prescription. She was determined in December of 1986 to have done so successfully. In 1989, Nicholas Rinaldi became principal at Palm Lakes. He began to encounter problems with Ms. Tuma in March of 1992. These included distribution of Bibles at school, formation of a secret club of students, solicitation of church membership on school time and intimidation of students. On March 3, 1992, Mr. Rinaldi notified Ms. Tuma of a conference-on- the-record to discuss these problems as well as distribution of a religious letter to a faculty member and inappropriate language to both students and staff. Ms. Tuma responded to the notification with a "Reply of Allegations," dated March 3, 1992. While Ms. Tuma denied or offered explanations for most of the allegations, she admitted giving Bibles to students with their parent's permission. She also admitted giving the letter to a teacher. About this incident, Ms. Tuma wrote in the response that, believing the teacher to be a Christian, she took the liberty to: A. Admonish her, B. Requested prayer for her son to the Pastor and 4 deacons and an elder 'friend' of her, C. I tried to inform some of her friends about the Love of Jesus. But she got real mad at me for: A., B., and C. I asked her to forgive me after I saw that she got mad, but evidently, she hasn't (sic)! In fact one of the 3 Scriptures I wrote in the letter was 'Forgive 70 x's 7" Matthews 18:22 Petitioner's Ex. "B" attached to Deposition of Nicholas Rinaldi, Petitioner's Ex. No. 1. Ms. Tuma's written response concludes, Id. I wish to see the day when we can truly and freely exercise FREEDOM OF RELIGION in our Public Schools. After all it was the Holy Bible the first book used to teach Reading in the Public Schools of America. And we better return to the BASICS or continue to perish! On March 6, 1992, the conference was held with Ms. Tuma, Mr. Rinaldi and Angela Santos, assistant principal, present. Mr. Rinaldi opened the conference with reference to previous violations of Board policy with which Ms. Tuma had been cited. He also quoted from school board officials who had dealt with Ms. Tuma before on similar issues in order to impress upon her that the conference was not dealing with an isolated incident but rather a pattern. Again, Ms. Tuma admitted distributing Bibles and sending the letter with religious references to a faculty member. On March 10, 1992, Mr. Rinaldi issued a summary of the conference-on- the-record in a memorandum to Ms. Tuma. The memorandum recited Mr. Rinaldi's opening of the conference with a review of prior incidents including the complaint conference conducted by Mr. Lovelass in October of 1985 concerning Ms. Tuma's discussion of religion in art class. Ms. Tuma wrote back to Mr. Rinaldi on her copy of his March 10, 1992, memo, "All I said was: 'The devil came to kill, steal & destroy & God came to give us life abundantly.' John 10:10". On March 20, 1992, Mr. Rinaldi provided Ms. Tuma with additional copies of school board rules discussed at the earlier conference. On April 30, 1992, Mr. Rinaldi conducted his second conference-on-the- record with Ms. Tuma to discuss her posting of religious posters on the bulletin boards and doors of her classroom. The previous conferences-on-the-record in February, March and October of 1986, and Mr. Rinaldi's earlier conference that year were discussed with Ms. Tuma as well as a reprimand in October of 1983 for distribution of Bibles. A memorandum summarizing the conference received by Ms. Tuma on May 5, 1992, concluded: In summary, I want to inform you that you have not complied with previous admin- istrative directives to cease all mention of religion at work. Continued violations and noncompliance will result in further disciplinary actions. Exhibit "G," attached to Petitioner's Ex. No. 1. In the meantime, on April 23, 1992, Dr. Joyce Annunziata, Director of the Office Professional Standards for the School Board, notified Ms. Tuma of a conference-on-the-record to be conducted on May 7, 1992, with regard to Ms. Tuma's violations of School Board policies concerning religious references, refusal to participate in a program of assistance, fitness to perform assigned duties, and her future employment status. With regard to the refusal to participate in a program of assistance, Ms. Tuma wrote on her copy of the notice, "Mr. Rinaldi offered it & I told him TWICE I didn't need it! THIS IS FOR PSYCHOLOGIST. I don't need or want to go. I don't believe in them!" Petitioner's Ex. No. 21. The conference was conducted as scheduled. Dr. Annunziata, in conformance with the applicable labor contract that allows the board to obtain a medical evaluation when performance appears to be affected by a teacher's mental health, directed Ms. Tuma to select a physician for an evaluation. Ms. Tuma, despite the directive, refused. On the same date as the conference, May 7, 1992, Ms. Tuma was issued a memorandum from Dr. Gray, Assistant Superintendent, to serve as a written basis, as called for by the applicable labor contract, for a required medical examination. The memorandum directed Ms. Tuma to select a physician from an attached list and to communicate that choice to Dr. Annunziata. Ms. Tuma continued to refuse to select a physician to conduct the evaluation. On June 18, 1992, Mr. Rinaldi conducted a conference-on-the-record to discuss with Ms. Tuma violations of professional responsibilities, noncompliance with directives and her annual evaluation. She was issued a prescription which included reading and summarizing applicable School Board Rules. In her annual evaluation for the 1991-92 school year, Ms. Tuma was rated "unacceptable" overall and in the category of professional responsibilities. As a result, for the second time in her career, she did not receive the salary "step" increase that she was due by virtue of the length of her employment with the School Board. In August of 1992, the School Board contemplated a suspension of Ms. Tuma and initiation of dismissal proceedings against her for gross insubordination and misconduct in office. Instead, at Ms. Tuma's request, the School Board allowed her to take a leave of office without pay from August 26, 1992 through December 30 of the same year to seek medical treatment. The School Board also referred her to the Employee Assistance Program (EAP). This office provides assistance to School Board employees having problems affecting job performance. As a condition of employment, Ms. Tuma was directed to undergo the medical evaluation and participate in a counseling/therapy program monitored by EAP during the leave of absence. In order to return to work she would have to receive medical clearance. She was also advised that upon return to the work site, any recurrence of the previous problems would lead to a termination of employment. On August 11, 1992, a second "Written Basis for Required Medical Examination," was issued to Ms. Tuma by Assistant Superintendent Gray. Ms. Tuma selected Dr. Anastasio Castiello to conduct the evaluation. The evaluation was conducted; no pathology was diagnosed but counseling was recommended by Dr. Castiello. Ms. Tuma's participation in EAP proceeded without incident. Following a delay in seeing Dr. Castiello in December in order to obtain clearance to return to work, Ms. Tuma was seen by Dr. Castiello in January of 1993. Dr. Castiello continued to recommend therapy for Ms. Tuma but he cleared her to return to work. Conditions of employment were attached to Ms. Tuma's return. Her involvement with a program of therapy was to be monitored. She was required to adhere to site directives, policy, prescriptive directives and the Code of Ethics. She was warned again that recurrence of behavior with regard to religion in the classroom would be considered an act of insubordination and would incur discipline. Ms. Tuma was placed at Ojus Elementary effective January 27, 1993. Ojus Failure to Continue Therapy Ms. Tuma finished the 1992/93 school year at Ojus. In June of 1993, it was determined that she had remediated the performance deficiencies listed on her 1991/92 evaluation. On September 22, 1993, however, EAP reported that it had no information that Ms. Tuma was participating in counseling and therapy. Four months later, Dr. Annunziata informed Ms. Tuma in writing that she was not in compliance with the directive that she participate in a program of counseling and therapy. Dr. Annunziata had learned that Ms. Tuma had been to only three sessions during the entire year of 1993. These sessions were with Dr. Stephan Tchividjian. In February of 1994, Dr. Tchividjian wrote Dr. Annunziata. He stated that the last time he had seen Ms. Tuma was in March of 1993. He relayed his opinion that Ms. Tuma needed to continue in therapy for her issues with religion. Ms. Tuma was referred again to the Employee Assistance Program. On March 1, 1994, Dr. Friedman, the principal at Ojus, conducted a conference-on-the-record with Ms. Tuma to discuss noncompliance with a site directive to modify her schedule for a field day and her failure to report when called to the office. Ms. Tuma was advised that her future employment status depended on compliance with school site directives. Once again, she was warned that noncompliance would be considered misconduct in office and insubordination that would subject her to disciplinary action. Personal Communication and Gifts for the Principal Ms. Tuma was also given another directive and a reminder. She was directed not to communicate with Dr. Friedman in writing about any matter unless it was school-related. She was reminded that Dr. Friedman was not allowed to receive gifts that exceed $25 in value. The directive and reminder were given because Dr. Friedman had received from Ms. Tuma numerous gifts as well as invitations to go on vacation and attend functions with her. Dr. Friedman summarized some of the communications and gift-giving as follows: ... Ms. Tuma would write me an inordinate amount of personal letters and cards. I have files of them. She would allege that I had eyes beautiful like Jesus. Gorgeous. She would allege that she wanted to take many photographs of me, that she wanted to do a painting of me and my daughters, that I would have to pose for her to do that. She would take pictures of me, and she would stand in the hallway and look at my pictures. Now that would send off signals to other people. Now she would just shower me with all kinds of gifts. This was just something that was extreme. (Tr. 141.) On March 7, 1994, Dr. Annunziata conducted a conference-on-the-record with Ms. Tuma to discuss her noncompliance with the directive to attend counseling and therapy, her medical fitness to perform assigned duties, and her future employment status. In addition to Dr. Annunziata and Ms. Tuma, Dr. Freidman and Dr. Joseph Burke, the Director of Region II for the School Board, were present. Ms. Tuma was directed to submit to another medical evaluation, this one by Dr. Ronald Bergman. Ms. Tuma complied; the evaluation was performed. Ms. Tuma was also directed to continue her program of counseling and therapy and to keep EAP informed of compliance. From April to September of 1994, contrary to the clear directive the previous March, Ms. Tuma continued to send Dr. Freidman presents and personal communications. For example, in September, Ms. Tuma, while on vacation in Greece, sent Dr. Friedman a post card and a birthday card. The birthday card contains the following hand-written message: May God Himself enlighten you fully & direct your paths. May He be your guide Savior & Friend ... May He bless you and keep you, May He let His face shine upon you & give you Peace - I HOPE you have a VISION of HIM & you can see for your self what I said of your eyes is real ... Let us aim to look like HIM in many of His ways: His Gentle- ness, His kindness & His LOVE! & know that in spite of them and in spite of you SE HAGA POPOLI! Petitioner's Ex. No. 43. "Se haga popoli," is Greek for "I love you a lot." The card is entirely personal in nature and does not relate at all to school matters. Parental Complaints and Continued Refusal of Therapy In October, 1994, Dr. Friedman received the first in a sequence of parental and staff complaints about Ms. Tuma's professional demeanor and negative comments about staff members. Furthermore, on October 4, 1994, Dr. Gray advised Ms. Tuma that she was not in compliance with the directive that she participate in a program of counseling/therapy. She was directed to begin a program of therapy promptly. She was directed again to adhere strictly to all prior directives. On October 7, 1994, Ms. Tuma wrote to Dr. Gray, "I categorically refuse to go to any psychologist because I don't believe in them." Petitioner's Ex. No. 44. On October 18, 1994, Dr. Gray, in response to the October 7 missive, advised Ms. Tuma in writing that her employment was conditioned upon compliance with a program of medical therapy. His letter ended, "If you do not initiate confirmed compliance within ten day of receipt of this letter, your employment is subject to termination." Petitioner's Ex. No. 45. On November 28, 1994, Ms. Tuma began treatment with Dr. Doris Amaya. More Meetings and Conferences On December 8, 1994, an informal meeting was held between Dr. Friedman and Ms. Tuma concerning the taking of attendance in art class, alteration of the children's art work by Ms. Tuma, and the need to treat children's self-esteem with sensitivity. During the meeting, Ms. Tuma called Dr. Friedman a liar. The meeting was memorialized in a memorandum to Dr. Gray from Dr. Friedman, in which Dr. Friedman wrote, Ms. Tuma continues to demonstrate a pattern of flagrant disrespect toward administrative authority. Please advise ... as to what supportive action I may expect from district level as to this accelerating problem. Petitioner' Ex. No. 48. On March 1, 1995, at a parent/teacher conference concerning a grade of "C" Ms. Tuma gave to the child of the parents present, Ms. Tuma was asked to explain the grade when the child had received "A's" and "B's" in all of his other classes. The parents complained to Dr. Friedman that Ms. Tuma advised them that "all of the teachers and faculty at Ojus Elementary School were after her, were against her, and involved in some conspiratorial way. She said that my children's grades were falsely stated as good in their classes when in fact, they were really 'bad' as reflected by her grades." Petitioner's Ex. No. 54, Attachment "C." The complaint went on to relay that the conference ended with Ms. Tuma accusing one of the parents of being in conspiracy with the faculty or being "some type of liar." Id. On March 6, 1995, Dr. Freidman conducted a parent/teacher conference with Ms. Tuma and the parent who had complained about Ms. Tuma's bizarre behavior at his March 1, 1996 conference with her. During this conference, Ms. Tuma again stated that some of the teachers at the school were against her and had given false grades to students while her grade of the student in question was correct. She also called the parent a "liar." On March 8, 1995, another parent/teacher conference of Ms. Tuma's was held in Dr. Freidman's presence. This conference involved a parent different from the conference two days earlier. The complaint in this case was that Ms. Tuma had given a grade to a student based on her conduct rather than her work. It became apparent that Ms. Tuma, indeed, was lowering students' work grades for misconduct. The next day, another a parent/teacher conference was held again with Dr. Freidman present. This conference concerned yet another parent and a third child. The conference was held because the child, an avid art student, was not enjoying Ms. Tuma's class. Again, it became apparent that Ms. Tuma was lowering grades for work due to perceived misconduct. Dr. Freidman apprised Ms. Tuma that this was contrary to School Board policy. In response, Ms. Tuma wrote on a summary of the conference which she was given, "Dr. Freidman has a personal vendetta against me, because I've Blown the Whistle about her & her favourite friends there; Dr. Friedman embraced the Negativism of these parents!" She also wrote, "The councelor (sic) told me: 'Don't be surprised if she: (Friedman); set these parents up in the telephone to say certain things against you." Petitioner's Ex. No. 51. On March 27, 1995, Dr. Freidman conducted a conference-on-the-record with Ms. Tuma to discuss her professional responsibilities, performance to date, and her future employment status. Also discussed were her unprofessional conduct during parent conferences, her noncompliance with the School Board's grading policy, accusations against faculty members, and violations of the Code of Ethics and the Principles of Professional Conduct in the Education Profession. Ms. Tuma was directed to read the section of the board's rules which indicate that academic and effort grades are independent of conduct grades. The March 1995 Prescription and Outright Refusal to Perform On March 29, 1995, Ms. Tuma was issued a "Record of Observed Deficiencies" with a "Prescription for Performance Improvement" for the category of professional responsibilities. Deficiencies cited in the document included: noncompliance with the grading policies found in School Board rules; violation of Rule 6B-1.006, Florida Administrative Code, by intentionally making false statements about colleagues to parents and staff; noncompliance with the labor contract; and noncompliance with school site rules and policies. While considerably more detailed, in summary, the plan activities under the prescription required Ms. Tuma to read and familiarize herself with the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida; read and summarize cited board rules on grading policy; read and summarize the 1994-95 School Improvement Plan Strategy to Improve Conduct; and read a handout related to effective attitudes for teachers and develop a parent involvement plan using guidelines in the handout. Ms. Tuma did not agree that she needed to complete the prescription, felt the prescription was unfair, and refused to make any effort to perform it. On March 30, 1995, Dr. Friedman directed Ms. Tuma to meet the next day to discuss a segment of the prescription. Ms. Tuma advised the principal that she would not attend the meeting. Dr. Friedman told her non-attendance would be gross insubordination. The next day, the day before spring break, Ms. Tuma took a sick leave day. Following the break, more than a week later, Ms. Tuma met with Dr. Friedman. At the meeting, she informed Dr. Friedman that she would not perform the prescription. Dr. Friedman regarded Ms. Tuma's refusal as very serious not only because it constituted, in her view, gross insubordination, but because the incidents leading to the prescription had involved the welfare of Ms. Tuma's students. Dr. Friedman requested that Ms. Tuma be reassigned to another school or that she be dismissed as a teacher. When presented with a document showing an alternative assignment, Ms. Tuma, contrary to district-wide procedure, refused to sign it. Ms. Louise Harms, then director of OPS, conducted a conference-on-the- record with Ms. Tuma to discuss the matters which had occurred at Ojus, including her refusal to perform the prescription, and Dr. Friedman's recommendation that she be dismissed as a teacher. At the conference, Ms. Harms had available to her a fax from Ms. Tuma's attorney advising that Ms. Tuma would not perform the prescription. As the conference got underway, Ms. Tuma reiterated her refusal to follow the prescription. She maintained this position for an extended period of time during the conference which lasted two hours. Present at the conference was Dr. Joseph Burke, Personnel Director of the Dade County Public Schools, and a region director. Toward the end of the conference, Dr. Burke informed Ms. Tuma that it was his recommendation that she be dismissed given her position of refusing to perform the prescription. In response, Ms. Tuma asked what would happen if she were to follow the prescription. The memorandum summarizing the conference shows Dr. Burke's reply to have been: The gross insubordination has occurred. You refused to do the Prescription. We can't change that fact. You are now saying that you are now willing to do what you blatantly refused to do even at the onset of this conference. I have a feeling that your change of mind is directly related to the recommendation for dismissal. Petitioner's Ex. No. 58, p. 12. Ms. Tuma then asked about the possibility of taking a leave of absence. Dr. Burke responded to Ms. Tuma that she would not be able to complete the prescription while on leave and asked her what she was requesting: to remain on faculty at Ojus and perform the prescription or to take leave during which time she would not be allowed to complete it. Ms. Tuma requested leave. The Leave of Absence It was decided that Ms. Tuma's request for leave would be granted from April 17, 1995 through January 29, 1996. Ms. Tuma's evaluation for the 1994/95 school year rated her, for the third time, "unacceptable" both overall and in the category of professional responsibilities. She was not recommended for employment. In July and August of 1995, while on leave, Ms. Tuma wrote to Dr. Friedman despite the directive not to communicate with her personally. While the letters relate marginally to a school-related matter, that is, whether Dr. Friedman should help her return to the school, they are largely personal communications. For example, the July letter states, "I do wish we could go skiing in the winter, snorkel in the summer, go to Greece in the Spring or fall." Petitioner's Ex. No. 63. The letter concludes with a post-script, "Please let me know; don't be so snobbish, hard and un-forgiving: Could we meet you for lunch one day?, me & mom - we'll treat you. Maybe Olive Garden or so ... Please?, then we'll talk a little bit more. Thank you." Id. On August 16, 1995, Dr. Gray met informally with Ms. Tuma and her attorney. In the meantime, Ms. Tuma requested that her leave be terminated and she be allowed to return to Ojus on the upcoming November 6. At the meeting, Ms. Tuma advanced the date of her request to terminate leave to the start of the school year. She said that she was repentant about having refused to perform the prescription and that she would do it once her leave was over in exchange for being allowed to return to work before her leave was scheduled to be up. Ms. Tuma's requests were denied and she was advised that she would be apprised of her status upon completion of review of her records. On September 8, 1995, Ms. Tuma's 1995/96 salary was frozen per denial of a salary step increment. f. School Board's Last Attempt On November 8, 1995, Dr. Gray conducted a conference-on-the-record with Ms. Tuma to discuss her performance assessment to date, her medical fitness to perform full classroom duties, her noncompliance with directives, rules, contract provisions, and her future employment status. At the November 8, 1995 meeting, in a final attempt to save Ms. Tuma her job, Dr. Gray gave her two options: to work as an adult education teacher or to be redirected to a paraprofessional position. Ms. Tuma rejected both options. Suspension and Dismissal Proceedings Having exhausted all avenues of assistance to Ms. Tuma, the School Board, on January 24, 1996, suspended her and initiated these dismissal proceedings for gross insubordination and willful neglect of duties.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the School Board of Dade County, Florida, issue a Final Order sustaining the suspension without pay of Maria E. Tuma and dismissing her as an employee of the School Board of Dade County, Florida, without back pay, for gross insubordination and willful neglect of duties, pursuant to Section 231.36(4), Florida Statutes. DONE AND ENTERED this 18th day of October, 1996, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0820 Petitioner's Proposed Findings of Fact Paragraphs 1-17, 19-62, insofar as material, are accepted. Paragraph 18 is rejected as irrelevant. It is not clear from the evidence that this event was part of Ms. Tuma's pattern of insubordination. Respondent's Proposed Findings of Fact Paragraph 1 is accepted except that Ms. Tuma's insubordination had an effect on her competency. Paragraph 2 is accepted. Paragraph 3 is rejected for containing conclusions of law. Paragraph 4 is rejected with the exception of the last two sentences which are accepted. COPIES FURNISHED: Octavio J. Visiedo Superintendent Dade County School Board 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Joseph F. Lopez, Esquire 250 Bird Road, Suite 302 Coral Gables, Florida 33146 Ms. Maria E. Tuma 11320 Northwest 58th Place Hialeah, Florida 33012
The Issue Whether just cause exists to terminate Respondent's employment as a teacher with the Palm Beach County School District for the reasons alleged in the Petition ("Complaint").
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Palm Beach County, Florida. At all times pertinent to this case, Respondent was employed as a math teacher at Palm Springs Middle School, a public school in Palm Beach County, Florida. Stipulated Facts The Collective Bargaining Agreement between the School District of Palm Beach County, Florida, and the Palm Beach County Classroom Teachers Association was in effect at all times pertinent to this proceeding. Pursuant to the parties' Joint Pre-Hearing Stipulation, the facts contained in paragraphs 5 through 10 below are admitted and required no proof at final hearing. On January 13, 2013, Respondent was arrested for the following criminal charges: (1) hit and run—leaving the scene of a crash involving damage to property; (2) resisting an officer without violence; (3) DUI-unlawful blood alcohol—refusal to submit to DUI test; (4) knowingly driving with a suspended license; and (5) bribery of a public servant (two counts). On July 22, 2013, Respondent was adjudicated guilty of the following charges: (1) driving under the influence causing injury to person or property in violation of section 316.193, Florida Statutes; (2) leaving the scene of a crash involving damage in violation of section 316.061, Florida Statutes; and (3) resisting an officer without violence in violation of section 843.02, Florida Statutes. Respondent's arrest resulted in media attention, with headlines including: (1) "Mary Maloney: Palm Springs teacher offers police sexual favor after DUI arrest, police say"; (2) "Police: Teacher offers sexual favors to officer to avoid DUI arrest. Mary Maloney accused of leaving scene of hit-and-run crash"; (3) "Mary Maloney, Fla. Teacher, offers sexual favor to cop after DUI arrest, police say"; and (4) "Mary Maloney, Teacher, Allegedly Offers Oral Sex to Police Officer After Hit- and-Run Charge." Respondent was reassigned from her position teaching students on February 25, 2013, and remained on this assignment out of the classroom until January 8, 2014, when the School Board voted to terminate her employment. On December 15, 2006, Respondent signed a Drug Free Workplace Policy acknowledgement stating that she had reviewed the policy and that compliance was mandatory. Respondent's discipline history revealed a prior violation of the Drug Free Workplace policy. She received a written reprimand on October 12, 2009, for violating School Board Policy 3.96 Drug and Alcohol Free Workplace when she was under the influence of a prohibited substance while off duty which resulted in a conviction under section 316.193, Florida Statutes- -driving under the influence. Non-Stipulated Facts As a result of her adjudication of guilt on July 22, 2013, Respondent was sentenced to 12 months of probation, 30 days in the Palm Beach County Jail, 60 days house arrest (during which she was required to wear a Scram monitor), 150 hours of community service, court costs and fines. Respondent testified that she was permitted to work while she was serving her 60-day period of house arrest. Anthony D'Orsi, a police officer for the City of Greenacres, provided unrefuted testimony that while he was transporting Respondent from the scene of the DUI arrest to the police station, Respondent advised him that she was a school teacher and implied that she wanted to perform oral sex on Officer D'Orsi and allow him to "play with her breasts" in exchange for her release. On January 13, 2014, Matthew Stockwell was employed as a police officer with the City of Greenacres. Officer Stockwell provided unrefuted testimony that, after he placed Respondent in his patrol car, she made numerous statements regarding that she was sorry for what had occurred and inquired as to how much it would cost for Officer Stockwell to release her. Respondent's arrest was reported on the Channel 5 News program under the headline of "Middle School Teacher Arrested On DUI, Hit And Run—Greenacres Police Say She Tried To Bribe Them With Sex." The coverage included her photograph, and among other statements, her name, age, and position at Palm Springs Middle School. Prior to the subject incident, Respondent received satisfactory evaluations as a teacher. Respondent was rated as either effective or highly effective for the 2011-2012 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order finding Mary Maloney guilty of misconduct in office and immorality, and terminating her employment. DONE AND ENTERED this 30th day of March, 2015, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2015.
Findings Of Fact At all times material hereto, Respondent held Florida Teaching Certificate No. 390436, Provisional Graduate, Rank III, valid through June 30, 1981, covering the areas of Sociology, English, History and Social Studies. On or about October 19, 1978, Respondent while acting within the scope of his employment as a teacher at Robert E. Lee Junior High School in Dade County, Florida, was observed to seize a student, Rodney Canull, by his hair and right arm, lift the student off the ground, and throw the student repeatedly onto a concrete ramp. As soon as the student was able to extricate himself from Respondent, he fled the scene of the altercation. However, later the same day, Respondent was again observed in a confrontation with this same student, in which Respondent had twisted the student's arm behind his back, and the student was doubled over in pain with his head below his knees. On or about April 24, 1978, Respondent was involved in a physical confrontation with another student, Carla Brinson, at Robert E. Lee Junior High School. The confrontation between Ms. Brinson and Respondent occurred in the course of Respondent's attempt to discipline the student. When Respondent requested that the student turn around so that he could administer corporal punishment, she refused. Upon the student's refusal, the Respondent threw her to the floor. The student got up from the floor, and struck Respondent with her fist, whereupon Respondent struck the student in the face with his fist. The student then ran out the front door of the classroom in which the confrontation had occurred, and was pursued by Respondent, who began to strike the student with his belt. Both Respondent and the student ended up on the ground in front of the portable classroom where Respondent again struck the student in the forehead with the heel of his open hand. When another teacher attempted to intervene in the confrontation, he was pushed aside and Respondent continued to strike the student with his belt. On or about May 11, 1977, Respondent was involved in a physical confrontation with a student at Madison Junior High School in Dade County, Florida, named Wesley G. Frater. In the course of Respondent inquiring as to whether the student belonged in a particular room, the student referred to Respondent as "man", whereupon Respondent began shoving the student into a row of standing metal lockers, approximately 25 in number, and then lifted the student upside down from the ground and dropped him onto a concrete floor. On or about May 20, 1977, Respondent was involved in a physical confrontation at Madison Junior High School with a student named Vincent Johnson. Some dispute of an undetermined nature occurred between the student and the Respondent, after which the student attempted to flee from Respondent. Respondent chased the student down in the school parking lot, and threw the student against a parked truck. Respondent then threw the student to the ground, picked him up and attempted to transport him to the principal's office. Once in the corridor of the school building, Respondent picked the student up and repeatedly threw him to the floor. Other teachers at the school, after hearing a disturbance in the hallway, intervened to separate Respondent and the student. As previously indicated in this Recommended Order, Respondent neither appeared in person nor offered any evidence for inclusion in the record in this proceeding through his counsel. As a result, the record in this proceeding contains no explanation or justification for Respondent's conduct. However, it is clear from the record that Respondent's conduct, as outlined above, worked to create an atmosphere of fear among his students, thereby seriously reducing his effectiveness as a teacher.
The Issue Whether Respondent's employment as a teacher by the Miami- Dade County School Board should be terminated for the reasons specified in the letter of notification of suspension and dismissal dated June 20, 2013, and the Notice of Specific Charges filed on August 28, 2013.
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Miami- Dade County, Florida. At all times pertinent to this case, Respondent was employed as a social studies teacher at Horace Mann Middle School ("Horace Mann"), a public school in Miami-Dade County, Florida. At all times material, Respondent's employment was governed, in part, by a collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). Dr. Jones-Carey, the principal at Horace Mann, was authorized to issue directives to her employees, including Respondent. Dorothy De Posada, the assistant principal at Horace Mann, was authorized to issue directives to her employees, including Respondent. Petitioner alleges, in its Notice of Specific Charges, an array of factual scenarios spanning several years that, when considered individually or in concert, supply just cause for Respondent's termination. Below, the undersigned has endeavored to address each seriatim. 2010-2011 School Year: Dr. Jones-Carey issued Respondent a letter of reprimand on May 23, 2011, concerning an alleged incident that occurred on April 27, 2011. On May 25, 2011, Dr. Jones-Carey held a Conference for the Record ("CFR") regarding this alleged incident.1/ Respondent was directed to strictly adhere to all Miami-Dade County School Board ("MDCSB") rules and regulations, specifically, rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213. 2011-2012 School Year: On April 13, 2012, subsequent to the investigation of an alleged incident that occurred on February 27, 2012, a CFR was held. Respondent was directed to adhere to all MDCSB rules and regulations, specifically 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics. Respondent was further directed to refrain from contacting any of the parties in the incident, refrain from using physical discipline, and "to conduct [herself] both in [her] employment and in the community in a manner that will reflect credit upon [herself] and M-DCPS." Respondent agreed to a 17-day suspension without pay regarding the alleged incident. 2012-2013 School Year: October 24, 2012 On November 16, 2012, subsequent to an investigation of an alleged incident that occurred on October 24, 2012, a CFR was held. Respondent was directed to adhere to all MDCSB policies, specifically 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; refrain from contacting any parties involved in the investigation; and "to conduct [herself] both in [her] employment and in the community in a manner that will reflect credit upon [herself] and M-DCPS." Additionally, on November 28, 2012, Respondent was issued a letter of reprimand concerning the October 24, 2012, incident. November 5, 2012 On November 5, 2012, Dr. Jones-Carey observed several male students standing outside of Respondent's classroom during the class period. While Petitioner contends said students were told to remain outside of the classroom at Respondent's instruction due to body odor, Petitioner failed to present sufficient evidence to support such a finding.2/ November 26, 2012 Shawnda Green-McKenzie is the Horace Mann social studies department chair and a social studies teacher. Ms. McKenzie explained that, on or around November 26, 2012, it was necessary for several homeroom classes to be "dissolved." The students in the dissolved homeroom classroom were to be added to the roster of other homeroom classes. Ms. McKenzie further explained that the homeroom teachers, such as Respondent, were unaware of the number of additional homeroom students they would acquire until the day the additional students arrived. On November 26, 2012, Ms. Green-McKenzie observed that a substantial number of the newly acquired students did not have desks or chairs available for their use in Respondent's homeroom class. She further observed some of the children sitting on the floor. Petitioner failed to present any evidence concerning when the new students presented themselves to Respondent's homeroom or the duration said students did not have available desks or chairs. While Ms. Green-McKenzie agreed that children sitting on the floor would "be kind of a safety concern if someone were walking around in the classroom," she further opined that Respondent's classroom was "definitely too small to take any additional desks" and adding additional chairs would make it "tight." February 8, 2013 On March 21, 2013, subsequent to an investigation of an alleged incident that occurred on February 8, 2013, a CFR was held. Respondent was directed to adhere to MDCSB policies and conduct herself in her employment and community in a manner that would reflect credit upon herself and the teaching profession. On April 9, 2013, Respondent issued a letter of reprimand concerning the alleged incident which likewise directed her to adhere to MDCSB policies and conduct herself in her employment and community in a manner that would reflect credit to herself and the teaching profession. February 20, March 7, and April 1, 2013 Dr. Jones-Carey testified that, on those occasions when a teacher is absent and a substitute teacher is unavailable, the students are typically "split" among classrooms within the same department. Teachers are expected to cooperate and receive the "split-list" students. Prior to February 9, 2013, Respondent was accommodating and amenable to accepting students on the "split-list." On February 20, March 7, and April 7, 2013, however, Ms. Green-McKenzie was informed that Respondent was unable to receive, or uncomfortable in receiving, any additional students. Respondent's refusal to accept the split-list students was premised upon her concern that accepting students, who may potentially have behavioral problems, may incite further problems between herself and the Horace Mann administration. After the second occasion (March 7, 2013), Ms. McKenzie-Green simply stopped placing Respondent's name on the split-lists. On each of the above-referenced occasions, Ms. McKenzie Green accepted the Respondent's split-list students into her classroom. Ms. McKenzie-Green explained that her classroom is a "double" that always has additional space and seating and can accommodate upwards of 60 students. Dr. Jones-Cary credibly testified that Respondent's unwillingness to accept the split-list children created a disruption in the "flow of instruction" and was disruptive to the operation of the school. March 1 and 5, 2013 On March 1 and March 5, 2013, Ms. De Posada observed Respondent, during class, seated in a chair in the doorway of her classroom with her feet up on the doorframe. On both occasions, Ms. De Posada directed Respondent to move inside the classroom; however, she refused. March 7, 2013 On March 7, 2013, Ms. De Posada observed that Respondent's classroom door was open. When Ms. De Posada directed Respondent to close the door, Respondent refused. In addition to Ms. De Posada's directive, Dr. Jones-Carey had previously issued an email directive to all faculty and staff to keep the classroom doors closed in an effort to preserve the newly-installed air-conditioning system. March 12, 2013 On March 12, 2013, Ms. De Posada was present in the main office with several parents, as well as clerical staff. Respondent was also present in the main office for the purpose of making photocopies. Due to the number and nature of individuals present, coupled with a pending deadline on another administrative matter, Ms. De Posada requested Respondent to leave the main office and offered clerical assistance in providing Respondent the needed copies. Ms. De Posada credibly testified that, in response to the request, Respondent complained loudly and defiantly, and refused to leave the office when directed. March 21, 2013 On March 21, 2013, Ms. De Posada presented to Respondent's classroom to conduct an official observation. On that occasion, she observed that, after the class bell had rung, Respondent's students remained outside and unsupervised. Ms. De Posada took it upon herself to usher the students inside the classroom. Respondent arrived prior to the late bell and took her seat at her desk. Ms. De Posada advised Respondent that she was there to officially observe and requested Respondent's lesson plans. Ms. De Posada credibly testified that Respondent thereafter opened her desk drawer, tossed her lesson plans to Ms. De Posada without speaking, and slammed the desk drawer.3/ Respondent proceeded to call roll and, upon completion of same, began reading the paper. Once finished her reading, Respondent remained in her chair and, with the exception of reprimanding three children, did not engage with the students. Respondent did not engage in any conversation with Ms. De Posada throughout the duration of the observation. Respondent concedes that she did not interact with Ms. De Posada during the observation because of her concern of being falsely accused of irate or belligerent behavior. April 3, 2013 On April 3, 2013, Horace Mann held a mandatory faculty meeting to provide training for the Florida Comprehensive Assessment Test ("FCAT"). Per the UTD Contract, teachers are required to extend their workday for the purpose attending faculty meetings; however, such meetings cannot exceed one hour and shall begin no later than ten minutes after students are dismissed. On this occasion, the faculty meeting was scheduled to begin at 4:00 p.m., however, it began a few minutes later to allow all teachers to arrive. Respondent, believing the UTD Contract allowed for her to leave at 5:00 p.m., left prior to the meeting being formally dismissed and without prior approval, at approximately 5:00 p.m. When Dr. Carey-Jones called out to Respondent, she continued to walk away from the meeting. Respondent was notified via a school-wide email that a make-up session for the FCAT training would be conducted at 8:20 a.m. Respondent perceived the make-up session was voluntary because it was scheduled prior to 8:30 (the time she believes she is required to work) and conflicted with a FCAT practice run also scheduled for that morning. Respondent did not seek clarification as to where she was to report. Accordingly, Respondent did not present to the training, but rather, went to the testing center. It is undisputed that Respondent did not complete the requisite training, and, therefore, was unable to proctor the FCAT exam. As a result, other teachers were assigned to cover Respondent's duties or responsibilities. April 24 and May 6, 2013 On April 24, 2013, a CFR was held and Respondent was directed to adhere to School Board polices and conduct herself in her employment and community in a manner that would reflect credit upon herself and her profession. On May 6, 2013, following Dr. Jones-Carey's recommendation that Respondent's employment be terminated, the Office of Professional Standards ("OPS") held a final CFR. Thereafter, OPS recommended that Respondent's employment be suspended pending dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Miami-Dade County School Board enter a final order finding Shavonne Anderson guilty of gross insubordination, suspend her employment without pay for a period of 180 school days, and place her on probation for a period of two years. Because Ms. Anderson has already been suspended for more than 180 school days, it is RECOMMENDED that her employment be reinstated, with the calculation of back pay not to include pay for the 180- day suspension period. DONE AND ENTERED this 30th day of December, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 2013.
