09-002807TTS Broward County School Board vs. Brian Duda Status: Closed Recommended Order on Tuesday, December 15, 2009.

Summary: Respondent was suspended and then terminated for just cause when he was rude, offensive, hostile to and lost his temper with students, administators, co-workers, and parents.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-2807

)

BRIAN DUDA, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard, as previously scheduled, on

September 29 through October 1, 2009, by video teleconference at

sites in Lauderdale Lakes and Tallahassee, Florida, by

Eleanor M. Hunter an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carmen M. Rodriguez, Esquire

Carmen Rodriguez, P.A.

15715 South Dixie Highway, Suite 411

Palmetto Bay, Florida 33157-1884

For Respondent: Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

STATEMENT OF THE ISSUES

The issues are whether the conduct of the Respondent, an

elementary school music teacher, justified a three-day

suspension without pay on February 26, 27, and 28, 2008; and

whether Respondent should be terminated from employment for

conduct that constitutes misconduct in office, immorality,

and/or incapacity.

PRELIMINARY STATEMENT

On May 19, 2009, the Division of Administrative Hearings

(DOAH) received a Petition for Formal Proceedings and an

Administrative Complaint filed by Petitioner, and a Petition for

Evidentiary Hearing filed by Respondent. Petitioner seeks to

justify the suspension of Respondent and to terminate

Respondent's employment as a classroom teacher. DOAH assigned

an administrative law judge to conduct the hearing. The case

was scheduled for hearing on August 12 through 14, 2009. Upon

joint motion of the parties, the case was continued and

rescheduled for September 15 through 17, 2009.

On September 1, 2009, Respondent filed a motion to strike

portions of the Administrative Complaint for failure to comply

with the filing and notice requirements included in the terms of

the collective bargaining agreement (CBA). On September 4,

2009, Petitioner filed a response requesting denial of the

motion to strike. Petitioner also requested a continuance

because a Petition for Writ of Mandamus to contest the three-day

suspension had been filed and was pending in the Circuit Court

for the Seventeenth Judicial Circuit, in and for Broward County.

On September 4, 2009, the motion for continuance was denied.

On September 10, 2009, by Stipulation and Settlement

Agreement, the parties agreed that the DOAH hearing properly

included consideration of issues related to the three-day

suspension, as well as the employment termination action; that

Petitioner would amend the DOAH complaint accordingly; and that

Respondent would dismiss the Circuit Court case. The Amended

Complaint was filed on September 11, 2009.

On September 10, 2009, Petitioner filed Petitioner's Motion

to Strike Issues, Witnesses, and Exhibits Listed by Respondent

in the Pretrial Stipulation Which Were Not Disclosed by

Respondent in the Course of Discovery, Based on Prejudice and

Unfair Surprise, in an effort to exclude any evidence related to

the CBA because those issues were not raised earlier.

Petitioner also filed a Motion for Leave to Reopen Limited

Discovery related to the CBA. A continuance was granted to

allow additional discovery and the case was postponed until

September 24, 25, and 28, 2009. After conflicts with the dates

were resolved, the case was rescheduled and the hearing was held

September 29, 30, and October 1, 2009.

Prior to the hearing, Respondent's Motion for Protective

Order and, by special appearance, the Motion of Diane Watts to

Quash Subpoena were filed alleging that conversations between

Ms. Watts, a union representative, and Respondent were

privileged and confidential. The subpoena was not quashed and

ruling was reserved to consider issues related to privilege and

confidentiality depending on the questions posed to Ms. Watts.

Petitioner also filed, on September 25, 2009, a Motion for

Sanctions for Obfuscation of Discovery and Notice of Newly

Discovered (Undisclosed) Evidence. Notes that Respondent gave

to an investigator reviewing charges against him by the Florida

Department of Education (DOE), related to some of the same

incidents that gave rise to the charges in this case were not

disclosed during discovery. Respondent's Response to

Petitioner's Motion for Sanctions and Motion for Sanctions

Against Petitioner, filed on September 28, 2009, claimed

Petitioner's motion was frivolous because the DOE case was based

on information provided to DOE by Petitioner, and because

Respondent is represented by different counsel in the DOE

matter. In Petitioner's Response to Cross Motion for Sanctions

and to Respondent's Assertions, on September 28, 2009,

Petitioner noted that Respondent provided his notes to the DOE

investigator in April 2009, not solely to his counsel in that

case. The notes that were the subject of the motions for

sanctions were not made available during the hearing. Ruling

was reserved and a separate hearing on the motions for sanctions

was scheduled and subsequently held on October 9, 2009. On

October 16, 2009, an Order Denying Motion[s] for Sanctions was

issued.

At the hearing, Petitioner presented the testimony of the

following witnesses, including minors and their parents, who are

identified by their initials: E.V., mother of W.J.R.; W.J.R.;

K.S., mother of M.S.; M.S.; Debbie Corriveau; S.R.; D.L.R.,

mother of D.B.; G.F., mother of C.F.; C.F.; Brian Duda; K.M.;

Kate Treado; Cheryl Fogarty; Steven Briggs; Lynn Eaton;

Christopher Falzone; Michael Corva; Tara Zdanowicz; D.W.; A.G.;

and Donald Fitz. Petitioner's Exhibits 1-7, 11-16, 22, 23, 25,

26A and 27-32 were received into evidence.

Respondent presented the testimony of Dianne Watts and

Brian Duda. Respondent's Exhibits 1, 2, and 4-6 were received

into evidence. Joint Exhibit 1 was also received into evidence.

The six-volume Transcript of the hearing was received October

20, 2009, and proposed recommended orders were filed November 6,

2009.

FINDINGS OF FACT

1. James F. Notter, Superintendent of Schools of Broward

County, Florida, signed the Administrative Complaint in this

case on behalf of Petitioner, Broward County School Board

(Petitioner or the Board). The Board operates public schools

within the Broward County School District (the District).

2. Respondent, Brian Duda, was employed as an elementary

school teacher by Petitioner, Broward County School Board, and

assigned to teach music at Sheridan Hills Elementary School

during the 2007-2008 school year. Mr. Duda has taught school

for a total of 29 years, 23 in Broward County. In addition to

teaching music, Mr. Duda has been an elementary school classroom

teacher.

3. When Mr. Duda started at Sheridan Hills, in the 2004-

2005 school year, the principal was Christopher Pariso and the

assistant principal was Deborah Freedman. Donald Fitz, who has

been employed by the District since 1987, and for eight years

before that in Pennsylvania, became the Sheridan Hills'

principal in 2005, after Mr. Pariso retired.

4. After Mr. Fitz was named principal, he received a

letter from Mr. Duda saying he would not be returning to

Sheridan Hills the following year. Mr. Fitz discussed Mr. Duda

with Mr. Pariso who told him that Mr. Duda had served a one-day

suspension related to anger management issues. When he did not

receive a transfer to another school, Mr. Duda notified Mr. Fitz

that he would, in fact, be returning to Sheridan Hills the

following school year.

5. Mr. Fitz and Ms. Freedman met with Mr. Duda and

discussed his strength; he is an excellent music teacher; and

his weakness, his need for anger management so that he is not

"burning bridges." Mr. Duda was to seek help from Ms. Freedman

when he felt the need for relief from his classroom or any other

school setting to control his anger. The following year, Ms.

Freedman left and Tara Zdanowicz became the assistant principal

at Sheridan Hills.

6. In a memorandum dated February 20, 2008, Mr. Duda was

notified that the Board had approved Mr. Fitz' recommendation

that he be suspended for three days. On April 11, 2009,

Mr. Duda was notified, in the Administrative Complaint, that the

Superintendent of Schools was recommending to the Board that his

employment be terminated. In this proceeding, Mr. Duda

challenged both actions.

7. In the Amended Administrative Complaint, dated

September 11, 2009, the disciplinary actions are, in relevant

part, alleged to be justified based on the following:

Specific Charges

The Petitioner, James F. Notter, alleges as

follows:

A. Suspension

a. Respondent, Brian Duda, humiliated and

embarrassed a first grade student, W.J.R.,

in front of other students and parents at a

school holiday show during the 2007-2008

school year. Specifically, W.J.R. arrived

for the holiday show with his Mother,

Grandmother, Grandfather, as well as his

sisters, and approached Mr. Duda to take his

place for the show. In the presence of

others, Mr. Duda began to yell at W.J.R.

causing him to cry at which time his family

approached to see what was wrong. W.J.R.'s

family then witnessed Mr. Duda continuing to

yell at W.J.R. words to the effect that

W.J.R. was banned from the holiday show and

was supposed to have written in his journal

and tell his parents that he was un-invited

to the holiday show because he had acted

despicable [sic]. Mr. Duda's actions

embarrassed W.J.R. in front of his

classmates and their parents. In this way,

Mr. Duda violated his duty to protect

students from conditions harmful to

learning. W.J.R.'s mother took him and left

the auditorium to prevent further

humiliation and embarrassment to her son and

family.

b. Mr. Duda has been repeatedly counseled

about his conduct with students, school

personnel and parents and to conform his

behavior, but he has failed to abide by

these lesser disciplinary and counseling

measures. Just cause exists for the

requested relief as Mr. Duda's behavior is

inexcusable under the Code of Ethics of the

Education Profession, Rule 6B-1.001, Florida

Administrative Code, and the Principles of

Professional Conduct for the Education

Profession, Rule 6B-1.006, Florida

Administrative Code. WHEREFORE , based upon

the foregoing, the Petitioner, James F.

Notter, Superintendent of Schools, requests

that the three (3) day suspension of the

Respondent, Brian Duda, be upheld based upon

the foregoing facts and legal authority.

B. Termination

a. Respondent, Brian Duda, creates and

maintains a hostile, offensive and

threatening environment for his colleagues

as well as his students through his

inappropriate conduct and behavior.

Mr. Duda has been counseled repeatedly to

correct his behavior but, he has disregarded

such directives and continues his conduct

undaunted. He disregards directives and

continues a pattern of conduct that is

demeaning and frightening to students and

harassing and offensive to staff.

Specifically, numerous colleagues,

supervisors, students and parents complain

that Mr. Duda makes offensive and harassing

comments toward them. Mr. Duda's rude and

hostile comments toward students would cause

them to become visibly upset and create an

environment which is not conducive to

learning. Mr. Duda regularly exposes his

students to ridicule and embarrassment.

Mr. Duda's behavior prompted several

student's [sic] parents to remove their

children from Mr. Duda's class as a result

of his actions. Examples [sic] of

Mr. Duda's pattern of behavior is included

herein.

b. Mr. Duda made offensive comments

mocking the death of a student's father

asserting "That's what happens to white

trash and he got what he deserved".

c. Mr. Duda regularly exhibits rude and

inappropriate behavior in class toward

students. Mr. Duda told M.S. she was "bad

just like your brother." When a student

asked what "retarded" meant, Mr. Duda

pointed to student S.R. and said she was

"retarded". Michael Corva, S.R.'s teacher,

found S.R. and several other students

visibly upset after Mr. Duda's class as a

result of such comments. Mr. Duda told B.O.

to "shut up," and called A.G. "retarded" as

well, simply because he didn't know the

answer to a question. Additionally,

Ms. Eaton witnessed Mr. Duda demean a fifth

grade class by telling them that they should

be in Pre-K or Kindergarten, or that they

should be wearing diapers.

d. Mr. Duda was rude and demeaning to

student M.S., when she simply told him it

was her birthday. He responded "Well, that

doesn't make you special. Sit down."

Mr. Duda further demeaned her by then

ordering her to sit alone in the back of the

classroom. At the end of class, M.S. was

discovered by another teacher sitting alone

in the back of the room with her jacket over

her head. M.S.'s parents subsequently

demanded their child be removed from

Mr. Duda's class.

e. Mr. Duda threatened Tara Zdanowicz,

Assistant Principal, upon being denied a

letter of recommendation by responding

"Okay, well if I'm here next year, things

aren't going to be good. This is going on

my list of things. I better not run into

Mr. Fitz in Wilton Manors with my friends."

Staff has further witnessed inappropriate

interactions with Mr. Duda concerning his

conduct, anger management and verbal

statements which cause concern for the

welfare of the staff and students. For

example, Mr. Duda told staff that his

friends had "heard enough and . . . if they

ever saw Mr. Fitz out they'd kick his ass".

Mr. Fitz is the school Principal.

f. Mr. Duda further embarrassed,

humiliated, and demeaned a parent volunteer

by telling her "Why don't you go get a job

at Publix? At least they pay you there,"

while she was volunteering in another class.

This parent subsequently removed her child,

C.F., from Mr. Duda's class because Mr. Duda

would be offensive to her, and she did not

want her child exposed to this type of

conduct at a crucial age. Mr. Duda's

actions further made the student C.F. so

frightened and uncomfortable that when

Mr. Duda would walk into the library, C.F.

would try to avoid an encounter with him by

hiding.

g. Mr. Duda embarrassed and humiliated

Steven Briggs, a seven year employee of the

School Board, and Mary Harris, office

manager and confidential secretary to the

Principal of Sheridan Hills, by yelling at

them prior to the start of the

Christmas/holiday show saying "you people in

the back. You adults. I don't want to hear

anything out of you either." This comment

drew the attention of everyone in the

cafeteria whereby Mr. Briggs and Ms. Harris

left and did not watch the show. Similarly,

Mr. Duda yelled at and demeaned a teacher

arriving with the class for a school show by

yelling in front of the whole school that

"You are supposed to be here at 9:00. It is

9:02. I should not let you come to this

concert."

h. Mr. Duda caused a coworker, Kathleen

Treado, a twenty year employee, to cry upon

yelling and berating her for inquiring as to

what was wrong when she heard Mr. Duda

yelling at the library clerk. Mr. Duda

yelled to Mseado "It's none of your

business Kate Treado." Mr. Duda further

humiliated and demeaned Ms. Eaton by

stating, "You're off today. You're not

taking your pills." Similarly, Mr. Duda

stated to staff that Mrs. Fletcher,

president of the Parent Teacher Association

(PTA), " . . . is nothing but trailer trash,

and so is Debbie Corriveau". Mr. Duda also

told staff that other staff and parent

volunteers at Sheridan Hills, were "white

trailer trash".

i. Mr. Duda has also harassed Mabel

Gutierrez-Sangal, a fifteen year

paraprofessional at Sheridan Hills, with

continuous comments to her about her clothes

being inappropriate. Mr. Duda also

threatened to kick her out of his class if

she attempted to enter his classroom.

Ms. Sangal felt threatened and uncomfortable

and reported the incident to the Principal

Donald Fitz. Mr. Duda further demeaned pre-

k students, in front of Ms. Sangal, during

lunch by stating "Okay little ones, Please

eat your government lunch biscuit" while

adding that they should not let Ms. Sangal

eat their pizza. Mr. Duda was hostile and

threatening toward Ms. Corriveau, by

approaching her and sticking his finger an

inch from her face and accusing her class of

being loud. Rhonda Lane, an eleven year

employee, witnessed this "highly

inappropriate" interaction.

j. The School Board has taken lesser

corrective measures by repeated counseling

of Mr. Duda to correct and conform his

behavior but he has failed to abide by such

counseling and lesser disciplinary measures.

8. The conduct described, the Amended Administrative

Complaint concluded, constitutes, in Count I, Misconduct in

Office; Count II, Immorality; and Count III, Incapacity.

Collective Bargaining Agreement (CBA)

9. Record-keeping re quirements and proced ures for handling

complaints against empl oyees of the District are governed by a CBA

negotiated between th e Board and the Brow ard Teacher's Union (the

Unio n). The CBA , in relevant pa rt, provides:

E. Personnel File - Access and Security

1. Number of files: The re shall be no more

than two (2) personnel files maintained for

each employee. The official file will be

maintained at the distri ct personnel office.

I n the event two (2) suc h files are maintained,

one (1) shall be kept in the pr incipal's or

director's office at the school or other

location where the employ ee is then employed.

Each document plac ed into the e mployee's file

maintained in the principal's or director's

offi ce s hall be dupl ica t ed a nd t he original

transmitted to the distr ict Personnel Office

for incl usion within the employee's file

maintained at the district Person nel Office

. . . .

2. Entries log: Each personnel file shall

contain a form t itled "Log of Entries" to

include all of the following i n f ormation

regarding certificates, commendations,

assessment docum ents, disciplinary matter and

complaints placed in the files: (1) a brief

description of the time; (2) the date shown on

the item; (3) the date the item was first

placed in the file; and (4) the identification

of the source of the item .

* * *

4. Investigative File: The file established

by the district as a result of any

investigation of an empl oyee is not one of

the two personnel files listed above. Access

to a file dealing with an investigation shall

be in accordance with the provisions of

Florida Statute 1012.31. If the preliminary

investigation is concluded with . . . no

disciplinary action taken or charges filed,

then the district will a sk the Department of

State . . . for permission to destroy the . .

. file.

5. Notification to employee: Items may not

be placed in an employee's official personnel

file unless the item has been m ade k n o w n to t h e

e m p l o y e e, pu rs ua nt to t h e me th od ol ogy described

in Florida Statute 1012.3l(2)(c) . . .

CBA, Article 18( E)(1), (2), (4), and (5).

10. The CBA also prov ides for handling compl aints as follows:

Complaints on Em ployees: No action against an

employee shall be taken on the basis of a

complaint by a parent or student or other

individual nor any notice of such action or

complaint shall be included in the employee's

personnel file, unle ss the matter is first

reported to the employee in writing and the

employee has had the opportunity to d i s c u s s

the matter with his /her principal.

CBA, Article 18(B)(2).

11. At v arious ti mes durin g the sch ool year when teac hers,

parents, and students complained about Mr. Duda, Mr. F itz would have

them put their com plaints in writing. He did not prov ide copies of

the complaints to Mr. Dud a but maintained them in a co rrespondence

file . Re spondent' s positio n is that the "cor responden ce file" was a

separate third "pe rsonnel f ile" main tained in violatio n of the terms

of the CB A, and th at, as a consequen ce, no di sciplinar y action may be

taken aga inst Mr. Duda. Th at positi on ignore s Article 18(E)(4) of the

CBA that allows in formation to be co llected i n an inve stigative file.

12. Resp ondent al so mainta ins that Mr. Fritz should h ave given

him copie s of the written c omplaints that he was colle cting. D iane

Watts, th e field r epresenta tive for the union who was assigned to

assist Mr . Duda, a greed wit h Mr. Dud a that em ployees s hould be

notified of compla ints imme diately, although the CBA h as no spe cific

time limi t. Ms. W atts conf irmed tha t an empl oyee does not have to be

given cop ies of wr itten com plaints.

13. According to the requirements of the CBA, a principal

or supervisor who gets a complaint about an employee should not

put the complaint in the personnel file, but should keep it

separate and forward it with a request for an investigation to

the District's Special Investigative Unit (SIU). It is the SIU

that notifies the employee in writing of the complaint and

conducts the investigation, but the SIU is also not required to

give the employee copies of the actual complaints or any written

or recorded statements taken during the course of the

investigation. With a union representative present, the

employee has an opportunity to give his or her own statement.

14. At the conclusion of an SIU investigation, a written

report summarizing allegations and statements must be provided

to the employee, but again not the written complaints. The

employee, with a union representative, has another opportunity

to appear, this time before the Professional Standards

Committee. If further action is recommended, a pre-disciplinary

conference allows the employee, with a union representative, to

have additional input. Mr. Duda had both a union representative

and an attorney present at a pre-disciplinary conference.

15. As confirmed, the CBA procedures were followed in

Mr. Duda's case. She accompanied him throughout the process and

never filed a grievance concerning the manner in which the

matters were conducted.

16. Ms. Watts confirmed that it would have been a

violation of the terms of the CBA if Mr. Fitz had placed

complaints in Mr. Duda's personnel file before and during the

investigation. She said the SIU process unfortunately can take

an "awfully long time" meaning up to "over a year." In this

case, Mr. Duda was removed from a teaching position and

reassigned to a District office in August 2008, but the first

Administrative Complaint to terminate his employment was not

filed until April 2009.

17. There is only one exception to the requirement that

complaints not be placed in the personnel file until the

investigation has been completed: that is for minor matters

that a principal may resolve internally with a letter of

reprimand.

18. In each instance of discipline at issue here, Mr. Duda

was notified in writing of the recommendations and reasons given

to the Board by Mr. Fitz, who recommended suspension, and

subsequently by the Superintendent, who recommended termination.

There was no violation of the CBA in the procedures to impose

discipline. Therefore, the CBA does not prohibit further

consideration of the allegations in the Amended Administrative

Complaint, based on the provisions related to personnel files

and written notice. The additional requirement of an

opportunity to discuss the matter with his principal was also

met based, in large part, on the testimony of Mr. Duda himself.

See , for example, Findings of Fact 24, 32, 43, 45, 49, and 50.

19. Mr. Fitz also kept an Entry Log in Mr. Duda's

personnel file that Mr. Duda conceded was correct.

20. Mr. Fitz gave Mr. Duda "satisfactory" ratings on the

Instructional Personnel Assessment System (IPAS) at the same

time he was collecting complaints to refer to the SIU. He was

instructed by Cathy Kirk, the District's Evaluation Coordinator,

and Loreen Calhoun, of Employee Relations, not to address

possible disciplinary issues in the IPAS, although he did write

a comment about the need for anger management on one IPAS.

Amended Administrative Comp laint Paragraph II.A.a.

21. On December 6, 2007, W.J.R. was a fi rst grade student at

Sheridan Hills. Based on his descrip tion of W.J.R.'s behavior earlier

in the day as "despic able," Mr. Duda apparently told a substitute

teacher for W.J.R.'s cl ass to write in his agenda/planner for his

parents to see that he was being excluded from the holida y show that

night.

2 2 . Al l p a r t i e s ag re e th at W. J. R. wa s humi liated, embarrassed and

in tears. He had been excited that he was going to be in the holiday

show, got all dressed up, a nd was accompanied by his mother,

grandparents, and sisters. As they entered the music room, Mr . Duda

yelled from the back of the room that W.J.R. should not be there.

Mr. Duda testified that that the g randmother called him a "jackass."

23. W.J.R.'s parents and g randparents found Mr. Fitz and

complained about Mr. Duda, and then left the school before the program.

Mr. Fitz was concerned because Mr. D uda was "in one of those m o ods [and

had previously] declined to follow t hrough with the [spring] concert

and . . . I had to get someone outside of our school to carry through

for the rest of the spring concert r ehearsal." To calm things down,

Ms. Zdanovicz, the assistant princip al, who was on her way to the

school, to ask her to get there qu ickly to help calm Mr. Duda because

she had a better relation ship with him.

24. The following day Mr. Fitz met with the family of W.J.R. and

received a written statement from his mother. Mr. Fitz also m e t with

Mr. Duda concerning the incident. Mr. Duda testified unconvin cingly

that Mr. Fitz only discussed the incident by "briefly ask[ing] what

happened . . . ." With Ms. Watts, Mr. Duda attended a pre-dis ciplinary

conference on January 25, 2008.

25. Eight-year-old W.J.R. was "sad" when "[Mr. Duda] yelled at

me and said I was not supposed to be there." Christopher Falz one, the

after school program director, who was there to help with the concert,

confirmed that Mr. Duda was eye-level with the child, as Mr. D u da said,

but that he was very loud and angry. He was pounding his fist s, and

causing a scene in front of other children and parents.

26. In a memorandum dated January 31, 2008, Mr. Fitz notified

Mr. Duda that he was recommending his suspension for three day s without

pay because:

". . . you lost your temper in front of stude nts

and parents while exhibiting conduct unbecomi ng a

teacher. This is in violation of the Florida

State Department of Education's Code of Ethic s

Rule 6B-1.001(2) that sta tes, 'The Educator's

primary concern will always be for the student

and for the development of the student's

potential. The educator will therefore striv e

for professional growth and will seek to exercise

the best professional jud gment and integrity.'"

27. Mr. Fitz found that Mr. Duda's conduct violated Florida

Administrative Code Rule 6B-1.006( 3)(c), which states "[an]

[o]bligation to the student requires that the individual shall not

intentionally expose a student to unnecessary embarrassment or

disparagement." The memorandum also advised Mr. Duda of his r i ght to

file a grievance and to schedule an informal discussion with a union

representative present within 15 w orking days of the date of the

memorandum. No grievance was filed and the Board approved the

recommendation for suspension and provided written notice of t h at

decision to Mr. Duda on February 20, 2008.

28. Based on Mr. Duda's be havior at the hearing, Mr. Fitz is

credible in saying that Mr. Duda lau ghed and said that "his mo ther was

going to make up the diff erence in pay" for the three days. T h e fact

that Mr. Duda did not take serious ly the inappropriateness of the

manner in which he handled the incident with a first-grade chi ld was

reinforced by his insistence, at hea ring, that he had the auth ority to

exclude anyone he wished from the program.

29. The factual allegations in Pa ragraph II.A.a. of the Amended

Administrative Complaint are proven.

Amended Administrative Complaint P a r a g r a p h I I . B . b .

30. Lynn Eaton, a pool substitute teacher at Sheridan Hills, w as

sorry to hear that a father of three, including two who were students

at Sheridan Hills, was killed in a boating accident. It was r e ported

all over the news that the accident was alcoh ol-related. Mr. Duda

said, "Oh, did you hear what happened to Mr. [B] drinking and being

drunk and getting killed in a boating accident . . . That is what

happens to white trash when they d rink and dr ive a boat." After

attending the funeral, thinking about the comment over the weekend,

and still being upset about it, Ms. Eaton reported the comment to Mr.

Fitz and put her complaint in writing.

31. Mr. Duda testified that what he said was, "Thank God he did

not get behind the wheel and kill an innocent person on the road." He

denied calling Mr. [B] "w hite trash" or saying "he got what he

deserved." Mr. Du da's testimony that he di d not use the expression

"white trash" is n ot credible due to evidence of other incidents when

he reportedly used a similar expre ssion about a P TO volunteer and

another teacher. Giving him the ben efit of the doub t and referring to

Ms. Eaton's w r i t t e n s t a t e m e n t , a t t h e t i m e o f t h e i n c i d e n t , q u o t i n g

Mr Duda, he said "tha t is what hap pens to white tr ash but he felt

very sorry for the chil dren." There is ina dequate evid ence to

support a finding that he also said "he go t what he deserved."

32. Mr. Duda conceded that he was c onfronted about the

incident, when he said he and Ms. Eaton did not spea k to each other

for some time after that.

33. The factual a llegations in Pa ragraph II.B.b. are proven, in

part.

Amended Administrative Complaint P a r a g r a p h I I . B . c . a n d I I . B . d .

34. Mr. Duda acknowled ged that he told st udent M.S. that she

was "bad just like he r brother" in fr ont of her cl assmates. He

berated M.S. for having a birthday crown or hat on her head. Saying

she was not special, he made her take it off. Mr. Duda said he was

adhering to the school policy of no hats and believes that "floppy

things" on the hat interf ered with her mu sic lesson, although what he

interpreted as the stri ct no-hat rule is waived for birthdays and

some children do wear Burger King cardboa rd crowns on their

birthdays. When M.S. 's teacher came to get the clas s from music,

M.S. was sitting in the back of the classroom crying with a hooded

jacket over her head. Her mother said M.S. told her she felt

uncomfortable with Mr. Duda and, as a resu lt, she had M.S., a

straight-A, gifted student, removed fr om music class.

35. Mr. Duda pointed at student S.R. an d said, "speaking of

retarded." K.M., anot her student in th e class, heard Mr. Duda call

S.R. "retarded" or "stupi d" in the course of te aching a class about a

musical term. Her test imony is consist ent with that of S.R. and Mr.

Duda that he was teaching about the musical term ritardando , which

means to slow the tempo of music. He compa red slow te mpo to a slow

mind, but denied t hat he made any refere nce to or stared at S.R. or

any other student. Mr. Duda's demeanor at the heari ng lends

credence to the studen ts' testimony.

36. The testimony of S.R. and K.M. was co nfirmed by that of

S.R.'s classroom teache r, Michael Corva . S.R. and o ther students in

his class informed him that Mr. Duda called S.R. "reta rd." He also

saw that she obviously was upset when he pi cked up his class from

music. The stud ents told him that Mr. Duda was " mean" to them.

Saying that she did not want to get anyone in trouble, specifically

not Mr. Duda, S.R. would not go to the office to report the

incident, but Mr . Corva did in a written statement he gave to

Mr. Fitz.

37. Student A.G. also was upset when Mr. Corva pick ed up his

class. A.G. testified that Mr. Du da was explaini ng something like

"retardo" and call ed some of the students retarded, includ ing himself

and S.R.

38. The evidence supp orts a conclusion tha t Mr. Duda, at a

minimum, implied t hat S.R. and A.G. were retarded by the way he

pointed or looked at them while teac hing a lesson on the musical term

ritardando .

39. No evidence w as presented con cerning the allegation in

Paragraph II.B.c . that Mr. Duda to ld student B.O. to "shut up."

40. Ms. Eaton over heard Mr. Duda tell students th at they

should be in diapers. Mr. Duda denied ever t elling students they

belonged in diap ers. Of the two, Ms. Eaton was by far the more

credible witness.

41. With the exce ption of the allegations related to student

B.O., the allegations of Pa ragraph II.B.c. and d. have been proven.

Amended Administrative Complaint P a r a g r a p h I I . A . b . a n d

II.B.a., e., and j.

42. After she came to Sheridan Hill s in Mr. Fitz's second year

as principal, Assi stant Principal Zdanov icz was the pe rson who, like

Ms. Freedman before he r, was assigned to help Mr. Du da by relieving

him whenever he felt he was losing his t emper.

43. As Mr. Fitz counseled Mr. Duda repeate dly and, es pecially,

after his three-day suspe nsion, Mr. Duda refused to talk to Mr. Fitz

and would only deal with Ms. Zdano vicz, although she made it clear

to him that she wa s reporting thei r conversations to Mr. Fitz.

44. In June 2008, Mr. Duda was seeking a tra nsfer to another

school. He asked Ms. Zdanovicz to w rite a letter of recommendation

for him. When she refuse d the request, Mr. Duda became agitated and

started "ranting a nd raving" in an open area of the front office.

45. In one conver sation that she had with Mr. Duda, Ms.

Zdanovicz was conc erned that he was making a threat on the life of

Mr. Fitz. In hi s testimony, Mr. Duda co nfirmed that, referring to

himself and his fr iends, he told Ms. Zdanovicz, "If we ever see that

son of a bitch out in Wilto n Manors, we wou ld kick his fucking ass."

Ms. Zdanovicz to ok it seriously, in part, because Mr . Fitz lives in

Wilton Manors. Ex plaining why his f riends were invo lved, Mr. Duda

said it was beca use they heard him complain regularl y about the way

Mr. Fitz treated him. It is implausible, th erefore, to conclude

that, as Mr. Duda testifi ed, he was not being advise d regularly by

his principal of complaints about his behavior.

46. Ms. Zandovicz testified, "Wha tever the outco me of this I

do fear for myse lf and Mr. Fitz and the other people at our school.

47. Th e alle gat io ns i n P a r agra ph II.A.b . and II.B a. , e. , and

j. have been proven.

Amended Administrative Complaint P a r a g r a p h I I . B . a . a n d f .

48. Mr. Duda to ld G.F., a PTO par ent volunteer, "Go get a job

at Publix. At least t hey pay you there. " When her ch ild, C.F., was

in third grade, C.F. began to compla in of feeling ill on the days

for music classes. When confronte d by her mother, C.F. told her

that Mr. Duda was mean to her and made her feel u ncomfortable. At

her mother's request, C.F. was taken out of music class. Kate

Treado, the Sher idan Hills media specialist, reporte d that C.F.

needed to be reassured about her saf ety after she no ticed her hiding

behind the stacks when ever Mr. Duda came in the media center.

49. Mr. Duda ac kn owle dge d maki ng th e co mme nt abo ut Pu blix , b u t

said he w as j oki ng wit h G . F . an d h a d no ill i nten t. M rs. F. sa id

she was offended b ut tried not to be confrontational. Claiming that

he and Mrs. F. were frien ds and that he did not know why C.F. was

removed from mus ic class, Mr. D uda testifie d that he approached

Mrs. F. and asked "what ha ppened," and she said she did not want to

talk to him. In response to accusat ions from M.S. and C.F. that he

glared at them or otherwise intimi dated them after th ey were removed

from his class, Mr . Duda said, "No. There had been enough trouble

when they were re moved from my cla ss. I have 623 other kids to

worry about. If t hey don't want to be in mu sic, fine." At another

time, he conceded that he knew their rem oval from his class

reflected negati vely on him. When a sked, on cross-e xamination,

"What trouble had there been relating to their removal ?," Mr. Duda

said, "I don't know wh at you are ref erring to. I don't recall

saying that."

50. Another paren t, D.L.R., asked to have her son, D.B.,

removed from music class. D.B. accused Mr. Duda of grabbing his

shirt. After Mr. Fitz randomly ch ose children in the class to

interview, he conc luded there was no evidence to support D.B.'s

claim and he told Mr. Dud a, "[D]on't take it any further." In

direct violation of that directive, Mr. Duda said D.B. came in with

hoodie over his head, and he "profes sionally would not let a kid sit

there curled up like t hat, afraid to look at me." So, he said

"[D.B.], I'm not upset with you. I'm just di sappointed." D.B. said

"[Well, you did it ." Mr. Duda respo nded, "Oh, Oh, we are not going

there." He asked which children had been int erviewed, and gave them

rewards called "fl ip-its" for "telli ng the truth." Mr. Duda admits

being advised that Mr. Fitz considered h is behavior un acceptable,

saying he "chewed" him out.

51. The allegations in Paragraphs II.B.a., d., and f. have

been proven.

Amended Administra tive Complaint Pa ragraph II.B.g.

52. Mr. Duda ma de comments in a caf etorium filled with

children and parents attending one of the holiday programs, to

chastise teachers in the back for ha ving a "teacher conference going

on." He was speaking to Steven Brig gs and Mary H arris who

complained that th e comments were directed at them. Mr. Duda

claimed to be joking w ith and lookin g only at Debbie Corriveau.

Mr. Briggs' testim ony that Mr. Duda directed the comment to him and

Ms. Harris is su pported by a co ntemporaneously wr itten statement

dated 12/7/07.

53. Mr. Briggs also observed a nd reported th at Mr. Duda

chastised one te acher, in front of the entire assemb ly, for bringing

her class in at 9:02 a.m. instead of 9:00 a.m, saying he should not

let them attend. Media specialist, Kate Treado, confi rmed that Mr.

Duda got very tens e about the time for performances, including often

threatening to exclude children from performing, and once telling

children and parents w ho had gathered ea rly in the med ia center that

they could not att end a performance that evening. Mr. Duda

attributed this ac tion to his concer n for overcrowding.

54. The allegations in Paragraph II.B.g . of the Amended

Administrative Co mplaint have b een proven.

Amended Administra tive Complaint Paragraph II.B.h

55. In September 20 07, Cheryl Fogarty, a media clerk at

Sheridan Hills, was verbally and loudly criticized by Mr. Duda for

leaving bubbles in his laminating project and was in tears by the

time he left the m edia center. Msea do heard what was happening,

walked in and said "goo d morning" to Mr . Duda. Alth ough the media

clerk works under Ms. Treado's superv ision, Mr. Du da told her what

was going on with Ms. Fogarty was none of her business.

56. On another occ asion, Mr. Du da became angry with

Ms. Fogarty because he thought she was taking laminatin g projects out

of order and that he reported that to the a ssistant princ ipal. He

said his work was on top at 7:00 a.m. , but he saw other work on top

of his at 7:30 a.m.

57. Mr. Duda agreed referred to M s. Eaton regular ly for years

as a "lovable crazy ol d bat," sometimes ask ed if she took her

medication or had "sil ly pills", and laughed at her silly clothes,

but Ms. Eaton was not offended and sa id she did wear silly outfits to

entertain the children. After she made th e complaint about his

comments regarding the death of the parent, Mr. B., howev er, their

joking relationship en ded and they st opped speaking for a while.

58. After schoo l program director , Christopher Falz one, testified

that Mr. Duda re ferred to anoth er teacher and a parent as " white

trash." Mr. Duda denied th at he mad e the com ments, bu t Mr. Fal zone

and Ms. E aton are more cred ible with independ ent memor ies of Mr .

Duda's ha ving used the same expressi on on sep arate occ asions.

59. Base d on the evidence, it is fo und that the alleg ations in

Paragraph II.B.h. are prove n.

Amended A dministrative Co mplaint Par agraph II.B.i.

60. There is no evidence to support the allegations concerning

Mabel Gutierr ez-Sangal.

61. Mr. Duda test ified that he was upset that M s . C o r r i v e a u ' s

class was, in his opin ion, too loud and that the noise was disturbing

another teacher's class where he was hel ping proctor the FCAT

administered in March 2008. Mr. Duda spoke to M s. Corr iveau about it

and, because he thought she was being sa rcastic when sh e said, "okay,

Mr. Duda, okay," he tu rned back towards her to say it was not a

joking matter and to chastise her fur ther. Mr. D uda was rude,

inappropriate, and he sp oke to her as if he we re repriman ding a bad

child. After the incide nt, Ms. Corriveau told Mr. Duda she had never

been spoken to that way in her life and avoided him.

Summary of Findings:

62. The terms of the CBA were not violated in the

procedures that led to either the three-day suspension or he

proposed termination of Mr. Duda. Disciplinary actions, if

otherwise appropriate, are not barred by the terms of the C.B.A.

63. The factual allegations in Paragraphs II.A.a. and

II.A.b. of the Amended Administrative Complaint, in support of

the suspension, have been proven.

64. The factual allegations in Amended Administrative

Complaint Paragraphs II.B.a., b. (in part), c. (in substantial

part), d., e. (in substantial part), f., g., i. (in part), and

j. have been proven.

CONCLUSIONS OF LAW

65. DOAH has jurisdiction over the parties and subject

matter in this case. §§ 1012.33, 120.569, and 120.57(1), Fla.

Stat. (2009)

66. The School Board seeks to terminate Respondent's

employment. This case does not involve the loss of a license or

certification; therefore, the School Board has the burden of

proving the allegations in its Amended Administrative Complaint

by a preponderance of the evidence, as opposed to the more

stringent standard of clear and convincing evidence. McNeill v.

Pinellas County School Board , 678 So. 2d 476 (Fla. 2d DCA 1996);

Alien v. School Board of Dade County , 571 So. 2d 568, 569 (Fla.

3d DCA 1990); Dileo v. School Board of Dade County , 569 So. 2d

883 (Fla. 3d DCA 1990).

67. The preponderance of the evidence standard requires

proof by "the greater weight of the evidence." Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000) (relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

68. Respondent was informed in writing of the specific

charges against him and the rules he was alleged to have

violated before any discipline was imposed, as required by the

CBA. See Jacker v. School Board of Dade County , 426 So. 2d.

1149 (Fla. 3d DCA 1983).

69. In support of the decision to suspend Mr. Duda,

Mr. Fitz's memorandum dated January 31, 2008, cited two

provisions of the Code of Ethics of the Education Profession in

Florida. First, Florida Administrative Code Rule 6B-1.001(2),

which is as follows:

(2) The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

70. Next, Mr. Fitz cited Florida Administrative Code Rule

6B-1.006(3)(e) that lists among others, "an [o]bligation to the

student that requires that the individual [s]hall not

intentionally expose a student to unnecessary embarrassment or

disparagement."

71. Subsection 1012.33(6)(a), Florida Statutes (2009),

provides that any member of the instructional staff may be

suspende d at any time during the term of the contract for just

cause.

72. Subsection 1012.33(1)(a), Florida Statutes (2009),

provides in relevant part:

(a) Each person employed as a member of the

instruction staff in any district school

system shall . . . receive a written

contract as specified in this section. All

such contracts, except continuing contracts

as specified in subsection (4), shall

contain provisions for dismissal during the

term of the contract only for just cause.

Just cause includes, but not limited to, the

following instances, as defined by rule of

the State Board of Education: immorality,

misconduct in office, incompetency . . . .

(Emphasis added)

73. The definition of misconduct in office, set forth in

Florida Administrative Code Rule 6B-4.009(3), is as follows:

Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B-

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B-

1.006. F.A.C., which is so serious as to

impair the individual's effectiveness in the

school system.

74. Immorality is defined in Florida Administrative Code

Rule 6B-4.009(2) as follows:

Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or

disrespect and impair the individual's

service in the community.

75. Incapacity in Florida Administrative Code Rule 6B-

4.009(1)(b)(1) has one or more of the following characteristics:

(b) Incapacity: (1) lack of emotional

stability; (2) lack of adequate physical

ability; (3) lack of general educational

background; or (4) lack of adequate command

of his or her area of specialization.

76. As Mr. Fitz charged, Respondent lost his temper,

failed to exercise the best professional judgment and

unnecessarily embarrassed W.J.R. The violations of the Code of

Ethics of Florida State Department of Education, Florida

Administrative Code 6B-1.001(2) and 6B-1.006(3)(e), justified a

three-day suspension without pay.

77. Counsel for Respondent argued that, although he has

committed acts that might constitute misconduct in office by

violating the Code of Ethics and Principles of Professional

Conduct, the violations are not so severe as to impair his

effectiveness. Respondent, by all accounts and past

evaluations, has an excellent command of music. His

intimidating, rude, and threatening behavior was so serious that

the children who were removed from his class were deprived of

any benefits from his teaching, and that impaired his

effectiveness. His inability to maintain communication with

parents, coworkers, and his principal reflects adversely on

Respondent's effectiveness in the school system.

78. Cases involving immorality have also required a two-

prong test. First, the conduct must be inconsistent with the

standards of public conscience and good morals. See Marion

County School Board v. Clark , 384 So. 2d 1307 (Fla. 5th DCA

1980) (teacher read a book with graphic and sexual context and

used vulgar language with students); Winn v. Popescu , 2006, Fla.

Div. Adm. Hear. Lexis 408, DOAH Case No. 06-1620PL (R.O.

8/23/06; adopted in toto F.O. 1/17/07) (teacher cheated on

certification examination); Lee County School Board v. Lewis ,

2005, Fla. Div. Adm. Hear. Lexis 1348, DOAH Case No. 05-1450

(R.O. 10/31/05; F.O. 12/16/05) (teacher inappropriate

nonconsensual touching of a student), and Adams v. State

Professional Practice Council , 406 So. 2d 1170 (1981) (teacher

possesed 52 marjuana plants).

79. While the second prong of the test, notorious conduct

that impaired Respondent's service in the school community is

met, the first is not. It cannot be concluded, therefore that

his conduct showed a lack of good morals.

80. In Lee County School Board vs. Bergstressar , DOAH Case

No. 09-2414 (R.O. 7/17/09, adopted in toto in F.O. 10/23/09), a

school employee was terminated for displays of anger that caused

his coworkers to avoid him, for telling a coworker to F*** off,

and for saying he was going to kill the assistant principal.

The atmosphere created by Mr. Duda and his threats are similar,

constitute misconduct in office, and justify termination of his

employment.

81. By his conduct with students, parents, coworkers and

the administrators, Respondent created a hostile, intimidating,

abusive, and offensive environment in direct violation of

Florida Administrative Code Rule 6B-1.006(4). In so doing and

his behavior at the hearing, he demonstrated a lack of emotional

stability and, therefore, an incapacity to perform as an

elementary school teacher. Fla. Admn. Code Rule 6B-

4.009(1)(b)(1). See School Board of Dade County v. Crumiel ,

1985, Fla. Div. Adm. Hear. Lexis 5150, DOAH Case No. 85-3673 and

86-116 (R.O., F.O.) (elementary school teacher was hostile,

upset, emotional and loud).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law it is RECOMMENDED that the School Board issue a final order

upholding Respondent's suspension and terminating his employment

with the School Board.

DONE AND ENTERED this 15th day of December, 2009, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of December, 2009.

COPIES FURNISHED :

Carmen M. Rodriguez, Esquire

Carmen Rodriguez, P.A.

15715 South Dixie Highway, Suite 411

Palmetto Bay, Florida 33157-1884

Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

James F. Notter, Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale 33301-3125

Dr. Eric J. Smith

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.