09-003953TTS Escambia County School Board vs. Joe Nathan King Status: Closed Recommended Order on Friday, December 18, 2009.

Summary: The School Board acted properly in suspending Respondents from their teaching positions without pay pending the outcome of criminal charges, and suspending one Respondent five days for striking a minor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-3952

)

ERICA ADAMS-BROWN, )

)

Respondent. )

_______________________________ )

ESCAMBIA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case Nos. 09-3953

) 09-4998

JOE NATHAN KING, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on October 5 and 6, 2009, in Pensacola,

Florida.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

Hammons & Longoria, P.A.

17 West Cervantes Street

Pensacola, Florida 32501-3125

For Respondents: Christine C. Hardin, Esquire

3 West Garden Street, Suite 204

Pensacola, Florida 32502

STATEMENT OF THE ISSUES

The consolidated cases present two issues for resolution.

For both Respondents, Erica Adams-Brown and Joe Nathan King, the

issue presented is whether they should remain suspended without

pay pending the disposition of criminal charges that are

disqualifying offenses under Section 1012.315, Florida Statutes.

The second issue, relating only to Respondent Joe Nathan King,

is whether there is just cause for his suspension without pay

for five days based upon allegations of misconduct.

PRELIMINARY STATEMENT

Both Respondents, Erica Adams-Brown and Joe Nathan King,

are teachers employed by the Escambia County School Board

(School Board) under contracts of instruction authorized under

Section 1012.33, Florida Statutes. On March 24, 2009, Joe

Nathan King was arrested and charged with the offense of battery

on a minor, a violation of Subsection 784.03(1)(a), Florida

Statutes. On April 30, 2009, Erica Adams-Brown was arrested and

charged with the offense of battery on a minor in violation of

Subsection 784.03(1)(a), Florida Statutes. The Florida Statutes

provide, at Section 1012.315, that instructional personnel who

are convicted of certain criminal offenses are ineligible for

employment in any position that requires direct contact with

students. Among the enumerated disqualifying offenses is the

offense of battery when the victim of the offense is a minor.

Both Ms. Adams-Brown and Mr. King were charged by the Office of

the State Attorney with battery on a minor. Both were suspended

without pay by the School Board pending disposition of the

criminal charges. Both were advised that if exonerated, they

would be reinstated with back pay and benefits. Both filed

petitions challenging the action of the School Board in

suspending them without pay pending the disposition of criminal

charges. Additionally, Respondent Joe Nathan King was

disciplined for misconduct, involving striking a student on

March 16, 2009. For that misconduct, the same conduct that

caused his arrest, Mr. King was suspended without pay for five

days. Both Respondents requested an administrative hearing to

challenge the actions taken as set forth above. All actions and

issues set forth in the petitions were consolidated for hearing.

The hearing was conducted on October 5 and 6, 2009, in

Pensacola, Florida.

At the consolidated hearing, Petitioner introduced into

evidence Exhibits numbered 1 through 13, all of which were

admitted without objection. Petitioner called as witnesses

Marsha Higgins, Dr. Alan Scott, Krysta Wilcox, Whitney Meadows,

Mary Catherine Coyle, and Denesia Reed. Respondents called as

witnesses Larry Reid, Polly Rogers, Mabeline James, Jennifer

Summerland, and Glaude Sharon Hall, Erica Adams-Brown, and Joe

Nathan King. Respondents submitted no exhibits. The Transcript

of the hearing was filed on November 10, 2009. Petitioner and

Respondents were directed to file proposed recommended orders no

later than thirty days after the filing of the transcript.

Petitioner's Proposed Recommended Order was timely filed on

December 3, 2009. Respondents' Proposed Recommended Order was

late filed on December 15, 2009, but will be accepted for

purposes of writing this Recommended Order.

References to statutes are to Florida Statutes (2008)

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner, Escambia County School Board, is a

duly-constituted school board charged with the duties of

operating, controlling, and supervising all free public schools

within the School District of Escambia County, Florida.

Petitioner has the authority to discipline employees pursuant to

Subsection 1012.22(1)(f), Florida Statutes.

2. Petitioner has implemented the Ethics in Education Act

(the "Act"), as passed by the Florida Legislature effective

July 1, 2008. Under the Act, multiple enumerated offenses

constitute "disqualifying offenses" from employment in a

position requiring contact with students. Among the

disqualifying offenses is the offense of battery when the victim

is a minor.

3. Petitioner has implemented the Act by suspending

without pay, instructional personnel who are charged with

disqualifying criminal offenses under Section 1012.315, Florida

Statutes. While that provision does not disqualify a teacher

unless convicted or found to have committed the criminal

offense, Petitioner finds it appropriate to suspend teachers

without pay pending the final disposition of disqualifying

criminal charges.

4. Petitioner does not suspend teachers with pay pending

the disposition of criminal charges because of the inability to

recover compensation paid for services not provided in the event

the teacher is convicted or found to have committed the offense.

Petitioner does provide full restoration of back pay and

benefits in the event teachers who are suspended without pay

pending the disposition of criminal charges are exonerated of

those charges.

5. When a teacher is accused of striking a student, both

the Department of Children and Family Services, as well as the

school resource officer are informed. If a criminal

investigation is warranted, a school resource officer from

another school conducts the investigation in order to avoid a

conflict of interest.

6. Respondent Joe Nathan King has been employed as a

teacher with Petitioner since 1974.

7. At all times material to this proceeding, Mr. King

taught mathematics classes under a professional services

contract at Woodham Middle School and coached basketball.

8. Mr. King was charged with striking a student and

causing injuries. The Superintendent of Schools recommended to

Petitioner that Mr. King be suspended without pay for five days.

9. Between sixth and seventh period classes on March 16,

2009, Mr. King was on hall-duty, as was usual. Based upon a

surveillance camera (employing two frames per second intervals

rather than continuous video) mounted in the hallway, a student,

later identified as A.D. (the student's initials will be used to

protect the student's identity) was seen to have struck Mr. King

from behind, causing his eyeglasses to fall from his head and

scatter down the hall by the lockers.

10. After being struck from behind by A.D., Mr. King

testified that he reflexively reached back and grabbed A.D. to

prevent further contact and to restrain him. Mr. King also

appeared to push A.D. away from him. Once A.D. was restrained

and the situation defused, Mr. King told A.D. to go to class.

A.D. complied.

11. Four different teachers witnessed at least part of the

confrontation between Mr. King and A.D. Ms. Christy Wilcox was

in the hallway about 10-15 feet away from Mr. King. She

described in a statement that she saw Mr. King strike A.D. about

the head and neck. She did not see the original altercation

that led to Mr. King striking A.D.

12. Ms. Whitney Meadows, a teacher, also witnessed the

March 16 event. She saw two boys run out of Ms. Read's room and

run into Mr. King, knocking his glasses off. She then saw an

altercation involving pushing and shoving.

13. Ms. Mary Catherine Coyle is another teacher who

witnessed the March 16 event. She was standing at the doorway

of Ms. Read's and Ms. Meadows' classroom. She witnessed a

student striking Mr. King from behind. She saw Mr. King turn

around and strike the student with his left hand.

14. Ms. Denisha Read, a teacher, also witnessed the events

of March 16. She heard Mr. King make a comment about his

glasses. She heard a student say words to the effect of "it was

not me." She saw Mr. King strike the student near the shoulder

area with a "closed fist." She described the student as being

"very upset." She tried to calm the student who was crying.

She reported the matter to the principal.

15. The video images from the camera that recorded the

incident, are consistent with a composite version of the four

teacher witnesses to the event. Mr. King appears to have been

struck from behind by a young student, identified as A.D.,

knocking his eyeglasses to the floor. Mr. King then acted

reflexively to defend himself and first pushed A.D. away, then

grabbed him by the arm and had words with him. A.D. then went

into Ms. Read's classroom, his seventh period class.

16. After the incident, A.D. left Ms. Read's classroom and

was seen standing alone in the video by the student lockers.

Ms. Read took him a tissue because he was crying, then went to

report the matter to the principal.

17. The video tape offered into evidence does not show

Mr. King striking A.D. with either an open or a closed fist.

Mr. King appears to be pushing A.D. away from him after the

contact that knocked his glasses off his head.

18. Mr. King had been subject to a written reprimand in

1993 for slapping a student, which he denied at the time. No

other evidence of disciplinary action taken by Petitioner

against Mr. King during the course of his teaching career was

offered at hearing.

19. Mr. King acknowledged that he was arrested on

March 24, 2009, and charged with a criminal offense of battery

on a minor pursuant to Subsection 784.03(1)(a), Florida

Statutes, and that the charge remained pending at the time of

the hearing on October 5 and 6, 2009. He did not have a date

for its resolution at the time of the hearing.

20. Mr. King was suspended without pay on June 22, 2009.

He was still under suspension without pay at the time of the

hearing in October.

21. Mr. King testified that he got along reasonably well

with the teachers who testified that he struck a student. He

was not aware of any reason why the teachers would testify

untruthfully regarding his actions on March 16, 2009.

22. At all times material to this proceeding, Respondent

Erica Adams-Brown taught reading classes under a professional

services contract at Woodham Middle School.

23. Ms. Adams-Brown was accused of striking student J.M.

and causing injuries after her seventh period class on April 3,

2009, the day before the start of spring break.

24. On April 3, 2009, the principal of Woodham Middle

School, Marsha Higgins, was called at home and notified of

allegations that Ms. Adams-Brown had struck a student.

Ms. Higgins returned to school and met with the parents of the

child who was allegedly struck.

25. A pre-disciplinary meeting was held with Ms. Adams-

Brown in attendance. Petitioner investigated the matter along

with Ms. Higgins and concluded sufficient evidence did not exist

to discipline Ms. Adams-Brown. She was authorized to return to

the classroom with pay pending Petitioner's investigation on

April 7, 2009. However, Ms. Adams-Brown was contacted at home

during spring break and was informed she would not be allowed to

return to her classroom to teach after the break, but would be

reassigned with pay.

26. Ms. Adams-Brown was informed of a proposed

disciplinary action by Petitioner on April 23, 2009. Petitioner

concluded its investigation on April 29, 2009, and found the

allegations of battery on a student to be unfounded.

27. On April 30, 2009, Ms. Adams-Brown was arrested and

charged with battery on a minor pursuant to Subsection

784.03(1)(a), Florida Statutes. Ms. Higgins played no role in

Ms. Adams-Brown being charged with a crime by the Office of the

State Attorney. Ms. Adams-Brown was reassigned with pay on that

date pending the outcome of the law enforcement investigation

and criminal charges. Ms. Adams-Brown was suspended without pay

pending disposition of the criminal charges on July 22, 2009.

28. Ms. Adams-Brown remained under suspension without pay

as of the date of the hearing. She did not know when the

criminal matter would be resolved.

29. Ms. Adams-Brown believed that Mr. King's and her

suspensions were racially motivated. She and several other

teachers, including a teachers' union representative met with

Assistant School Superintendent Dr. Alan Scott on April 29,

2009, to discuss these allegations of racial discrimination.

30. The testimony at hearing concerning the substance of

the April 29, 2009, meeting with School District officials did

not support a claim of racial discrimination or disparate

treatment as the basis for Petitioner's role in the incidents

involving Mr. King and Ms. Adams-Brown.

31. Petitioner has consistently implemented its policy of

suspending teachers without pay pending the disposition of

criminal charges. No exceptions have been made. Of the six

teachers identified by Dr. Scott who were suspended by

Petitioner since July 21, 2008, on the basis of pending criminal

charges for disqualifying offenses, all were suspended without

pay. Concerning the issue of race, three of those suspended

were white and three were African-American.

32. Ms. Adams-Brown testified she was not aware of other

teachers who were charged with disqualifying criminal offenses

who were not suspended without pay pending the disposition of

those charges.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

34. The Florida Ethics in Education Act, Chapter 2008-108,

Laws of Florida, includes, among other things, a provision that

instructional personnel are disqualified from any position that

requires direct contact with students if those personnel are

ineligible for employment under Section 1012.315, Florida

Statutes. See § 1001.42(7), Fla. Stat.

35. Section 1012.315, entitled "Disqualification from

Employment," provides that a person is ineligible for employment

in any position that requires direct contact with students in a

school district if the employee has been convicted of any of the

enumerated offenses. The enumerated offenses include battery, a

criminal offense pursuant to Section 784.03, if the victim of

the offense is a minor. § 1012.315(2)(a), Fla. Stat.

36. Any member of the School District's instructional

staff "may be suspended or dismissed at any time during the

school year if the charges against the teacher include, among

other things, misconduct in office or being found guilty of or

entering a plea to a crime involving moral turpitude. Whenever

such charges are made against an employee of the district school

board, the district school board may suspend such person without

pay; but, if the charges are not sustained, he or she shall be

immediately reinstated, and, his or her back pay shall be paid."

§ 1012.33(6)(a), Fla. Stat.

37. Every person employed as a member of the instructional

staff in any district school system is subject to dismissal

during the term of the contract only for just cause. "Just

cause includes, but is not limited to, the following instances

defined by the Rules of the State Board of Education:

immorality, misconduct in office, incompetency, gross

insubordination, willful neglect of duty, or being convicted or

found guilty of, or entering a plea of guilty to, regardless of

adjudication of guilt, a crime involving moral turpitude."

§ 1012.33(1)(a), Fla. Stat.

38. Petitioner suspended both Respondents without pay

pending the disposition of criminal charges. Each of the

Respondents is charged with battery on a minor, a criminal

offense that would disqualify Respondents from further

employment as teachers in the School District if they are found

guilty or found to have committed the offense. The School Board

has the lawful authority to suspend Respondents without pay,

whenever such charges are made, pending the disposition of those

charges. § 1012.33(6)(a), Fla. Stat. Respondents, through

counsel, do not dispute the authority of the School Board to

suspend them without pay pending the disposition of the

disqualifying criminal charges; however, Respondents contend the

School Board's authority has been implemented in a

discriminatory manner because of the Respondents' race. Both

Respondents are African-American. Respondents presented no

direct evidence of discrimination but, instead, rely upon what

Respondents contend is evidence of disparate treatment,

specifically, that non-minority employees similarly situated are

not treated in a similar manner.

39. In order to establish a prima facie case of disparate

treatment based on racial discrimination, the employee must

prove that similarly situated non-minority employees were more

favorably treated and, if the employer tenders a non-

discriminatory explanation for such treatment, the employee must

prove the explanation is pretextual. For purposes of

establishing a prima facie case of employment discrimination,

similarly situated employees are those who report to the same

supervisor, have been the subject of the same standards

governing performance, and must have engaged in conduct similar

to plaintiff's, without such differentiating conduct that would

distinguish their conduct from those who are claimed to be

similarly situated. Valenzuela v. Globeground North America,

LLC , 18 So. 3d 17, 22-23 (Fla. 3rd DCA 2009). While Petitioner,

the School Board, generally has the burden of proving "just

cause" for disciplinary action taken, Respondents have the

burden of proving they are victims of discriminatory motivated

actions. See Department of Banking and Finance Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 934 (Fla. 1996) ("The general rule is that a

party asserting the affirmative of an issue has the burden of

presenting evidence as to that issue."); Florida Department of

Health and Rehabilitative Services v. Career Service Commission ,

289 So. 2d 412, 414 (Fla. 4th DCA 1974) ("The burden of proof is

on the party asserting the affirmative of an issue before an

Administrative Tribunal.").

40. Both Ms. Adams-Brown and Mr. King were suspended

without pay pending the disposition of criminal charges that

would disqualify them from further employment were they found

guilty or found to have committed the offenses charged.

Petitioner has just cause to suspend Ms. Adams-Brown and

Mr. King without pay pending the disposition of criminal

charges. Having a teacher continue in a classroom student-

contact position while facing criminal charges that could

disqualify him or her from further employment not only creates

potential for disruption of the learning environment, but the

teacher may be further jeopardized by student accusations of

additional similar misconduct. The actions taken by the School

Board in suspending Mr. King and Ms. Adams-Brown without pay

were consistent with the best interest of the School District,

the students at large, as well as Mr. King and Ms. Adams-Brown.

Both Respondents will be reinstated and reimbursed all back pay

and benefits in the event they are exonerated of the criminal

offenses.

41. Respondents both raised issues regarding the fairness

of the process for reviewing the claims of battery against them.

Specifically, they argue that Petitioner has not applied the

same "just cause" standard for all school district employees.

The claims of Respondents that they were singled out for

disparate treatment because of their race, is not supported by

the evidence. The Respondents' attempts to point to other

instances where disciplinary action was or was not taken based

on reported misconduct by an instructor are inadequate to

establish disparate treatment. Respondents identified no one

similarly situated to them for which any comparison of

discipline could be made. Importantly, the School District

presented undisputed evidence that subsequent to the

implementation of the Ethics in Education Act, the School

District had consistently and without exception suspended every

teacher without pay pending the disposition of criminal charges

that would otherwise disqualify them from further employment

under the authority of Section 1012.315, Florida Statutes. Of

the six teachers who have been suspended without pay pending the

disposition of criminal charges with the condition that they

would be reinstated and reimbursed under the new Act, three were

African-American and three were white. For these similarly

situated teachers, the treatment was the same accorded

Ms. Adams-Brown and Mr. King. There is no evidence of disparate

treatment for Respondents and, more specifically, there is no

evidence of disparate treatment predicated upon race.

42. While Petitioner concluded there was not sufficient

evidence to take disciplinary action against Ms. Adams-Brown

with respect to the allegations that she struck a student,

Petitioner did conclude there was sufficient information to take

disciplinary action against Mr. King for striking a student.

The School District does not permit corporal punishment.

Specifically, the School District does not permit teachers to

strike students. The evidence of record establishes that, on

March 16, 2009, Joe Nathan King struck a student after an

initial confrontation that was caused by the student. While

there may be an element of provocation by the student which led

Mr. King to defend himself, teachers are simply not permitted to

strike students in response. Mr. King did so. Four separate

teachers saw, to varying degrees, the events that involved

Mr. King striking the student. The same conduct on the part of

Mr. King was corroborated by the video that covered the

activities of Mr. King at that time in the hallway at Woodham

Middle School. Striking the student by Mr. King is just cause

for the School District's action in suspending him without pay

for five days.

43. In consideration of the above findings of fact and

conclusions of law there is just cause for suspension without

pay of Respondents, Erica Adams-Brown and Joe Nathan King,

pending the disposition of disqualifying criminal offenses.

Furthermore, there is just cause for the disciplinary suspension

of Mr. King without pay for five days. In the event Ms. Adams-

Brown and/or Mr. King are not found guilty and/or not found to

have committed the criminal offenses, Petitioner has agreed they

will be reinstated to their instructional positions with back

pay and benefits. In the event of Mr. King's reinstatement, the

five-day suspension without pay may be imposed through a

reduction in the back pay reimbursement of five days' pay.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Escambia County School Board enter a

final order affirming the suspension without pay of Respondents

pending the disposition of disqualifying criminal charges, and

the suspension without pay of Respondent, Joe Nathan King, for

five days for engaging in misconduct, including striking a

student.

DONE AND ENTERED this 18th day of December, 2009, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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 18th day of December, 2009.

COPIES FURNISHED :

Joseph L. Hammons, Esquire

Hammons & Longoria, P.A.

17 West Cervantes Street

Pensacola, Florida 32501-3125

Christine C. Hardin, Esquire

3 West Garden Street, Suite 204

Pensacola, Florida 32502

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

Malcolm Thomas, Superintendent

Escambia County School Board

215 West Garden Street

Pensacola, Florida 32502

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.