12-000884TTS Broward County School Board vs. Leslie Rainer Status: Closed Recommended Order on Monday, October 22, 2012.

Summary: Teacher should be suspended for inappropriate comments made to a student.

Case No. 12-0884TTS

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD, RECOMMENDED ORDER )

)

Petitioner, )

vs. )

)

LESLIE RAINER, )

)

Respondent. )

)

)

Pursuant to notice, a formal administrative hearing was

conducted by video teleconference between Lauderdale Lakes and

Tallahassee, Florida, on August 30, 2012, before Administrative

Law Judge Claude B. Arrington of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Carmen Rodriguez, Esquire

Law Offices of Carmen Rodriguez, P.A.

Suite 411

15715 South Dixie Highway

Palmetto Bay, Florida 33157

For Respondent: Robert F. McKee, Esquire

Kelly and McKee, P.A

Post Office Box 75638

1718 East 7th Avenue, Suite 301

Tampa, Florida 33605

STATEMENT OF THE ISSUE

Whether Respondent committed the acts alleged in the

Administrative Complaint dated February 27, 2012, and filed with

DOAH on March 14, and, if so, the discipline that should be

imposed against Respondent's employment.

PRELIMINARY STATEMENT

Respondent is a high school teacher employed by Petitioner.

Based on allegations as to her conduct with a certain student,

the School Board voted on March 6, 2012, to suspend Respondent's

employment without pay for ten days and to require her to

undergo diversity training. Respondent timely challenged the

proposed action, the matter was referred to DOAH, and this

proceeding followed.

At the final hearing, Petitioner presented the testimony of

Phil St. Jean (former student) and Karlton Johnson (high school

principal). Petitioner's pre-marked Exhibits 1, 2, and 19 were

admitted into evidence. Petitioner's Exhibit 19 is a video that

was admitted into evidence over the Respondent's objection.

Respondent testified on her own behalf and presented the

additional testimony of Layla Santiago (former student).

Respondent's Exhibits 1, 3, 4, and 5 were admitted into

evidence. Respondent's exhibits include depositions from two

other former students.

A Transcript of the proceedings, consisting of one-volume,

was filed on September 25, 2012. Each party filed a Proposed

Recommended Order, and both have been duly considered by the

undersigned in the preparation of this Recommended Order.

Unless otherwise noted, each reference to a statute is to

Florida Statutes (2012), and each reference to a rule is to the

rule as published in Florida Administrative Code as of the date

of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was the

constitutional entity authorized to operate, control, and

supervise the public schools in Broward County, Florida.

2. At all times relevant to this proceeding, Respondent

has been employed as a classroom teacher at Blanche Ely High

School (the school), which is a public school in Broward County.

3. In 2008, Karlton Johnson became the principal of the

school and was the principal at all times relevant to this

proceeding.

4. On or shortly before December 3, 2008, three of

Respondent's students submitted a written statement to

Sabrina Elsinger, who was an assistant principal at the school.

The written statement accused Respondent of making racially

inappropriate statements to the students, who were of Haitian

descent.

5. In response to the written statement, Ms. Elsinger met

with Respondent and prepared a "Meeting Summary" which included

the following:

On 12/04/2008 at 2:45 pm we met to discuss

students allegations of unfair treatment and

"bullying" by you within your classroom.

During this meeting, I shared with you the

following student allegations:

You said "I wish they would put you in a

boat and send you back where you came from."

Students are told to shut up when speaking

out of turn.

A student was told to stand in a corner near

the garbage can because "that's where he

belongs."

Students feel bullied by you.

You allow students from other origins to

[sic] bully them.

I also shared with you the following

expectations:

You will speak to the students with kindness

and professionalism.

You will call for security for student

removal when a student is unruly.

Students will feel equity within the diverse

population of your classroom.

6. No disciplinary action was taken against Respondent for

these alleged statements. Petitioner did not present competent

evidence that Respondent made the statements attributed to her.

7. In a separate incident, Respondent was accused of

engaging in an inappropriate discussion with another teacher

about religion in front of a classroom of students. Respondent

received a Record of Counseling for that alleged incident, but

no discipline was imposed against her. 1

8. Respondent and Mr. Johnson are African-Americans.

Phil St. Jean's mother is African-American and his father is of

Caribbean descent. Mr. St. Jean, who is of a dark complexion,

was 18 years old at the time of the formal hearing and had

graduated from the school.

9. During the 2010-2011 school year, Mr. St. Jean was in a

remedial class taught by Respondent for students who had not

passed the FCAT.

10. Respondent frequently had Mr. St. Jean removed from

the class for his alleged misconduct, primarily talking too

much. Respondent believed that she was justified in removing

him from her class. Mr. St. Jean believed that Respondent was

picking on him, treated him unfairly, and blamed him for things

he had not done. Mr. St. Jean decided to record a video of

Respondent as proof of Respondent's unfair treatment of him.

Mr. St. Jean did not think the administration would believe that

Respondent was mistreating him without the video.

11. On May 6, 2011, Mr. St. Jean walked into Respondent's

classroom just before class was to start. He had an iPod

concealed in his hands that recorded Respondent without her

knowledge or permission. Several other students were present in

the classroom, including Kevin Eason and Laila Santiago.

12. After he entered the classroom, Respondent went up to

Mr. St. Jean, pointed a pointer at him and stated "You've got

one time, chocolate." That scene was captured on video. The

other students in the classroom laughed when Respondent made the

comments to Mr. St. Jean.

13. Respondent testified that she was engaging in banter

with Mr. St. Jean and that she did not intend her statement to

be a racial slur. In her defense, Respondent points out that

there were no white students present when she made the comments.

That testimony lacks credibility and is rejected. The video and

the testimony of Mr. St. Jean establish that Respondent's

comments were made in a threatening manner and were intended to

be a warning to Mr. St. Jean to behave. Respondent's use of the

term "chocolate" was a reference to Mr. St. Jean's complexion

and is properly viewed as being a racial slur.

14. After he caught Respondent's comments on video,

Mr. St. Jean inadvertently stopped recording. Respondent

thereafter called Mr. St. Jean a "little chocolate boy" and

described him as being "the dark chocolate nobody likes to eat."

15. Respondent's comments to Mr. St. Jean caused the other

students in the classroom to laugh at Mr. St. Jean. Respondent

made Mr. St. Jean the butt of the joke. While he did not react

to Respondent's comments, Mr. St. Jean testified, credibly, that

he was humiliated, embarrassed, and deeply hurt by them. 2

16. Mr. St. Jean showed his mother the video recording of

Respondent later that night.

17. The next school day, Mr. St. Jean's mother went to the

school to address her concerns about her son's behavior and

academic performance in Respondent's classroom and the

inappropriate comments discussed above. Assistant Principal

Heidi Jones called Mr. Johnson to join the meeting with

Mr. St. Jean and his mother. Mr. Johnson had not previously

been aware of any problems between Mr. St. Jean and the

Respondent, and he did not know the nature of the meeting

beforehand.

18. Mr. Johnson brought Respondent to join the meeting.

Respondent did not have any documentation of Mr. St. Jean's

disciplinary issues, had not followed the discipline matrix, and

had never contacted his mother regarding any issue with his

behavior or performance in her classroom.

19. After discussing disciplinary issues with her son,

Mr. St. Jean's mother asked Respondent directly whether she had

called her son a name. At that point, unaware that there was a

video recording, Respondent denied calling Mr. St. Jean a name

and left the meeting. Mr. St. Jean and his mother then showed

Mr. Johnson the video recording and downloaded it onto

Mr. Johnson's work computer.

20. Respondent's conduct impaired her effectiveness in the

school system.

CONCLUSIONS OF LAW

21. DOAH has jurisdiction over the subject matter of and

the parties to this case pursuant to sections 120.569 and

120.57(1).

22. Because Petitioner seeks to suspend Respondent's

employment without pay for ten days, which does not involve the

loss of a license or certification, Petitioner has the burden of

proving the allegations in its Administrative Complaint by a

preponderance of the evidence, as opposed to the more stringent

standard of clear and convincing evidence. See McNeill v.

Pinellas Cnty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996);

Allen v. Sch. Bd. of Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d

DCA 1990); Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883 (Fla.

3d DCA 1990).

23. 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)).

24. Section 1012.33(1)(a), Florida Statutes, sets forth

"just cause" for disciplining Respondent's employment, including

the following: "incompetency," "immorality," and "misconduct in

office" as those terms are defined by rule of the State Board of

Education.

25. The following definitions are set forth in Florida

Administrative Code Rule 6B-4.009(1), (2), and (3):

(1) Incompetency is defined as inability or

lack of fitness to discharge the required

duty as a result of inefficiency or

incapacity . . .

(a) Inefficiency: (1) repeated failure to

perform duties prescribed by law (Section

231.09, Florida Statutes); (2) repeated

failure on the part of a teacher to

communicate with and relate to children in

the classroom, to such an extent that pupils

are deprived of minimum educational

experience . . .

(2) 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.

(3) 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.

26. Subsections (1) and (2) of the Code of Ethics of the

Education Profession in Florida (Florida Administrative Code

Rule 6B-1.001) provide as follows:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(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.

(3) Aware of the importance of maintaining

the respect and confidence of one's

colleagues, students, parents, and other

members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

27. The Principles of Professional Conduct for the

Education Profession in Florida are set forth in Florida

Administrative Code Rule 6B-1.006. Subsection (2) of the rule

provides as follows:

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator's

certificate, or the other penalties as

provided by law.

28. Florida Administrative Code Rule 6B-1.006(3) sets

forth the obligations a teacher has to a student, and includes

the following:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student's physical

health and/or safety.

* * *

(e) Shall not intentionally expose a

student unnecessary embarrassment or

disparagement.

(f) Shall not violate or deny a student's

legal rights.

29. Respondent's conduct does not rise to the level of

"immorality" as that term is defined by Florida Administrative

Code Rule 6B-4.009(2). While racial slurs should not be

tolerated, especially in an educational setting, Respondent's

conduct was not "sufficiently notorious to bring the individual

concerned or the education profession into public disgrace or

disrespect and impair [Respondents'] service in the community"

as required by the rule.

30. Petitioner failed to prove that Respondent was guilty

of "incompetence" within the meaning of Florida Administrative

Code Rule 6B-4.009(1). There was no evidence that Respondent

repeatedly failed to perform duties prescribed by law within the

meaning of the rule. Likewise, there was no evidence that

Respondent repeatedly failed to communicate or relate to

students "to such extent that pupils are deprived of a minimum

education experience."

31. Petitioner proved that Respondent engaged in

"misconduct" within the meaning of Florid Administrative Rule

6B-4.009(3). The definition of "misconduct" requires that the

conduct is so serious "as to impair the [Respondent's]

effectiveness in the school system." Respondent demeaned

Mr. St. Jean in front of other students. That action violated

the Principles of Professional Conduct for the Education

Profession in Florida found at Florida Administrative Code Rule

viewed the conduct as totally inappropriate and as grounds to

terminate Respondent's employment. Impaired effectiveness in

the school system can be found based on the conduct alone if the

conduct is sufficiently serious. See Purvis v. Marion County

School Board , 766 So. 2d 492 (Fla. 5th DCA 2000). Respondent's

conduct as found in this Recommended Order is sufficient without

other proof to establish that Respondent's effectiveness in the

school system has been impaired.

32. In its Proposed Recommended Order, the School Board

seeks to suspend Respondent's employment without pay for a total

of ten school days. That recommendation is based, in part, on

its allegations as to Respondent's prior disciplinary history.

As reflected by the findings of fact, Petitioner did not prove

that aspect of its Administrative Complaint. Consequently, the

undersigned recommends that the ten-day suspension be reduced to

a five-day suspension.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that the School Board of Broward County,

Florida, enter a final order adopting the Findings of Fact and

Conclusions of Law contained in this Recommended Order. It is

further RECOMMENDED that the final order find Leslie Rainer

guilty of misconduct in office and that it suspend her

employment without pay for a period of five school days. It is

further recommended that the final order require Leslie Rainer

undergo diversity training to be determined by the School Board

within 60 days of the entry of the Order. It is further

recommended that Leslie Rainer's fringe benefits (such as health

insurance) not be disturbed during the period of suspension.

DONE AND ENTERED this 22nd day of October, 2012, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of October, 2012.

ENDNOTES

1 A Record of Counseling is not considered to be discipline.

2 In making this finding, the undersigned has considered the

deposition testimony of Kevin Eason and the live testimony of

Layla Santiago, both of whom viewed the comments less seriously

than did Mr. St. Jean.

COPIES FURNISHED :

Carmen Rodriguez, Esquire

Law Offices of Carmen Rodriguez, P.A.

Suite 411

15715 South Dixie Highway

Palmetto Bay, Florida 33157

[e-mail]

Robert F. McKee, Esquire

Kelly and McKee, P.A

Post Office Box 75638

1718 East 7th Avenue, Suite 301

Tampa, Florida 33605

[e-mail]

Pam Stewart, Interim Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Robert Runcie, Superintendent

Broward County School District

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301-3125

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 must be filed with the

agency that will issue the final order in this case.