15-000954PL Pam Stewart, As Commissioner Of Education vs. Edward Thomas Status: Closed Recommended Order on Friday, June 19, 2015.

Summary: Respondent left his classroom unattended and argued with the School District Superintendent, using profanity and making racially-charged statements. Recommend suspension, anger management, and probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 15 - 0954PL

EDWARD THOMAS,

Respondent.

_______________________________/

RECOMMENDED ORDER

On April 30, 2015, Administrative Law Judge Lisa Shearer

Nelson conducted a duly - noticed hearing pursuant to section

120.57(1), Florida Statutes (2014) , in Blountstown, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

J. David Holder, P.A.

387 Lakesid e Drive

Defuniak Springs, Florida 32435

For Respondent: Edward Thomas, pro se

No. 1

3557 Post Street

Jacksonville, Florida 32205

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent violated

section 1012.795(1)(g) and (j), Florida Statutes (2012), and

Florida Administrative Code Rule 6A - 10.081(3)(a), and if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

On December 4, 2014, Petitioner, Pam Stewart acting as

Commissioner of Education, filed an Administrative Complaint

against Respondent, Edward Thomas, alleging that he had violated

section 1012.795(1)(g) and (j), and rule 6A - 10.081(3)(a).

Through the use of an Election of Rights form, on January 5,

2015, Respondent elected a hearing pursuan t to section 120.57(1),

and on February 19, 2015, the case was forwarded to the Division

of Administrative Hearings for the assignment of an

administrative law judge.

On February 24, 2015, a Notice of Hearing was issued

scheduling the disputed - fact hearing for April 30, 2015. A

t elephonic p re - h earing c onference was also conducted on April 22,

2015, in order to explain the process for conducting the hearing

to Respondent, who is pro se, and to address any pre - hearing

issues that may be pending.

The hearing was conducted as scheduled. Petitioner

presented the testimony of Wilson McClellan, Barbara Hathaway,

Georgia Barbee, Warren Tanner, and P . G . (a minor student) , and

PetitionerÓs Exhibits 1 - 15 were admitted into evidence.

Respondent testified on his own b ehalf, and RespondentÓs Exhibit

1 was admitted over objection. On rebuttal, Petitioner presented

the testimony of Vicki Davis and additional testimony from Warren

Tanner.

The one - volume Transcript of the hearing was filed with the

Division on May 14, 2015 . Both parties timely filed Proposed

Recommended Orders which have been carefully considered in the

preparation of this Recommended Order.

FINDING S OF FACT

Based on the demeanor and credibility of the witnesses and

other evidence presented at hearing, a nd upon the entire record

of this proceeding, the following facts are found:

1. Respondent holds Florida EducatorÓs Certificate 739881,

covering the areas of Physical Education and Exceptional Student

Education, which is valid through June 30, 2015. He h as held a

certification in Florida since 2005. Respondent is African -

American.

2. At all times relevant to the charges in the

Administrative Complaint, Respondent has been employed as an In -

School Suspension (ISS) Teacher at the CARE Program in the

Calho un County School District (District).

3. The CARE acronym is shorthand for character,

achievement, respect, and education. The CARE Program is a

second - chance school for students who have been suspended for

more than ten days, have been suspended for d rug offenses, or who

are currently in a juvenile facility. The first time a student

is assigned to the CARE Program, it is for a 90 - day term. If the

student does well, he or she returns to their regular school.

The second referral is for a period of 180 days; the third for a

year. The CARE Program generally has approximately 30 - 40

students at a time. In November 2012, the program had

approximately 31 - 32 students.

4. The CARE Program is located at a facility that used to

house a vocational complex, nex t to the adult school. Also

housed in this complex is the In - School Suspension (ISS) class,

where students serve in - school suspensions of less than ten days.

Students are referred to the ISS class for behavior such as

tardiness and being disruptive in th e classroom. The number of

students in the ISS classroom varies, because it depends on how

many students have been referred. T here is a limit to how many

students can be in the ISS class, because each school has a cap

on the number of students it can ref er at a ny given time.

Testimony varied as to how many students were present at the time

of the incident giving rise to this case. The most reasonable

and credible testimony indicates that on November 14, 2012, there

were approximately 15 - 20 students in t he ISS class. There was

adequate room in the ISS classroom for the number of students in

the class.

5. Some time prior to the incident giving rise to this

case, part of the complex where the CARE Program and the ISS

class were housed underwent constructi on. As a result, several

staff members working in the complex had tires punctured because

of construction debris in the area. The District would reimburse

employees for repairs to tires that were punctured if the

employee submitted the documentation rela ted to the repair.

Respondent had requested two new tires, as opposed to repair of

his tires. Although the record is not clear when Respondent made

his request, there was some delay in any action being taken to

address it .

6. Wilson McClellan was the s uperintendent of the District

from 2000 to 2004, and then again from 2008 to 2012, after which

he retired. Mr. McClellan , who is Caucasian, was an educator in

Calhoun County for approximately 25 years. He had worked with

Respondent in a summer recreatio n program at some point before

Respondent was hired by the District . Mr. McClellan had told

Respondent that if there was an opening in Calhoun County , he

would give Respondent a call and let him know.

7. On November 13, 2012, Mr. McClellan was def eated in his

bid for re - election as superintendent. The next day, he visited

the CARE Program and spoke with several of the staff there,

presumably to touch base with people with whom he had worked. He

came to the CARE Program around midday, and class was in s ession.

While he was there, Mr. McClellan went to speak with Respondent

about RespondentÓs pending request for reimbursement for his

tires. While repairs had been authorized, no other staff member

had requested new tires. Mr. McClellan told Respondent t hat he

would need to submit documentation for the reimbursement for

action by the School Board, as opposed to the s uperintendent,

because Mr. McClellan did not feel comfortable authorizing the

expenditure when no one else had requested reimbursement for ne w

tires instead of repair of existing ones .

8. Mr. McClellan knocked on the door to the ISS classroom

and he and Respondent went into the small office adjacent to i t .

When he told Respondent about the need to submit the

reimbursement matter to the Board, Respondent became angry and

walked back into his classroom. Respondent told McClellan, in

the presence of his students, that if he had a different last

name and a different color, then the results would have been

different. McClellan denied RespondentÓs c laim and left the

classroom.

9. Mr. ThomasÓs classroom had an inside door, going into a

hallw ay, and an outside door that led to a covered pavilion area

with picnic tables. Also adjacent to the area with the picnic

tables is Barbara HathawayÓs office. Ms. Hathaway served as the

Dean of Students for the CARE Program, a position that functions

much like a principal does in a traditional school . When

Mr. McClellan left the classroom, he went to the area with the

picnic tables. Ms. Hathaway saw him ther e and came out to speak

with him.

10. While Ms. Hathaway and Mr. McClellan were speaking,

Respondent came out of his classroom and asked Ms. Hathaway to

get someone to cover his class because he was Ðpretty hotÑ and

needed to walk. According to Ms. Hat haway, Respondent was

agitated and upset . S he did not understand him to mean he was

overheated based on temperature, but rather that he was upset or

angry , and her testimony is credited . Without waiting for

coverage for his class, Respondent walked away from the classroom

and the area where Mr. McClellan and Ms. Hathaway were standing

and up the sidewalk .

11. Ms. Hathaway left to ask another staff member to cover

the classroom and was going to walk back outside when she heard

Mr. Thomas speaking loudly . She could not hear what Mr. Thomas

said, but his tone was agitated. She noticed that the ISS

classroom door to the outside was open , and the students could

hear the heated conversation be tween their instructor and the

s uperintendent, so she opened the inside door and told a student

to shut the outside door. Ms. Hathaway thought from the

studentsÓ reactions that they were enjoying the interchange

between Mr. McClellan and Mr. Thomas. She used her phone to call

for a resource officer because she felt th e situation was

agitated and t hat someone should be present to intervene.

12. After Ms. Hathaway walked inside to arrange for

coverage for the classroom, Mr. Thomas had walked back down the

sidewalk to Mr. McClellan. He repeated to Mr. McClellan that in

this county, if he had a different last name and a different

color, it would probably be a different result. Mr. McClellan

became impatient and said, Ðshut up Ed, I am just not wanting to

hear any more about that.Ñ Mr. Thomas walked closer to him,

glared and said, Ðif you ever say shut up again to me, I will be

the last black man you ever say that to.Ñ 1/ Mr. Thomas is a

large, imposing figure, and according to Mr. McClellan, he spoke

in a loud, angry voice and Ðbowed upÑ in a threatening gesture;

however , he was never close enough to the s uperintendent to

actually strike him.

13. While Ms. Hathaway could not hear the actual lan guage

being used, both Ms. Barbee, who came to cover the ISS classroom,

and the students in the classroom were able to hear the colorful

exchange. Ms. Barbee testified that she did not remember the

actual conversation, but that there wa s Ðsome cussing and

hollering. Ñ H er statement written the day of the incident

indicates that Mr. Thomas used the term Ðf**k.Ñ Likewise, P . G . ,

on e of the students in the classroom , testified that Mr. Thomas

told Mr. McClellan , ÐdonÓt tell me to shut the f**k up,Ñ and for

him to Ðs h ut the f**k up.Ñ P.G. believed the student s in the

room were shocked at the interchange. 2/

14. After this exchange, Respondent once again walked away

from Mr. McClellan and up the sidewalk away from his class. On

both occasions, Respondent was five to six classroom lengths away

from his classroom, and unable to monitor in any way the actions

of his students .

15. Ms . Hathaway, as noted above, was not present for this

heated exchange and did not hear what was said. When she

returned outside, Mr. Thomas was standing on the sidewalk up the

hill from the classroom. She spoke to Mr. McClellan, who told

her about the con versation with Mr. Thomas. What he told her

involved the reimbursement issue and not any complaint about

overcrowding. About that time Warren Tanner, the school resource

officer, came around the corner. When he arrived, he saw

Ms. Hathaway and Mr. McCle llan sitting on a bench under the

pavilion, and Mr. Thomas was standing at the end of the driveway

at the end of the building. Mr. Tanner asked what had happened,

and Mr. McClellan told him that Mr. Thomas had threatened him.

16. Mr. Thomas walked back down the hill to where the

others were standing, and Mr. McClellan told him to go home for

the rest of the day. Mr. Thomas went into his classroom briefly,

then came out and asked Mr. McClellan if he was sending him home

for the rest of the day, and was told, Ðyes.Ñ Mr. Thomas got in

his truck to leave, then got out and asked Mr. Tanner if this was

going to be a com plaint, and Mr. Tanner told him , not at this

time.

17. Mr. McClellan returned to his office and called David

House, the school board attorne y. He re lated the events of the

morning and told Mr. House that, i n light of past behavior by

Mr. Thomas and the current incident, he was considering

terminating Mr. Thomas.

18. Late r that afternoon, Vicki Davis, a ssistant

s uperintendent for the Distri ct, called Mr. Tanner and asked him

to collect statements from those who witnessed or heard the

morningÓs events. Mr. Tanner got statements from Mr. McClellan ,

Ms. Hathaway, Ms. Barbee, and several students in Mr. ThomasÓs

class. 3 / On Thursday, November 15, 2012, Mr. McClellan wrote to

Mr. Thomas advising him that he was suspended with pay, effective

immediately.

19. Respondent had been the subject of discipline

previously, and there had been concerns expressed about his

behavior during his employment in Calhoun County. For example,

in January 2008, he received a formal reprimand for allegedly

confronting a fellow teacher in front of students in a loud,

belligerent , and profane manner. 4 / On June 3, 200 8, Respondent

received a second reprimand for allege dly le aving a magazine with

an unclothed woman on the cover in the Health Building bathroom

where it could be viewed by students. On January 13, 2011, Neva

Miller, the principal of Blountstown Middle School , wrote a

lengthy letter to Superintendent McClel lan detailing several

alleged incidents involving Mr. Thomas that caused her to

Ðexpress concerns that I have as to the effectiveness and

concerning anger control abilities of Edward Thomas.Ñ A two - page

document titled ÐEd Thomas Issues Calendar Year 2011 Ñ was placed

in his personnel file, recounting a series of concerns regarding

alleged deficiencies in his performance. On February 23, 2012,

Ms. Hathaway , as Dean of the CARE Program, documented an alleged

incident involving a ninth - grade student. 5 /

20. On December 11, 201 2 , Mr. McClellanÓs successor,

Superintendent Ralph Yoder, issued a Notice of Charges for

Dismissal to the Calhoun County School Board , recommending

Respondent be suspended without pay and dismissed from employment

by the District. The N otice of Charges stated, ÐMr. Thomas has a

history of engaging in insubordinate, hostile and confrontational

behavior toward faculty members and administrators, which began

in 2007 and culminated in an inc ident that occurred on

November 14, 2012, involving the former Superintendent of

Schools, Mr. Tommy McClellan. Mr. Thomas has been repeatedly

instructed by persons in authority to correct his behavior, but

he has failed to do so.Ñ

21. The Notice goes on to describe 13 separate incidents

and references several others. Only the incident involving

Mr. McClellan on November 14, 2012, is alleged in th e

Administrative Complaint, and Petitioner presented no evidence to

prove what happened with respect to the other incidents. No

findings are made concerning t he validity of the other

allegations in the Notice of Charges. It is considered solely to

show that the District took action with respect to RespondentÓs

employment.

22. Likewise, it is unclear what, if any, proceedings were

conducted with respect to the Notice of Charges before the school

board. Respondent acknowledged that his employment was

terminated as of December 11, 2012 , the day the Notice was

issued .

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the subjec t matter and the parties to this

action in accordance with sections 120.569 and 120.57(1 ) , Florida

Statutes (2014) .

24 . RespondentÓs Proposed Recommended Order suggests that

this proceeding is for the purpose of reviewing the employment

action taken by t he Calhoun County School Board. However, as

indicated in the Administrative Complaint and as explained to

Respondent both during the pre - hearing conference and at the

hearing, t his is a proceeding in which Petitioner seeks to

discipline Res pondent's educa tor certificate . Because

disciplinary proceedings are considered penal in nature,

Petitioner is re quired to prove the allegations in the

Administrative Complaint by clear and convincing evidence. Dep't

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

25 . Clear and convincing evidence Ðrequires more proof than

a Òpreponderance of the evidenceÓ but less than Òbeyond and to

the exclusion of a reasonable doubt.ÓÑ In re Graziano , 696 So.

2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In r e Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). ÐAlthough this

standard of proof may be met where the evidence is in conflict, it

seems to preclude evidence that is ambiguous.Ñ Westinghouse

Elect. Corp. v. Shuler Bros. , 590 So. 2d 986, 989 (Fla. 1991).

26. Section 1012.796 describes the disciplinary process for

educators, and provides in pertinent part:

(6) Upon the finding of probable cause, the

commissioner shall file a formal complaint

and prosecute the complaint pursuant to the

provisions of chapter 120. An

administrative law judge shall be assigned

by the Division of Administrative Hearings

of the Dep artment of Management Services to

hear the complaint if there are disputed

issues of material fact. The administrative

law judge shall make recommendations in

accordance with the provisions of subsection

(7) to the appropriate Education Practices

Commissi on panel which shall conduct a

formal review of such recommendations and

other pertinent information and issue a

final order. The commission shall consult

with its legal counsel prior to issuance of

a final order.

(7) A panel of the commission shall enter a

final order either dismissing the complaint

or imposing one or more of the following

penalties:

(a) Denial of an application for a teaching

certificate or for an administrative or

supervisory endorsement on a tea ching

certificate. The denial may provide that

the applicant may not reapply for

certification, and that the department may

refuse to consider that applicantÓs

application, for a specified period of time

or permanently.

(b) Revocation or suspension of a

certificate.

(c) Imposition of an administrative fine

not to exceed $2,000 for each count or

separate offense.

(d) Placement of the teacher,

administrator, or supervisor on probation

for a period of time and subject to such

conditions as the commission m ay specify,

including requiring the certified teacher,

administrator, or supervisor to complete

additional appropriate college courses or

work with another certified educator, with

the administrative costs of monitoring the

probation assessed to the educat or placed on

probation. An educator who has been placed

on probation shall, at a minimum:

1. Immediately notify the investigative

office in the Department of Education upon

employment or termination of employment in

the state in any public or private position

requiring a Florida educatorÓs certificate.

2. Have his or her immediate supervisor

sub mit annual performance reports to the

investigative office in the Department of

Education.

3. Pay to the commission within the first 6

months of each probation year the

administrative costs of monitoring probation

assessed to the educator.

4. Violate no law and shall fully comply

with all district school board policies,

school rules, and State Board of Education

rules.

5. Satisfactorily perform his or her

assigned duties in a competent, professional

manner.

6. Bear all costs of complying with the

terms of a final order entered by the

commission.

(e) Restriction of the authorized scope of

practice of the teacher, administrator, or

supervisor.

(f) Reprimand of the teacher,

administrator, or supervisor in writing,

with a copy to be placed in the

certifica tion file of such person.

(g) Imposition of an administrative

sanction, upon a person whose teaching

certificate has expired, for an act or acts

committed while that person possessed a

teaching certificate or an expired

certificate subject to late renewal , which

sanction bars that person from applying for

a new certificate for a period of 10 years

or less, or permanently.

(h) Refer the teacher, administrator, or

supervisor to the recovery network program

provided in s. 1012.798 under such terms and

conditions as the commission may specify.

27. The Administrative Complaint makes the following

factual allegations against Respondent:

3. On or about November 13, 2012, during

class, Respondent was confronted by the

Calhoun County School DistrictÓs (District)

Superintendent. The Superintendent provided

information to Respondent regarding a

reimbursement from the Di strict, and an

argument ensued. Respondent engaged in the

argument in the presence of students and

faculty. Respondent was loud,

confrontational, and used profanity,

including the word Ð[f**k],Ñ toward the

Superintendent.

4. As a result of RespondentÓs conduct

alleged in paragraph 3 of this

Administrative Complaint, the District

suspended RespondentÓs employment with pay

on or about November 15, 2012, and

RespondentÓs employment was terminated by

the District on or about December 11, 2012.

28. Based upon these factual allegations, Count 1 of the

Administrative Complaint charges Respondent with violating section

1012.795(1)(g); Count 2 charges Respondent with violating section

1012.795(1)(j); and Count 3 charges Respondent with violating rule

6A - 10.081 (3)(a).

29. Petitioner proved the facts alleged in paragraphs 3 and

4 in all material respects. Mr. McClellanÓs discussion with

Respondent regarding the need to submit his claim for

reimbursement to the board was not a Ðconfrontation.Ñ Nor is it

fair t o say that an argument ensued, as that implies both parties

were engaged in the disagreement. Here, the evidence presented

indicates that the ÐargumentÑ was pretty one - sided. However, the

allegations regarding RespondentÓs conduct are supported by clear

and convincing evidence.

30. Section 1012.795(1)(g) provides that cause for

discipline exists when Respondent, Ð [u]pon investigation, has been

found guilty of personal conduct that seriously reduces that

personÓs effectiveness as an employee of the distri ct.Ñ Teachers

are held to a high moral standard in the community. The public

expects them to serve as role models for the children with whom

they work. Adams v. ProfÓ l Practices Council , 406 So. 2d 1170

(Fla. 1st DCA 1981). Respondent was working as an ISS teacher,

with students who had been placed in his class for a variety of

behavioral issues. In this setting, it is particularly important

that a teacherÓs behavior be temperate and controlled.

Respondent, by his reaction to the information presented to him by

Mr. McClellan, displayed precisely the same type of behavior that

could have placed a student in his classroom. Moreover, he made

no effort to control his anger, but displayed his frustration in

front of staff and students alike , even to the po int of injecting

racial motivations into what should have been a simple, short,

professional exchange .

31. I t is understandable that Respondent may have been

frustrated by the length of time since he submitted his claim for

reimbursement with no resolutio n . F or the sake of discussion,

frustration would also be understandable if legitimate claims of

overcrowding went unaddressed. However, there is a proper

method, place, and time for expressing frustration. RespondentÓs

reaction was unacceptable, especia lly in front of students and

staff. Count 1 has been established by clear and convincing

evidence.

32. Count 2 asserts that Respondent violated section

1012.795(1)(j), by violating the Principles of Professional

Conduct for the Education Profession presc ribed by the State

Board of Education rules. A finding that Respondent is guilty of

violating Count 3 by definition means that a violation of Count 2

has been established. In light of the discussion of Count 3

below, Count 2 has been established by clear and convincing

evidence.

33. Count 3 charges Respondent with violating rule 6A -

10.081(3)(a), which provides:

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful t o

learning and/or to the studentÓs mental

and/or physical health and/or safety.

34. Rule 6A - 10.081 was not in effect at the time of the

alleged conduct giving rise to the allegations against Respondent.

Childers v. Dep't of Envtl. Prot. , 696 So. 2d 962 , 964 (Fla. 1st

DCA 1997)(ÐThe version of a statute in effect at the time grounds

for disciplinary action arise controls.Ñ). However, its

predecessor, rule 6B - 1.006, contained identical provisions with

respect to the subsections charged. There is no subs tantive

difference in the provision, clearly placing Respondent on notice

of the nature of the charge against him. Werner v. DepÓt of Ins.

& Treasurer , 689 So. 2d 1211, 1213 - 1214 (Fla. 1st DCA 1997);

Cottrill v. DepÓt of Ins. , 685 S o. 2d 1371 (Fla. 1st DC A 1996).

35. RespondentÓs behavior clearly violates this principle of

professional conduct. Respondent became angry while teaching his

class because of the info rmation conveyed to him by the

s uperintendent. As noted above, his angry outburst was

inappr opriate. Respondent not only displayed his anger in front

of his students, but he walked out of the classroo m and left it

unattended because of his personal frustration. While he asked

Ms. Hathaway to have someone watch his class, he did not wait to

make sure someone was in place before walking off, leaving a

classroom full of students with disciplinary issues unattended.

36. Moreover, his angry outburst is the antithesis of an

appropriate learning environment. Respondent did not only fail to

protect h is students from conditions harmful to learning, he

created those conditions. Count 3 has been demonstrated by clear

and convincing evidence.

37. The Education Practices Commission has adopted

disciplinary guidelines for the imposition of penalties when

violations of section 1012.795 and/or rule 6A - 10.081 have been

established. Fla. Admin. Code R. 6B - 11.007(2). For the violation

alleged in Count 1, the penalty range is probation to revocation.

For the violation alleged in Count 3, the penalty range is also

probation to revocation.

38. Rule 6B - 11.007(2) provides that the guidelines shall be

interpreted to include probation, a letter of reprimand, the

Recovery Network Program, restriction of the scope of practice,

fines, and administrative fees and/or costs. Rule 6B - 11.007(3)

also includes aggravating and mitigating factors to be considered

in determining an appropriate penalty and determining whether a

deviation from the guidelines should be imposed. A review of the

aggravating and mitigating circums tances does not indicate that

there is any need to deviate from the wide range of penalties

within the guidelines for these offenses.

39. Respondent testified in his own defense in this

proceeding. He did not seem to understand that his behavior was

ina ppropriate, no matter how frustrated he might have been at that

moment. His focus seemed to be on the faults of others rather

than any deficiency in his own behavior. Respondent would most

likely benefit from some counseling or anger management training

to learn how to channel his feelings appropriately. The penalty

recommended by Petitioner is generally appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

e nter a Final Order finding that Respondent has violated section

1012.795(1)(g) and (j), as well as Florida Administrative Code

Rule 6A - 10.081(3)(a). It is further recommended that the

Commission suspend RespondentÓs teaching certificate for one

year; that he submit to an evaluation for anger management by the

Recovery Network on terms to be set by the Education Practices

Commission ; and that upon re - employment as an educator,

Respondent be placed on probation for a period of three years,

with terms and con ditions to be set by the Commission.

DONE AND ENTERED this 19th day of June , 2015 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildi ng

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of June , 2015.

ENDNOTE S

1/ Mr. Thomas claimed that M r. McClellan told him, Ðshut up boy,

I donÓt want to hear anymore.Ñ RespondentÓs claim is rejected.

Use of the term ÐboyÑ to a grown man is clearly derogatory. It

is unlikely that Respondent would have focused on being told to

Ðshut upÑ rather than th e use of the term ÐboyÑ had Mr. McClellan

used it. Mr. Thomas claimed that he also complained to

Mr. McClellan about overcrowding in the classroom, which was the

source of his irritation. Mr. McClellan remembered Respondent

complaining about class size in the past but did not remember it

being mentioned that day. His testimony is credited.

2/ PetitionerÓs Exhibit 8 contains statements of other students

present in the classroom at the time of Mr. ThomasÓs outburst.

However, those students did not testify at hearing and their

statements have not been considered in determining the facts of

this case, a s Mr. Thomas was not afforded the opportuni ty to

cross - examine any of the students other than P.G.

3 / Mr. Thomas claimed that Mr. Tanner only took statement s from

Caucasian students, and that African - American students were not

allowed to give a statement. It is true that the statements by

students offered into evidence are all from white students.

However, Mr. Thomas was not present when the statements were

taken, as he had been sent home for the day. According to

Mr. Tanner, he went into the classroom and told the students that

he was directed to take statements, and asked all of those

willing to give him a statement to raise their hand. He took

statements from all of those who raised their hand. Mr. Thomas

presented no evidence to support his claim s .

4 / Petitioner offered no evidence to prove that the basis for the

reprimands, counseling sessions, letters of concern and Notice of

Charges actually occurred, and no finding is made that they did

in fact occur. The contents of these documents would be hearsay.

However, the documents are admissible to demonstrate that the

concerns were expressed, as op posed to substantiating the

validity of those concerns.

5 / This document does not indicate that it is a reprimand, but

appears to be. It states that it is a warning against future

similar behavior, and details a more temperate method of dealing

with beh avioral issues. The document states that it will be

placed in his personnel file, and that Mr. Thomas has the right

to share his version of the events, which would also be placed in

the personnel file. Mr. Thomas did not object to the

admissibility of th is document, and no party offered a statement

of Mr. Thomas made in response to the document.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

Suite 316

325 West Gaines Street

Talla hassee, Florida 32399 - 0400

(eServed)

David Holder, Esquire

J. David Holder, P.A.

387 Lakeside Drive

Defuniak Springs, Florida 32435

(eServed)

Edward Thomas

No. 1

3557 Post Street

Jacksonville, Florida 32205

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Marian Lambeth, Bureau Chief

Bureau of Professional

Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaine s Street

Tallahassee, Florida 32399 - 0400

(eServed)

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.