16-000427TTS Duval County School Board vs. Ernest Woodard Status: Closed Recommended Order on Wednesday, November 30, 2016.

Summary: School Board proved violation of the Principles of Professional Conduct, but suspension of employment is not warranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 16 - 0427TTS

ERNEST WOODARD,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on August 23 and 24, 2016, in Jacksonville, Florida, before

Administrative Law Judge W. David Watkins of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Wendy Byndloss, Esquire

Office of General Co unsel

City of Jacksonville

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

For Respondent: Stephanie M arisa Scha a p, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

STA TEMENT OF THE ISSUE S

The issue s in this case are whether just cause exists to

discipline Respondent based on allegations that he used

inappropriate language when talking to students , in violation of

the Principles of Professional Conduct, and , if so, what

discipline should be imposed.

PRELIMINARY STATEMENT

By letter dated September 29, 2015, Ernest Woodard

(Woodard) received a Step III Progressive Discipline Î Reprimand

and Suspension Without Pay (Revised 9/29/15) from Petitioner for

alleged conduct which violated the Florida Code of Ethics ,

Florida Administrative Code R ules 6A - 10.080(2) and 6A -

10.080(3) 1/ ; and the Principles of Professional Conduct , rule 6A -

10.081(3)(a). The allegations were that Woodard exercised poor

judgment when he engaged in inappro priate communication with

and/or in the presence of students by calling or referring to

students as ÐD.A.N.,Ñ an acronym for Ðdumb ass niggers.Ñ

At hearing , Petitioner presented the testimony of the

following witnesses: Sonita Young (Duval County Public S chools

(ÐDCPSÑ) a ssistant s uperi ntendent for Human Resources); Reginald

Johnson (DCPS Investigator); Jason Ludban (former DCPS math

teacher at Northwestern Middle School (ÐNorthwesternÑ)); Linda

Raggins (current DCPS Floating Relief Exceptional Student

Edu cation teacher at Northwestern); D.M. ( six th - grade student at

Northwestern during the 2014 - 2015 school year); H.N.J. ( six th -

grade student at Northwestern during the 2014 - 2015 school year);

B.S. ( six th - grade student at Northwestern during the 2014 - 2015

scho ol year); K.H. ( six th - grade student at Northwestern during

the 2014 - 2015 school year); and D.H. ( seven th - grade student at

Northwestern during the 2014 - 2015 school year). PetitionerÓs

E xhibits 1, 2, 4 , and 5 were received in evidence.

Respondent testified and called the following additional

witnesses: Jasmine Daniels, Tiffany Thomas, Tabitha Johnson,

Pastor Frederick Newbill, Dr. Arvin Johnson (former DCPS

p rincipal of Northwestern), Ricky Stanford, Daniel Drayton and

Niger Lambey. Respondent did not off er any exhibits in

evidence.

The two - volume final hearing Transcript was filed on

September 19, 2016. Each party timely submitted a Proposed

Recommended Order, and both parties' submissions were given due

consideration in the preparation of this Recommend ed Order. In

addition, the parties submitted a Statement of Stipulated Facts.

To the extent relevant, those stipulated facts have been

incorporated herein.

Unless specifically stated otherwise herein, all references

to Florida Statutes shall be to the 20 16 codification.

FINDING S OF FACT

1 . Woodard has worked in the Duval County public school

system since 2002. There was no evidence presented of any prior

incidents of inappropriate behavior, or of discipline being

imposed upon Woodard by the School Board .

2 . During the 2014 - 2015 school year, Woodard was employed

by Petitioner as an In - School Suspension (ÐISSPÑ) teacher at

Northwestern. The ISSP teacher is an instructional and

leadership position, and the ISSP teacher is supposed to set an

example for s tudents and help them modify their behavior.

3 . The ISSP class was created to allow students who engage

in disciplinary misconduct to remain in school rather than being

removed from the classroom environment. The referral of

students to ISSP can come fro m administrators, teachers , or any

other employee who observes student misconduct. Although

Woodard taught the ISSP class, he did not discipline students or

assign them to ISSP, and he did not give students grades.

4 . During the 2014 - 2015 school year at Northwestern,

Woodard was assigned to the gym in the mornings, where six th -

graders were directed to go after eating breakfast in the

cafeteria, to wait for their teachers to pick them up and take

them to class.

5 . On January 23, 2014, the Duval County Sch ool DistrictÓs

(ÐDistrictÑ) Office of Professional Standards opened an

investigation of allegations that Woodard used inappropriate

communications with and/or in the presence of students. The

investigation, which was conducted by Investigator Reginald

Joh nson in the DistrictÓs Office of Professional Standards,

sustained the allegations.

6 . On September 29, 2015, Woodard received a Step III

Progressive Discipline Î Reprimand and Suspension Without Pay

(Revised 9/29/15) for conduct the District alleged viol ated the

Florida Code of Ethics , rule s 6A - 10.080(2) and 6A - 10.080(3) and

the Principles of Professional Conduct , rule 6A - 10.081(3)(a).

The Step III Progressive Discipline alleged that Woodard used

the term D.A.N. or DAN when talking to or referring to stud ents

at Northwestern, which the District alleged was an acronym for

Ðdumb ass niggers.Ñ

7. In his defense, Woodard testified that in mentoring

students , he shared stories from his childhood and his own life

in order to be more relatable to students. Acco rding to

Woodard, he used the story of his childhood friend Dan to

impress upon students that it is not where you start, it is

where you end up. WoodardÓs friend Dan used to skip school, get

to school late, fight, and disrespect authority, and Woodard

urg ed his students not to be a Dan. As discussed below,

WoodardÓs testimony in this regard is not credible.

8 . Student D.M. testified that Woodard called students

D.A.N.s in the gym and in ISSP class when the students were

either acting up or in trouble. D .M. also testified Woodard

wrote the word D.A.N. on the board in ISSP class with periods in

the word, and the word stayed on the board in ISSP class. D.M.

never heard Woodard tell a story about a friend named Dan.

9 . Student H.N.J. was in ISSP class with about seven other

students when Woodard told them that D.A.N. meant Ðdumb ass

niggers.Ñ H.N.J. said Woodard called students D.A.N.s when they

were acting up and disrespectful, and that Woodard gave two

meanings of the word D.A.N. - Î Ðdumb and nobodyÑ and Ð dumb ass

niggers.Ñ H.N.J. does not remember Woodard relating a story

about a friend named Dan. WoodardÓs use of the word D.A.N.

toward students made H.N.J. feel put down and Ðsad and mad at

the same time,Ñ and the fact that Woodard was a teacher made

thi s worse.

10 . Student B.S. stated Woodard yelled at students and

called them D.A.N.s in the gym whenever they were talking loud

or would not listen. B.S. does not recall Woodard telling a

story about a friend named Dan. B.S. learned that D.A.N. means

Ðdu mb ass niggersÑ from A.W., another student. WoodardÓs

reference to students as D.A.N.s made B.S. feel Ðsorry and mad,Ñ

and she began crying on the witness stand.

11 . Student K.H. testified that Woodard called her a

D.A.N. when she stepped out of line in the gym and that he

called other students D.A.N.s when they were misbehaving,

fighting , or being loud. K.H.Ós friend told her that D.A.N.

means Ðdumb ass nigger.Ñ K.H. never heard Woodard tell a story

about a friend named Dan. K.H. and her brother, stud ent D.H.,

complained to their mother about Woodard calling students

D.A.N.s. The mother of K.H. and D.H. contacted Northwestern and

later the media after the school did not do anything about the

complaint. WoodardÓs use of the term D.A.N. made K.H. Ðfeel

disrespected and low life because itÓs not supposed to be used

towards childrenÑ and because Woodard is a teacher and the same

race as K.H.

1 2 . During the 2014 - 2015 school year, student D.H., was in

the seven th g rade at Northwestern. D.H. heard his frie nds in

math class calling each other D.A.N.s . S o he asked one of his

friends what D.A.N. meant. D.H.Ós friend (a student named ÐJÑ)

told D.H. that D.A.N. meant Ðdumb ass niggersÑ and that Woodard

called kids that word. D.H. was bothered that someone of his

own race was calling him that, and also that it came from a

teacher.

13 . The studentsÓ descriptions of WoodardÓs comments and

behavior were fairly consistent. The things they reported

hearing and observing were very similar to contemporaneously

wri tten statements from them and other students. The alleged

remarks were similar in nature to one another but not exactly

the same, so the comments did not seem rehearsed or planned.

The students were very direct and unwavering when testifying at

final hea ring. The testimony of H . N . J . was particularly

persuasive and clearly established that Woodard intended to use

the term D.A.N. as a derogatory epithet: either Ðdumb and

nobody Ñ ; or Ðdumb ass niggers . Ñ

14 . Significantly, none of the students who appeared at

hearing would have had a motive to testify falsely. As noted,

Woodard did not assign grades to any of these students or assign

them to ISSP, so none would have had an axe to grind with

Woodard. The testimony of the students is credible.

15 . Teacher Linda Raggins testified that she heard Woodard

tell students in the gym Ðto not act like Dan.Ñ Toward the end

of the school year, Raggins asked Woodard Ðwho is Dan ? Ñ Woodard

gave Raggins two explanations, the first of which she did not

recall. The secon d explanation Woodard gave Raggins was that

Ðsome people use Dan to mean dumb ass niggers, but thatÓs not

how I Î thatÓs not what IÓm talking about.Ñ Raggins did not

recall Woodard providing any other meaning for the word D.A.N.

Raggins is a union repres entative and first agreed to provide a

written statement, but then declined to provide a statement on

the advice of counsel. Raggins did not tell Investigator

Johnson that Woodard told a story about someone named Dan.

16 . Former teacher Jason Ludban hear d Woodard use the term

D.A.N. a handful of times. Ludban said that Woodard used the

term D.A.N. Ðopenly and loudly for all to hear,Ñ which made

Ludban believe it was acceptable. Ludban learned from a student

that D.A.N. meant Ðdumb ass niggers.Ñ Ludban never heard

Woodard tell a story about a friend named Dan. If Ludban

believed that Woodard was using the term D.A.N. to mean Ðdumb

ass niggers,Ñ Ludban would have had a duty to report it.

17 . Woodard gave Investigator Johnson the names of three

additiona l student witnesses, whom Johnson interviewed. One of

the students confirmed that Woodard wrote the word ÐD.A.N.Ñ with

periods on the board in ISSP class. Two of the students told

Johnson that Woodard told them the story of a friend named Dan,

but this o ccurred about two weeks prior to the date Johnson

interviewed them, after the allegations were reported in the

media and when Woodard was already facing discipline.

18 . Despite WoodardÓs claim that Dan was a real person,

Investigator Johnson does not reca ll Woodard telling him the

last name of Dan or giving him any contact information for

ÐDan.Ñ Johnson would have interviewed Dan if Woodard had

provided that information. Woodard also did not provide

Investigator Johnson with the names of any adults at

No rthwestern to whom Woodard told the Dan story. None of the

witnesses Investigator Johnson interviewed - - students or adults --

stated that Woodard told them a story about a friend named Dan.

19 . It is within managementÓs discretion to skip a step of

progress ive discipline if the conduct is severe. Assistant

Superintendent Sonita Young recommended Step III discipline

against Woodard because he was in a position of authority and

his role was to provide support to students in terms of behavior

modification, but Woodard used derogatory language that was

offensive toward students. In deciding whether discipline is

warranted, the District looks at the totality of the

circumstances, including the number of times an incident

occurred, how many witnesses there were t o the incident, the

severity of the incident, whether harm occurred to the childÓs

physical or mental well - being, whether the employee has been

previously disciplined for the same conduct, and whether the

employee acknowledged his behavior and is willing t o modify his

behavior.

20 . According to Assistant Superintendent Young, the

factors supporting the Step III discipline were that Woodard

said the derogatory word D.A.N. to multiple students, the

students were middle school students, the student population was

fragile and of very low socioeconomic status, and the conduct

was repeated over a period of time rather than a singular

incident. The fact that this language was used by a teacher, a

person in a position of authority whom students have the right

to f eel ÐsafeÑ around, were additional factors supporting the

discipline. Young believes that WoodardÓs use of the word

D.A.N. toward or around students showed poor judgment and was

damaging to them.

21 . Respondent called various character and fact witnesses

(Jasmine Daniels, Tiffany Thomas, Tabitha Johnson,

Pastor Fredrick Newbill, Niger Lambey, Ricky Stanford , and

Daniel Drayton) who testified that Woodard told the story of his

friend Dan at a church youth group, in his sermons, or that they

knew the story from growing up with Woodard. However, none of

the witnesses testified that they heard Woodard tell the Dan

story to District students or in a District classroom. Pastor

Newbill testified that in his community, D.A.N. has been used as

a racial epithet fo r Ðdumb ass ni ggersÑ for at least the last

25 years.

22 . Dr. Arvin Johnson, the former principal of

Northwestern, received a complaint about Woodard from a parent

in May 2015, near the end of the 2014 - 2015 school year.

Dr. Johnson, who is a friend of Woo dard, heard Woodard use the

term D.A.N. with students once or twice, but he never heard

Woodard tell students a story about a friend named Dan.

Although Dr. Johnson has known or worked with Woodard for

approximately 12 years, the first time Woodard told D r. Johnson

the story of a friend named Dan was in connection with the

parentÓs complaint against Woodard in May 2015.

23 . Although Woodard has been employed with the District

since 2002, he admitted that he did not tell the Dan story to

students during th e first 12 years of his employment. Woodard

did not begin telling the Dan story to District students until

the 2014 - 2015 school year. After not speaking to Daniel Drayton

for several years, Woodard called Drayton in 2015 to remind him

of the Dan story. Woodard stated that if he knew there was a

negative interpretation of D.A.N. he would not have used the

term, but his explanation to Ms. Raggins shows that he knew that

a racially derogatory meaning of the word D.A.N. existed.

24 . Woodard claims that the students lied about him using

D.A.N. as an acronym for Ðdumb ass niggers,Ñ but he could not

offer an explanation as to why students, whom he claims ÐlovedÑ

him , and were excited to attend his class, would lie about him.

25 . The greater weight of the evide nce supports the

contention that Woodard used the term D.A.N. in the presence of

his ISSP students as a derogatory racial epithet.

CONCLUSIONS OF LAW

26 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter o f this

proceeding pursuant to a contract with the Duval County School

Board. The proceedings are governed by s ections 120.57 and

120.569, Florida Statutes.

27 . Respondent was an instructional employee as defined by

section 1012.01(2), Florida Statutes. Petitioner has the

authority to suspend or terminate instructional employees

pursuant to sections 1012.22(1)(f) and 1012.33(1)a and (6)(a)

28 . The burden of proof in this proceeding is on the

School Board to prove by a preponderance of the evidence that

just cause exists to reprimand and suspend WoodardÓs employment

with the School Board or, presumably, to impose some other

sanction. McNeil v. Pinellas Cnty . Sch . Bd . , 678 So. 2d 476

(Fla. 2d DCA 1996). Preponderance of the evidence is evidence

that more likely than not tends to prove the proposition set

forth by a proponent. Gross v. Lyons , 763 So. 2d 276 (Fla.

2000).

29 . Whether Respondent committed the charged offense is a

question of ultimate fact to be determined by the trier of fact

in the context of each alleged violation. Holmes v. Turlington ,

480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor , 66 So. 2d

387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d

489, 491 (Fla. 1st DCA 1995). In the face of disputed

testimony, the fact - find er is required to make credibility

determinations.

30 . In the absence of a rule or written policy defining

just cause, the School Board has discretion to set standards

which subject an employee to discipline. See Dietz v. Lee Cnty .

Sch . Bd . , 647 So. 2d 217 (Fla. 2d DCA 1994). Nonetheless, just

cause for discipline must rationally and logically relate to an

employee's conduct in the performance of the employee's job

duties and be in connection with inefficiency, delinquency, poor

leadership, and lack of role modeling or misconduct. State ex.

rel. Hathaway v. Smith , 35 So. 2d 650 (Fla. 1948);

In Re: Grievance of Towle , 665 A.2d 55 (Vt. 1995). Woodard was

clearly guilty of failing to provide good leadership and role

modeling to his students on occasion .

31 . Just cause for purposes of discipline is addressed in

s ection 1012.33:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education:

immorality, misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, or being convicted and

found guilty of, or entering a plea of

guilty to, regardless of adjudication of

guilt, any crime involving moral turpitude."

3 2 . The Principles of Professional Conduct for the

Education Profession in Florida, under which classroom teachers

operate in the Duval County school system, includes the

following provisions:

Rule 6A - 10.081(1)(a) -- The educator values the

work 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.

Rule 6A - 10.081(1)(b) -- The educatorÓs primary

prof essional concern will always be for the

student and for the development of the

studentÓs potential. The educator will

therefore strive for professional growth and

will seek to exercise the best professional

judgment and integrity.

Rule 6A - 10.081(1)(c) -- A ware of the

importance of maintaining the respect and

confidence of oneÓs colleagues, of students,

of parents, and of other members of the

community, the educate strives to achieve

and sustain the highest degree of ethical

conduct.

Additionally, the follo wing provisions of the Principles of

Professional Conduct are applicable to this case:

Rule 6A - 10.081(2)(a)1 -- Shall make reasonable

effort to protect the student from

conditions harmful to learning and/or to the

studentÓs mental and/or physical health

and/ or safety.

Rule 6A - 10.081(2)(a)5 -- Shall not

intentionally expose a student to

unnecessary embarrassment or disparagement.

33 . Pursuant to the definition of "just cause" under

section 1012.33 , there is no question that Respondent's actions

constituted " misconduct in office." It is axiomatic that the

duty of a teacher to protect students from conditions harmful

Ðto the studentÓs mental and/or physical health" is completely

breached when a teacher resorts to repeatedly using profanity

and derogatory langu age toward students and in their presence.

Numerous cases involving s chool b oards or the Educational

Practices Commission have found the repeated use of profane and

derogatory language toward students violates this principle. In

an analogous case, Pinella s County School Board v. Jerome

Jackson , Case No. 92 - 1786 (Fla. DOAH Dec. 7 1992), the

administrative law judge found that R espondentÓs use of

profanity towards students and staff, intoxication , and other

disruptive conduct, supported a finding of immorali ty and lack

of professionalism; and that calling a student a Ðdumb niggerÑ

exposed the student to unnecessary embarrassment or

disparagement. Similarly, in Department of Education, Education

Practices Commission v. Ferrell , Case No. 87 - 5482 (Fla. DOAH

May 4, 1988), the administrative law judge found that the

respondent violated the rules of professional conduct by

repeatedly using profanity and derogatory terms toward students

and stating to a black student Ðyou remind me of a niggerÑ in

the presence of ot her black students.

34 . The greater weight of the evidence supports a finding

that WoodardÓs actions were in violation of the standards of

conduct to which he was bound. A teacher must not use language

in front of a student that will negatively affect hi s

effectiveness, professionalism, or confidence in the eyes of

students and their families.

35 . Notwithstanding the above, WoodardÓs actions were not

immoral, there was no gross insubordination or willful neglect

of duty, nor was a crime involved.

36 . Article V, C. 1, of the Collective Bargaining

Agreement between the School Board and the teachersÓ union , to

which Woodard belongs , sets forth the Progressive Discipline

Policy to be followed. It states in pertinent part:

The following progressive step s must be

followed in administering discipline, it

being understood, however, that some more

severe acts of misconduct [not defined] may

warrant circumventing the established

procedure:

a. Verbal Reprimand

1. No written conference summary is placed

in personnel file;

2. Employees must be told that a verbal

reprimand initiates the discipline process.

b. Written Reprimand

c. Suspension without pay

d . Termination

37 . By all accounts, with the exception of the actions at

issue herein, Woodard wa s an effective and well - liked teacher.

There was no evidence that the behavior displayed by Woodard

during the 2014 - 2015 school year at Northwestern was anything

other than an isolated, albeit serious, lapse in judgment.

38 . Here, the School Board propos es to skip two steps of

progressive discipline, going from a verbal reprimand to

suspension without pay. While reprehensible and completely

unprofessional, WoodardÓs misconduct is severe enough to skip

one, but not two steps of the contractual progressive discipline

policy.

39 . There is sufficient reason for sanctioning Woodard,

but suspension without pay is not justified under the

circumstances. Rather, a written reprimand is sufficient to

impress upon Woodard that his conduct toward the students in hi s

ISSP class was wholly unacceptable, and is warranted in this

instance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Petitioner,

Duval County School Board, rescinding it s suspension of the

employment of Ernest Woodard and, instead, issuing a written

reprimand.

DONE AND ENTERED this 30th day of November , 2016 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Jud ge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of November , 2016 .

ENDNOTE

1/ The Code of Ethics of the Education Profession in Florida

(Florida Administrative Code R ule 6A - 10.080) was repealed as of

March 23, 2016. However, the relevant provisions of the former

Code have been codified, unchanged, i n rule 6A - 10.081.

COPIES FURNISHED:

Wendy Byndloss, Esquire

Office of General Counsel

City of Jacksonville

117 West Duval Street , Suite 480

Jacksonville, Florida 32202

(eServed)

Stephanie Marisa Schaap, Esquire

Duval Teachers United

1601 Atlantic Bou levard

Jacksonville, Florida 32207

(eServed)

Dr. Nikolai P. Vitti, Superintendent

Duval County Public Schools

1701 Prudential Drive

Jacksonville, Florida 32207

Pam Stewart

Commissioner of Education

Department of Education

Turlington Building, Suite 15 14

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EX CEPTIONS

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.