16-005255TTS Lee County School Board vs. Angel Villanueva Status: Closed Recommended Order on Monday, January 9, 2017.

Summary: Petitioner met its burden by proving that just cause exists to discipline Respondent for imposing his personal religious views about gender identity on students in his class.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 16 - 5255TTS

ANGEL VILLANUEVA,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

by video teleconference between sites in Ft. Myers and

Tallahassee, Florida, on November 17, 2016, before

Linzie F. Bogan, Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Robert Dod ig, Jr., Esquire

Lee County School Board

2855 Colonial Boulevard

Fort Myers, Florida 33966

For Respondent: Angel Villanueva, pro se

438 Parkdale Boulevard

Lehigh Acres, Florida 33974

STATEMENT OF THE ISSUE S

Whether Angel Villanueva (Respondent) imposed his personal

religious views and views about gender identity on students

during classroom and other instructional time, and , if so, should

his employ ment with the Lee County School Board (Petitioner) be

terminated as a result of his conduct.

PRELIMINARY STATEMENT

On or about July 29, 2016, Petitioner , through Gregory K.

Adkins, Superintendent of Schools, served on Respondent a

Petition for Termination recommending RespondentÓs termination

from employment. Respondent timely filed a request for

administrative hearing, and this matter was referred to the

Division of Administrative Hearings for a disputed - fact hearing.

The disputed - fact hearing was held o n November 17, 2016.

During the hearing, Petitioner offered the testimony of

Andrew Brown, and students M.G., J.P., and R.R. Respondent

testified on his own behalf and called no other witnesses.

PetitionerÓs Exhibits 1 through 11 were admitted into evi dence.

RespondentÓs Exhibits 1, 4, and 7 through 1 1 were admitted into

evidence.

A Transcript of the disputed - fact hearing was filed with the

Division of Administrative Hearings on December 8, 2016. The

parties each submitted a Proposed Recommended Orde r on

December 19, 2016.

FINDING S OF FACT

A. Stipulated Facts

1. Pursuant to the Joint Pre - hearing Stipulation, the

following facts are admitted:

a) Respondent imposed his personal religious

beliefs and views regarding gender identity

on students during classroom and other

instructional time.

b) Respondent made comments in the presence

of students regarding the sexual preferences

of individuals and professed that those that

do not agree with him are wrong and would

regret their lifestyle and suffer

con sequences later on in life.

c) RespondentÓs conduct unreasonably denied

students access to diverse points of view,

exposed students to unnecessary embarrassment

and disparagement, and was unbecoming of a

school district employee.

B. Background

2. Th e Board is responsible for hiring, terminating, and

overseeing all employees in the school district.

3. At all times material to this case, Respondent was

employed by Petitioner as an J ROTC instructor at East Lee County

High School. Respondent has been employed by Petitioner since

October 25, 2002.

4. Respondent is an instructional employee and is governed

by the collective bargaining agreement between the School Board

and the Teachers Association of Lee County (TALC) . Respondent is

employed pursuant to a professional services contract.

5. On or about May 13, 2016, a concerned parent notified

Petitioner of a video posted on Instagram which shows Respondent

making comments in class regarding the sexuality of Caitlyn

Jenner, the former Olympic decathlo n gold medalist who recently

came out as transgender. M.G. recorded the video and is

responsible for posting the same on Instagram. The video, which

is in evidence, speaks for itself. As a result of the concerns

expressed by the parent, Petitioner initi ated an investigation

regarding RespondentÓs alleged conduct.

6. As part of the investigation, Petitioner interviewed

M.G., who is a transgender student who recently Ðcame outÑ

regarding his gender.

7. M.G. testified that he came out as transgender in March

of 2016 and during this time he was a student in RespondentÓs

JROTC class. M.G. stated that Respondent made some initial

comments to him in March of 2016, which led him to inform his

guidance counselor, who asked M.G. to write his concerns in a

stat ement. M.G. explained in his written statement that the

statements made by Respondent regarding gay rights, religion, and

homosexuality made him feel that generally he ÐwasnÓt human , Ñ that

he was being Ðpushed down,Ñ and that he did not like the way

Respo ndentÓs statement made him feel.

8. M.G. also explained that when Respondent became aware

that he was going to come out as transgender, Respondent reacted

by saying, ÐOh, no, you canÓt do thatÑ and told him that he will

always be a female.

9. M.G. test ified that in April when he first told the

guidance counselor about RespondentÓs comments, he did not want

anything bad to happen to Respondent. However, that changed

when, according to M.G., RespondentÓs conduct caused M.G. to

start having feelings of de pression.

10. Respondent admits that he wanted to persuade M.G. not

to come out as transgender. Respondent also admits that he made

comments in the presence of students regarding the sexual

preference of individuals, and further that he told students in

his class that individuals who do not agree with him are wrong ,

will regret their lifestyle , and will suffer consequences later

on in life. Respondent testified that his concern for M.G. stems

from his personal belief s as a devout Christian, and that if M.G.

had informed Respondent that he was bothered by his comments,

then he would not have been as aggressive in stating his opinions

to M.G. Respondent acknowledges that he overstepped his

boundaries and Ðshould have stayed in his own lane.Ñ During the

f inal hearing, Respondent expressed genuine feelings of concern

about M.G.Ós well - being.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2016) . 1/

12. Petitioner bears the burden of proving by a

preponderance of the evidence that just cause exists for the

termination of RespondentÓs employment. McNeill v. Pinellas

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

Bd . of Dade C n ty. , 569 So. 2d 883 (Fla. 3d DCA 1990).

13. As a J ROTC instructor, Respondent is an Ðinstructional

employeeÑ as defined in section 1012.10(2)(a), Florida Statutes.

14. Section 1012.33(1)(a) provides as follows:

Each person employed as a m ember of the

instructional staff in any district school

system shall be properly certified pursuant

to s. 1012.56 or s. 1012.57 or employed

pursuant to s. 1012.39 and shall be entitled

to and shall receive a written contract as

specified in this section. All such

contracts, except continuing contracts as

specified in subsection (4), shall contain

provisions for dismissal during the term of

the contract only for just cause. Just cause

includes, but is not limited to, the

following instances, as defined by rule of

the State Board of Education: immorality,

misconduct in office, incompetency, two

consecutive annual performance evaluation

ratings of unsatisfactory under s. 1012.34,

two annual performance evaluation ratings of

unsatisfactory within a 3 - year per iod under

s. 1012.34, three consecutive annual

performance evaluation ratings of needs

improvement or a combination of needs

improvement and unsatisfactory under s.

1012.34, 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, any

crime involving moral turpitude.

15. The Petition for Termination alleges that Respondent

committed the offense of misconduct in office within the meaning

of section 1012.33. Respondent admits that his conduct

constitutes misconduct in office.

16. The Petition for Termination alleges that RespondentÓs

conduct violated school board policies 5.02 (Professional

Standards), 5.03 (General Requirement for Appointment and

Employme nt), and 5.29 (Complaints Relating to Employees).

17. Policy 5.02, states, in part :

[T] he School District of Lee County shall

establish high standards and expectations for

its professional faculty and staff,

including:

(1) Compliance with applicable federal and

State laws, rules, codes, regulations and

policies concerning professional credentials

and employment;

(2) Dedication to high ethical standards.

* * *

(4) Commitment to diversity and equity.

An employeeÓs failure to meet the above

s tandards and expectations may result in

discipline, up to and including termination

of employment.

18. Policy 5.03 states, in part, that employees Ðmust be

of good moral character.Ñ Florida Administrative Code Rule 6A -

5.056(1) defines immorality as Ð conduct that is inconsistent with

the standards of public conscience and good morals. It is conduct

that brings the individual concerned or the education profession

into public disgrace or disrespect and impairs the individual's

service in the community.Ñ

19. Policy 5.29 states, in part, that Ð[a]ll employees are

expected to exemplify conduct that is lawful and professional and

contributes to a positive learning environment for students.Ñ

20. Respondent admits that his conduct failed to comply

with the requirements of policies 5.02, 5.03, and 5.29.

21. Respondent raises an issue that, in his opinion, should

mitigate in favor of disciplinary action other than termination.

Respondent asserts that pursuant to Article 6.022 of the

collective bargaining a greement, he should have been informed of

M.G.Ós initial complaint, and that if he had been so informed,

this would have provided him with the opportunity to modify his

behavior. In other words, Respondent believes that Article 6.022

required the administ ration to give him a Ðheads - upÑ about M.G.Ós

initial complaint.

22. Article 6.022 of the TALC collective bargaining

agreement provides, in part, as follows:

Should a complaint be made by a

parent/guardian, student or other individual

which may result in disciplinary action

against a teacher, the teacher shall be

notified of the complaint in writing, and

given an opportunity to be heard by an

appropriate administrator prior to the taking

of such action. . . . Upon request to the

principal or other immedia te supervisor, a

teacher shall have the right of

representation during investigatory meetings,

conferences, and/or interviews which may lead

to disciplinary action.

23. Article 6.022 sets forth what is commonly referred to

as ÐWeingartenÑ rights. In NL RB v. J. Weingarten, Inc. , 420 U.S.

251 (1975), the Supreme Court held that a unionized employee has

a right to union representation in instances where the employee

reasonably believes that investigatory meetings, conferences, or

interviews may result in d isciplinary action against the

employee. Article 6.022 is not, as suggested by Respondent, a

contractual provision the purpose of which is to give covered

employees a Ðheads - up,Ñ but instead, the purpose of the provision

is to ensure that covered employee s are informed of their right

to union representation when questioned by their employer about

conduct that could reasonably lead to disciplinary action.

24. As noted above, Respondent, during the final hearing,

expressed genuine feelings of concern about M.G.Ós overall well -

being. The undersigned is persuaded that RespondentÓs concern

for M.G. comes not from a place of hate, but from a place of

compassion. 2/ Accordingly, Petitioner has not established that

RespondentÓs conduct was egregious enough to wa rrant termination,

but has established that just cause exists to impose a lesser

form of discipline against Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Lee County School Board enter a

final order concluding that:

1. Just cause does not exist to terminate RespondentÓs

employment : and

2. Just cause does exist to impose against Respondent

discipline other than termination of employment.

DONE AND ENTERED this 9th day of January , 201 7 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

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 9th day of January , 2017 .

ENDNOTE S

1/ All subsequent references to Florida Statutes will be to 2016,

unless otherwise indicated.

2/ Mr. Villanu eva testified as follows:

I am a very devout Christian. And the

student did mention that, yes, we connected

and she had a - - she was a - - my aide at

one time and we spoke about certain things.

So when I got this revelation that she wanted

to do this c hange . . . I wanted to persuade

her not to do it. I even - - I even did tell

her I had you in my prayers. . . . What I

saw was a student that was going to do

something that I personally believed was not

going to be in their best interest and I

tried to intervene. . . . So I was bothered

by that and I tried to persuade her as much

as possible. Because the end of the road for

some of these students will not be good.

Some of them will commit suicide according to

statistics. (Hearing Transcript pp. 60 - 61 ).

COPIES FURNISHED:

Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

(eServed)

Angel Villanueva

438 Parkdale Boulevard

Lehigh Acres, Florida 33974

Matthews Mears, General Counsel

Departmen t of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1 514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eSe rved)

Dr. Gregory Adkins, Superintendent

Lee County School Board

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Rec ommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.