18-001655TTS Duval County School Board vs. David Swinyar Status: Closed Recommended Order on Friday, December 7, 2018.

Summary: The School Board failed to prove allegations in support of its suspension of Respondent's employment as a teacher.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 18 - 1655TTS

DAVID SWINYAR,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was conducted in this case on August 20 ,

2018 , in Jacksonville, Florida, before James H. Peterson, III,

Administrative Law Judge with the Division of Administrative

Hearings .

APPEARANCES

For Petitioner: Tracey Kort Parde , Esquire

Office of General Counsel

City of Jacksonville

1701 Prudential Drive, Room 651E

Jacksonville, Florida 32207

For Respondent: Stephanie Marisa Schaap , Esquire

Duval Teachers United

1601 Atlantic Boulevard

Ja ck sonville, Fl orida 32207

STATEMENT OF THE CASE

W hether just cause exists to impose discipline on

R espondent's employment ; and, if so, what is the appropriate

discipline.

PRELIMINARY STATEMENT

On February 22, 2018, Sonita Young, assistant

superinten dent of H uman R esource S ervices for the Duval County

School Board (School Board or Petitioner) , issued a letter

entitled Ð Step III Progressive Discipline - Reprimand and

Suspension without PayÑ (Step III Discipline ) to Respondent,

David Swinyar (Respondent) , alleging:

You exercised gross poor judgment when you

engaged in inappropriate communication in

the presence of, and/or towards students, by

saying the actual n - word in a conversation

with students and/or when you referred to

students. In response to a studentÓs

concern about your use of the n - word , you

repeatedly said, ÐI didnÓt say that, but if

I did I am sorry.Ñ Students also reported

that you made other inappropriate or

insensitive comments such as: calling

students Ðdumb.Ñ [sic] and ÐYou are in my

class because you failed the FSA,Ñ [sic] You

all should not be dating all these different

African American boys because they are not

worth it,Ñ [sic] Yo ur conduct is

unacceptable and will not be tolerated. The

severity of your conduct warrants skipping

steps in progressive discipline.

The Step III D iscipline further stated that RespondentÓs

conduct violated a number of the Principles of Professional

Conduct of the Education Profession in Florida, under Florida

Administrative Code Rule 6A - 10.081, and advised Respondent of

his reprimand and suspension w ithout pay for 10 working days,

pending approval by the School Board .

At its regularly scheduled meeting on March 6 , 2018, the

School Board voted to approve the discipline set forth in the

Step III Discipline. Respondent timely requested a n

administrative hearing regarding the School Board's action.

The School Board forwarded the matter to the Division of

Admini strative Hearings ( DOAH) on March 29, 2018, for the

assignment of an administrative law judge to conduct the

hearing.

At t he administrative hearing held August 20, 2018 , the

School Board presented the testimony of five witnesses:

Students E.C. and J.B., both former Kernan Middle School

students in RespondentÓs 201 7 - 201 8 pre - alge bra class; Julie

Hemphill, the p rincipal of Kernan Mi ddle School; Reginald

Johnson, i nvestigator for the School BoardÓs O ffice of

P rofessional S tandards; and Sonita Young, the School BoardÓs

assistant s uperintendent of H uman R esource S ervices. The School

Board offered Exhibits P - 1, P - 3, P - 6, and P - 19, which were

admitted into evidence. Respondent testified on his own behalf

and presented the testimony of three witnesses: Students C.A.,

C.M., and S.B. Respondent did not offer any exhibits.

The proceedings were recorded and a transcript was ordered.

The parties were given 30 days from the filing of the t ranscript

within which to file their proposed recommended orders. The

one - volume Transcript was filed on September 5, 2018 . After

that, a request for an extension of time was granted, and the

parties timely filed their respective proposed recommended

o rder s , both of which have been considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. The School Board is charged with the duty to operate,

control and supervise free public schools within the School

District of Duval County, Florida, pursuant to article IX,

section 4(b) of the Florida Constitution, and section 1012.22,

Florida Statutes . 1/

2. Respondent was a teacher at Kernan Middle School during

the 2017 - 2018 school year . He had been employed with Du val

County Schools for six years and had never bee n disciplined

regarding his employment with the School Board .

3. As an instructional employee, RespondentÓs employment

is governed by the 2017 - 2020 collective bargaining agreement

between the School Board and the Duval Teachers Uni ted

(Collective Bargaining Agreement) .

4. Respondent taught pre - a lgebra during the 2017 - 2018

school year for students who had not performed well on the stat e

standardized test. In order to improve those scores , the

students were placed in two math classes with Respondent ,

instead of just one.

5. On October 11, 2017 , a member of the School Board

advised the p rincipal of Kernan Middle School , Julie Hemphill,

that a parent of one of RespondentÓs students had made a

complaint against Respondent. Prior to receiving word of the

complaint , Ms. Hemphill had never heard any complaints about

Respondent from any parent, student , or other school staff .

There is no evidence that any other administrator at Kernan

Middle School had rece ived a complaint about Respondent prior to

October 11, 2017 .

6. Shortly after hearing about it , Ms. Hemphill reached

out to the parent who had made the complaint. The parent told

Ms. Hemphill that Respondent had yelled and waved his hands in

studentsÓ faces, told his students that they were in his class

because they had failed the standardized tests, called his

students idiots, and used racial slurs in his classroom in front

of students. Ms. HemphillÓs understanding after speaking with

the parent was that the alleged racial slurs were made sometime

at the end of August 2017.

7. Ms. Hemphill reported the allegations to the School

BoardÓs Office of Equity and Inclusion. An investigator for the

School Board, Reginald Johnson , was assigned the case.

Mr. Johnson came to Kernan Middle School and spoke with some of

RespondentÓs students .

8. Mr. Johnson first contacted Respondent in the second

week of October 2017, and advised Respondent that there were

allegations against him. After that, during the investigation,

Respondent continue d teaching his same classes and students at

Kernan Middle School for approximately five months until h is

suspension was approved by the School Board on March 6, 2018 .

9. After his suspension was over, Respondent was not

allowed to return to his classroom for the remainder of the

year. He was not reappointed for another teaching position.

10. In support of its case against Respondent, the School

Board presented the testimony of two former students 2/ of

Respondent who were in RespondentÓs classroom at the time that

he allegedly made the derogatory and racial statements. The

testimony from those two students presented differ ent accounts

of the allegations and were not persuasive in proving the

allegations against Respondent .

11. The first student called as a witness by the School

Board, E.C., had gotten into trouble, and did not receive good

grades while in RespondentÓs class. According to E.C. ,

Respondent had used racial slurs against a particular student

and used the n - word in front of the who le class many times

during the school year. When confronted with his written

statement , which stated that he ÐthoughtÑ he heard Respondent

use the n - word , E.C. said , Ð I t might have been, but IÓm pretty

sure thatÓs what I heard because everybody around me was saying

the same thing, and we wouldnÓt all be hearing different

th ings.Ñ

12. E.C.Ós testimony did not support the allegation that

Respondent called his students Ðdumb.Ñ E.C. did not recall that

Respondent called him Ðdumb,Ñ but rather testified that

Respondent would not tell him that he did a go od job.

13. The other student presented as a witness by the School

Board was J.B. According to J.B. , he heard Respondent say the

n - word in November or Dec ember, near the Christmas break , during

an alleged discussion in class by Respondent about interracial

dating, RespondentÓs daughter, and religion. J.B. testified

that he only heard Respondent say the n - word one time, and that

he believed that Respondent said it Ðon accident.Ñ As J.B.

explained in his testimony:

Like I guess he was like - - I donÓt think he

like knew he said it, but he said it --

I guess he was just going off, and in

between those words he said the n - word.

* * *

He didnÓt -- he didnÓt realize he said the

n - word, but the class heard he said the

n - word. So after he said it, I guess the

conversat ion, like the whole conversation

ended , and we just went back to doing work.

14. Regarding the allegation that Respondent told students

that they were Ðdumb , Ñ J.B. testified:

When weÓre not getting a question right and

like, letÓs say if we didnÓt get the

question right, he would tell the whole

class stop acting dumb and get the question

right. And it would just frustrate me

exactly. I donÓt know about the entire

class, but it would frustrate me because, of

course, IÓm in intense math and I donÓt know

what IÓm doing and IÓm here to figure out

how I can improve and be good at

mathematics.

15. Respondent gave credible testimony refuting the

allegations. He testified that he never referred to a student

as Ðdumb , Ñ and understood that many of the students had low

self - esteems. He would often encourage them and say Ðguys,

look, youÓre not dumb. You can achieve and youÓre going to do

great and amazing things if you work at it.Ñ

16. The students in RespondentÓs class had discipline

issues involving the use of profanity. There was a specific

incident during the pertinent time frame during the 2017 - 2018

school year when two students in RespondentÓs class were

speaking to each other aggressively using the n - word .

Respondent intervened and told the students , by spelling out the

words, that they were not to use the terms Ðn - i - g - g - a or n - i - g -

g - e - r . Ñ As soon as Respondent spelled g - e - r, a student yelled

out , ÐD id you hear what he said ?Ñ After that , the students in

t he class began to act with exuberance, smiling and laughing.

Respondent had been trying to give a quiz and the class came off

task. At the time, a student asked Respondent whether he had

said the n - word . Although Respondent told the class that he did

not say that word, the off - task behavior continued. Respondent

then told the class, ÐI didnÓt say it, but for those you who

think I did, I deeply apologize, but we need to get things

going.Ñ

17. Respondent described an other incident that happened

when coming back from lunch one day and hearing a student using

the f - word towards his girlfriend several times. Upon returning

to the classroom, Respondent said , Ð G irls, upon no circumstances

should you allow a young man to disrespect you like that.Ñ

Respondent further told the class that if he Ðhad a daughter and

a young man spoke to her like that he would tell her to break up

with him because he is not worth your time.Ñ Mr. Swinyar d oes

not have a daughter.

18. In addition to his own testimony re futing the

allegations, Respondent presented testimony of three of his

former student s who were in his classroom during the time that

he allegedly made the derogatory and racial statements. All

three of those students testified that they had never heard

R espondent use the n - word and did not hear Respondent say

anything inappropriate.

19. S.B, o ne of the three students who testified on

RespondentÓs behalf , related the incident where a fellow student

in RespondentÓs class had said the n - word . When Respondent told

the student not to use that term , most of the students in the

room thought that Respondent , himself, said the n - word .

However, according to S.B., who assured that he had been

listening, testified that Respondent did not say it .

20. Regarding RespondentÓs alleged comment about his

studentsÓ test scores, S.B. testified that Respondent told his

class that their scores were just a little low so they were in

his class to improve them. S.B.Ós testimony is credited.

21. C.A., another stud ent giving testimony for Respondent

who was in RespondentÓs class d uring the 2017 - 2018 school year,

testified that he was concerned because he was not very good at

math, but that he improved with RespondentÓs help. C.A. never

heard Respondent use bad words or say anything inappro priate .

22. The third student testifying on behalf of Respondent ,

C.M. , testified that she never heard Respondent say anything

rude, never heard him say curse words, and never heard him say

anything raci st.

23. Sonita Young , the School BoardÓs a ssistant

s uperintendent for H uman R esources Services , is responsible for

making recommendations to the superintendent as to disciplinary

matters , investigates complaints against teachers , and was

responsible for the recommendations set forth in the Step III

Discipline against Respondent in this case .

24. Article V , section C , of the Collective Bargaining

Agreement provides for progressive discipline for teachers.

Pursuant to that policy, the progressive discipline policy

starts at v erbal reprimand and escalates up t hrough termination.

The Collective Bargaining Agreement allows for the steps to be

skipped for acts of severe misconduct. In addition, there must

be just cause to suspend a teacher without pay.

25. Ms. Young stated that her decision to skip low er level

disciplinary steps , and instead to suspend Respondent without

pay , was based on the severity of the alleged inappropriate

term , the alleged multiple times the term was used , that it was

allegedly used in front of a classroom full of students, and

that the students were allegedly very troubled by the comments.

She also stated that other comments attributed to Respondent

regarding the reason for the students being in the class, their

lack of academic per formance, and comments reg arding whom

students should date, justified h er recommendation for

RespondentÓs suspension.

26. However, based on the insufficiency of the evidence,

it is found that the School Board did not prove the allegations

against Respondent , and th at the Step III Discipline was

unwarranted.

CONCLUSIONS OF LAW

27. DOAH has jurisdiction over the parties and subject

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

(2018) .

28. This is a penal disciplinary proceeding brought

pursuant to section 1012.33, Florida Statutes, to uphold

Respondent's suspension from employment. Petitioner bears the

burden to prove each element of eac h charged offense by a

prepondera nce of the evidence. See McNeill v. Pinellas Cnty.

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

of Lake Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990). A

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, 289 (Fla. 2000).

29. As a teacher, RespondentÓs employment and the

suspension of said employment is governed by the Collective

Bargaining Agreement.

30. The Collective Bargaining A greement requires a showing

of Ðjust causeÑ to support the imposition of discipline against

a teacher. As defined in section 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 o f, or entering a plea of

guilty to, regardless of adjudication of

guilt, any crime involving moral turpitude.

31. The factor listed in section 1012.33 pertinent to t he

allegations against Respondent is misconduct in office. Florida

Administrative Code Rule 6B - 4.009(3) defines misconduct in

office applicable to disciplinary proceedings against teachers

as follows:

Misconduct in office is defined as a

violation of the Code of Ethics of the

Educatio n Profession as adopted in

Rule 6B - l.001, F.A.C., and t he Principles of

Professional Conduct for the Education

Profession in Florida as adopted in

Rule 6B - l.006, F.A.C., which is so serious

as to impair the individual's effectiveness

in the school system.

32. With respect to the Code of Ethics and Principles of

P rofessional C onduct, the School Board alleged that Respondent's

alleged conduct was in violation of the Principles of

Professional Conduct of the Education Profession found in

Florida Administrative Cod e Rule 6A - 10. 081 . Specifically, the

fo llowing portions of the p rincip l e s were alleged to have been

violated by the Respondent.

6A - 10.081(1)(b) - 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 integr ity.

6A - 10.081(1)(c) - Aware of the importance of

maintaining the respect and confidence of

one's colleagues, of students, of parents,

and of other members of the community, the

educator strives to achieve and sustain the

highest degree of ethical conduct .

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

effort to protect the student from

conditions harmful to learning and/or to the

student's mental and/or physical health

and/or safety.

33. The evidence does not support a finding or conclusion

that RespondentÓs primary professional concern deviated from the

students and the development of their potential. While the

evidence shows that not all students thrived in RespondentÓs

class, the evidence indicated that others appreciated and were

helped by RespondentÓs teaching.

34. The evidence did not show that Respondent failed to

appreciate the importance of maintaining the respect and

confidence of his colleagues, students, parents , and other

members of the community, no r did it show that he conducted

himself in an unethical manner , or otherwise violated

r ule 6A - 10.081 .

35. As the evidence failed to prove the factual

allegations against Respondent set forth in the Step III

Discipline, it was insufficient to demonstrate that Respondent's

effectiveness in the school system was impaired because of that

alleged conduct . The evidence did not show that RespondentÓs

students had academic issues, or had to be trea ted for any

problem based on RespondentÓs alleged conduct.

36. Whil e press coverage of the allegations against

Respondent may have resulted in community reaction and emails to

the school p rincipal , considering the fact that the allegations

were not proven, those reactions cannot be fair ly attribute d to

RespondentÓs behavior .

37. Although impaired effectiveness can be inferred when

conduct is sufficiently serious, such is not the case here.

Cf. , Walker v. Highlands Cnty. Sch. B d . , 752 So. 2d 127 (Fla. 2d

DCA 2000) (misconduct where continued ineffectiveness in school

system) . The evidence was insufficient to support the

allegations and did not otherwise show continued ineffectiveness

on the part of Respondent. In fact, he continued to teach fo r

months after the allegations were reported to the School Board.

38. The evidence presented by the School Board was also

insufficient to prove , by a preponderance of the evidence , that

Respondent violated the cited provisions of the Code of Ethics

or Principles of Professional Conduct set for i n the Step III

D iscipline . Petitioner failed to establish, by a preponderance

of the evidence, that Respondent violated r ules 6A - 10.081(1)( b)

and (c) or 6A - 10.081(2)(a)1. , or otherwise engaged in

misconduct .

39. Even if the evidence supported a finding that

Respondent Ós conduct warrant ed discipline, the facts in this

case do not justify skipping two steps of the progressive

discipline policy under the Collective Bargaining Agreement .

In Quiller v. Duval County School Board , 171 So. 3d 745 (Fla.

1st DCA 2015), the First District Court of Appeal reversed and

remanded the School BoardÓs rejection of an a dministrative l aw

judgeÓs recommended o rder where the administrative law judge had

found that the behavior at issue did not constitute severe acts

of misconduct as contempla ted in the progressive discipline

policy. The allegations in that case had several instances of

the educator using profanity towards and in front of students.

Specifically, the teacher in that case was accused of calling

students the n - word . The teacher had previously received

discipline twice for similar conduct but had not received a

suspension without pay. Instead of following progressive

discipline, the School Board had skipped S tep III Discipline and

moved directly to termination.

40. In even fur ther contra s t with the one step of

progressive discipline skipped in Quiller , in this case ,

Respondent ha d never before been discipline d , and the School

Board skipped two steps of progressive discipline for alleged

actions which , even if they had been proven, were arguably less

severe than those alleged in Quiller .

41. In sum, the School Board did not prove its case.

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:

1. Dismissing the allegations against Respondent set forth

in the Step III Discipline and rescinding any discipline imposed

thereby ; and

2. Reimbursing Respondent for any pay or benefits that he

did not receive as a result of the School BoardÓs actions in

this case, plus interest from the date that any such pay or

benefit was withheld , as appropriate und er applicable law.

DONE AND ENTERED this 7th day of December , 201 8 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

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 7th day of December , 2018 .

ENDNOTES

1/ This proceeding is governed by the law in effect at the time

of the commission of the acts alleged to warrant discipline.

See McCloskey v. DepÓt of Fin. Servs. , 115 So. 3d 441 (Fla. 5th

DCA 2013). Thus, references to statutes are to Florida Statutes

(2 01 7 ), unless otherwise noted.

2/ At the hearing, the student who purportedly heard the

statements that were reported by his parent to the School Board

member was excluded as a witness because of the School BoardÓs

failure to timely update its witness list.

COPIES FURNISHED :

Tracey Kort Parde , Esquire

Office of General Counsel

City of Jacksonville

1701 Prudential Drive, Room 651E

Ja ck sonville, Florida 3 2207

(eServed)

Stephanie M arisa Schaap , Esquire

Duval Teachers United

1601 Atlantic Boulevard

Ja ck sonville, Florida 32207

(eServed)

Dr. Diana L. Greene

Superintendent of Schools

Duval County Public Schools

1701 Prudential Drive

Jacksonville, Florida 32207

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart , Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Stanley M. Weston, Esquir e

Duval County School Board

1701 Prudential Drive

Jacksonville, Florida 32207

(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.