19-004176TTS Broward County School Board vs. Karleef Jamel Kebreau Status: Closed Recommended Order on Thursday, March 25, 2021.

Summary: A teacher's pattern of giving female student's unwanted hugs, making flirtatious remarks, and inappropriate comments warrants a ten-day suspension without pay, in light of his prior disciplinary history for similar conduct.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

B ROWARD C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 19 - 4176TTS

K ARLEEF J AMEL K EBREAU , * A MENDED AS TO P RELIMINARY

S TATEMENT P ARAGRAPH 4 AND

Respondent . F INDINGS OF F ACT P ARAGRAPH 26

/

* A MENDED R ECOMMENDED O RDER

Pursuant to notice, a final hearing in this case was conducted before

Administrative Law Judge Mary Li Creasy of the Division of Administrative

Hearings ( Ñ DO AH Ò ) by Zoom video teleconference on October 13, 2020.

A PPEARANCES

For Petitioner: Denise Marie Heekin, Esquire

Bryant Miller Olive, P.A.

One Southeast Third Avenue , Suite 2200

Miami, Florida 33131

For Respondent: Melissa C. Mihok, Esq uire

Melissa C. Mihok, P.A.

201 East Pine Street , Suite 445

Orlando, Florida 32801

S TATEMENT OF T HE I SSUE

Whether just cause exists for Petitioner, Broward County School Board

( Ñ BCSB Ò ) , to suspend Respondent, Karleef Jamel Kebreau ( Ñ Res pondent Ò ) ,

from his employment as a teacher for ten days without pay.

P RELIMINARY S TATEMENT

On June 11, 2019, at its regularly scheduled meeting, Petitioner, BCSB ,

took action to suspend Respondent for one day without pay. BCSB rejected

the Superintendent Ô s recommendation of a one - day suspension. On July 23,

2019, B CS B approved the Superintendent Ô s recommendation to suspend

Respondent for ten days without pay. Respondent was advised of his right to

request an administrative hearing within 21 days. Responde nt timely

requested an administrative hearing. Subsequently, BCSB referred the

matter to DOAH to assign an a dministrative l aw j udge to conduct the final

hearing. The final hearing initially was set for October 10 and 11, 2019. After

multiple continuances, granted at the request of the parties, this case was set

for hearing on October 13, 2020.

On December 5, 2019, BCSB moved to amend the Administrative

Complaint. The motion was granted over objection on December 18, 2019.

In the Amended Administrative Com plaint ( Ñ Amended Complaint Ò ), BCSB

charged Respondent with misconduct in office pursuant to section 1012.33 ,

Fl orida Statutes, and Florida Administrative Code Rule 6A - 5.056(2)(a) - (e) , a

failure to make a reasonable effort to protect the student s from condi tions

harmful to learning, and/or mental or physical health or safety, in violation of

Florida Administrative Code R ule 6A - 10.081; incompetency, in violation of

section 1012.33 and r ule 6A - 5.056(3)(a); violation of School Board Policy

4008, which requires instructional staff members to comply with the Code of

Ethics and the Principles of Professional Conduct and to conform to all rules

and regulations that have been prescribed by the Department of Education or

BCSB; and violation of School Board Policy 4.9 ( Ñ Policy 4.9 Ò ) , which requires

employees to comply with workplace policies, procedures, and regulation s ,

local, state , and federal laws; and State Board Rules, both in and out of the

workplace. These charges were based upon allegations that Respondent mad e

inappropriate comments to female students and gave students inappropriate

hugs.

At the final hearing, BCSB presented the testimony of the following:

John Murray, Assistant Principal at Miramar High School ( Ñ Miramar Ò );

Maria Formoso, Principal at Miramar; and Detective Bernard Canellas. By

agreement of the parties, BCSB submitted the deposition transcripts of S.N.,

L.M., S.K. , and T.K. , in lieu of live testimony. BCSB Exhibits 4, 5, 7, 8 , and

10 through 21 were admitted into evidence. Respondent testified on his own

behalf and Respondent Ô s Exhibits 1 through 4 were admitted. The record was

held open after the final hearing to allow BCSB to depose two student

witnesses who had not previously appeared for their scheduled depositions.

BCSB filed the deposition transcripts of D.J. on November 30, 2020, and C.G.

on December 1, 2020.

The Transcript was filed on October 29, 2020. Respondent filed two

unopposed motions for extension of time to file p roposed r ecommended

o rders, which were granted. Both parties timel y filed p roposed r ecommended

o rders, which were considered in drafting this Recommended Order. Unless

otherwise indicated, all rule and statutory references are to the versions in

effect at the time of the alleged violations.

F INDINGS OF F ACT

The Parties

1. BCSB is a duly - constituted school board charged with the duty to

operate, control, and supervise the public schools within Broward County,

Florida.

2. Respondent was employed by BCSB as a math teacher at Miramar.

Respondent has taught for BCSB for 17 ye ars. Respondent is working

pursuant to a professional services contract.

Respondent Ô s Prior Discipline and Summary Memoranda

3. On or about December 14, 2011, Respondent received a Letter of

Reprimand from BCSB and was required to attend Equal Employment

O pportunity ( Ñ EEO Ò ) Overview Training for inappropriate conduct concerning

his violation of both the Code of Ethics and Principles of Professional Conduct

of the Education Profession.

4. Respondent received this Letter of Reprimand because of an

investigati on into inappropriate conduct regarding allegations that he

repeatedly approached students to take modeling photos of them in their

bikinis. The investigation also concerned allegations that Respondent was

watching movies with female students in his classr oom after school hours.

5. On or about November 28, 2012, Respondent received a Summary

Memo addressing the following concerns: his failure to attend mandatory

proctor training; his failure to pick up interim reports; his failure to follow

proper procedure s; his failure to notify a student that he had her iPod; his

intentional use of embarrassing and disparaging remarks to a student by

calling her a Ñ shone Ò (slang for prostitute) in class; and his lack of

professional judgment and integrity.

6. On or about May 14, 2015, Respondent received a Summary Memo

addressing the following concerns: his use of embarrassing and disparaging

remarks to a student and his lack of professional judgment and integrity. He

received this Summary Memo after an email from a concer ned parent was

received by Miramar administration concerning Respondent Ô s behavior. The

email referred to Respondent participating in making a list of the prettiest to

the ugliest girl in his class and calling a student stupid. Respondent denies

that he cr eated the list, but admits that he knew about the list , that he

should have addressed the issue to end it, and further that he commented on

it.

Allegations Giving Rise to the Suspension

7. On October 11, 2018, Miramar Principal Maria D. Formoso ( Ñ Formoso Ò )

received an email from someone who identified himself as Ñ Captain Alex. Ò

Captain Alex wrote that his girlfriend was a student at Miramar, and that he

was in fear for her safety while she was in Respondent Ô s class. Attached to his

email, Captain Alex prov ided copies of cell phone text messages between him

and his girlfriend describing how Respondent had approached her and began

hugging and touching her hair. Captain Alex Ô s email also indicated that this

was happening to other female students at Miramar.

8. Formoso advised John Murray, Assistant Principal ( Ñ AP Murray Ò ), who

helped identify Captain Alex Ô s girlfriend as C.G.

9. C.G., who was in 12th grade during the 2018 - 2019 school year, advised

Formoso, that on October 11, 2018, she was Ñ face - timing Ò with he r boyfriend

on her cell phone, prior to the start of class, and as she entered Respondent Ô s

classroom, Respondent walked up to her and gave her a full - frontal hug. As

Respondent was hugging her, he was also manipulating her hair on the back

of her head wit hout her consent.

10. C.G. stated that Respondent regularly gave her unwanted hugs and

that the hugs made her feel uncomfortable. He also gave her compliments,

played with her hair , and rubbed her shoulders. According to C.G., since the

beginning of the sc hool year (i.e., 2018 - 2019), she has received several

unwanted hugs from Respondent prior to entering his classroom. C.G. stated

that the hugs would last 30 seconds and that Respondent would play with her

hair as well as rub her shoulders. During one of th e hugging incidents,

Respondent whispered into her ear Ñ [y]ou give thick a whole other meaning. Ò

Statements from Other Students

11. After obtaining C.G. Ô s statement, Formoso interviewed and obtained

statements from other female students identified by C.G. to have also

received unsolicited hugs from Respondent. Those students were identified as

S.N., N.O. , and D . J. After obtaining these additional statements, Formoso

contacted the BCSB Special Investigative Unit ( Ñ SIU Ò ) to initiate an

investigation.

12. Dete ctive Bernard Canellas of SIU arrived at Miramar to conduct an

investigation concerning Respondent Ô s conduct. As part of the investigation,

he obtained several handwritten statements and conducted recorded

interviews under penalty of perjury. After the inv estigation was completed,

Respondent was given a copy of the report of the investigation and was

advised that BCSB will move forward to bring the investigative findings to

the Professional Standards Committee.

13. Det ective Canellas obtained a written stat ement and sworn recorded

statement of S.N. S.N. also provided testimony at a deposition , which the

parties agreed to submit in lieu of an appearance at the final hearing.

According to S.N., who was an 11th grade student during the 2018 - 2019

school year , Re spondent was her math teacher during her freshman year.

S.N. testified during her deposition that during her first encounter with

Respondent, he approached her and gave her an unwanted hug as she

entered his classroom. On one occasion during her freshman y ear, as

Respondent proceeded to hug her, he whispered in her ear Ñ [h]ow would you

feel if I told you I wanted to be your boyfriend. Ò S.N. said the statement made

her feel weird and creeped out.

14. S.N. stated that Respondent continued to give her unwanted hugs over

the next three years, but he never made any more statements to her while

hugging her. S.N. testified at her deposition that she has been approached

and teased by her girlfriends about the hugs she received from Respondent.

15. S.N. also testifie d that one day while Respondent was hugging her, his

hand brushed against her breast as he pulled away. When this happened, she

told Respondent, Ñ I don Ô t want you hugging me anymore . Ò Respondent

neither respond ed to her nor did he try to hug her again.

16. D.J. provided a written statement and swor n recorded statement to

SIU. She also provided deposition testimony , which the parties agreed to

submit in lieu of an appearance at the final hearing. D.J. was a student in

Respondent Ô s class during the 2017 - 2018 school year. D.J. stated that

Respondent asks for hugs from the female students. She testified that one

day when he asked her for a hug, D.J. told him no. Respondent admitted in

his deposition testimony that D.J. told him not to hug her. Thereafter, D.J.

t estified that Respondent negatively affected her grades. D.J. also testified

that Respondent has hugged her more than 30 times.

17. In September 2019, two more students, L.M. and T.K., came forward

to AP Murray with similar allegations against Respondent. These students

came forward when AP Murray was handing out letters to students in

Respondent Ô s class to obtain their contact information in the event they were

witnesses for the instant matter. Their allegations were included in the

Amended Complaint.

18. L.M. was a student in Respondent Ô s geometry class. She provided a

written statement to AP Murray and testified at a deposition which the

parties agreed to be used in lieu of her appearance at the final hearing. She

testified that Respondent was too Ñ touchy Ò and personal with students.

Respondent would flirt with female students and make them uncomfortable.

She also testified Respondent would hug the female students as they walked

into class and call them Ñ cutie Ò or Ñ sweetie. Ò L.M. found Respondent Ô s

behavio r annoying and disappointing.

19. T.K. also testified that one day during the 2018 - 2019 school year,

when she was in his class, Respondent called her up to his desk and asked

her about her dating status. T.K. responded that she was single. Respondent

told her that there were male students in the class eyeing her. T.K.

responded that she was not interested in guys her age. Respondent then

asked T.K. if she liked guys in their fifties or his age. This made T.K. feel

uncomfortable.

20. T.K. also testified that , on another occasion in his class, he talked

about his grey sweat pants. Respondent told the class that a woman he had

been dating told him that she did not want him wearing grey sweat pants,

but he did not know why. Respondent stated that all the girls a t the mall

were staring at him in his grey sweat pants. Respondent said that when he

looked in the mirror, his Ñ junk Ò looked huge. When he said this to the class,

he pointed at his pelvic area. T.K. alleges that it is disturbing that a teacher

feels comfor table enough to tell the students in his class, who range in age

from 14 to 18, this story.

Respondent Ô s Response to the Allegations

21. S . M . gave a sworn recorded statement to SIU. She also provided

deposition testimony , which the parties agreed to submit in lieu of an

appearance at the final hearing. S . M . , who was a 12th grade student in the

2018 - 2019 school year , was also never a student of RespondentÔs, but she

started getting unwanted hugs from Respondent at the beginning of her

junior year. S . M . would receive unwanted hugs from Respondent while in the

hallway. S . M . testified during her deposition that Respondent would call her

Ñ[m]y Haitian QueenÒ and that the hugs made her feel uncomfortable. S . M .

also testified that one day while Respondent was huggi ng her, his hand

brushed against her breast as he pulled away. When this happened, she told

Respondent, ÑI donÔt want you hugging me anymore . Ò Respondent did not

respond to her, nor did he try to hug her again.

22. Respondent admits that he would stand in the doorway to the

classroom and give students, including females, hugs as they entered.

Respondent claims this is consistent with the behavior of other teachers at

Miramar. When asked not to hug a particular student, Respondent

immediately stopped. Respon dent denies making inappropriate or flirtatious

comments to students, touching their hair, or propositioning any female

student.

2 3 . Respondent specifically denied ever hugging C.G. in an inappropriate

manner or touching her hair. He first became aware of the allegation when

notified by the School Board Ô s investigator. Respondent further denied

complimenting C.G. inappropriately, or ever rubbing her shoulders.

2 4 . At the time of the allegation, C.G. was failing Respondent Ô s class and

transferred to a diffe rent class soon after. Respondent noted that student D . J .

also failed his class and transferred to another class.

2 5 . Respondent offered and filed the deposition transcript of K.S., which

the parties agreed to be used in lieu of testimony at the final hear ing. K.S.

testified that she was in Respondent Ô s class in 9th grade and that she was

now in the 12th grade. She testified that Respondent hugs everyone,

including her, in either a full - frontal hug or side hug at the entry way of the

classroom if Respondent was holding the door. She witnessed Respondent

hug T.M.

2 6 . The Amended Administrative Complaint makes reference to similar

allegations allegedly made by students N.O, S.M., B.S., and T.M. However,

they did not testify in this matter and the only evidence presented related to

them is uncorroborated hearsay. 1

2 7 . Respondent testified he no longer hugs his students since these

allegations arose. Some students have tried to hug him and were confused

when Respondent declined. He now shakes their hand or gives them a Ñ dab. Ò

BCSB Response to the Investigation

2 8 . Based on the SIU investigation, the Professional Standards

Committee found probable cause to recommend a one - day suspension without

pay and EEO sensitivity training for Respondent. This was later change d to a

ten - day suspension without pay by BCSB , which was also adopted on July 10,

2019. Formoso testified that BCSB increased the one - day suspension to a ten -

day suspension because Respondent Ô s conduct amounted to sexual

harassment.

2 9 . BCSB provided all n otice and process that was due as it pertains to

the investigation and procedural requirements from the time the

investigation was commenced through BCSB Ô s adoption of the

1 Although the sta tements of these students contain descriptions of Respondent providing

unwanted hugs and making inappropriate flirtatious comments to other female students,

they were not relied upon for the decision of this Recommended Order. The deposition

testimony of t he other students was credible and enough to prove the allegations against

Respondent in the Amended Complaint.

Superintendent Ô s recommendation for a ten - day suspension in relation to this

matter.

C ONCLUSIONS OF L AW

30 . DOAH has jurisdiction over the parties to and the subject matter of

these proceedings pursuant to sections 120.569 and 120.57(1), Florida

Statutes.

3 1 . Because BCSB, acting through the Superintendent, seeks to suspend

Respondent Ô s employment without pay for ten days , which does not involve

the loss of a license or certification, BCSB has the burden of proving the

allegations in its A mended Complaint by a preponderance of the evidence, as

opposed to the more stringent standard of cle ar and convincing evidence. See

McNeill v. Pinellas Cty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v.

Sch. Bd. of Dade Cty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. Sch.

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

3 2 . Respondent is an instructional employee as defined in section

1012.01(2). BCSB has the authority to terminate instructional personnel for

Ñ just cause Ò pursuant to section 1012.33(1)(a).

3 3 . Section 1012.33(1)(a) provides a non - exhaustive definition of Ñ just

cause. Ò S ection 1012.33(1)(a) states , in pertinent part:

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 n eglect of duty È .

3 4 . Respondent Ô s prior acts of misconduct may be considered in

determining the existence of just cause for discipline. C.F. Industries, Inc. v.

Long , 364 So. 2d 864 (Fla. 2nd DCA 1978); Johnson v. Sch . B d. of Dade C ty . ,

578 So. 2d 387 ( Fla. 3rd DCA 1991) .

Misconduct in Office

3 5 . Rule 6A - 5.056(2) defines Ñ misconduct in office Ò to include one or more

of the following:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in Rule

6A - 10.080, F.A.C.;

(b ) A violation of the Principles of Professional

Conduct for the Education Profession in Florida as

adopted in Rule 6A - 10.081, F.A.C.;

(c) A violation of the adopted school board rules;

(d) Behavior that disrupts the student Ô s learning

environment; or

(e) Behavior that reduces the teacher Ô s ability or his

or her colleagues Ô ability to effectively perform

duties.

3 6 . Respondent Ô s conduct constitutes misconduct in office because it met

subsections (b) and (d) of the definition of misconduct .

3 7 . The eth ical principles previously contained in r ule 6A - 10.080, Code of

Ethics of the Education Profession in Florida, are now contained in

subsection (1) of r ule 6A - 10.081, Principles of Professional Conduct for the

Education Profession in Florida.

3 8 . Rule 6A - 10 .081(2) states that a violation of any of the following

disciplinary principles Ñ shall Ò subject the individual to revocation,

suspension, or other penalties:

(a) Obligation to the student requires that the

individual: 1. Shall make reasonable effort to

pr otect the student from conditions harmful to

learning and/or the student Ô s mental and/or

physical health and/or safety.

* * *

5. Shall not intentionally expose a student to

unnecessary embarrassment or disparagement.

* * *

7. Shall n ot harass or discriminate against any

student on the basis of race, color, religion, sex, age,

national or ethnic origin, È handicap condition, È

or social and family background and shall make

reasonable effort to assure each student is

protected from hara ssment or discrimination.

3 9. Respondent engaged in misconduct in office by failing to protect his

students from conditions harmful to learning and protecting his student Ô s

mental health by actively and continuously embarrassing them. Fla. Admin.

Code R. 6A - 10.081(2)(a)1 . and 5. Respondent repeatedly failed to protect his

students from conditions harmful to learning and embarrassed them when he

repeatedly engaged in hugging his female students. Respondent regularly

gave unwanted hugs and hugs that made his students feel uncomfortable. He

also gave sexually charged compliments while engaging in embraces with

female students . Respondent talked about his grey sweat pants that made his

Ñ junk Ò look huge. When he said this to the class, he pointed at his pelvic a rea.

This, among other conduct described above, constitutes creating a condition

harmful to the students Ô learning and behavior that disrupts the students Ô

learning environment .

40 . Respondent also engaged in misconduct in office by harassing and

discrimin ating against his students on the basis of sex , and failing to make

reasonable effort to assure each student is protected from harassment or

discrimination. Fla. Admin. Code R. 6A - 10.081(2)(a)7. The conduct described

in the preceding paragraph constitutes harassment. Respondent gave

unwanted and unsolicited hugs to female students , which created a hostile

environment for them. Respondent flirted with female students. His students

felt uncomfortable and embarrassed due to his conduct.

4 1 . BCSB has shown by a preponderance of the evidence that Respondent

engaged in misconduct in office as defined in r ule 6A - 5.056(2)(b) and (d), and,

therefore, there is just cause to suspend Respondent Ô s employment for ten

days without pay. See § 1012.33(1)(a), Fl a. Sta t.

Incom petency

4 2 . Rule 6A - 5.056(3)(a) defines Ñ incompetency Ò as Ñ the inability, failure or

lack of fitness to discharge the required duty as a result of inefficiency or

incapacity. Ò Ñ Inefficiency , Ò in pertinent part , means Ñ [f]ailure to perform

duties as prescri bed by law. Ò Fla. Admin. Code R. 6A - 5.056(3)(a)1.

4 3 . Ñ Inefficiency Ò means one or more of the following:

1. Failure to perform duties as prescribed by law.

Fla. Admin. Code R. 6A - 5.056(3)(a).

2. Failure to communicate appropriately with and

relate to s tudents .

4 4 . Respondent Ô s conduct constitutes incompetency due to inefficiency

because he failed to communicate appropriately with and relate to students.

Respondent failed to communicate appropriately with his students by giving

his female students unsol icited frontal hugs. Respondent also failed to

communicate appropriately when he whispered Ñ [y]ou give thick a whole

other meaning Ò in a student Ô s ear while hugging her and whispered Ñ [h]ow

would you feel if I told you I wanted to be your boyfriend Ò in ano ther

student Ô s ear while hugging her. Respondent failed to communicate

appropriately when he called a student Ñ [m]y Haitian Queen . Ò Respondent

failed to communicate appropriately when he inquired about the dating

status of a student and asked if that stude nt liked guys in their fifties or his

age. Lastly, Respondent failed to communicate appropriately when he

referred to the size of his anatomy in grey sweatpants and referred to his

anatomy as Ñ junk. Ò

4 5 . BCSB has shown by a preponderance of the evidence th at

Respondent Ô s behavior constituted incompetency due to inefficiency, as

defined in r ule 6A - 5.056(3)(a)1 . , and constitutes just cause for suspension

from his employment for ten days without pay .

Violation of Adopted School Board Rules

4 6 . Rule 6A - 5.056(2) (c) defines Ñ misconduct in office Ò to include Ñ [a]

violation of the adopted school board rules Ò and makes it clear that a local

school board, through its adopted rules, has the authority to define conduct

that constitutes just cause for reprimand of an emp loyee. Respondent has

violated adopted school board rules , which constitutes just cause for a ten - day

suspension without pay.

4 7 . BCSB rules relevant here are School Board Policy 4008(B) ( Ñ Policy

4008 ( B ) Ò ) and Policy 4.9.

4 8 . Policy 4008(B) sets forth the duties of instructional personnel. These

duties state that instructional personnel shall:

1. Comply with the Code of Ethics and Principles of

Professional Conduct of the Education Profession in

Florida.

* * *

3. Infuse in the classroom, the Di strict Ô s adopted

Character Education Traits of Respect, Honesty,

Kindness, Self - Control, Tolerance, Cooperation,

Responsibility and Citizenship.

* * *

8. Conform to all rules and regulations that maybe

prescribed by the State Board and by the Sc hool

Board.

4 9 . As described above, Respondent Ô s conduct did not comply with the

Principles of Professional Conduct for the Education Profession in Florida.

Respondent Ô s conduct was not in compliance with the Code of Ethics or the

Principles of Profession al Conduct. Respondent Ô s unwelcomed touching and

commentary did not infuse in the classroom respect, self - control , or

responsibility for some of his female students. As such, Respondent Ô s conduct

did not conform to the rules of the State Board or BCSB.

50 . BCSB has shown by a preponderance of the evidence that

Respondent Ô s behavior was misconduct in office, as defined in

r ule 6A - 5.056(2)(c) and was a violation of the BCSB Ô s adopted policies. As

such, BCSB has established just cause for suspension of Respon dent Ô s

employment for ten days without pay.

Policy 4.9 and the Appropriate Discipline

5 1 . BCSB Ô s decision to suspend Respondent is in accordance with School

Board Policy 4.9 , Corrective Action. Policy 4.9 prescribes the type of discipline

appropriate to be imposed for specified offenses. Policy 4.9 identifies

categories of offenses and the appropriate type or range of discipline that may

be imposed if the employee is shown to have engaged in conduct constituting

that offense.

5 2 . Policy 4.9, section II, pro vides , in relevant part , that the following are

Ñ Category B Ò offenses, for which the recommended range of discipline is

Ñ Reprimand/Dismissal Ò :

g) Inappropriate method of discipline

m) Any violation of The Code of Ethics of the

Education Professional in t he State of Florida - State

Board of Education Administrative Rule

p) Insubordination, which is defined as a

continuing or intentional failure to obey a direct

order, reasonable in nature and given by and with

proper authority

r) Failure to comply with S chool Board policy, state

law, or appropriate contractual agreements

5 3 . Policy 4.9, section I(d), provides that, in most cases, BCSB follows a

policy of progressive discipline. The level of corrective action in a given case

will be determined by the seve rity of misconduct and the considerations listed

in section III(c). Ñ A more severe corrective measure will be used when there is

evidence that students, employees, or the community we serve was negatively

impacted. Ò Id.

5 4 . Policy 4.9, section III, titled Ñ Other Considerations, Ò subsection (c),

sets forth circumstances that are Ñ illustrative and not meant to be exhaustive

and may be considered when determining the appropriate penalty within a

penalty (II Category B) range. Ò The factors relevant here include :

1. The severity of the offense ;

2. Degree of student involvement ;

3. Impact on students, educational process and/or

community ;

4. The number of repetitions of the offenses and

length of time between offenses ;

6. Employment history ;

7. The actu al damage, physical or otherwise,

caused by the misconduct ;

8. The deterrent effect of the discipline imposed ;

9. Any effort of rehabilitation by the employee ;

10. The actual knowledge of the employee

pertaining to the misconduct ;

11. Attempts by t he employee to correct or stop the

misconduct ;

12. Related misconduct by the employee in other

employment including findings of guilt or

innocence, discipline imposed , and discipline

served ;

13. Actual negligence of the employee pertaining to

any miscon duct ;

15. Degree of physical and mental harm to a

student, co - worker or member of the public ;

17. Whether the misconduct was motivated by

unlawful discrimination ;

18. Any relevant mitigating or aggravating factors

under the circumstance .

5 5 . Here, t he factors warranting a ten - day suspension include the severity

and number of the offenses; the impact of Respondent Ô s conduct on students;

the educational process and/or community; Respondent Ô s prior discipline;

Respondent Ô s knowledge pertaining to his mi sconduct; the need for a

sufficient deterrent effect; the degree of mental harm to students; and

Respondent Ô s failure to take adequate steps to correct his prior misconduct.

5 6 . It is undisputed that Respondent has been previously disciplined in

relation to using embarrassing and disparaging remarks towards female

students (i.e., referring to one as a Ñ shone Ò ) and for requesting to take

pictures of female students in bikinis .

5 7 . At best, Respondent Ô s pattern of conduct towards female students can

be descr ibed as crass, flirtatious, and inappropriate. At worst, it constitutes

unlawful sexual harassment and potential battery. There is no place for this

type of conduct by an educator and BCSB was well within its discretion, and

its progressive discipline poli cy, to recommend a ten - day suspension for

Respondent Ô s conduct that put both the students and BCSB at significant

risk.

5 8 . BCSB met its burden and established by a preponderance of the

evidence that Respondent committed each of the violations charged .

Res pondent Ô s violations constitute just cause for suspension under Policy 4.9.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Broward County School Board enter a Final Order

upholding Respondent Ô s su spension for ten d ays without pay.

D ONE A ND E NTERED this 2 5th day of March , 2021 , in Tallahassee, Leon

County, Florida.

S

M ARY L I C REASY

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 5th day of March , 2021 .

C OPIES F URNISHED :

Denise Marie Heekin, Esquire Melissa C. Mihok, Esquire

Bryant Miller Olive, P.A. Melissa C. Mihok, P.A.

One Southeast Third Avenue , Suite 2200 201 East Pine Street , Suite 445

Miami, Florida 33131 Orlando, Florida 32801

Ranjiv Sondhi, Esquire Elizabeth W. Neiberger, Esquire

Bryant Miller Olive, P.A. Bryant Miller Olive, P.A.

One Southeast Third Avenue , Suite 2200 One Southeast Third Avenue , Suite 2200

Miami, Florida 33131 Miami, Florida 33131

Richard Corcoran Matthew Mears, General Counsel

Commissioner of Education Department of Education

Department of Education Turlington Building, Suite 1244

Turlington Building, Suite 1 514 325 West Gaines Street

325 West Gaines Street Tallahassee, Florida 32399 - 0400

Tallahassee, Florida 32399 - 0400

Robert W. R uncie, Superintendent

Broward County Public Schools

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301

N OTICE OF R IGHT T O S UBMIT E XCE PTIONS

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.