20-005259TTS Duval County School Board vs. Thomas Caggiano Status: Closed Recommended Order on Monday, November 15, 2021.

Summary: The School Board established, by a preponderance of the evidence, just cause to discipline Respondent.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D UVAL C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 20 - 5 259TTS

T HOMAS C AGGIANO ,

Respondent .

/

R ECOMMENDED O RDER

On May 27, July 13, August 11 and 18 , 2021, Administrative Law Judge

Robert J. Telfer III, of the Florida Division of Administrative Hearings

(DOAH), conducted a final hearing pursuant to section 120.57(1), Florida

Statutes (20 2 0 ), by the Zoom conference .

A PPEARANCES

For Petitioner: Derrel Q. Chatmon, Esquire

Office of General Counsel

City of Jacksonville

Suite 480

117 West Duval Street,

Jacksonville, Florida 32202

For Respondent: Kelly B. Mathis, Esquire

Mathis Law Firm

3577 Cardinal Point Drive

Jacksonville, Florida 32257

S TATEMENT OF T HE I SSUE

Whether just cause exists to reprimand and suspend Respondent , Thomas

Caggiano , for five days without pay from his position as a teacher with

Petitioner , the School Board of Duval County (School Board) , 1 for the reasons

set forth in the March 26, 2021 , correspo n dence from the School Board, which

contained an April 6, 2021, Amended Step III Progressive Discipline Petition.

P RELIMINARY S TATEMENT

On November 19, 2020, Victoria N. Schultz, the Assistant Superintendent

of Duval County Public Schools , Human R esources Services, sent to

Mr. Caggiano, correspondence entitled ÑStep III Progressive Discipline Ï

Written Reprimand and Suspension Without Pay Pending School Board

Approval,Ò which notified Mr. Caggiano of the Duval County School DistrictÔs

intention to issue a written reprimand and suspend Mr. Caggiano for five

working days from employment, without pay, and to require him to complete

a course in Culture Diversity, pending the School BoardÔs approval, for posts,

reports, or comments to posts made on Mr. CaggianoÔs Facebook account

which Ms. Schultz characterized as containing Ñinappropriate, derogatory,

demeaning and inflammatory material and comments referencing sex ual

orientation, national origin and domestic abuse È.Ò

On March 17, 2021, the School Board filed a Motion for Leave to Amend

the November 19, 2020 , Step III Progressive Discipline. Having received no

response in opposition, the undersigned entered, on M arch 31, an Order

Granting PetitionerÔs Motion for Leave to Amend the November 19, 2020,

Step III Progressive Discipline. In correspondence dated March 26, 2021,

Ms. Schultz provided Mr. Caggiano with an ÑAmended Step III Progressive

Discipline Ï Written R eprimand and Suspension Without Pay Pending School

Board Approval,Ò which authorized the issuance of Amended Step III

Progressive Discipline on April 6, 2021 (Amended Step III Progressive

Discipline). The Amended Step III Progressive Discipline corresponde nce is

1 The School BoardÔs official name is ÑThe School Board of Duval County.Ò £ 1001.40, Fla.

Stat. (2021) (providing that Ñ[t]he governing body of each school district shall be a district

school board. Each district school board is const ituted a body corporate by the name of ÑThe

School Board of County, Florida.Ò Ô ). The case style has been amended accordingly.

similar to the November 19, 2020, correspondence, but adds an additional

post and comment that Mr. Caggiano made on his Facebook account.

The undersigned originally noticed this matter for a final hearing on

March 25, 2021. On March 15, 2021, the School Board filed an Unopposed

Motion to Continue the Scheduled Hearing Due to the Impact of COVID - 19

and New Material Evidence. On that same date, the undersigned entered an

Order Granting Continuance and Rescheduling Hearing by Zoom Conference,

for May 27, 2021.

The undersigned conducted a final hearing on May 27, July 13,

August 11 and 18 , 2021. The School Board presented the testimony of : J.N.S.,

a student at Sandalwood High School (SHS); C.C, a student at SHS; Brannon

Lutz, faculty at SHS; Cassie Solliday, faculty at SHS; Randal Allen Lessen,

faculty at SHS; Rhonda Shene Motley, administrator at SHS; JC, a student

at SHS; Alyson Marie Pora k, a parent of students at SHS; Kevin Lee Stika,

administrator for Duval County Public Schools; Reginald Lafranc Johnson,

supervisor for Duval County Public Schools; Dr. Saryn Hatcher; principal

at SHS; Jamie Brennan, school psychologist supervisor for Duv al County

Public Schools; and Ms. Schultz . The undersigned entered into evidence

PetitionerÔs Exhibits P 1 through 12, 14, 15, 21, 24, 25, 27, 29, 30, 32, 36, 38,

39, 42 through 47, 50, 55 through 57, 62 through 64, 66, 67, and 69

through 71. Mr. Caggiano t estified on his own behalf, and presented the

testimony of his daughter, Arielle Caggiano. Mr. Caggiano did not offer any

exhibits into evidence. On rebuttal, the School Board presented the testimony

of: Christina Gentzkow, a parent of a student at SHS; Sa ndra Rocquin, a

former administrator at SHS; and Dr. Tiffany Wells, an administrator at

SHS. The undersigned entered into evidence PetitionerÔs Rebuttal

Exhibit PR 1.

At the conclusion of the final hearing, the parties jointly requested a

30 - day time period after the filing of the t ranscript to submit their proposed

recommended orders. The four - volume Transcript was filed with DOAH on

September 9 , 2021. The School Board timely filed a Proposed Recommended

Order ; however, Mr. Caggiano filed his Proposed Recommended Order late.

The School Board thereafter, on October 6, 2021, filed a Motion to Strike

RespondentÔs Untimely Proposed Recommended Order or Alternatively Grant

Petitioner Leave to s upplement (Amend) its Proposed Recommended Order,

which indicated that Respondent opposed the striking of his Proposed

Recommended Order, but did not oppose leave for the School Board to file a

Supplement to its Proposed Recommended Order , and thereafter filed a

Response on Oct ober 6, 2021, restating that position. On October 8, 2021, the

undersigned entered an Order Denying PetitionerÔs Motion to Strike

RespondentÔs Proposed Recommended Order and Granting Petitioner Leave

to File a Supplemental Proposed Recommended Order. The S chool Board

thereafter timely filed a Supplemental Proposed Recommended Order on

October 15, 2021.

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. DepÔt of

Fin. Ser vs. , 115 So. 3d 441, 444 (Fla. 5th DCA 2013). Accordingly, a ll

statutory references are to the 20 2 0 codification of the Florida Statutes

unless otherwise indicated.

F INDINGS OF F ACT

1. The School B oard is charged with the duty to operate, control, and

supervise free public schools within Duval County Public Schools . See Art. IX,

§ 4(b), Fla. Const.; § 1012.33(1)(a), Fla. Stat.

2. The School Board and Mr. Caggiano executed a professional service

contract, as defined in section 1012.33, Florida Statutes, and he has been

employed by the School Board since 1994.

3. The School Board has renewed this professional services contract on an

annual basis.

4. The partiesÔ employment relationship is governed by School Board

policies, Florida laws, Department of Ed ucation rules, and the Collective

Bargaining Agreement (CBA) between Duval Teachers United and the School

Board. The CBA relevant to this matter was effective from 2017 through

2020. 2

Mr. CaggianoÔs Employment at SHS

5. Mr. Caggiano had been a math teache r at SHS for numerous years,

including the time period relevant to the allegations of the Amended Step III

Progressive Discipline correspondence . He currently remains employed by the

School Board, but is currently not a math teacher at SHS.

6. During his career with the School Board, Mr. Caggiano received

positive employment evaluations. Prior to the allegations at issue, the School

Board had never disciplined Mr. Caggiano.

7. During the 2019/2020 school year, Mr. Caggiano taught Algebra II.

During his ca reer at SHS, he also taught geometry, trigonometry, analytic

geometry, calculus, and statistics. He also taught college - level classes for

Embry - Riddle Aeronautical University during this time .

8. As a teacher at SHS and an employee of the School Board,

Mr . Caggiano received numerous and various training materials and updates

concerning governing policies and procedures, electronically (via email).

2 The CBA entered into evidence, without objection, and which was unexecuted, states on its

cover page that it is effective from 2 017 through 2020. However, the same document, in

Article XV, section C, states that it is effective from July 1, 2014, through June 30, 2017. As

the Amended Step III Progressive Discipline letter references the 2017 - 2020 CBA, and as no

party objected to th e CBA that the undersigned accepted into evidence, the undersigned has

treated the CBA entered into evidence as the CBA that was in effect during the allegations

concerning Mr. Caggiano.

Many of these materials were provided to Mr. Caggiano prior to faculty and

staff training, which occurred in t he weeks leading up to the start of the

school year. Among the various materials provided to Mr. Caggiano (and

other faculty) was a handout entitled ÑEthics and Professionalism,Ò provided

by Duval County Public SchoolsÔ Office of Equity and Inclusion/Profe ssional

Standards. SHS also provided Mr. Caggiano (and other faculty) a link to its

handbook , which contained policies, laws, and rules that govern

Mr. Caggiano.

9. T he ÑEthics and ProfessionalismÒ trainin g materials contained a section

on social media, a nd stated:

Please ensure that personal social media accounts

are set to private. Do not accept friend requests from

students or their parents, and use discretion when

inviting colleagues to your pages. Please ensure that

your social media posts are respectful and do not

possess profane, insensitive, or offensive language or

images. As a reminder, you may not post

photographs or identifying language about your

students. It is a violation of FERPA.

In the Acceptable Use Policy (2.1.11), it states

ÑEmp loyees must maintain professional boundaries

between themselves and students. Employees will

not solicit or engage in inappropriate

communications with students verbally, in writing,

or electronically regardless of the age of the student.

Employees will no t engage in any direct electronic

communications with students, parents,

supervisors, or co - workers whether by e - mail,

instant messaging, or other digital media that will

adversely affect the employeeÔs ability to perform his

or her job.Ò

Here are some be st practices to follow:

• You are the adult, the teacher, the professional. You

are not their friend.

• You are in violation of the Code of Ethics if you post

disparaging comments about your colleagues,

administration, and/or the Superintendent.

• Do not post m aterial that is illegal, sexually explicit,

obscene, derogatory, related to alcohol or drug use,

or in violation of copyright laws.

• Do not access social networking sites from your

school computer or during work time.

• Be cautious about photos posted online. Students

and parents could view them!

• Any information posted to, or communicated

through, a social networking site shall not bring

disfavor, embarrassment or condemnation to the

student, employee or school district.

10. Mr. Caggiano (and other faculty) further received materials and

training related to the School BoardÔs Non - Discrimination Policy (Board

Policy 10.10), which states:

Duval County Public Schools (DCPS) believes that

education should be provided in an atmosphere

where differences are understood and appreciated,

and where all persons are treated fairly and with

respect, and where all persons are free from

discrimination, harassment and threats of violence

or abuse. School board policy explicitly states, ÑNo

person s hall, on the basis of a personÔs actual or

perceived identity with regard to race, color,

religion, gender or gender identity, age, marital

status, disability, sexual orientation, political or

religious beliefs, national or ethnic origin, veteran

status, or any other distingui shing physical or

personality characteristics, be excluded from

participation in, be denied the benefits of, or be

subjected to discrimination under any education

program or activity on in any employment conditions

or practices conducted by this School Dis trict, except

as provided by law.Ò

Previous Incident Involving Transgender Student J.N.S.

11. J.N.S., a student at SHS, is a female transgender student and has

identified as female at least since the 2018 - 2019 school year, her freshman

year.

12. In the summer before her sophomore year, after receiving her class

assignments for the new academic year, J.N.S. sent an email to all of her new

teachers , including Mr. Caggiano . The August 5, 2019 , email , sent at

9:21 p.m., stated:

I will be in your c lass during the 2019 - 2020 school

year, and I would like to let you know that I am a

Male - to - Female Transgender student who would

like to go by the name [J.N.S.] as well as female

pronouns in your class. I am sending this email

before the actual school year starts so that there is

plenty of time to change it on the roll before then if

possible. Thank you very much for carrying out my

request, I canÔt wait to attend your class this year.

13. That same evening , Mr. Caggiano responded to J.N.S.Ôs email:

I wil l call you by any reasonable name you like, but

the pronouns are not a negotiable thing for me. I will

NOT refer to you with female pronouns. If this is not

acceptable for you change classes.

J.N.S. testified that most of her remaining teachers responded to this email

in a positive fashion, agreeing to her request. J.N.S. also testified that she

posted her email interaction with Mr. Caggiano on one of her social media

platforms.

1 4 . On August 6, 2019, during the faculty pre - planning period before

classes started , SHS held a mandatory training session presented by

Dr. Wells as part of the Duval County Public SchoolsÔ ÑAll In: Ally for AllÒ

program. As part of this training, Dr. Wells presented various Duval County

Public Schools policies that included the t reatment of transgender students,

including that transgender students had a right to be called by names that

they chose. Principal Hatcher also attended this training, and stated that all

students had a right to be called by their requested names, includin g

pronouns. A sign - in sheet reflected that Mr. Caggiano attended this training

session , although Mr. Caggiano testified that he did not recall attending .

1 5 . On August 7, 2019, J.N.S. contacted the SHS school counselor,

Ms. Solliday, to request a transfer out of Mr. CaggianoÔs class. After

conferring with SHS Assistant Principal Motley, Ms. Solliday transferred

J.N.S. to a different class with a different teacher .

1 6 . J.N.S. never at tended Mr. CaggianoÔs class, was never his student

during the 2019 - 2020 s chool year , and has never been a student in

Mr. Cagg iano Ôs class .

1 7 . On August 12, 2019, Principal Hatcher met with Mr. Caggiano

regarding his email response to J.N.S. and to counsel him regarding Duval

County Public SchoolsÔ policies for addressing stud ents. Principal Hatcher

informed Mr. Caggiano that he should use whatever name or pronoun a

student asks to be called. Mr. Caggiano testified that he told Principal

Hatcher he would stop using all pronouns, and refer to a student by the name

requested.

1 8 . Although the School Board devoted a significant amount of time and

effort at the final hearing to this incident involving Mr. CaggianoÔs response

to J.N.S.Ôs email request, this incident is not part of the Amended Step III

Progressive Discipline correspo ndence that is the subject of the instant

action. Dr. Hatcher counselled Mr. Caggiano on this issue. The undersigned

hear d testimony of various students, faculty, administrators, and even a

school psychologist concerning this incident, which the undersigne d finds

provides background to the issues included in the Amended Step III

Progressive Discipline correspondence ; however, this particular incident do es

not form the basis for the proposed discipline in the instant proceeding .

Mr. CaggianoÔs Use of Faceboo k

19 . Mr. Caggiano testified that he decided to set up a Facebook account

sometime in 2008, to catch up with old friends. He testified that his daughter,

Arielle, actually set up the account, and told him that his accountÔs settings

were Ñprivate.Ò

2 0 . T hereafter, Mr. Caggiano stated that he posted and commented on

posts of his Facebook Ñfriends,Ò and because he believed his settings were

Ñprivate,Ò he believed that only those ÑfriendsÒ could see those posts and

comments. He testified that Ñ[a]ll my posts were either political commentary,

social commentary, or adult humor.Ò

2 1 . Mr. Caggiano did not accept any of his students as Facebook Ñfriends,Ò

but did have a few fellow SHS teachers as Facebook Ñfriends.Ò He testified

that he did not think anybody from SHS would be able to see his Facebook

posts, aside from the fellow SHS teacher Ñfriends.Ò

2 2 . Additionally, at some point in the past, Mr. Caggiano set up a separate

Facebook account, called ÑAP Caggiano,Ò for students in an advanced

placement class to post questions or comments concerning a class.

Mr. Caggiano testified that he had not used that particular Facebook account

in some time.

2 3 . Mr. Caggiano also testified that he never accessed his Facebook

account at SHS or during his normal work hours. M r. Stika, who was a

forensic examiner in the Information Technologies department of Duval

County Public Schools, testified that Mr. Caggiano did not use his school -

issued laptop to access Facebook during the time period relevant to the

instant matter.

Amended Step III Progressive Discipline

2 4 . On May 19, 2020, the Duval County Public Schools Office of Equity

and Inclusion/Professional Standards received an email concerning

Mr. CaggianoÔs Facebook posting s .

2 5 . On May 21, 2020, the Florida Times Unio n published a story

concerning Mr. CaggianoÔs Facebook postings and comments. The May 19,

2021, email, and the May 21, 2020, newspaper article, caused an

investigation into Mr. CaggianoÔs Facebook posts and comments, conducted

primarily by Mr. Johnson.

2 6 . Mr. Johnson interviewed parents, students, former students, Principal

Hatcher, Mr. Stika, and Mr. Caggiano, as part of this investigation. His

findings form the basis for the Amended Step III Progressive Discipline

correspondence.

2 7 . As alleged in the Amended Step III Progressive Discipline

correspondence, the complainant provided screenshots of Mr. CaggianoÔs

Facebook postings. Mr. JohnsonÔs investigation discovered a Facebook

account in the name of ÑThomas Caggiano,Ò who was listed as a Duval

County P ublic School teacher. Mr. Caggiano admitted that the Facebook

account referenced in the Amended Step III Progressive Discipline

correspondence was his personal Facebook account, which his daughter

initially set up.

2 8 . As reflected in the Amended Step III Progressive Discipline

correspondence, the investigation revealed Mr. Caggiano, commencing on or

about January 2020, admitted to 27 various Facebook posts, reposts, or

comments. The Amended Step III Progressive Discipline correspondence

specifically alleg es that Ñsome of your posts and/or comments were as

follows[,]Ò and then lists seven specific posts, reposts, or comments from

Mr. CaggianoÔs personal Facebook account. 3

29 . At the final hearing, the undersigned heard testimony and considered

evidence of Mr. CaggianoÔs Facebook posts, reposts, or comments, including

Mr. CaggianoÔs testimony, and finds that Mr. CaggianoÔs Facebook account

reflects the following posts and repo sts Ð which could be considered Ñmemes,Ò

which can be defined as amusing or interesting pictures, videos, etc., that are

3 The School Board introduced into evidence other Facebook posts, rep osts, or comments

attributed to Mr. Caggiano, and questioned numerous witnesses about this ÑotherÒ Facebook

activity. The undersigned has only considered the allegations contained in the Amended

Step III Progressive Discipline correspondence in determining whether the School Board has

just cause to discipline Mr. Caggiano.

spread widely through the internet or social media Ð or comments to memes

or articles, that were made, or reposted, by Mr. Caggiano. These seven posts,

reposts, or comments, which are the only posts, reports, or comments alleged

in the Amended Step III Progressive Discipline, are:

(a) A repost from a Facebook entity called ÑMessenger of Liberty,Ò which

states: ÑMy son is taking part in a soc ial experiment. He has to wear a Bernie

2020 t - shirt for 2 weeks and see how people react. So far heÔs been spit on,

punched and had a bottle thrown at him! IÔm curious to see what happens

when he goes outside.Ò;

(b) A repost from an individual and an ent ity called ÑLIFT Ï LONG

ISLANDERS FOR TRUMP,Ò which states: Ñ Crazy but TRUE , If this girl sees

a penis at a party itÔs a crime È [with an accompanying photograph of a

young woman], but if this girl sees a penis in the womanÔs bathroom È itÔs

tolerance [wit h an accompanying photograph of a girl in a bathroom]. Vote

Republican and put an end to the madness.ÒÔ

(c) A post authored by Mr. Caggiano which states: ÑDumb ass liberals are

no w organizing protest against the killing of the Iranian general (terrorist)

who was responsible for many attacks against the USA. Amazing how

TRUMP derangement syndrome can cause democraps, and the main stream

media, to support our enemies.Ò;

(d) A repost from another individual, which appears to be a Ñscreen grabÒ

from a Fox New s segment, which states, at the top, ÑMAN AND WOMAN,Ò

and which then states: ÑA man goes home and masturbates his typical

fantasy. A woman on her knees, a woman tied up, a woman abused. A woman

enjoys intercourse with her man Ð she fantasizes being raped by 3 men

simultaneouslyÈÒ The Ñscreen grabÒ attributes this quote to Bernie Sanders,

currently a United States Senator from Vermont, sometime in the 1970Ôs (the

exhibit copy is unclear), and Mr. CaggianoÔs handwritten notes next to this

exhibit statesÒ ÑBerni e said this!Ò;

(e) A repost from a Facebook entity called ÑMaine Bikers,Ò which states:

ÑMeanwhile at the ÓBikers for BernieÔ rallyÈ[,]Ò and which contains a picture

of two nude men on a motorcycle;

(f) What appears to be an attempted repost by Mr. Caggi ano, which

Facebook apparently removed with the message ÑFalse information, Checked

by independent fact - checkers,Ò but which also contains the following

comments from Mr. Caggiano: ÑTeach this childish nasty bitch a lesson. Have

her treasonous ass removed from office and put in jail.Ò; and

(g) A repost, dated August 19, 2020, from Mr. Caggiano, of an article from

an entity called ÑLifesitenews.com,Ò with a headline that states, ÑTeen girls

stage school walkout to protest boys in their bathroom who claim to be ÓgirlsÔÒ;

and to which Mr. Caggiano commented, ÑLove it! About time people stood up

to this insanity.Ò

3 0 . The Amended Step III Progressive Discipline correspondence further

alleges:

Resulting from our Facebook postings, your school

and district leade rship were both impacted as they

received several complaints and/or concerns from

students, parents and constituents expressing their

displeasure with your conduct as a Duval county

teacher and the comments displayed within your

Facebook account. Many pare nts also contacted the

school and informed the principal that they would

not want their children in your class for the 2021 -

2021 school year. If this administrative action had

not occurred, the public consequences would cause

an equity issue for other teac hers by redistributing

your assigned students or assignment of

replacement teachers.

While you are certainly entitled to your First

Amendment right to free speech, your actions are in

direct contradiction to the DistrictÔs mission to

ÑProvide educational excellence in every school, in

every classroom, for every student, every day.Ò This

is without regard to a studentÔs ethnicity, race,

religious beliefs, gender orientation, political

persuasion, or any other qualifier. In addition, the

Principals of Profes sional Conduct of the Education

Profession in Florida (Florida Administrative Code

6A - 10.081), requires that an individual, ÑTake

reasonable precautions to distinguish between

personal views and those of any educational

institution or organization with whi ch the individual

is affiliated.Ò

As an educator you have a duty and/or a

responsibility to maintain the respect of the

community and your colleagues. You posted and/or

shared inappropriate, derogatory, demeaning and

inflammatory material and comments ref erencing

sexual orientation, national origin, and domestic

abuse on your public social media (Facebook)

account. Your conduct was unethical, lacked

integrity and violated Duval County School Board

policy, as such, warrants corrective discipline.

3 1 . The Amended Step III Progressive Discipline correspondence alleges

that Mr. CaggianoÔs Facebook posts, reposts, and comments violated

section 1006.147, Florida Statutes; Florida Administrative Code Rules; rules

6A - 5.053 and 6A - 10.081, and Duval County School Board Policies 6.80 and

10.10. It further alleges that, pursuant to article V, section 9, of the CBA,

which concerns Ñpotential harm to the physical or mental wellbeing of a

student, or students , constitutes more severe acts of misconduct which

warrant cir cumventing progressive disciplinary steps,Ò and imposed

discipline of a written reprimand, five consecutive working days of

suspension without pay, and a requirement that Mr. Caggiano complete a

course in ÑCulture DiversityÒ by a certain date. 4

Additional Facts Concerning Mr. CaggianoÔs Facebook Account

3 2 . J.N.S. testified that at some point after her email interaction with

Mr. Caggiano, she was ÑcuriousÒ and decided to access his Facebook account ,

4 A review of the CBA in evidence shows that the provision of the CBA that addresses

progressive discipline may be found in article V, section C, subsections 9 and 10.

and s aw numerous posts, including some of the posts that form the basis of

the School BoardÔs proposed discipline. She stated that she was Ñappalled, but

not surprised.Ò She also testified that the Florida Times Union reporter who

authored the May 21, 2020, article about Mr. Caggiano reached out to her

through s ocial media concerning Mr. Caggiano .

3 3 . Ms. Schultz previously served as SHS P rincipal during the time period

that Mr. Caggiano taught at SHS. She recalled seeing Mr. CaggianoÔs posts

that were ÑforwardedÒ to her, and she thereafter communicated directly with

Mr. Caggiano. She stated that she asked Mr. Caggiano to remove his

Facebook posts. In an email exchange between them, after Ms. Schultz

informed Mr. Caggiano that she was able to access his Facebook account

numerous times after he stated that he had changed his account settings to

private, Mr. Caggiano wrote:

Thank you for your email. I have had my daughter

assist me in making my Facebook account settings

Ñprivate,Ò and I have changed my account password.

I am going through and removing a number of po sts

that were made by people that I do not know. I do

not wa n t to shut the entire account down, because I

have a number of personal photos of my grandkids

and me. Please confirm whether you are still able to

see the Facebook ÑwallÒ for my account. I want t o

make sure the settings are properly adjusted so that

only people whom I accept as ÑfriendsÒ can see what

I post at this time.

As you are aware, I have also received inquiries from

the Duval County Public Schools Equity &

Inclusion/Professional Standards supervisor È. In

the emails , [he] provided me with a link to a Times -

Union article by reporter Emily Bloch. [He] inquired

whether I posted the items in question, on my

Facebook account, as attributed by the writer of the

article.

I have reviewed the arti cle. The article indicates

that I am not obligated to respond to [his] inquiry.

The article states that a Ñnote from the Office of

Equity and Inclusion and Professional Standards

added that an inquiry Ócould take some time, as the

office cannot compel anyo ne to meet or speak with

usÔ,Ò and that I Ñdid not directly reference a student

of direct [my] posts at a student in [my] posts,Ò nor

identify myself as a Duval County Public Schools

teacher in my posts. Please confirm whether the

articleÔs statement is ac curate, as I prefer to only

respond on this issue as I am obligated and as is

otherwise necessary.

For the record, I view Emily BlochÔs article as a well -

timed political hit piece, full o f inaccuracies,

targeting me for my political views on issues of

sex uality, to promote the latest version of the ÑneedÒ

for the City of Jacksonville Human Rights

Ordinance (ÑHROÒ), which was illegally passed back

in 2017, and recently struck down by a Florida court.

It is a transparent attempt to torpedo a good

teacherÔs c areer, to score political points. I hope the

Duval County Schools will not countenance this

reporterÔs efforts to manufacture an issue to promote

her political causes, especially where the public

cannot come out to oppose the latest ordinance,

because of C oronavirus.

I treat all of my students with dignity and respect,

and my classroom record speaks for itself. I will not

lie to my students. I treat all of them with honesty

and fairness.

On the other hand, I make no secrets that when I am

not acting in my official capacity as a Duval County

Schools teacher, I do engage in robust political

debate on political issues. I deny making any kind of

ÑphobicÒ remarks or posts. A ÑphobiaÒ is an irrational

fear. Holding traditional views about the biological

nature o f sex (and need for sex - based privacy in

bathrooms and lockers) is not a Ñphobia.Ò

Disagreement with the political orthodoxy of the

Left on matters of sexuality is not a Ñphobia.Ò

Sharing my belief on my personal Facebook that

there are only two genders th at correspond with

biological sex is not a Ñphobia.Ò Ms. Bloch may not

like the way I make those points, and that is fin e .

Since I have been active on Facebook, I know I have

shared various political memes on my personal

Facebook wall, or commented in resp onse to othersÔ

postings. I do not instantly recall them all. Memes

are often a good way of making pithy political

statements, with a touch of humor. Sometimes

ÑhumorÒ is in the eye of the beholder, or is funny at

the time. IÔm sure I found certain memes f unny or

punchy at the time, and I have friends who did as

well. IÔm sure others may not find them funny, or

may disagree with me, as is their right.

I have not gone back through the last yearÔs worth of

Facebook postings, and I am unable to verify some

of Ms. BlochÔs attributed quotes. I can confirm that

the account settings are now Ñprivate.Ò

I stand by a number of statements Ms. Bloch

attributes to me (or at least, I agree with the

sentiments expressed, where they may have been

posted by me or others). Others I do not.

I will also note that at least one of the specifically

quoted references in Ms. BlochÔs article was taken

out of context, and she uses that out - of - context quote

to suggest my remarks are ÑracistÒ or Ñxenophobic.Ò

IÔm neither. In fact, som e of my beautiful

grandchildren are ÑbiracialÒ (for lack of a better term

Ï there is only one Ñrace Ò Ï the human race). But even

having to make that note is offensive, and suggests

bigotry and prejudice on the part of Ms. Bloch in

leveling that charge again st me. For the record, the

ÑcoronaÒ or ÑcovidÒ food reference was a political jab

at President TrumpÔs references to the ÑCHINAÒ

virus. Nothing more, nothing less.

I trust that the Duval County Schools will continue

to respect the rights of teachers to en gage in robust

political debate on Facebook, on matters of public

concern (such as the political ÑtransgenderismÒ

movement Ï ÑExhibit AÒ of which is the novel

ÑlexiconÒ Ms. Bloch placed in her article, purporting

to tell the public which terms are acceptab le in the

debate, and which are not).

The First Amendment surrounds political speech

with the highest level of protection, whether some

people find the speech of others Ñoffensive,Ò or wish

to silence speakers with whom they disagree.

3 4 . Mr. Caggiano and his daughter, Arielle, testified that it was, and has

been, Mr. CaggianoÔs intention that his Facebook account settings be

ÑprivateÒ so that only his ÑfriendsÒ could see them, and that after the May 21,

2020, Florida Times Union article, they both chec ked and saw that it was not

set to private. Arielle then set Mr. CaggianoÔs settings back to private.

3 5 . The School Board called numerous witnesses, including students and

parents, who testified about accessing Mr. CaggianoÔs Facebook account.

None of th e student witnesses (including J.N.S.) were students of

Mr. C aggiano. Ms. Porak, a parent of students at SHS, testified that neither

of her children had Mr. Caggiano for a teacher. The various student and

teacher witnesses discussed a number of Mr. Caggian oÔs Faceook posts,

reposts, and comments, only some of which were contained in the Amended

Step III Progressive Discipline correspondence.

Impact of Mr. CaggianoÔs Facebook Posts

3 6 . After the publishing of the May 21, 2020, Florida Times Union article,

school officials, including Ms. Schultz and Dr. Hatcher, testified to receiving

numerous complaints. The undersigned received into evidence numerous

complaints from parents concerning Mr. CaggianoÔs Facebook posts, some of

which were included with Mr. John sonÔs investigative report . Some of these

parents also testified at the final hearing concerning their complaints and

feelings concerning Mr. CaggianoÔs Facebook activity. The se parents testified

that they felt Mr. CaggianoÔs Facebook posts were inappropri ate for a

teacher.

3 7 . Assistant Principal Motley testified that a total of four students (not

including J.N.S.) requested and were transferred out of Mr. CaggianoÔs

classes during the Spring 2020 semester.

3 8 . Dr. Hatcher testified that after the Duval County Public Schools

removed Mr. Caggiano from SHS, it took part of the Fall 2020/2021 semester

to hire a full - time replacement teacher. During that semester, several

substitute teachers taught what would have been Mr. CaggianoÔs math

classes before SHS hired a full time teacher.

39 . Ms. Brennan testified that Mr. CaggianoÔs Facebook posts impacted

J.N.S. negatively. Ms. Brennan did not perform a psychological assessment of

J.N.S.; the School Board requested that Ms. Brennan provide emotional

support to J.N.S. during her preparation as a witness in this matter in

March 2021 Ð more than a year after J.N.S. testified that she read

Mr. CaggianoÔs Facebook posts. Ms. Brennan testified that J.N.S. has

experienced symptoms of depression. She also testified that J .N.S. Ð

previously an A - B student her freshman year, and who had few absences her

sophomore year Ð had approximately 345 separate class absences from school

he r junior year and was retained.

Mr. CaggianoÔs Explanation

4 0 . Mr. Caggiano admitted to having authored the Facebook posts,

reposts, and comments that are contained in the Amended Step III

Progressive Discipline correspondence and detailed in paragraph 29 above.

4 1 . Mr. Caggiano testified that his daughter Arielle Ñdid everythingÒ in

settin g up his Facebook account, to ensure that his settings were private so

that only people he accepted as ÑfriendsÒ could see his posts, reposts, and

comments. He further stated that , for the approximately 10 years after

establishing his Facebook account, he believed his settings were private.

After learning in 2019/2020 that members of the public could view his

Facebook account, he again asked Arielle to ensure that it was private.

4 2 . Mr. Caggiano believes his Facebook account was Ñhacked.Ò He testified

tha t he believed it to be set to private, and after learning otherwise, ÑfixedÒ it.

Then, he found it was ÑpublicÒ again. As there was no additional testimony or

evidence concerning whether Mr. CaggianoÔs Facebook account was hacked,

the undersigned does not credit this explanation.

4 3 . Mr. Caggiano testified about the seven posts, reposts, or comments

that are the subject of the Amended Step III Progressive Discipline

correspondence and detailed in paragraph 29 above. Mr. Caggiano did not

express any regret in making any of these Facebook posts, reposts, or

comments.

4 4 . With respect to Mr. CaggianoÔs repost from a Facebook entity called

ÑMessenger of Liberty,Ò which states, in part, ÑMy son is taking part in a

social experiment[,]Ò Mr. Caggiano testified th at ÑitÔs funny. All my posts

were either political commentary, social commentary, or adult humor. And

thatÔs funny. Okay. So for somebody to look at that and not giggle at least,

you know, I donÔt think you know what funny is. ThatÔs funny.Ò

4 5 . This part icular repost states that, after his son wears a ÑBernieÒ

t - shirt, Ñ[s]o far heÔs been spit on, punched and had a bottle thrown at him.Ò

Although Mr. Caggiano testified that he believed this to be Ñfunny,Ò the

undersigned finds that it also could be logic ally read to encourage violence

against a child.

4 6 . With respect to Mr. CaggianoÔs repost from another individual, which

appears to be a Ñscreen grabÒ from a Fox News segment, which states, at the

top, ÑMAN AND WOMAN,Ò and which then states: ÑA man goes home and

masturbates his typical fantasy. A woman on her knees, a woman tied up, a

woman abused. A woman enjoys intercourse with her man Ð she fantasizes

being raped by 3 men simultaneouslyÈ[,]Ò and which attributes this quote to

Bernie Sanders, sometime in the 1970Ôs (the exhibit copy is unclear),

Mr. Caggiano testified that it was not his opinion, but that he was quoting

Bernie Sanders, and that Ñpeople should know somebody whoÔs a sitting

senator, twice presidential candidate, former mayor of New York City , has

this sort of mentality.Ò

4 7 . On cross - examination, when asked if Ñwomen, teenage girls, could be

offended by this post[,]Ò Mr. Caggiano testified, ÑI think everybody should be

offended by this.Ò The undersigned finds that despite Mr. CaggianoÔs beli ef

that his post makes an important point about Bernie Sanders, the

undersigned finds that it can be logically read to be patently offensive,

discriminatory, and degrading to women. Mr. CaggianoÔs own testimony

confirms this.

4 8 . The undersigned finds that the remaining posts, reposts, or comments,

can be fairly characterized as political memes that, depending on the

viewpoint of the reader, could be characterized as crude political

commentary, passionate advocacy, or humor. Whil e these postings, which are

generally consistent with a conservative ideology, might not originate from

more traditionally respected sources like the National Review or the opinion

page of the Wall Street Journal , they are the type of abrasive political sp eech

that one regularly finds in social media.

49 . In particular, with respect to Mr. CaggianoÔs repost of the meme

entitled Ñ Crazy but TRUE ,Ò and the article from an entity called

ÑLifesitenews.com,Ò with a headline that states, ÑTeen girls stage school

walkout to protest boys in their bathroom who claim to be ÓgirlsÔÒ; and to

which Mr. Caggiano commented, ÑLove it! About time people stood up to this

insanity[,]Ò the undersigned cannot find that th ese repost s , or Mr. CaggianoÔs

comments, are related to, o r in retaliation to, his email interaction with

J.N.S. concerning the use of pronouns, or his subsequent counselling on the

subject. Mr. Caggiano testified of his concern about men using a womenÔs

restroom which, while counter to the policy of the Duval Co unty Public

Schools, does not on its face appear to be the type of bullying, harassing, or

retaliating prohibited in applicable laws, rules, and policies.

Ultimate Findings of Fact

5 0 . Mr. Caggiano created seven posts, reposts, and comments to posts on

his personal Facebook account, which are more fully described in paragraph

29 above.

5 1 . Mr. Caggiano contends that he never intended to share these posts,

reposts, and comments publicl y, and more specifically, to the SHS

community. Mr. Cag g iano contends that his Facebook account was hacked,

which caused all of his Facebook activity to become public. The undersigned

finds that Mr. CaggianoÔs explanation is not credible, as he testified t hat he

had several SHS teachers as Ñfriends,Ò and as he did not check his Facebook

settings for approximately 10 years, before the Duval County Public Schools,

and the SHS community, became aware of the seven posts, reposts, and

comments. The undersigned f inds that Mr. Caggiano posted, reposted, and

commented on Facebook on his personal account, and shared them in a

manner that did not ensure that they remain private.

5 2 . Ultimately, Mr. CaggianoÔs Facebook posts, reposts, and comments

described in paragra ph 29 made their way into the public sphere, and

students, parents, Duval County Public Schools personnel, and the media

viewed and became aware of them.

5 3 . The undersigned finds that two of the alleg ed posts, reposts, and

comment s Ð en titled ÑMy son is ta king part in an experiment,Ò and ÑMAN

AND WOMANÒ Ð warrant further findings that include violations of statutes,

rules, and policies enunciated in the Amended Step III Progressive Discipline

correspondence. The undersigned does not make such findings with re spect to

the remaining five posts, reposts, and comments contained in the Amended

Step III Progressive discipline correspondence. Accordingly, the following

ultimate findings of fact below apply only to the two posts previously

mentioned.

5 4 . The two post s at issue concern violence and abuse of a child, as well as

discriminatory and degrading views of women being abused and raped.

Mr. Caggiano candidly admitted that the post concerning women was

offensive. The undersigned finds that these particular posts violate some of

the governing laws, rules, and policies alleged in the Amended Step III

Progressive Discipline correspondence.

5 5 . Mr. Caggiano violated rule 6A - 10.081(1)(b), because the School Board

established, by a preponderance of the evidence, that h e failed to exercise

best professional judgment and integrity. As a result, the School Board has

also established, by a preponderance of the evidence, a violation of

rule 6A - 5.056(2)(b).

5 6 . Mr. Caggiano violated rule 6A - 10.081(1)(c), because the School Board

established, by a preponderance of the evidence, that he failed to maintain

the respect and confidence of his colleagues, students, and parents, and failed

to sustain the highest degree of ethical conduct. As a result, the School Board

has also estab lished, by a preponderance of the evidence, a violation of rule

6A - 5.056(2)(b), which concerns Ñmisconduct in office.Ò

5 7 . Mr. Caggiano violated rule 6A - 10.081(2)(a)1., because the School

Board established, by a preponderance of the evidence, that he fail ed to make

reasonable effort to protect students from conditions harmful to learning

and/or to the studentsÔ mental and/or physical health and/or safety. As a

result, the School Board has also established, by a preponderance of the

evidence, a violation of rules 6A - 5.056(2)(b), which concerns Ñmisconduct in

office.Ò

5 8 . Mr. Caggiano violated rule 6A - 10.081(2)(a)5., because the School

Board established, by a preponderance of the evidence, that he intentionally

exposed students to unnecessary embarrassment o r disparagement. As a

result, the School Board has also established, by a preponderance of the

evidence, a violation of rule 6A - 5.056(2)(b), which concerns Ñmisconduct in

office.Ò

59 . Mr. Caggiano violated rule 6A - 10.081(2)(b)1., because the School

Board established, by a preponderance of the evidence, that he failed to take

reasonable precautions to distinguish between personal views and those of

any educational institution or organization with which he is affiliated. As a

result, the School Board has als o established, by a preponderance of the

evidence, a violation of rule 6A - 5.056(2)(b), which concerns Ñmisconduct in

office.Ò

6 0 . Mr. Caggiano violated rule 6A - 5.056(1), which concerns Ñimmorality,Ò

because the School Board established, by a preponderance of the evidence,

that his actions constituted immorality, which is Ñconduct that brings the

individual concerned or the education profession into public disgrace or

disrespect and impairs the individualÔs service in the community.Ò

6 1 . Mr. Caggiano viola ted Duval County School Board Policy 10.10(IV) (A) ,

because the School Board established, by a preponderance of the evidence,

that he engaged in conduct that denigrates or shows hostility or aversion

toward an individual because of his/her actual or perceiv ed identity with

regard to gender.

6 2 . The undersigned finds that the School Board did not establish,

bya preponderance of the evidence, that Mr. Caggiano violated

section 1006.147(2), which prohibits bullying and harassment.

6 3 . The undersigned finds th at the School Board did not establish,

by a preponderance of the evidence, that Mr. Caggiano violated

rule 6A - 10.081(2)(a)6. (ÑShall not intentionally violate or deny a studentÔs

legal rights.Ò) , or rule 6A - 10.081(2)(c)1. (ÑShall maintain honestly in all

professional dealings.Ò).

6 4 . The undersigned finds that the School Board did not establish other

alleged violations of Duval County School Board Policy, including bullying or

retaliation.

6 5 . The School Board established, with respect to the two af o reme ntioned

Facebook posts, that Mr. CaggianoÔs conduct constituted Ñ potential harm to

the physical and mental wellbeing of a student, or students[,] Ò and Ñbehavior

that impairs the employeeÔs effectiveness in performing her/his duties,

professionalism, and confidence in the eyes of the students and

parents/guardians[,]Ò and thus, under article V, section C, subsections 9

and 10 of the CBA, it was not r equired to follow the steps of progressive

discipline, and had just cause to reprimand (Step II) and suspend without

pay (Step III) Mr. Caggiano , and require him to complete a course in Culture

Diversity . However, because the undersigned finds that the Sch ool Board did

not establish that the remaining Facebook posts violated gov erning laws,

statutes, rules or polices, and because the undersigned further finds that the

School Board did not establish that the posts constituted bullying or

retaliation, the und ersigned finds that a reduction in the proposed discipline

is warranted.

C ONCLUSIONS OF L AW

6 6 . The Division has jurisdiction over the subject matter and the parties

to this proceeding in accordance with sections 120.569, 120.57(1), and

1012.33(6)(a)2., Florida Statutes.

6 7 . This is a disciplinary proceeding in which the Petitioner seeks to

reprimand and suspend Mr. Caggiano as a teacher with the Duval County

Public Schools , and require him to complete a course in Culture Diversity .

6 8 . The School Board is a duly constituted school board charged with the

duty to operate, control, and supervise all free public schools within the

school district of Duval County, Florida, under section 1012.22.

69 . This is a de novo proceeding designed to formulate agency ac tion, not

review agency action taken earlier and preliminarily. See DepÔt of Transp. v.

J.W.C. Co., 396 So. 2d 778, 785 (Fla. 1st DCA 1981); Capele t ti Bros., Inc. v.

DepÔt of Transp. , 362 S o. 2d 346, 348 (Fla. 1st DCA 1978); McDonald v. DepÔt

of Banking & Fin. , 346 So. 2d 569, 584 (Fla. 1st DCA 1977). Accordingly, the

undersigned is charged in this proceeding with determining anew, based on

the competent substantial evidence in the record, whether just cause exists to

reprimand, suspend, and require Mr. Cag giano to complete a course in

Culture Diversity.

7 0 . Section 1012.01(2), classifies Mr. Caggiano as Ñinstructional

personnel.Ò

7 1 . Section 1012.33(6)(a) states that, Ñ[a]ny member of the instructional

staff È may be suspended or dismissed at any time durin g the term of the

contract for just cause as provided in paragraph (1)(a).Ò

7 2 . Section 1012.33(1)(a) defines Ñjust causeÒ as including, but not limited

to,

[T]he following instances, as defined by the State

Board of Education: immorality, misconduct in

o ffice, incompetency, two consecutive annual

performance evaluation ratings of unsatisfactory

under s. 1012.34, two annual performance ratings

of unsatisfactory within a 3 - year period under

s. 1012.34, three consecutive annual performance

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 i nvolving moral

turpitude.

7 3 . Similarly, section 1012.335(5) provides:

JUST CAUSE. Ð The State Board of Education shall

adopt rules pursuant to ss. 120.536(1) and 120.54 to

define the term Ñjust caus.Ò Just cause includes, but

is not limited to:

(a) Immor ality.

(b) Misconduct in office.

(c) Incompetency.

(d) Gross insubordination.

(e) Willful neglect of duty.

(f) Being convicted or found guilty of, or entering a

plea of guilty to, regardless of adjudication of guilty,

any crime involving moral turpitude.

7 4 . Rule 6A - 5.056(1) defines immorality as Ñconduct 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 individualÔs service in the community.Ò

7 5 . Rule 6A - 5.056(2) defines misconduct in office as,

(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 Princ iples 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 studentÔs learning

environment; or

(e) Behavior that reduces th e teacherÔs ability or his

or her colleagueÔs ability to perform duties.

7 6 . The School Board seeks to reprimand, suspend, and require

Mr. Caggiano to complete a Culture Diversity course, and has the burden of

proving the allegations of the Amended Step III Progressive Discipline

correspondence by a preponderance of the evidence, as opposed to the more

stringent standard of clear and convincing evidence applicable to the loss of

a license or certification. Cropsey v. Sch. Bd. of Manatee Cty. , 19 So. 3d

3 51 (Fla. 2d DCA 2009), rev. denied, 29 So. 3d 1118 (Fla. 2010); Cisneros v.

Sch. Bd. of Miami - Dade Cty., 990 So. 2d 1179 (Fla. 3d DCA 2008).

7 7 . The preponderance of the evidence standard requires proof by Ñthe

greater weight of the evidence,Ò BlackÔs Law Dictionary 1201 (7th ed. 1999),

or evidence that Ñmore likely than notÒ tends to prove a certain proposition.

See Gross v. Lyons , 763 So. 2d 276, 28 1 n.1 (Fla. 2000).

7 8 . It is well established under Florida law that determining whether

alleged misconduct violates a statute or rule is a question of ultimate fact

to be decided by the trier - of - fact, based on the weight of the evidence.

See Holmes v. Turlington, 480 S o. 2d 150, 153 (Fla. 1st DCA 1985); McKinney

v. Castor, 667 So. 2d 387, 389 (Fla. 1 st DCA 1995). Thus, determining

whether alleged misconduct violates the law is a factual, rather than a legal,

inquiry.

79 . The allegations of fact set forth in the charging document are the facts

upon which this proceeding is predicated. Once the School Board has

delineated the offense alleged to justify reprimand, suspension, and

requirement of a Culture Diversity class, that is the only ground upon which

the discipline may be predicated. Trevisani v. DepÔt of Health , 908 So. 2d

1108, 1109 (Fla. 1st DCA 2005). See also Klein v. DepÔt of Bus. & ProfÔ l Reg. ,

625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1993); Cottrill v. DepÔt of Ins. , 685 So.

2d 1371, 1372 (Fla. 1st DCA 1996). Due process prohibits the School Board

from disciplining a teacher based on matters not specifically alleged in the

charging document. See Pilla v. Sch. Bd. of Dade Cty. , 655 So. 2d 1312,

1314 (Fla. 3d DCA 1995); Texton v. Hancock, 359 So. 2d 895, 897 n.2 (Fla. 1st

DCA 1978) ; see also Sternberg v. DepÔt of ProfÔl Reg. , Bd of Med. Examiners ,

465 So. 2d 1324, 1325 (Fla. 1st DCA 1985) (ÑFor the hearing officer and the

Board to have found Dr. Sternberg guilty of an offense with which he was not

charged was to deny him due process.Ò).

8 0 . An instructional personnelÔs guilt or innocence is a ques tion of

ultimate fact to be decided in the context of each alleged violation. McKinney ,

667 So. 2d at 389; Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA

1005).

81 . The School Board proved, by a preponderance of the evidence, that

Mr. Caggiano v iolated rule 6A - 5.056(1) and (2)(b) ; rule 6A - 10.081(1)(b), (c),

(2)(a)1., (2)(a)5., and (2)(b)1. ; and Duval County School Board Policy

10.10(IV) (A) , by establishing that:

(a) Mr. Caggiano made two posts or reposts on his Facebook account , that

are more fully described in paragraph 29 (a) and (d) above;

(b) Mr. CaggianoÔs Facebook account identified that he was an employee of

Duval County Public Schools;

(c) While Mr. Caggiano purportedly attempted to maintain his Facebook

account setting s as Ñprivate,Ò he had several Facebook ÑfriendsÒ who were

SHS teachers, and ultimately, t he public, including students, parents, other

teachers, and the local media, had access to Mr. CaggianoÔs Facebook wall,

including the two posts or reposts ;

(d) The two aforementioned Facebook posts or reposts concern violence

and abuse of a child, as well as discriminatory and degrading views of women

being abused and raped.

8 2 . Based on the above, the School Board has demonstrated, by a

preponderance of the evidenc e, just cause in this matter to reprimand,

suspend, and require Mr. Caggiano to complete a course in Culture Diversity.

8 3 . The undersigned has considered Mr. CaggianoÔs contention that his

intention was for his Facebook account to remain ÑprivateÒ so tha t only his

friends could see his posts, reposts, or comments. Florida courts have held

that generally, content posted on a social media site is neither privileged nor

protected by any right of privacy, regardless of any privacy settings that the

user may h ave established. Nucci v. Target Corp. , 162 So. 3d 146, 154 (Fla.

4th DCA 2015). The Nucci court, reviewing cases from other jurisdictions,

noted that the sharing of information with others on a social media network

Ñis the very nature and purpose of these social networking sites else they

would cease to exist.Ò Id. (quoting Romano v. Steelcase, Inc. , 30 Misc.3d 426,

907 N.Y.S.2d 650, 656 (N.Y.Sup.Ct. 2010). The undersigned rejects

Mr. CaggianoÔs contentions based on the lack of competent, substantial

evide nce in the record to support such a contention, and pursuant to Nucci .

8 4 . Although the CBA provides for progressive discipline, the School

Board has established that Mr. CaggianoÔs two posts and reposts fall within

the definition of Ñmore severe acts of misconductÒ found in the CBA and thus,

under article V, section C, subsectio ns 9 and 10 of the CBA, the School Board

has just cause to reprimand and suspend Mr. Caggiano, and to require him to

complete a course in Culture Diversity. See Costin v. Fla. A&M Univ. Bd. of

Trs. , 972 So. 2d 1084, 1086 - 87 (Fla. 5th DCA 2008) (holding whe ther

employeeÔs misconduct justified dismissal based on terms of the universityÔs

progressive discipline rule was Ñan Óultimate factÔ best left toÒ the ALJ).

However, because the School Board did not establish that the remaining

Facebook posts violated gov erning laws, statutes, rules, or policies, and

because the School Board did not establish that the posts constituted bullying

or retaliation, the undersigned recommends a reduction in the proposed

suspension to the three days.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law,

the undersigned hereby R ECOMMEND S that the School Board of Duval

County enter a final order that: (1) finds that Mr. Caggiano violated rule 6A -

5.056(1) and (2)(b) ; rule 6A - 10.081(1)(b), (c) , (2)(a)1., (2)(a)5., and (2)(b)1. ; and

Duval County School Board Policy 10.10(IV)(A) for two public Facebook posts

or reposts associated with his Facebook account; (2) finds that Mr. Caggiano

did not violate section 1006.147(2), rules 6A - 10.081(2)(a)6. or 6A -

10.081(2)(c)1., or any remaining portions of Duval County School Board

Policy 10.10(IV); (3) issues a written reprimand; (4) suspends Mr. Caggiano,

without pay, for three days; and (5) requires Mr. Caggiano to complete a

course in Culture Diversity.

D ONE A ND E NTERED this 1 5 th day of November , 2021 , in Tallahassee,

Leon County, Florida.

S

R OBERT J. T ELFER III

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 1 5 th day of November , 2021 .

C OPIES F URNISHED :

Derrel Q. Chatmon, Esquire Kelly B. Mat his, Esquire

Office of General Counsel Mathis Law Firm

City of Jacksonville 3577 Cardinal Point Drive

Suite 480 Jacksonville, Florida 32257

117 West Duval Street

Jacksonville, Florida 32202 Richard Corcoran

Commissioner of Education

Anastasios Kamoutsas, General Counsel Department of Education

D epartment of Education Turlington Building, Suite 1514

Turlington Building, Suite 1244 325 West Gaines Street

325 West Gaines Street Tallahassee, Florida 32399 - 0400

Tallahassee, Florida 32399 - 0400

Dr. Diana Greene , Superintendent

Duval County School Board

1701 Prudential Drive

Jacksonville, F lorida 32207 - 8152

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.