STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GADSDEN COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5816

)

MARY L. MARTIN, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 10-11, 1994, a formal administrative hearing was held in this case in Quincy, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael J. Glazer, Esquire

Deborah Stephens Minnis, Esquire Macfarlane Ausley Ferguson & McMullen Post Office Box 391

Tallahassee, Florida 32302

For Respondent: John D. Carlson, Esquire

Gatlin, Woods, Carlson & Cowdery 1709-D Mahan Drive

Tallahassee, Florida 32308 STATEMENT OF THE ISSUES

The issues in this case are: (1) whether the School Board of Gadsden County (the School Board) should transfer the Respondent, Mary L. Martin, a full-time elementary education teacher through the end of the 1992/1993 school year, to a position teaching adult education to clients of a local mental health services center; and (2) whether the School Board should be required to pay her attorney fees and costs.

PRELIMINARY STATEMENT

On or about July 27, 1993, the School Board transferred the Respondent to a position teaching adult education to clients of a local mental health services center, effective August 9, 1993. On or about September 13, 1993, the Martin filed a Petition for Administrative Hearing, a Motion for Administrative Hearing (which included a request for an award of attorney fees and costs), and a Motion for Appointment of Hearing Officer. On October 12, 1993, the School Board referred the matter to the Division of Administrative Hearings (DOAH) and assigned to Hearing Officer Robert T. Benton.

Before the matter was scheduled for hearing, Hearing Officer Benton was appointed a Judge of the District Court of Appeal, First District of Florida. By Notice of Hearing issued on December 21, 1993, District Hearing Officer Charles C. Adams set the case for final hearing in Quincy, Florida, on March 10 and 11, 1994. On March 2, 1994, the case was transferred to the undersigned hearing officer to conduct the final hearing and further proceedings.

At the final hearing, the School Board called twelve witnesses and had School Board Exhibits 1, 4, 6, 10 through 15, and 17 admitted in evidence. At the hearing, ruling was reserved on the Respondent's objection to School Board Exhibit 16. Consideration having been given to the parties' additional written arguments, the objection is overruled, and School Board Exhibit 16 is received in evidence. Subject to the School Board's unopposed request to present the testimony of one additional witness, who was unavailable on the dates set for hearing, during a later phase of the hearing to be scheduled, the School Board rested.

The Respondent called seven witnesses and also testified in her own behalf.

Martin also had Respondent's Exhibits 1 through 6 admitted in evidence.

After the Respondent's presentation, the School Board recalled one of its witnesses in rebuttal.

At the conclusion of the rebuttal testimony, scheduling of post-hearing recommended orders was deferred since the phase of the case for presentation of the testimony of the School Board's additional witness still remained.

By agreement the final phase of the case was scheduled for April 5, 1994, but the School Board decided not to present the testimony of its additional witness and filed a Notice of Cancellation of Continuance of Final Hearing and Request for Post-Hearing Filing Deadlines. In it, the School Board indicated that a transcript of the final hearing was being prepared and requested, on behalf of both parties, 20 days from the filing of the transcript of the final hearing in which to file proposed recommended orders.

The transcript of the final hearing was filed on May 2, 1994, making proposed recommended orders due on May 23, 1994. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 93-5816.

FINDINGS OF FACT

1. The Respondent, Mary L. Martin, has been a Gadsden County school teacher with a continuing contract of employment since August 18, 1967. For almost all of her teaching career, the Respondent has been a full-time elementary school teacher. During a number of her years teaching, the Respondent also taught some evening adult education courses, but she has not done so since the 1983/1984 school year.

   
   

2. Numbered paragraph 4 of the Respondent's Continuing Contract of Employment with the School Board provides in pertinent part:

   The County Board may, upon recommendation of the County Superintendent, transfer and assign the Teacher to a similar position in any other school of the county, provided that the duties shall be similar to the duties originally assigned and the salary shall be in accordance with the salary schedule.

3. Gadsden County School Board Rule 4.113, provides in pertinent part:

   
   

   TRANSFERS.--The assignment of an employee shall be the responsibility of the Board upon recommendations of the Superintendent. Employees who desire a change in assignment involving a transfer to another school or position shall file a written statement of such desire . . ..

   * * *

   (2) In order to meet the staffing needs of the district, it is occasionally

   necessary to transfer an employee involuntarily. Such transfer shall be effective after consultation with and notice to the employee involved.

   
   

4. Article VII, Section C., of the Collective Bargaining between the School Board and the Gadsden County Classroom Teachers Association in effect from 1992 through 1995, governing Transfer and Reassignment, provides in pertinent part:

   
   

   The Board and the GCCTA recognize that the transfer of employees shall be the responsibility of the Board upon recommendation of the Superintendent. Any teacher who desires a change in grade and/or subject assignment in the following year or who desires to transfer to another school in the following year shall file . . . a written request to that effect . . ..

   * * *

   In making transfers, the Board will first review requests of volunteers. . . ..

   
   

5. During the 1991/1992 and 1992/1993 school years, the Respondent was teaching third grade at the Stewart Street Elementary School in Quincy. During those years, the Respondent suffered from a certain amount of stress, and she made her complaints of stress known to her principal, Douglas Black, as well as to some of her coworkers and, during the spring of 1992, to Harold Henderson, who was a member of the School Board at the time, but who also was running for election as School Superintendent.

   
   

6. Henderson won the election and became the Gadsden County School Superintendent. From approximately the time that Harold Henderson became School Superintendent, Douglas Black began asking him to transfer the Respondent to another school in order to resolve certain difficulties he was having at the school that involved the Respondent.

   
   

7. One less than satisfactory aspect of the Respondent's performance as an elementary school classroom teacher in recent years was that she frequently was tardy. Out of 196 work days in the school year, the Respondent was tardy 64 days in 1990/1991, 60 days in 1991/1992, and 105 days in 1992/1993. Since she had the key to her classroom, children in her class would have to wait in the hall for her to arrive, and other teachers would have to leave their classrooms unattended to either monitor the children in the hallway or to get a master key to let the children into the Respondent's classroom. The tardiness of course

   came to Black's attention, and conflicts developed between the Respondent and Black when Black tried to enforce his policies against tardiness. (These conflicts certainly also contributed to the Respondent's stress.)

   
   

8. The Superintendent denied Black's initial requests that the Respondent be transferred, but major new problems developed during one lunch period in February, 1993, when a fellow teacher, Juanita Austin, attempted to prevent children from the Respondent's class from cutting in front of Austin's class in the lunch line. Accusations of misconduct flew between the Respondent and Austin, and at least the children from the Respondent's class became embroiled in the controversy. Unable to resolve the problem between the two teachers any other way, Black was reduced to having change the lunch schedules of the two teacher's classes. But, when he instructed Austin to take her class to lunch earlier than the Respondent's, the Respondent accused Black of favoritism. The principal thought that he was doing the best he could to deal with the problems the two teachers were having and felt that the Respondent was being obstinate and difficult in opposing his proposed solution to the problem. As a result of the lunchroom dispute and its aftermath, all three became embroiled in ongoing disputes and arguments that were disruptive and that detracted from their performance of their assigned work. In addition, the Respondent began to accuse Black of other misconduct, including the alleged use of vulgar language. 1/

   The situation was brought to the attention of the Superintendent and his staff.

   
   

9. By the end of the 1992/1993 school year, Superintendent Henderson decided that it would be best for all concerned if he transferred the Respondent out of Stewart Street Elementary. He approached Black and confirmed that Black still was interested in having the Respondent transferred. He had Black put the request in writing. Black put his request for the transfer in writing on June 3, 1993. The next day, Superintendent Henderson formally granted the request in writing and initiated the mechanics of a lateral transfer at the same salary as for her previous position as elementary school teacher.

   
   

10. The first step the Superintendent's staff had to take to implement the transfer was to locate a position to which to transfer the Respondent. The staff was able to identify an opening in its Adult Education Program for a teacher to provide education services at the adult mental health services center operated by Apalachee Community Human Services at a facility near the Gadsden Memorial Hospital. There was no evidence of any other teachers volunteering to transfer to this position, and no special certifications were required for the position so that the Respondent's certifications for the position fully qualified her for the job. (As noted, she had taught in the School Board's adult education program in the past.) When the opening was brought to the Superintendent's attention, he approved it.

    
    

11. The new position would entail only two or three hours of actual classroom teaching a day, and class size would average only approximately 15 students per class, instead of approximately 30 elementary school children in each of the Respondent's elementary school classes. The Superintendent felt those differences between the two positions would help reduce the Respondent's job stress.

    
    

12. In addition, in the new position, the Respondent would work much more independently than as an elementary school teacher. No School Board supervisors or administrators are housed at the adult mental health services center, and the Respondent would not be monitored very closely. Since, during the course of a normal work day, the Respondent would encounter no School Board personnel other

    than possible the two part-time teachers, the Superintendent felt that the new position would help minimize the personality conflicts the Respondent was encountering at Stewart Street Elementary.

    
    

13. Finally, if the Respondent is tardy for class in the new position, it would not cause the same kinds of discipline and administrative problems as it did at Stewart Street Elementary. The School Board would not even monitor the Respondent for attendance and timeliness at the adult mental health services center, which the Superintendent felt also would serve to reduce the Respondent's job stress.

    
    

14. The preliminary steps having been taken, the Superintendent made the transfer official by including it in a July 20, 1993, list of recommended transfers to be presented to the School Board for consideration at its July 27, 1993, meeting. Meanwhile, the Assistant Superintendent, Corbin Scott, telephoned the Respondent and informed her the next day that the transfer had been recommended. The Respondent objected to the transfer.

    
    

15. The transfer was considered at the July 27, 1993, meeting of the School Board. The Respondent appeared at the meeting and spoke in opposition to the transfer. Over the Respondent's objection, the School Board voted to transfer the Respondent, as recommended by the Superintendent, effective August 9, 1993.

    
    

16. The Respondent's salary in the new position is the same as for her previous position as elementary school teacher.

    
    

17. At her new position, the Respondent's "students" actually are clients of the mental health services center. Most suffer from a mental or emotional condition that debilitates them in some way and makes it difficult for them to achieve academically; some also suffer from drug or alcohol dependence. Based on the evidence, there does not seem to be much semblance of continuity in the course of instruction the Respondent is able to give. There does not necessarily seem to be any educational logic or continuity to when they begin the mental health center's education program or when they discontinue it (sometimes when they destabilize mentally and have to be institutionalized.) When students are "enrolled," neither the Respondent nor the Gadsden County School Board seems to have any control over whether the "students" attend the classes offered to them; control over is left to the mental health services center. Nor does the Respondent have any real control over her "students" while they are in class with her. While "class" is in session, the "students" are free to do as they choose. They can pay attention or ignore the Respondent, sit down or stand up, and come or go as they choose. The Respondent is instructed not to attempt to discipline the "students" for not attending to and participating in class, or to attempt to require them to attend to or participate in class, primarily because there is the risk that the Respondent's actions could cause them to destabilize while they are in class with the Respondent.

    
    

18. The Respondent's new position as a teacher at the adult mental health services center certainly is not identical to her former position as an elementary school teacher. In some ways, the positions are similar, but there also are significant differences between the two positions. Whether the two positions are "similar" for purposes of this case is a mixed question of both fact and law.

19. There was no direct testimony or evidence on the question whether the Respondent's new position as a teacher at the adult mental health services center has the same "professional prestige" as the position of elementary school teacher. The answer to the question has to be inferred from evidence as to the nature of the two positions. It is found that, as compared to the elementary school teaching position the Respondent had, the adult education teaching position to which the Respondent was transferred does not have "similar professional prestige."

    
    

    CONCLUSIONS OF LAW

    
    

20. Section 230.33(7)(d), Fla. Stat. (1993), authorizes the superintendent of a school district to recommend employees for transfer. The School Board is authorized by Section 230.23(5)(e), Fla. Stat. (1993), to act upon the recommendation of the superintendent regarding transfer. But the courts have held:

    
    

    . . . [T]he public policy of Florida clearly recognizes the property rights of continuing contract teachers and there is no intent that school officials be given unbridled

    discretion to deal with such teachers. . . .

    [C]ontinuing contract teachers are afforded certain safeguards by law and the administrative rules promulgated by the State Board of Education. Collective bargaining agreements may operate within the penumbra of those statutes and rules.

    
    

    School Board of Seminole County v. Morgan, 582 So. 2d 787, 788-789 (Fla. 5th DCA 1991)(footnotes omitted).

    
    

21. Section 231.36(4)(a), Fla. Stat. (1983), provides in pertinent part:

    
    

    An employee who has continuing contract status prior to July 1, 1984, shall be entitled to retain such contract and all rights arising therefrom in accordance with existing laws, rules of the State Board of Education, or any laws repealed by this act, unless the

    employee voluntarily relinquishes his continuing contract.

    
    

    Section 231.36(4)(a), Fla. Stat. (1993), is identical to the 1983 version of the statute, which has remained unchanged since the 1983 codification.

    
    

    Impropriety of the Transfer

    
    

22. Section 231.361(3)(e), Fla. Stat. (1981), which was in effect up to the time of the 1983 codification, provided in pertinent part:

    
    

    Each person to whom a continuing contract has been issued as provided herein shall be entitled to continue in his position or in a similar position in the district at the salary schedule authorized by the school board without the necessity for annual nomination

    or reappointment until such time as the position is discontinued, the person resigns, or his contractual status is changed as prescribed below.

    
    

    (Emphasis added.)

    
    

23. In interpreting the term "similar position," as used in Section 231.361(3)(e), Fla. Stat. (1981), the courts have made clear that "similar" does not mean "identical." In Osburn v. School Board of Okaloosa County, 451 So. 2d 980, 981-982 (Fla. 1st DCA 1984), it was held that the position of kindergarten principal, while certainly not identical to, was similar to the position of junior high school assistant principal. In Berkner v. School Board of Orange County, 373 So. 2d 54, 55 (Fla. 4th DCA 1979), a hearing officer's finding that the position of elementary school principal, while not identical to, was similar to the position of school program coordinator.

    
    

24. As found, the Respondent's new position as a teacher at the adult mental health services center certainly is not identical to her former position as an elementary school teacher. In some ways, the positions are similar, but there also are significant differences between the two positions. Based on the findings in this case, it is concluded that the position to which the Respondent was transferred was not "similar to" her prior position as elementary school teacher, as the term is used in Section 231.361(3)(e), Fla. Stat. (1981).

    
    

25. As found, numbered paragraph 4 of the Respondent's Continuing Contract of Employment with the School Board also provides in pertinent part:

    
    

    The County Board may, upon recommendation of the County Superintendent, transfer and assign the Teacher to a similar position in any other school of the county, provided that the duties shall be similar to the duties originally assigned and the salary shall be in accordance with the salary schedule.

    
    

    (Emphasis added.)

    
    

26. Again, based on the findings, it is concluded that the Respondent's current position as an adult education teacher is not "similar" to her former position as an elementary school teacher; it also is concluded that the adult education program at the mental health clinic attached to the Gadsden County Memorial Hospital is not a "school of the county."

    
    

27. F.A.C. Rule 6B-4.005, Criteria for Professional Practices in the Transfer of Instructional Personnel, provides in pertinent part:

    
    

    1. Recommendations for the transfer of a member of the instructional staff . . . should be for the good of the school system with appropriate consideration given to the rights and wishes of the individual being transferred. . . ..

    2. Recommended transfers should meet the following criteria:

       * * *

       (c) The position should have similar professional prestige.

       
       

       (Emphasis added.)

       
       

28. Clearly, this is an involuntary transfer against the Respondent's wishes. F.A.C. Rule 6B-4.005(1) does not prohibit all involuntary transfers against a teacher's wishes. It only requires that "appropriate consideration" be given to the teacher's rights and wishes. Based on the facts found, it is concluded that "appropriate consideration was given to" the Respondent's "wishes." But, as described in subsequent conclusions of law, "appropriate consideration" was not given to the Respondent's "rights."

    
    

29. Consideration of the Respondent's rights under F.A.C. Rule 6B- 4.005(2)(c) raises the question whether the adult education teaching position to which the Respondent was transferred has "similar professional prestige," as compared to the elementary school teaching position the Respondent had previously. Focusing, as it does, on "professional prestige," it is not quite the same question as the questions under Section 231.361(3)(e), Fla. Stat. (1981), and under numbered paragraph 4 of the Respondent's Continuing Contract of Employment, whether the two "positions" are similar. Compare Osburn v. School Board of Okaloosa County, 451 So. 2d 980, 981-982 (Fla. 1st DCA 1984)(position kindergarten principal is similar to position of junior high school assistant principal); and Berkner v. School Board of Orange County, 373 So. 2d 54, 55 (Fla. 4th DCA 1979)(position elementary school principal is similar to position of school program coordinator).

    
    

30. Since it was found that, as compared to the elementary school teaching position the Respondent had, the adult education teaching position to which the Respondent was transferred does not have "similar professional prestige," it must be concluded that the Respondent's transfer does not meet the requirements of F.A.C. Rule 6B-4.005(2)(c).

    
    

    Other Requirements for Transfers

    
    

31. F.A.C. Rule 6B-4.005 also provides in pertinent part:

    
    

    1. Recommendations for the transfer of a member of the instructional staff shall be based on professional reasons and should be for the good of the school system . . ..

       Except in the case of emergency, instructional personnel should be given thirty (30) calendar days notice of the proposed transfer.

    2. Recommended transfers should meet the following criteria:

       1. The salary of the individual should not be reduced.

       2. The person should be certificated in the area in which he or she is transferred.

          * * *

          (d) The requests for voluntary transfers should be considered before involuntary transfers are implemented.

    3. Recommendations for transfer should not be used as a means of continuing in service an incompetent person, nor shall transfer be used as punitive measure.

       
       

32. In this case, the Respondent had only about 21 days notice of her transfer. F.A.C. Rule 6B-4.005(1) provides that 30 days notice should be given. While the rule does not provide that 30 days notice must be given, it is concluded the 30 days notice provision is not entirely "discretionary."

    Contrast University of South Florida v. Tucker, 374 So. 2d 16 (Fla. 2d DCA 1979)(use of the word "should" in a similar administrative rule indicates "discretionary" rather than "mandatory" action). But the 30 day notice provision is a procedural rule, and it is concluded that failure to give the full 30 days notice, in itself, is not grounds for reversal of a transfer that is otherwise proper. The Respondent had enough notice to enable her to appear before the School Board to argue against her transfer. The Respondent made no showing that the School Board's failure to give her the full 30 days notice impaired, in any material way, her ability to oppose the transfer. Procedural error that is not material, or that does not impair the fairness of a proceeding or the correctness of action taken, should not be grounds for reversal of otherwise proper action. See Section 120.68(8), Fla. Stat. (1993).

    
    

33. Based on the facts found, it is concluded that the Respondent's transfer was "based on professional reasons" and was "for the good of the school system," in compliance with F.A.C. Rule 6B-4.005(1).

    
    

34. The evidence is clear that the Respondent's salary was not reduced. The transfer complies with F.A.C. Rule 6B-4.005(2)(a).

    
    

35. It is concluded that F.A.C. Rule 6B-4.005(2)(b) does not necessarily require that the teacher be transferred to a position for which the teacher has a specialized certification. Rather, the rule requires that, if a particular certification is required for the position to which the teacher is being transferred, the teacher must have the required certification. Cf. Greene v. School Board of Hamilton County, 501 So. 2d 50, 52 (Fla. 1st DCA 1987). This requirement is both for the protection of the teacher, who should not be required to fill a position for which the teacher is not qualified, and for the protection of the public and for the public school children and their parents, who should not be required to suffer teachers who are not qualified for the jobs they hold.

    
    

36. The evidence in this case is that there is no special certification necessary for teaching adult education. The certifications held by the Respondent fully qualify her for teaching adult education, and the requirements of F.A.C. Rule 6B-4.005(2)(b) were met.

    
    

37. There was no evidence of any requests for voluntary transfer to the adult education teaching position to which the Respondent was transferred involuntarily. Therefore, the requirement of F.A.C. Rule 6B-4.005(2)(d) that consideration first be given to requests for voluntary transfer was not applicable.

38. As for F.A.C. Rule 6B-4.005(3), it was found, and must be concluded, that the Respondent's transfer was not "used as punitive measure." Rather, the evidence was that the transfer was the Superintendent's good faith attempt to resolve both disruptive personality conflicts between the Respondent, on the one hand, and both her school principal and a fellow teacher, on the other hand, as well as the job stress of which the Respondent had complained often.

    
    

39. Similarly, it is concluded that there was no violation of the pertinent parts of either Gadsden County School Board Rule 4.113, governing Transfers, or of Article VII, Section C., of the Collective Bargaining between the School Board and the Gadsden County Classroom Teachers Association in effect from 1992 through 1995, governing Transfer and Reassignment.

    
    

    Attorney Fees and Costs

    
    

40. There is no contractual agreement for, or statutory authority for, an award of attorney fees and costs in this proceeding. Absent either a contractual agreement or specific statutory authority, no attorney fees or costs can be awarded in this case. Cf. Medina v. Medina, 461 So. 2d 1028 (Fla. 5th DCA 1985); Shriner v. Dyer, 462 So. 2d 1122 (Fla. 4th DCA 1984).

    
    

41. The Respondent claims entitlement to an award of attorney fees and costs under Section 57.105(1), Fla. Stat. (1993). But that statute applies to court proceedings, not to administrative proceedings under Chapter 120, Fla. Stat. (1993). In addition, for an award to be made under that statute, the claimant must show the "complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party." The Respondent cannot make such a showing in this case.

    
    

42. The Respondent also claims entitlement to an award of attorney fees and costs under Section 447.17, Fla. Stat. (1993). But that statute also applies to court proceedings, not to administrative proceedings under Chapter 120, Fla. Stat. (1993). In addition, it authorizes awards where an employee is denied employment or is discriminated against in employment "on account of membership or nonmembership in any labor union or labor organization." There was no evidence that the Respondent was discriminated against on account of her membership in a labor union or organization.

    
    

43. As the School Board points out in its proposed recommended order, if the Respondent were to claim entitlement to an award of attorney fees and costs under Section 447.08, Fla. Stat. (1993), that statute also applies to court proceedings (specifically, court proceedings for unpaid wages), not to administrative proceedings under Chapter 120, Fla. Stat. (1993). See Werthman

v. School Board of Seminole County, 599 So. 2d 220 (Fla. 5th DCA 1992). In addition, it only applies when unpaid wages are recovered. Compare Werthman v. School Board of Seminole County, supra, with Greene v. School Board of Hamilton County, 501 So. 2d 50 (Fla. 1st DCA 1987)(where it was held that Greene was transferred to a position at a reduced salary). In this case, the Respondent's transfer was lateral, and her salary remained the same.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Gadsden County enter a final order: (1) either reinstating the Respondent, Mary L. Martin, to her former position as elementary school teacher at Stewart Street Elementary School or transferring her to a similar position at the same salary; but (2) denying her claim for the award of attorney fees and costs.

RECOMMENDED this 28th day of June, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1994.

ENDNOTES

1/ One of the Respondent's allegations of misconduct by Black was that he misused his office as principal to pressure teachers, including the Respondent, to buy meats and vegetables from Black's farm. Those allegations are found to be untrue.

The Respondent also later accused Black of sexual harassment but neither the Respondent nor Black brought those allegations against Black to the attention of the Superintendent or his staff prior to the transfer. At the hearing, Black denied using vulgar language or harassing the Respondent sexually but counter-accused the Respondent of engaging in such improper conduct. It is not necessary, in this proceeding, to resolve the dispute between them as to who was guilty of such misconduct.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5816

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-5. Accepted and incorporated to the extent not subordinate or unnecessary.

6.-7. Conclusions of law.

8.-9. Accepted and incorporated to the extent not subordinate or unnecessary.

1. First sentence, in part rejected as contrary to facts found and to the greater weight of the evidence and in part as conclusion of law. The rest is accepted and incorporated.

2. Conclusion of law.

3. Accepted but not necessary.

4. Accepted and incorporated.

5. Second sentence through the end, rejected as contrary to facts found and to the greater weight of the evidence in that the conversation was in spring 1993, not spring 1992. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

15.-17. Accepted but subordinate and unnecessary.

1. Subordinate and argument.

2. Accepted and subordinate to facts found.

3. Accepted and incorporated.

4. Rejected, as to times other than when she was tardy, as not proven by the evidence that this occurred "frequently."

5. Accepted and incorporated to the extent not subordinate or unnecessary.

6. Rejected as not proven that she was "hostile and belligerent." Accepted that she and Black had loud arguments during which she was heard to curse Black. Incorporated to the extent not subordinate or unnecessary.

24.-26. Accepted. Subordinate to facts found.

27. Rejected, as contrary to the greater weight of the evidence, that Henderson understood that Martin did not want to be at Stewart Street Elementary. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

28.-34. Accepted and incorporated to the extent not subordinate or unnecessary.

35.-37. Accepted but subordinate and unnecessary.

1. Accepted and incorporated to the extent not conclusion of law.

2. In part, conclusion of law; to the extent not, rejected as contrary to facts found.

3. In part, conclusion of law; to the extent not, rejected as contrary to facts found that the positions were "similar" or that "appropriate consideration" was given to the Respondent's "rights." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

4. Conclusion of law.

5. In part, conclusion of law; to the extent not, accepted and incorporated to the extent not subordinate or unnecessary.

6. Accepted but subordinate and unnecessary.

7. First sentence, in part conclusion of law; to the extent not, rejected as contrary to facts found. Second sentence, accepted and incorporated.

45-61. Generally accepted, but largely subordinate and unnecessary.

62. Second sentence, rejected as being argument; however, accepted that Martin did not prove sexual harassment charges. First sentence, accepted but subordinate and unnecessary.

63.-68. Generally accepted, but largely subordinate and unnecessary.

Respondent's Proposed Findings of Fact.

1.-7. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as contrary to facts found that the decision was based solely on Black's requests. Otherwise, accepted and incorporated.

2. Accepted and incorporated to the extent not subordinate or unnecessary.

3. Rejected as contrary to the greater weight of the evidence that Black "assured them." He told them that he was not going to transfer Martin, as a way to avoid answering the true import of her question. Otherwise, subordinate but subordinate and unnecessary.

11.-12. Accepted but subordinate to facts contrary to those found (i.e., that Martin had conflicts with Black and coworkers), and unnecessary.

1. Largely, subordinate to facts not proven or contrary to those found.

2. Last sentence, rejected as contrary to the greater weight of the evidence. The rest is accepted but subordinate and unnecessary.

15.-16. Accepted and incorporated.

17.-18. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Last sentence, rejected as contrary to the evidence. The rest is accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted but subordinate and unnecessary.

COPIES FURNISHED:

Michael J. Glazer, Esquire Deborah Stephens Minnis, Esquire

Macfarlane Ausley Ferguson & McMullen Post Office Box 391

Tallahassee, Florida 32302

John D. Carlson, Esquire

Gatlin, Woods, Carlson & Cowdery 1709-D Mahan Drive

Tallahassee, Florida 32308

Harold Henderson, Superintendent Gadsden County School District Post Office Box 1499

Quincy, Florida 32351

Honorable Douglas L. "Tim" Jamerson Commissioner of Education

The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the School Board of Gadsden County written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the School Board of Gadsden County concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 93-005816

Orders for Case No: 93-005816