STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on September 2, 2009, in Bartow, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831-0030

For Respondents: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUES

The issue in this case is when the 97-day probationary employment period began to run for each of the Respondents, and whether their employment could be terminated without just cause.

PRELIMINARY STATEMENT

Petitioner, School Board of Polk County (the "Board"), issued a Memorandum to Respondent, Diane O'Brien, on

November 21, 2008, and a Memorandum to Respondent, Marcee Gunn, on November 14, 2008. The memoranda recommended the dismissal of O'Brien and Gunn "during their 97-day probationary period." Both O'Brien and Gunn requested a formal administrative hearing to contest the action taken by the Board. The matters were forwarded to the Division of Administrative Hearings ("DOAH") and consolidated for purposes of conducting a formal administrative proceeding. The undersigned Administrative Law Judge was assigned to the case.

At the final hearing, held at the place and date set forth above, Petitioner called three witnesses: Donna Wingard, director of teacher certification and endorsement for the Board; April Sumner, principal at Stephens Elementary School; and Sue Braiman, principal at Haines City High School. Petitioner offered 13 exhibits into evidence, each of which was received into evidence.

Respondents each testified on their own behalf, but did not call any additional witnesses. Respondents did not offer any exhibits into evidence. A single joint exhibit was offered by all parties and was accepted.

The parties advised the undersigned that a transcript of the final hearing would be ordered. They were given ten days from the date the transcript was filed at DOAH to submit proposed recommended orders. The Transcript was filed on September 14, 2009. Petitioner filed its Proposed Recommended Order on October 1, 2009. Respondent filed its Proposed Recommended Order on October 2, 2009. Each party's Proposed Findings of Fact and Conclusions of Law were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the School Board of Polk County, the entity responsible for operating, monitoring, staffing, and maintaining the public schools of Polk County. The Board hired both Respondents, Diane O'Brien and Marcee Gunn, to fill positions within the Polk County School System.

2. Prior to the 2003-2004 school year, Federal requirements under the "No Child Left Behind" ("NCLB") program mandated that by the end of the 2005-2006 school year, all teachers in core academic areas must be "highly qualified" as defined by Federal guidelines. The guidelines state that a

   teacher must possess a combination of both appropriate certification and documentation of subject area knowledge. The determination of whether a teacher had the requisite knowledge was done by way of a battery of tests in the subject areas.

3. At the time the NCLB program was instituted, Polk County was experiencing a high level of growth and was hiring approximately 1,200 new teachers each year. The shortage of teachers who had obtained the highly qualified status resulted in the Board hiring a class of teachers who were not highly qualified, but under certain restrictions. These teachers were deemed D-1 provisional substitute teachers. The D-1 teachers were hired with the intention of allowing them to be employed as substitutes, pending their passage of the subject area tests.

4. D-1 teachers were first hired by the Board to fill positions in the 2002-2004 school year. D-1 teachers were paid a daily rate of pay and received insurance and retirement benefits. If the teacher ultimately became highly qualified, they were to be given seniority consideration retroactive to the date of their hire.1

5. As substitutes, D-1 teachers were "at will" employees and were not contract employees. Their employment could be terminated with or without cause at any time. All D-1 positions were terminated at the end of the school year for which they were hired. If a teacher had not obtained highly qualified

   status, they could be hired as a D-1 teacher for the next school year. The D-1 program was eliminated, in whole, at the end of the 2007-2008 school year.

   Diane O'Brien

   
   

6. Respondent, Diane O'Brien, worked as a para-educator for 15 years before earning a degree in special education from Nova Southeastern University in 2006.

7. O'Brien was hired by the Board to be a D-1 substitute teacher for handicapped students at Haines City High School for the 2007-2008 school year. At the time of her hire, O'Brien signed a Conditional Employment Agreement that refers to her as "Teacher." The agreement does, however, set forth certain requirements for becoming a regular teacher.

8. O'Brien was assigned a full-time para-educator to assist her and was given a classroom for purposes of fulfilling her position. At all times during the school year, O'Brien acted as and considered herself to be the official teacher for the class. O'Brien was evaluated during the school year by the principal and the assistant principal. O'Brien attended the IEP meetings and was responsible for writing IEPs for her students. O'Brien was never referred to by staff or other teachers as a "substitute" teacher during that school year.

9. Nonetheless, O'Brien signed a document entitled, "Guidelines for Provisional Substitute Teachers 2007-2008 School

   Year" when she was hired. The document clearly indicates the requirements for a regular teacher and states that until such requirements are met, the teacher is considered a provisional

   D-1 substitute. O'Brien does not specifically remember signing this particular document; she said she signed many documents when hired, and none of them were explained to her. O'Brien did not meet the requirements to be a regular teacher at that time.

10. During the 2007-2008 school year, O'Brien was paid as a D-1 substitute teacher, i.e., $115 per day, plus benefits. As early as August 2007 (the month classes began), O'Brien contacted a Ms. Capoziello requesting that her salary be changed to full-time teacher salary. She was advised that she had not yet met the requirements for a full-time teacher, because she had not yet met the "Certified, Qualified and Highly Qualified" requirements set forth in the Guidelines for Provisional Substitute Teachers. In December 2007, O'Brien indicated in an email that she was working hard to pass the necessary tests, but had not yet done so.

11. In January 2008, O'Brien contacted the human resource officer to inquire as to when her status would change. In response, she received the following explanation:

    Please refer to the individualized Guidelines for Provisional Substitute Teachers 2007-2008 School Year that you signed on August 8, 2007. During New Educator Orientation, you were provided with

    the requirements necessary to attain "highly qualified" status for your ESE assignment.

    You are fully certified in ESE, but according to federal legislation, you are not considered "highly qualified" as defined in the law, because you have not "demonstrated subject matter competence" to teach ESE academic subjects.

    
    

    [F]or your current assignment, you need to pass the Elementary Education K-6 subject area exam to be deemed "highly qualified." After you have completed this requirement that was provided to you on August 8, 2007, then you will be eligible to transfer to

    B1 status as a regular teacher. (Emphasis in original.)

    
    

12. After the end of the 2007-2008 school year, O'Brien passed the subject area exam necessary to achieve "highly qualified" status. She was then hired in the 2008-2009 school year as a regular teacher by the Board. O'Brien commenced work under her first annual contract with the Board as a regular teacher on or about August 11, 2008.

13. On November 11, 2008, a memorandum was issued to O'Brien by the Board entitled, "Dismissal of Instructional Employee During 97-Day Probationary Period." O'Brien signed the memorandum, acknowledging receipt. The memorandum identifies O'Brien as "an initial annual contract teacher." The effect of the memorandum was termination of O'Brien's employment by the Board.

14. O'Brien maintains that her period of teaching during the 2007-2008 school year was as a regular teacher. If that is

    the case, then she could not be terminated within the 97-day probationary period without the establishment of just cause.

    Marcee Gunn

    
    

15. Respondent, Marcee Gunn, received her education at the University of Missouri at St. Louis. Gunn received her Florida teaching certification and was, in August of 2007, a certified teacher.

16. Gunn was hired by the Board as a pilot D-1 substitute teacher for the 2007-2008 school year. A pilot substitute teacher fills in for absent teachers at one particular school, rather than going to various schools.

17. In February 2008, Gunn was transferred from a pilot substitute to a permanent position as a kindergarten teacher at the School. The previous teacher had moved to another position, and Gunn was asked to fill the position through the end of the current school year. The permanent position was also classified as D-1 substitute, because Gunn had not yet become highly qualified.

18. Gunn acted as, and considered herself to be, the full-time kindergarten teacher. She organized the classroom, prepared all student assignments, issued a monthly newsletter, and attended IEP meetings. Gunn was evaluated in her position by the principal and assistant principal.

19. While Gunn was a pilot D-1 substitute, she received pay of $115 per day, plus benefits. At the time she became the permanent kindergarten teacher she received the same pay, but believed she would be receiving regular teacher pay. However, upon taking the kindergarten teacher position, Gunn signed a document entitled, "Guidelines for Provisional Substitute Teachers 2007-2008 School Year." The document clearly indicates that Gunn was being hired as a D-1 substitute and sets forth the requirements for becoming a regular teacher, i.e., passing a test in the subject area to be taught.

20. Gunn also acknowledges signing the document, but does not have any specific recollection of having seen it. She did know that the document required her to pass the K-12 subject area exam in order to be reclassified as a regular teacher. Gunn's position was terminated at the end of the 2007-2008 school year.

21. Gunn was re-hired by the Board for the 2008-2009 school year as a regular teacher for the same kindergarten class. (The evidence is not clear whether Gunn was hired in 2008-2009 as a D-1 substitute or a highly qualified teacher. The fact is not relevant, however, because even if she was a regular teacher, she would have been in her first year of an annual contract.)

22. On November 14, 2008, a memorandum was issued to Gunn by the Board entitled, "Dismissal of Instructional Employee During 97-Day Probationary Period." Gunn signed the memorandum, acknowledging receipt. The memorandum identifies Gunn as "an initial annual contract teacher." The effect of the memorandum was termination of Gunn's employment by the Board.

23. Gunn maintains that her period of teaching during the 2007-2008 school year (or at least a part of it) was as a regular teacher. If that is the case, then she could not be terminated within the 97-day probationary period without the establishment of just cause.

24. There is no dispute by Respondents that the dismissal memoranda were issued within 97 days of their commencement of work during the 2008-2009 school year. Rather, each Respondent contends that their full-time, contracted employment with the Board commenced earlier than the 2008-2009 school year.

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to a contract with the Polk County School Board. The proceedings are governed by Sections 120.57 and 120.569, Florida Statutes (2009).

26. The burden of proof in this proceeding is on Petitioner to prove, by a preponderance of evidence, that

    dismissal of Respondent is warranted under the facts. See Sublett v. Sumpter County School Board, 747 So. 2d 1176 (Fla. 5th DCA 1995); McNeil v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1976).

27. The Superintendent of Schools for Polk County, Florida, has the authority to recommend to the School Board that an employee be dismissed from employment during their first

    97 days of employment without establishing the existence of just cause. Subsection 1012.33(3)(a)4., Florida Statutes (2008),2 states as follows:

    For any person newly employed as a member of the instructional staff after July 30, 1997, the initial annual contract shall include a ninety-seven day probationary period during which time the employee's contract may be terminated without cause or the employee may resign without breach of contract.

    
    

28. Substitute teachers are not considered "teachers" for purposes of relations between the Board and the collective bargaining agent for teachers, see Teacher Collective Bargaining Agreement, 2005-2007, nor has the Polk Education Association recognized substitute teachers as part of the bargaining agreement.

29. It is clear from the evidence that neither O'Brien, nor Gunn had an annual contract with the Board prior to commencement of the 2008-2009 school year. Therefore, neither Respondent was eligible for consideration of a 97-day

    probationary period until such time as their initial annual contract went into place.

30. The termination of employment for both Respondents was proper under the provision of law allowing for termination without cause during the 97-day probationary period.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by Petitioner, Polk County School Board, terminating the employment of Respondents, Diane O'Brien and Marcee Gunn, effective as of the dates determined by the Board.

DONE AND ENTERED this 20th day of November, 2009, in Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2009.

ENDNOTES

1/ This retroactive seniority plan was later revoked after complaints filed by the regular teacher's collective bargaining agents.

2/ Unless otherwise stated, all references to the Florida Statutes shall be to the 2009 codification.

COPIES FURNISHED:

Dr. Eric Smith Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Gail McKinzie, Superintendent Polk County School Board

1915 South Floral Avenue Bartow, Florida 33831-0391

Deborah Kearney, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Mark Herdman, Esquire Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP

245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831-0030

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 09-003166TTS

Orders for Case No: 09-003166TTS