Findings Of Fact Based on a letter dated November 4, AFSCME requested that the School Board of Orange County, Florida, voluntarily recognize it as the sole and exclusive collective bargaining agent for employees of the School Board in a proposed unit of "non-instructional" personnel. AFSCME also expressed its desire to engage "possible neutral third parties" to verify the authenticity of certain authorization cards it possessed. (Employer's Exhibit No. 1) On November 10, Messr. James E. Carroll, Assistant to the Superintendent for Employee Relations, advised AFSCME's Assistant Area Director, Messr. David McGhee, by letter dated November 10, that their formal request had been received and would be placed on the school board agenda on November 14, if, pursuant to board policy, written notification was received within 24 hours prior to preparation of the agenda for the school board's meeting. Employer's Exhibit No. 2) by Letter dated November 14, Messr. McGhee was advised by Dr. L. Linton Deck, Jr., Superintendent, that AFSCME desired to appear before the board at its next regularly scheduled meeting for November 22. (Employer's Exhibit No. 3). By letter dated November 22, the Intervenors by their international representative and international special organizer respectively, A. Gross and Charles Loughran, advised Assistant Superintendent Carroll that the Intervenors were engaging in organizational activities among the board's employees and "[would] be petitioning the board for voluntary recognition in the very near future for an election to be conducted by the Public Employees Relation Commission." Messr. Carroll did not respond to such meeting since, in his opinion, he was of the opinion that the impetus in triggering such request rests with the Intervenors and no further responses were received from the Intervenors' representatives until on or about January 3, as stated above. By letter dated December 29, Messr. Deck sent a memorandum noticing the instant hearing to all principals and work location supervisors to call this matter to the attention of all classified employees at their work locations and for posting in appropriate places. On that same date, Messr. Carroll advised the Intervenors representatives that the school board had requested a hearing under the Administrative Procedure Act for the purpose of determining the appropriate bargaining unit and whether AFSCME had been designated as the exclusive bargaining agent for all classified employees within the appropriate bargaining unit. Attached to such letter was a Notice of Hearing issued by the undersigned dated December 21. (Employer's Exhibit No. 6) On approximately two occasions, Messrs. McGhee and Carroll, representing AFSCME and the Public Employer respectively, met informally to determine whether or not the Public Employer would extend exclusive bargaining representative status to a petitioned for group of classified employees on a voluntary basis. These efforts were unavailing inasmuch as the parties were unable to come to terms on a unit description mutually satisfactory. Thereafter, counsel for the Public Employer advised the board that the more orderly procedure in reaching its decision would be to utilize the procedures set forth in Section 120.50(7)(1) (Employer's Composite Exhibit No. 7) Based on this recommendation from the board's counsel, the petition was forwarded to this Division requesting that a Hearing Officer be assigned to conduct a Section 120.57(1) hearing. At the hearing, AFSCME and the Public Employer jointly stipulated that the appropriate unit of classified employees of the School Board of Orange County, Florida, for purposes of collective bargaining is as follows: All active classified personnel who are pay- types 15 (teacher aides, permanent substitutes, library clerks, office clerks), 17 (school lunchroom assistants), 19 (teacher assistants, instructional clerks, and nurses), 22 (twelve month, eight hour employees), 30 (bus drivers), 40 (bus monitors), and 71 (daily teacher aides in non-public schools); and who are not pay grades 16A, 21A, 13B, 12B, 22D, 14F, 13D, 13C, 14J, 14K, 3D, 27A, 51A, 75A, and 14B; and who do not work at the following work locations: 7300 (Associate Superintendent for Instructional Services), 8200 (Assistant Superintendent for management Services), 8110 (Comptroller), 6600 (Associate Superintendent for Personnel Management), 8205 (Business Word Processing Center Number 4), 8206 (Personnel Word Processing Center Number 5), 8202 (Instructional Word Processing), 8203 (Administrative Word Processing Center Number 2) 8204 (Delaney Word Processing Canter Number 3), 8210 (data Center Operations), 6611 (Instructional Personnel), 6612 (Classified Personnel) 8132 (Payroll Accounting), 8130 (Director of Accounting), 9001 (District Superintendent), 8120 (Food Service Administration), 8131 (General Accounting), 8220 (Research), and 7555 (CETA Administration). All other positions are excluded. (Joint Exhibit No. 1) There is no history of collective bargaining for the subject employees. The evidence reveals that within the stipulated unit, there are approximately 3,054 employees. Excluded from the list of classified employees are approximately 106 cafeteria managers, 2 registered nurses, 29 confidential employees, and approximately 516 regular part-time employees. The evidence reveals that the parties (AFSCME and the Public Employer) stipulated and further agreed to exclude the cafeteria managers based on uncontradicted evidence that cafeteria managers, as part of the their job duties, are called upon to make individual employee assessments, independent decisions and routinely make effective recommendations respecting the hiring and discharge of cafeteria employees. AFSCME and the Public Employer also jointly agreed to exclude approximately 29 "confidential" employees who are assigned to word processing centers and who, during the course of their employment, are privy to confidential employment information respecting other employees. 2/ Also excluded from the stipulated unit were all employees who worked four hours or less daily. The classified employees form the residual group of employees who are non-instructional, administrative, or technical. These part- time employees are largely comprised of administrative secretarial employees who work for associate superintendents, deputy superintendents, assistant superintendents, and other confidential employees who, as stated above, have access to confidential information. PLACEMENT OF PART-TIME EMPLOYEES In resolving unit placement questions, employees' status and tenure are major considerations. The evidence herein reveals that the part-time employees here work within the same unit as those included employees on a regular basis. They therefore have a substantial and continuing interest in the wages, hours and working conditions of full-time unit employees. Farmers Insurance Group, et al, 143 NLRB 240, 244 - 245. In this regard, they like the included employees enjoy the same rate of pay and fringe benefits. Based on the regularity of their employment and the number of hours worked, they cannot seriously be considered part of a "temporary, part-time or casual work force". Fresno Auto Auction, Inc., 167 NLRB 878. And the mere fact that they are called part-time employees does not alter their status as a cohesive group of individuals with a strong mutual interest in their working conditions which, as here, are largely determined by those employees included within the unit. See e.g., Henry Lee Company, 194 NLRB 109. For all these reasons, including the regularity and continuity of employment, the similarity of duties and functions, wages, working conditions and supervision, there is no discernible basis in this record to exclude the part-time employees from the unit. I shall therefore recommend that they be included. AUTHENTICATION OF THE AUTHORIZATION CARDS A local private investigating firm, Brewer and Associates, was commissioned to assist a local attorney, Stephen Weinstein, to authenticate the authorization cards. Attorney Weinstein credibly testified that he was given the authorization cards from AFSCME on January 5, 1978, along with a list of employees which was cross-checked by a list supplied by the list entitled "Recommended Appropriate Bargaining Unit." (See Employer's Exhibit No. 9). Attorney Weinstein and Messrs. Jerry Brewer and Jerry Boltin, employees of Brewer and Associates, cross-checked the lists based on a random sampling of authorization cards from a total of 1,648 authorization cards supplied to attorney Weinstein by AFSCME. 3/ Attorney Weinstein and his associates noted no irregularities or discrepancies in the authorization cards given them by AFSCME which were checked against the employee signatures on file in the public employer's records. These records from which the signatures were taken included employment applications, insurance and payroll deduction forms. The evidence reveals that the expense connected with the authentication of the cards was paid independently by AFSCME. No evidence of any union bias or other interestedness was alleged to have existed on the part of the individuals engaged to authenticate the cards. A copy of the card was introduced which designates AFSCME as the executor's collective bargaining representative in all matters pertaining to rates of pay, hours, and other terms and conditions of employment. (AFSCME Exhibit #1). No evidence was introduced tending to show that any other cards were utilized by AFSCME in its organizational efforts.
Recommendation Based on the foregoing findings of fact and conclusions of law it is hereby recommended that the Public Employer submit a list of names and addresses of all of its regular part-time employees which comprised the 516 employees which were excluded from the joint stipulated recommended appropriate bargaining unit and allow AFSCME fourteen(14) days after receipt of such list to demonstrate its majority status. It is recommended that such majority status be demonstrated in the same manner as was demonstrated in the instant proceeding and that AFSCME and the Public Employer jointly engage a neutral third party to authenticate AFSCME's assertion of majority status within the time frame allotted. Finally, upon proof of its majority status in the appropriate unit, as modified herein, it is recommended that the Public Employer voluntarily recognize AFSCME as the exclusive collective bargaining representative for such employees based on the foregoing findings, conclusions and recommendations. RECOMMENDED this 6th day of March, 19788, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Respondent's employment by the Petitioner should be terminated.
Findings Of Fact At all times pertinent to this case, Hodgson was employed by the School Board as a custodian. She has been so employed since 1981. In 1999, Hodgson became deficient in the most basic element of a custodian's job--the duty to show up for work at her assigned school, in this case Miami Park Elementary (Miami Park). By July 1, 1999, Hodgson had accumulated ten unauthorized absences, enough to draw the attention of Principal Henry N. Crawford, Jr. (Crawford), and enough, standing alone, to justify termination under Petitioner's contract with the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) the bargaining unit to which Hodgson belongs. At this time Crawford did not seek to terminate Hodgson's employment, although he could have. Instead, he counseled her regarding the School Board's reasonable and lawful requirement that she, like all employees, had the responsibility to inform the school's administration in advance of an absence, or as soon as practicable in an emergency. Nevertheless, on July 30, 1999, Hodgson left work at 6:46 p.m. instead of at the end of her shift at 11:30 p.m. Her area of the building was not cleaned properly and she was docked one half day's pay. For a considerable time after that incident, Hodgson's attendance improved. But in March 2000, her attendance again became a problem. Hodgson was absent 13 times between March 3 and March 20. Crawford again attempted to work with Hodgson, authorizing six of those absences. At the same time, he informed her of the obvious: that this level of absenteeism impeded the effective operation of the worksite. Crawford encouraged Hodgson to consider taking advantage of the School Board's generous leave-of-absence policy in order to preserve her good standing at work while taking the time necessary to deal with the issues which were causing her to miss work. Respondent neither replied to Crawford's proposal that she consider a leave of absence nor improved upon her by now sporadic attendance. Thereafter, Crawford requested assistance from OPS. On April 11, 2000, OPS wrote to advise Hodgson that she was absent without authority and that her absences were deemed abandonment of position. She was directed to provide written notification to OPS to review her situation or her employment would be terminated by the School Board. For a short time, Hodgson took this threat seriously enough to improve her attendance, but by now Crawford had a much shorter fuse with respect to Hodgson's disregard for workplace policies regarding attendance. When, on May 11, 2000, Respondent was an hour and a half late to work, Crawford sent her a memorandum the next day, again reminding her that she must report to work on time and that she was to report any absences or tardiness to school administration in a timely manner. Crawford wrote two additional warning memos to Hodgson in June 2000, but was unsuccessful in persuading her to improve her attendance or to discuss her situation, including the advisability of a leave of absence, in a forthright manner. Finally, Crawford directed Respondent to attend a disciplinary conference known as a Conference for the Record (CFR) on July 3, 2000, to discuss her absenteeism. At the CFR, Crawford again gave Respondent face-to-face directives to be present at work and when absences were unavoidable, to call the school in a timely manner. Two additional formal disciplinary conferences were held between the July 3 CFR and Respondent's termination. Crawford, having been unsuccessful in his efforts to generate honest communication with Hodgson about why a 20-year employee had stopped fulfilling her most basic job requirement, attempted to refer her to the School Board's Employee Assistance Program (EAP). EAP offers employees assistance in resolving personal problems in a manner which allows the employee to also fulfill work obligations. If such accommodations cannot be made, EAP counselors assist in helping the employee separate from his employment in a manner which does not blemish his resume. Supervisors such as Crawford may make referrals to the EAP whenever they feel an employee can and should be helped, and EAP services are also available for the asking to any School Board employee who wishes to take advantage of those services. No one is required to use EAP services, and Hodgson declined to do so. Hodgson's by now chronic absenteeism persisted. Her colleagues on the custodial staff tried, some more graciously than others, to cover her assigned duties, but Crawford was fielding an increasing number of complaints from teachers regarding their classrooms not being serviced. Morale among custodians declined in the face of the administration's seeming inability to control Hodgson. During the last two years of Hodgson's employment, she had 175 unauthorized absences. Eighty-one of those occurred in the last 12 months prior to her termination. By way of defense, Hodgson said that she developed diabetes in the past three years and that most of her absences were medically necessary. She offered voluminous stacks of paper which she claims document legitimate medical problems which made it impossible for her to work. Additional exhibits relate to a young relative she felt obligated to drive to medical appointments during her work hours. These exhibits prove little, if anything. Individually and collectively they are neither self-authenticating nor self-explanatory, and many had not been previously provided to Crawford in connection with her failure to appear for work, nor disclosed to the School Board in compliance with the pre-hearing order in this case. But even if these documents had been properly authenticated and would have in fact justified an extended medical and/or family hardship leave of absence, the evidence fails to establish that they were tendered to Crawford at the time Hodgson was absent. Hodgson did not seek medical or disability leave, either individually or through her collective bargaining unit. Hodgson offered no testimony to contradict the School Board's evidence regarding the dozens of occasions on which she failed to show up for work. Neither did she offer any evidence that her repeated failure to comply with attendance policies was justified due to any misconduct on the part of any of Petitioner's employees. At all times material to this case, the School Board was in compliance with applicable statutory and contractual provisions concerning employee discipline and termination with respect to Hodgson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered, sustaining Respondent's suspension without pay and terminating her employment. DONE AND ENTERED this 14th day of June, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2002. COPIES FURNISHED: Janice E. Hodgson 14020 Northeast 3rd Court, No. 5 North Miami, Florida 33161 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner when her employment assignment with Respondent was terminated in November 2004.
Findings Of Fact Petitioner is a 48-year-old African-American female. On or about September 10, 2004, Petitioner was placed with AT&T Wireless as a customer service specialist by a staffing agency, AppleOne. Petitioner's job duties as a customer service specialist included answering phone calls from AT&T Wireless' customers about their bills and assisting them with problems that they were having with their accounts. For the most part, Petitioner received positive feedback regarding her job performance as a customer service specialist. That feedback, which is reflected on the Advisor Evaluation Detail forms received into evidence as Exhibit P7, came from her supervisors as well as from quality assurance specialists. Petitioner testified that she generally got along well with her co-workers,2 but that she preferred getting assistance and taking instruction from men rather than women. After AT&T Wireless was taken over by Cingular, Petitioner and the other customer service specialists working for AT&T Wireless were required to attend a two-week training class regarding Cingular’s policies and procedures. The training class attended by Petitioner was also attended by her supervisor, Wendy Miller. Ms. Miller is a white female. On the first day of the class, Petitioner was having trouble logging into the computer system that was being used in the training class. Ms. Miller, who was sitting directly behind Petitioner, attempted to ask Petitioner a question about the problems that she was having and/or provide her assistance, but Petitioner simply ignored Ms. Miller. According to Petitioner, she ignored Ms. Miller because she was trying to pay attention to the teacher. As a result of this incident, Ms. Miller sent an e-mail to AppleOne dated November 30, 2004, which stated in pertinent part: It has been decided by Sandy Camp and myself to end [Petitioner’s] temporary assignment due to insubordination. She has been coached on her attitude for which she is not receptive to and several other people have mentioned that they do not want to help her due to her not wanting to listen. The last incident was today during our CSE class where she demonstrated insubordination and disrespect to me. In a later e-mail, dated March 7, 2005, Ms. Miller described the incident in the training class as follows: [Petitioner] was one of the reps not able to get into [the computer] system so I was attempting to assist her because she was sitting directly in front of me. I attempted to ask her a question and she turned her back to me & put up her hand as to say “don’t speak to me” and she completely ignored me even as I kept speaking to her. . . . . The descriptions of the incident in Ms. Miller’s e- mails are materially the same as Petitioner’s description of the incident in her testimony at the hearing. On the evening of November 30, 2004, Petitioner was called by someone at AppleOne and told that her assignment with Cingular had been terminated. Petitioner was paid by AppleOne during her entire tenure with AT&T Wireless and Cingular. Petitioner’s salary while she was working at AT&T Wireless and Cingular remained constant at $10 per hour. Petitioner’s entire tenure with AT&T Wireless and Cingular was approximately two months. Petitioner testified that she did not receive any other assignments through AppleOne after her assignment with Cingular was terminated. She attributed her inability to get other assignments through AppleOne to the fact that AppleOne "sided with" Cingular, who was its client, but there is insufficient evidence to make such a finding. In January 2005, Petitioner filed separate charges of discrimination with the Commission against AppleOne and Cingular. According to Petitioner, she was paid $400 by AppleOne to settle her claim against that company. Petitioner testified that she sold vacation plans and did other “odd jobs” between November 2004 and mid-February 2005 when she was hired by Sears as a home delivery specialist. Her job duties in that position include contacting customers to coordinate the delivery of appliances purchased from Sears. Petitioner testified that her initial salary with Sears was $9 per hour and that as of the date of the hearing her salary was $10 per hour. Petitioner testified that other customer service specialists had “problems” or “personality conflicts” with Ms. Miller, but she was unable to identify any other employee (of any race or age) who was similarly insubordinate or disrespectful towards Ms. Miller (or any other supervisor) and who received discipline less severe than termination. Petitioner’s actions toward Ms. Miller during the training class were disrespectful, at a minimum. Petitioner testified that Ms. Miller acted like a white supremacist, but there is no credible evidence in the record to support that claim. Petitioner also testified that AT&T Wireless and Cingular did not have any permanent customer service specialists that were as old as she, but there is no credible evidence in the record to support that claim. Petitioner presented no credible evidence regarding the race, age, or other characteristics of the person who filled her position at Cingular after her assignment was terminated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing with prejudice Petitioner’s discrimination claim against Cingular. DONE AND ENTERED this 25th day of October, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2005.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discharging Petitioner because of his age.
Findings Of Fact Respondent produces flexible packaging, develops technology to fill that packaging with liquids, and provides services to incorporate its flexible packaging systems into its customers' facilities. Respondent primarily produces "bag-in- box" products and manufacturing systems for customers such as Pepsi-Cola and Wendy's, as well as various customers in the milk, juice, and chemical business. Respondent operates two manufacturing facilities, one located at its headquarters in Romeville, Illinois, and another located in Union City, California. Petitioner was born on April 24, 1946. In 1996, Respondent hired Petitioner as a sales representative, and he served in that position until he was discharged on April 19, 2004. Petitioner initially was assigned to service the Upper Midwest Region and was based in Chicago, Illinois. In 1999, Respondent reassigned Petitioner to the Southeast Region. After his reassignment to the Southeast Region, Petitioner continued to live in the Chicago area for several years. However, in December 2002 or January 2003, Petitioner and Respondent mutually agreed that Petitioner would relocate to Florida. Because the move resulted from a mutual decision between Petitioner and one of Respondent's founders, Respondent paid $25,000 towards Petitioner's moving expenses. After the move, Petitioner continued to be responsible for the same geographical territory and the same customers as before the move. Joe Pranckus is Respondent's vice president of sales. At the time of Petitioner's discharge, the sales department consisted of a customer service department and four geographical sales territories: the Central, Western, Eastern and Mexico Regions. The Central and Western Regions (where Respondent's manufacturing facilities are located) each were overseen by a regional manager. The Eastern and Mexico Regions did not have regional managers. As Petitioner was located in the Eastern Region, Mr. Pranckus served as his direct supervisor. From 1999 until his dismissal, Petitioner was Respondent’s only sales representative in the Southeast. His primary responsibility was to maintain and increase Respondent’s business in that region of the country. The Rapak sales department as a whole is generally responsible for maintaining and increasing Respondent’s overall sales. This involves not only selling products and services, but also following up with customers to help them solve problems and otherwise to ensure their happiness. Because his primary responsibility was maintaining and increasing sales, Mr. Pranckus judged Petitioner almost exclusively by his year-to-date sales numbers as compared to the same period in the previous year. These numbers were calculated by Mr. Pranckus on a fiscal-year basis, from May 1st through April 30th. For the 2003-2004 fiscal year, Mr. Pranckus established a goal for Petitioner of 15 percent growth in sales. The minimum expectation was that Petitioner maintain at least the same amount of sales he had the previous year. During the 2003-2004 fiscal year, Mr. Pranckus e- mailed Petitioner his sales-versus-last-year figures on almost a monthly basis. By the end of June 2003, Petitioner had sold only 84 percent as much as he had sold through June 2002; by the end of July, only 87 percent as much as he had sold through July 2002; by the end of August, 91 percent; September, 81 percent; October, 90 percent; November, 85 percent; December, 87 percent; and by the end of March 2004 (eleven months into the fiscal year), he had sold only 88 percent as much as he had sold through the first eleven months of the 2002-2003 fiscal year. In short, as the fiscal year drew to a close, it was clear that Petitioner was going to suffer a net loss of business for the year. In late October 2003, Petitioner suffered a heart attack and underwent triple bypass surgery. Petitioner was unable to work for approximately two months while recovering from surgery. However, Petitioner returned to work in January 2004, initially working on a limited basis. Petitioner's sales numbers suffered because he lost some certain accounts owing to factors beyond his control (such as product quality and price issues). Nonetheless, Petitioner concedes that it was his job to replace his lost sales, no matter what caused his customers to switch suppliers. Mr. Pranckus typically holds one sales meeting each year for his entire staff. In February 2004, Mr. Pranckus held one of those meetings. At that meeting, Mr. Pranckus informed Petitioner that "changes would be made if [his] numbers didn't improve." In his application for unemployment compensation, Petitioner stated that Mr. Pranckus also warned him on March 10, 2004, that he needed to improve his sales numbers. Finally, Mr. Pranckus sent an e-mail to Petitioner on March 27, 2004. In that e-mail, Mr. Pranckus delivered the following written warning: Your territory is at a critical state. We can not continue along this path. Sales must be improved immediately or we will need to change. We agreed at our sales meeting to get this back on track. It is not showing up in the numbers and activity. Call me and let me know how we can help. On April 19, 2004, Mr. Pranckus discharged Petitioner because of his poor performance. His year-to-date sales figures were unacceptably low, as compared to the previous year, and Mr. Pranckus saw no evidence of plans or activity designed to improve matters. After Petitioner was discharged, he filed an application for unemployment compensation. On the application, Petitioner stated that he was discharged “for failure to achieve sales goals.” Later in that same application, in response to a request to “briefly summarize your reason for separation from this employer,” Petitioner wrote: “I did not achieve my sales goals.” Petitioner did not assert anywhere in his application for unemployment benefits that he was discharged because of his age. At the time of his discharge, Petitioner was 57 years old (almost 58). Mr. Pranckus did not know Petitioner’s exact age, but he would have guessed (based on physical appearance) that Petitioner was in his mid-50s at the time. Mr. Pranckus did not consider this to be “old.” In fact, Petitioner is not much older than Mr. Pranckus. Mr. Pranckus interviewed three individuals to fill Petitioner’s position. He ultimately selected Jim Wulff. Mr. Pranckus did not know their ages at the time of the interviews, but he would have guessed (again, by appearance) that Mr. Wulff was in his mid-50s and that the other two interviewees were in their mid- to late 40s and mid- to late 50s, respectively. In fact, Mr. Wulff was born on May 26, 1948, so he was 55 years old (nearly 56) when Mr. Pranckus hired him. Sales analysis from June 2003 showed that eight Rapak employees or representatives did not meet the 100 percent sales goal. Those listed were either Rapak non-supervising employees with direct responsibility for sales, supervising employees, or non-employee independent brokers. However, none of these employees, whether younger or older, was similarly situated to Petitioner at the time of his discharge. As an initial matter, there were four other non- supervisory employees with direct responsibility for sales: Dennis Hayes, Marvin Groom, Donald Young, and Keith Martinez. The other individuals responsible for sales were either supervisory employees or non-employee independent brokers. Because the two supervisors have management responsibilities and are responsible for their entire regions and the individuals who report to them, they are not judged primarily by whether they personally meet the 100 percent or 115 percent sales-versus- last-year objectives. Brokers, meanwhile, are not employees. Rather, they are independent contractors paid on a straight commission, so Respondent receives value from their services regardless of how much they sell. Mr. Hayes was the only other employee who performed the exact same job as Petitioner, but he reported to Regional Manager Dan Petriekis in the Central Region, not directly to Mr. Pranckus. Moreover, as of March 2004, Mr. Hayes had sold 127 percent as much as he had during the same period the previous year.1 Mr. Hayes is almost ten years older than Petitioner. Mr. Young was also responsible for sales, but he was semi-retired, serviced only one customer and received a base salary for his work. As of March 2004, however, Mr. Young had sold 115 percent as much as he had during the same period the previous year. Mr. Young is more than twelve years older than Petitioner. Finally, while Keith Martinez and Marvin Groom had some responsibility for sales, their positions were “radically different” from Petitioner’s. Whereas Petitioner could identify certain problems with Respondent’s machinery and products and would refer those problems to a service technician to assist his customers, Mr. Groom and Mr. Martinez were both originally hired as service technicians. Based on this experience, they could and did not only identify technical problems, but also performed the necessary maintenance and repair work on the spot, in addition to performing preventative maintenance. Petitioner, by contrast, has spent his entire working life as salesman. Accordingly, he was neither capable of, nor expected to, perform these additional maintenance and repair functions. As a result, Mr. Groom and Mr. Martinez received more leeway on their sales performance than Petitioner because they brought additional value to Respondent’s business that Petitioner could not offer. Nonetheless, as of March 2004, Mr. Groom was running at 100 percent versus the prior year and Mr. Martinez was running at 87 percent. Mr. Groom is roughly three years younger than Petitioner, and Mr. Martinez is 15 and one-half years younger than Petitioner. Respondent paid Petitioner $113,000 in salary and commissions during his last full calendar year of employment with Rapak. Petitioner was out of work for ten months after his dismissal. During that time, he received $8,000 in unemployment compensation from the State of Florida and $8,942.33 in severance pay from Respondent. In his new job, Petitioner projects that he will earn $100,000 in his first year but admits that he could make at least $113,000 because his compensation is once again dependent upon sales commissions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent committed no unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of July, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2006.
The Issue Whether Petitioner, Sarasota County School Board (Petitioner or School Board), had just cause to terminate Ernest Curry (Respondent) for misconduct in office.
Findings Of Fact Petitioner is responsible for operating, controlling, and supervising the public schools in the School District. See § 1001.32(2), Fla. Stat. At all times material, Respondent was employed as a groundskeeper for the School Board. Groundskeepers are educational support employees. On September 2, 2020, while at work at Tuttle Elementary School, Respondent submitted to a reasonable-suspicion urine drug screen. The final test results returned positive for marijuana. As an educational support employee, Respondent’s employment with the School District is governed by the Collective Bargaining Agreement. 1 Petitioner’s Exhibit 1 is a copy of an excerpt of the Classified Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and the School Board of Sarasota County, FL (Collective Bargaining Agreement). The undersigned takes official recognition of the entire Collective Bargaining Agreement, which may be accessed at https://www.sarasotacountyschools.net/cms/lib/FL50000189/Centricity/Domain/143/2019- 20%20Classified-Final-Rev%20052620.pdf. (Last visited Jan. 6, 2021).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board enter a final order terminating Respondent. DONE AND ENTERED this 7th day of January, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2021. COPIES FURNISHED: Ernest Curry 3408 16th Court East Bradenton, Florida 34208 Robert K. Robinson, Esquire Rob Robinson Attorney, P.A. 500 South Washington Boulevard, Suite 400 Sarasota, Florida 34236 (eServed) Dr. Brennan W. Asplen, III, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34321-3365 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether the School Board policy that requires full-time non-degreed teachers of vocational programs to pass a basic skills test as a condition of being certified by the School Board and as a condition of continued full-time employment in such programs is an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent, the School Board of Hillsborough County, Florida (School Board or Respondent), employs non-degreed persons to teach certain vocational subjects, including, health occupations and cosmetology. In or about May 1990, the Florida Legislature enacted Section 231.1725, Florida Statutes (2001), which authorized school boards to establish qualifications for substitute teacher, teachers of adult education, and non-degreed teachers of vocational education. By virtue of that provision, which became effective in 1990, non-degreed vocational teachers are not required to obtain state-issued teaching certificates required of teachers of non-vocational subjects in Florida public schools. Pursuant to Subsection 231.1725(1)(c), Florida Statutes (2001), school boards, including Respondent, are required to establish the minimum qualifications for non-degreed teachers of vocational programs. The School Board has established requirements for the employment and certification of persons seeking to be employed as non-degreed teachers of vocational programs. The requirements for certification include requirements not identified as the minimum requirements in Section 231.1725, Florida Statutes (2001). On or about May 22, 1991, the Division of Personnel and Human Resources submitted Agenda Item 3.02 for approval to the School Board. According to the "Agenda Item" form submitted to School Board members, the proposed policy concerned non-degreed full-time vocational instructional personnel, part-time vocational instructional personnel and adult education personnel. The form indicated that the proposed policy was required because Section 231.1725, Florida Statutes (2001), "absolved the state of responsibility of issuing state certificates for non-degreed full-time, part-time vocational and adult education teachers" and each school district was "responsible for determining both eligibility and district certification requirements for non-degreed vocational and adult part-time teachers." The rationale for the proposed policy was that "recent legislation [Section 231.1725, Florida Statutes] has resulted in the need to create a district certification process" for non-degreed full-time personnel, part-time vocational instructional personnel, and adult education instructional personnel. On or about June 11, 1991, the School Board held a public meeting in accordance with its policies and procedures, and state law and approved "the proposed policies concerning certification for non-degreed full-time vocational, part-time vocational, and adult education teachers, as necessitated by recent legislation (F.S. 231.1725) which shifts responsibility of issuing eligibility certificates for such personnel." The 1991 Agenda Item 3.02 consisted of three separate policies that were being recommended for approval by the School Board, for the following separate and distinct categories of employees: non-degreed full-time vocational instructional personnel; part-time vocational personnel; and adult education instructional personnel. The proposed policy and procedures for non-degreed full-time vocational instructional personnel provided the following: Policy: The School Board authorizes the employment of personnel to teach full-time in non-degreed vocational programs to comply with Section 231.1725(1)(c), Florida Statutes. Procedures: An applicant must hold at least a high school diploma or the equivalent and meet the established minimum competency in the area of assignment. The minutes of the June 11, 1991, meeting state that "the proposed rules will now go through necessary process including advertising and public hearing per Administrative Procedures Act," with a notation to "See minutes of July 16, 1991." There is no indication that this process was not carried out as noted. On August 6, 2002, at a regular meeting, the School Board considered and unanimously approved School Board Policy 6.25. Section 2 of School Board Policy 6.25, addresses certification of full-time and part-time teachers of non-degreed programs. The policy provides in pertinent part the following: FULL-TIME TEACHER CERTIFICATION (Non-degreed programs): The Office of Teacher Certification issues an initial 3-year nonrenewable temporary certificate in the same manner that state-certified teachers are certified. During the validity period of this temporary certificate, the teacher must produce documentation of the following to qualify for the professional certificate: Successful completion of the district's Preparing New Educators (PNE) Program. Successful completion of the State Professional Educator's Exam. A minimum of three years successful teaching experience. Successful completion of the (4) district certification courses listed below or their university equivalents. [1.] Surviving the First Year of Technical Teaching [2.] Special Teaching Methods for Technical Teaching [3.] Special Needs Student for Technical Education [4.] Philosophy, Practices and Management of Technical Education. Verification of basic skills by successful completion of the Test of Adult Basic Education (TABE) at or exceeding the profile established for the area of certification, or successful completion of another recognized test of basic skills accepted for state-certificated teachers. Upon receipt of the above documentation and of the appropriate application fee, the Office of Teacher Certification issues the full-time technical and career education teacher the 5-year Professional District Certificate that is valid for five years from July 1st of the school year it was issued. This certificate must be renewed in the identical manner that a state-issued certificate is renewed. According to School Board Policy 6.25, the School Board's requirements for certification as a non-degreed teacher of vocational programs include the successful completion of the Test of Adult Basic Education ("TABE") or successful completion of another recognized test of basic skills accepted for state certificated teachers, and successful completion of the Professional Education Examination. The School Board does not require the passage of these tests in order to meet the minimum qualifications for initial employment. The executive summary which describes the purpose of the superintendent's recommendation regarding School Board Policy 6.25, states in pertinent part the following: In 1990, by legislative action, districts assumed responsibility and authority for establishing employment and credentialing qualifications for teachers of non-degreed vocational programs and of part-time adult programs. The School Board originally adopted procedures in 1991 to address these matters. Various improvements and refinements to these procedures, many of which have paralleled provisions provided by statute to state-certificated teachers, have been adopted as sound practices over the years. The enclosed manual, "Guide to Hiring Teachers: Technical & Career and Adult & Community Education Programs," reflects these improvements and modifications. In accordance with School Board Policy 6.25, the School Board issues three-year temporary teaching certificates to full-time non-degreed vocational teachers upon their hiring. During the first three years that a full-time non-degreed vocational teacher is employed, the teacher must produce the documentation enumerated in Section 2 of School Board Policy 6.25 and listed in paragraph 10 above, to qualify for the district professional certificate. The School Board's requirement that non-degreed full- time vocational teachers successfully complete a basic skills test and the Professional Educator Examination is not a requirement of initial employment, but is required in order to obtain a district teaching certificate. The district-issued teaching certificate is a prerequisite for a non-degreed vocational teacher to continue full-time employment in such capacity. Non-degreed vocational teachers employed by the School Board on a full-time basis for three years may not continue such full-time employment unless they obtain a district-issued professional certificate by meeting the requirements of School Board Policy 6.25, which includes successfully completing the basic skills test. The School Board employs non-degreed vocational teachers on a part-time basis. Part-time non-degreed vocational teachers are not required to take a basic skills test under the School Board's current policy, and those teachers were not required to do so prior to 1990, when the State issued teaching certificates to this category of teachers. Pursuant to the School Board's current policy, non- degreed vocational teachers may be hired by the School Board to teach vocational courses on a part-time basis, and there is no requirement that they ever take or successfully complete a basic skills test. However, in order to continue full-time employment as a non-degreed vocational teacher beyond the initial three years of employment, the teacher must successfully complete the basic skill test. If the non-degreed vocational teacher fails to do so, that individual may no longer work as a full-time non- degreed vocational teacher. Petitioners are non-degreed teachers of vocational subjects who were formerly employed by the School Board as full- time, non-degreed teachers of vocational programs. Petitioners are affected by the challenged rule because each has been deemed ineligible for a district-issued certificate and for continued employment as a non-degreed teacher of vocational programs due to his or her failure to comply with one or more of the School Board's requirements for certification as a non-degreed teacher of vocational programs. Here, Petitioners failed to successfully complete at least one part of the required basic skills test. Non-degreed vocational teachers who are terminated or not rehired as full-time teachers because they failed to successfully complete the basic skills test may be employed by the School Board as part-time vocational teachers or as substitute teachers. The School Board employs substitute teachers in vocational subjects in the same fashion it employs substitute teachers for academic subjects. The only requirement to become a substitute teacher is a high school diploma and the completion of a ten-day training program. Although Petitioners failed to successfully complete the basic skills test requirement of School Board Policy 6.25, they are eligible for employment as part-time non-degreed vocational teachers or as substitute teachers. Petitioner McNeeley is currently employed as a part-time vocational teacher, and Petitioner Kennedy is employed as a full-time substitute teacher in a vocational program. Prior to 1990, non-degreed vocational teachers were employed in the same manner as degreed teachers. During that time period, the State of Florida issued certificates to both degreed teachers and non-degreed teachers. The State of Florida required all teachers, degreed and non-degreed, to take and pass the FUCOSE exam, which later became the Florida Teachers Certification Exam, ("FTCE"). From 1990 through 1991, Janice Velez, general director of Human Resources for the Hillsborough County School District, was part of a consortium of Florida school districts that worked together to develop a policy for the employment and certification of non-degreed vocational teachers. As a result of the work of the consortium, the School Board developed its current policy and procedures, which require non-degreed vocational teachers to take and pass a basic skills test.
Recommendation In light of the foregoing, it is RECOMMENDED: That the Department enter a Final Order DENYING Katz' application for a Florida teacher's certificate for the reasons set forth in the Department's letter of January 27, l987, and the "Notice of Reasons" which accompanied that letter. DONE AND ORDERED this 17th day of June, 1987, in Tallahassee, Florida. WILLIAMS J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1987.
The Issue Whether Respondent, Derek E. Andrews, should be terminated for his absence without leave from April 12, 2007, until the end of the 2006-2007 school year.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing in this matter the following Findings of Facts are made: Respondent, Derek E. Andrews, is a school teacher employed by the School Board of Seminole County, Florida. William Vogel is, and has been, Superintendent of Public Schools for the School District of Seminole County, Florida, for all times material to the occurrences relevant to this case. Pursuant to Section 4, Article IX, Florida Constitution, and Sections 1001.30, 1001.31, 1001.32, 1001.33, 1001.41, and 1001.42, Florida Statutes (2006), the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida. The relationship of the parties is controlled by Florida Statutes, the collective bargaining agreement, and School Board policies. Respondent's supervising principal for the 2006-2007 school year was Dr. Shaune Storch. Respondent had been granted a leave of absence that expired on March 30, 2007. Respondent's leave for the period March 16, 2007, through March 30, 2007, was an extension of a previous leave as requested by Respondent. Subsequent to the expiration of Respondent's leave on March 30, 2007, Respondent's supervising principal attempted to contact Respondent regarding his intentions for the remainder of the 2006-2007 school year. Respondent did not meet with his supervising principal or otherwise respond to her letter of April 5, 2007. Article XVI, Section I.2. of the collective bargaining agreement, provides that any teacher who is willfully absent from duty without leave shall forfeit compensation for the time of the absence and be subject to discharge and forfeiture of tenure and all other rights and privileges as provided by law. Respondent was absent without leave from April 2, 2007, through the end of the school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent, Derek E. Andrews, guilty of the allegations stated in the Petition for Termination and that his employment be terminated. DONE AND ENTERED this 20th day of September, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 2007. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Derek E. Andrews Post Office Box 62 Tangerine, Florida 32777-0062 Dr. Bill Vogel Superintendent of Schools Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Honorable Jeanine Blomberg Interim Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
