The Issue Whether the School Board of Miami-Dade County (School Board) committed the unlawful employment practices alleged in the Petition for Relief filed by the Petitioner and, if so, what relief should he be granted by the Florida Commission on Human Relations (FCHR).
Findings Of Fact The Petitioner is a Black male who, at all times material to this proceeding, was employed by the School Board both as a full-time K-12 teacher and as a part-time evening adult education teacher. The Petitioner continues to be employed by the School Board in his full-time position. His complaint in this case does not arise from any matters concerning his full-time position. The issues in this case arise from matters that occurred with regard to the Petitioner's employment as a part-time evening adult teacher. At all times material hereto, the School Board was a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. The School Board adheres to a policy of nondiscrimination and provides complaint procedures to assure compliance with federal and state laws which prohibit discrimination. It is the policy of the School Board that no person will be denied employment on the basis of race or color. In December of 1988, the Petitioner was first hired by the School Board as a part-time teacher. In August of 1998, the Petitioner became a full-time teacher in the K-12 school day program and was assigned to teach in a middle school. The Petitioner is still employed as a full-time teacher in the K-12 school day program and continues to teach in a middle school. In addition to the Petitioner's full-time teacher position, in recent years the Petitioner has also worked as a part-time teacher in the evenings at the South Dade Adult Education Center ("Adult Center"). At the Adult Center the school year is divided up into three terms which are commonly referred to as trimesters. The Adult Center employees part-time teachers on a term basis, one term at a time. During each school year, the first term starts in August and ends in December. The second term starts in January and ends in April. The third term starts in April and ends in August. The Petitioner worked at the Adult Center for several terms, including the following trimesters: 2002-1 (first trimester of the 2002-03 school year), 2002-2 (second trimester of the 2002-03 school year, 2002-3 (third semester of the 2002- 03 school year), and 2003-1 (first trimester of the 2003-04 school year). During his employment at the Adult Center, the Petitioner taught English for Speakers of Other Languages ("ESOL"). ESOL courses are offered at several levels ranging from ESOL-PRE, which is the most basic course, through ESOL Levels 1 through 5, with Level 5 being the most advanced course. At the Adult Center student attendance is voluntary. The Adult Center receives funds from the State based on the number of students who complete the "Literacy Competency Points" ("LCPs"). At the Adult Center, the initial assignment of students to a particular course is done by the registration clerk. However, once assigned to a particular course, students have the choice of requesting a transfer to another class or of withdrawing from the course altogether. The administrators at the Adult Center are inclined to grant student requests for transfers whenever possible in order to reduce the likelihood that the student might withdraw from the program. During the first trimester of school year 2002-03 (term 2002-1), the Petitioner was assigned to teach an ESOL Level 4 class with an enrollment of thirty-one students. During the second semester of school year 2002-03 (term 2002-2), the Petitioner was assigned to teach two classes of ESOL Level 1; one class with 61 students and the other with 62 students. During the third trimester of school year 2002-03 (term 2002-3), the Petitioner was assigned to teach one class of ESOL Level 1 with an enrollment of 41 students. For the first trimester of school year 2003-04 (term 2003-1) the Petitioner was assigned to teach two classes of ESOL-PRE with an enrollment of 5 students each. These were "targeted ESOL Classes" under the Skills for Academic, Vocational, and English Studies ("SAVES") program. The SAVES program requires smaller ESOL classes; usually between 8 and 15 students. SAVES students qualify for free textbooks, free tuition, free child care, and free bus transportation. School Principals have the discretion to make SAVES classes even smaller. At the Adult Center, under School Principal Gilda Santalla's discretion, enrollment for SAVES classes had to be between 5 and 10 students in order for a SAVES class to remain open. In order to meet the needs of the students and the needs of the program, the class assignments change each trimester for several teachers, not just for the Petitioner. The Petitioner was assigned to teach lower levels of ESOL because the student demand for the lower level of ESOL courses was higher than the demand for Level 4 and 5 ESOL courses. During the time period material to this case, demand for ESOL Levels 4 and 5 was "dwindling." In the first semester of the 2003-04 school year (term 2003-1) the Petitioner was assigned and accepted to teach a course in the SAVES Program. The SAVES Program is funded by the U.S. Department of Health and Human Services through the Florida Department of Children and Family Services, Office of Refugee Services. It was created to address the training needs of the refugee population. Students participating in the SAVES Program must meet eligibility criteria imposed by the funding program in order to qualify for "refugee" status. Ms. Santalla assigned the Petitioner to teach ESOL-PRE SAVES classes because she thought he was well-qualified for the position. The Petitioner had a counseling certification and also in his full-time teaching job he had experience teaching children with special needs. Teaching children with special needs often requires a great deal of patience. Many members of the SAVES student population had special needs. The administrators at the Adult Center selected the Petitioner for the SAVES program because they believed he "had the skills to build this program and to teach those students." When planning for the first semester of the 2003-04 school year, the administrators at the Adult Center were confident that, because of the large demand for ESOL-PRE and ESOL 1 classes, they would have at least 8 to 10 people in each SAVES class. Initially, 27 SAVES eligible students were identified. The following term the number went up to 50 SAVES students, and more recently there were approximately 120 SAVES eligible students. The standard employment contract for part-time adult education teachers, which is the type of contract signed by the Petitioner each time he taught at the Adult Center, clearly specifies that the employment is for a specific course for a specific time period delineated in the master schedule. The standard part-time adult teacher employment contract also includes the following language: Nothing herein shall be construed to grant the Part-Time Teacher an expectation of continued employment beyond the length of the course designated by this contract. * * * 4. The Part-Time Teacher shall not be dismissed during the term of this contract except for just cause as provided in [Section] 231.36(1)(a), Florida Statutes. Notwithstanding the dismissal for just cause provision of this contract, the Part-Time Teacher is responsible for maintaining the minimum required student enrollment for the course taught. Classes with fewer than the required number of students are subject to cancellation. Cancellation of a class will automatically terminate the School Board's obligations under this Contract. The Adult Center's Teacher Handbook also states: PART-TIME TEACHING ASSIGNMENTS South Dade Education Center employs instructors in a part-time capacity. Part- time teachers are those who are paid on an hourly basis. Part-time teachers are hired as needed for a trimester. There is no guarantee that a class may continue the entire trimester if enrollment falls below the required number of students. Classes may be closed and employment may cease. A written contract, per trimester, is issued to all teachers. Before each term all part-time teachers are given a Teacher Agreement indicating their new assignment. A teacher may be assigned to more than one class per semester. If so, and if only one class is cancelled due to low enrollment, the teacher can continue to teach the remaining classes that were not cancelled. In this regard it is important to note that the "cancellation of a class" is not equivalent to "dismissal for good cause." In September of 2003, during the first trimester of the 2003-04 school year (2003-1), the attendance reports for Petitioner's assigned classes indicated that his SAVES classes had 2 to 3 students attending each class. After 4 consecutive absences a student is officially withdrawn from a class. Accordingly, student M.G. was withdrawn from the courses with reference numbers OJL4 and OJL5, leaving only 1 student (student T.C.) in those courses. Courses with references numbers OJL8 and OJL9 had the same 3 students in both courses (students M.J., C.B., and F.N.). Enrollment in the Petitioner's classes was below the minimum number required to keep the classes open. Therefore, the Petitioner's classes were cancelled during September of 2003. The Petitioner's classes were not the only classes cancelled during the first term of school year 2003-04. Part- time Hispanic instructor Carmen Roman also had her ESOL-PRE class cancelled. Ms. Roman's ESOL-PRE class, like Petitioner's, had an initial enrollment of 5 students. In the third term of school year 2002-03 (2002-3), Fabian Mayta's ESOL-PRE class was cancelled. Mr. Mayta's class had an initial enrollment of 7 students. During that same term, Tomasita Neal's ESOL-PRE class was cancelled. Ms. Neal's class had an initial enrollment of 6 students. During the second term of school year 2002-03 (2002-2), the ESOL-PRE class assigned to Fabian Mayta was cancelled. The student enrollment was 5. Part-time teachers Mayta, Neal, and Roman are not Black; they are all Hispanic. Fabian Mayta taught two classes of ESOL-PRE during the first trimester of 2002-03 (term 2002-2). During the second and third trimesters of 2002-03 (terms 2002-2 and 2002-3), Mr. Mayta had an ESOL-PRE class closed each semester. During the first trimester of 2003-04 (term 2003-1), Mr. Mayta taught no ESOL-PRE classes at all. However, Mr. Mayta returned in the second semester of 2003-04 (term 2003-2) to teach ESOL-PRE. Mr. Mayta was also assigned to teach ESOL-1 during that same period of time, and he was assigned to teach ESOL-2 in the first trimester of 2003-04 (term 2003-1). However, this last-mentioned class was cancelled due to low enrollmant. Ms. Claudia Hutchins expected the Petitioner would return to teach the following semester. These expectations were evidenced in part by the fact that the computer print-out for the Master Schedule of classes dated November 7, 2003 (which was two months after the closure of Petitioner's classes), shows the Petitioner listed as an instructor of the Adult Center. The Petitioner made no attempt to contact the Adult Center after his classes were cancelled in the first trimester of the 2003-04 school year. The Petitioner did not indicate any interest in teaching at the Adult Center after the cancellation of his classes. The course assignments of part-time teachers may vary from term to term. The Petitioner was not the only part-time teacher whose class assignments changed from term-to-term. The Petitioner was expressly notified by the language of the standard employment contract and by the guidelines described above that low enrollment could cause classes to be closed. The cancellation of classes due to insufficient student enrollment is a separate and distinct event from the termination of employment or dismissal of an employee for "good cause." The Petitioner's classes were cancelled, but no employment dismissal proceedings were taken against him by the School Board. A memorandum summarizing the terms and conditions of employment is issued to part-time teachers at the Adult Center at the beginning of each term. The memorandum includes the following statement: "There is no seniority with regard to part-time employment." The Petitioner compares himself to teacher Raymond Rivera. In this regard the Petitioner alleges that he was replaced in his assignment to teach ESOL-4 during the second semester of the 2002-03 school year (term 2002-2) by teacher Raymond Rivera, who was a Hispanic full-time teacher. Mr. Rivera is certified by the State of Florida Department of Education to teach English and to teach ESOL. Unlike Mr. Rivera, the Petitioner has a Miami-Dade County Public Schools Educator's Certificate for Physical Education and a Professional Educator's Certificate for Guidance and Counseling (Pre-Kindergarten to Grade 12). The subject assignment of Mr. Rivera was determined by his full-time status, his professional educator's certificate in ESOL (including all levels K through 12), and his area of expertise (English: Grades 6-12). In addition, full-time teachers have priority over part-time teachers. Further, teachers are assigned to meet the needs of the students, the community, and the program. Ms. Santalla had no discriminatory intent when she assigned Mr. Rivera to teach ESOL Level 4. The Petitioner has presented no evidence that Ms. Santalla's decision to assign Mr. Rivera to ESOL Level 4 was made with any intent to discriminate against the Petitioner on the basis of his race. Based on his professional certifications in English and in ESOL, Mr. Rivera was better qualified to teach ESOL Level 4 than was the Petitioner. The Petitioner also compares himself to Tomasita Neal, who is a Hispanic part-time teacher. Ms. Neal's ESOL-PRE classes had an enrollment of 78 and 69 students during the first trimester of the 2003-04 school year (term 2003-1). The Petitioner asserts that Ms. Neal was less qualified to teach ESOL than he was because Ms. Neal did not have a bachelor's degree. Notwithstanding her lack of a bachelor's degree, Ms. Neal was well qualified to teach ESOL by reason of her many years of teaching ESOL and her completion of the School Board's certification process, both of which made her eligible to be "grandfathered" as an ESOL teacher when the eligibility requirements were changed. Race was not a factor in closing the Petitioner's classes. The determinative factor in closing those classes was the low student enrollment in the classes. The Adult Center offered the position of substitute teacher to the part-time teachers whose classes were cancelled during the term. Ms. Santalla offered the Petitioner a substitute teaching position after his classes were cancelled. The Petitioner declined the opportunity to work as a substitute teacher at the Adult Center. The Petitioner made no attempt to contact the Adult Center after his classes were cancelled. The Petitioner did not demonstrate any interest in continuing to teach at the Adult Center. At the Adult Center the ESOL class enrollment fluctuates due to the transient and seasonal nature of the ESOL student population. Therefore, when classes are cancelled, the teachers in the cancelled classes are encouraged to continue to teach in subsequent terms. Ms. Hutchins was expecting and hoping that the Petitioner would return to the Adult Center to teach during the second semester of the 2003-04 school year (term 2003-2). The Petitioner's name remained as a part-time teacher on the roster of the Adult Center's second trimester of school year 2003-04 (term 2003-2), which was the term following the trimester in which the Petitioner's classes were cancelled. Teacher Fabian Mayta's ESOL-PRE class was cancelled twice; first in the second trimester of the 2002-03 school year, and again in the third trimester of the 2002-03 school year. Mr. Mayta returned to teach in the first trimester of school year 2003-04, which class was also cancelled, but he again returned to teach in the second trimester of school year 2003- 04. Before the Petitioner's classes were cancelled, the Petitioner was enrolled in teacher training to develop effective strategies in language arts ("CRISS" training). After his classes were cancelled, the Petitioner requested permission to complete the CRISS training, and he was allowed to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order in this case finding that the School Board of Miami-Dade County is not guilty of any of the "unlawful employment practices" alleged by the Petitioner and dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 20th day of February, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 February, 2006.
Findings Of Fact The Respondent, Michael Fort, at times pertinent to the charges in the Administrative Complaints, held teacher's certificate number 514033, issued by the State of Florida Department of Education (Department). That certificate authorized practice as a teacher in the area of music education. The Respondent was employed as a teacher at Lake Weir Middle School in the Marion County School District. The Respondent was under an annual contract with that school system from November 23, 1983, through the 1984-85 school year. The Respondent's last annual contract expired on June 7, 1985. The Respondent's teacher's certificate expired on June 30, 1985. Some time prior to the expiration of his teacher's certificate, the Respondent applied to the Department for its renewal. That application still pends before the Department. In October 1983, the Respondent had a minor student spend the night at his apartment. The minor student had previously been a close friend of the Respondent and had socialized with him in the past, including spending the night at his residence on other occasions. The Respondent had entered into a close, friendly relationship with the minor, Darien Houston, by frequently letting him stay at his residence during periods of time when Darien Houston's parents were fighting or otherwise engaging in domestic discord, which apparently was very disturbing to the student. Darien Houston, although a student in the Marion County School System, was not a student of the Respondent. Indeed, the Respondent was not yet employed by that school district. In any event, during the course of the evening in question, while they were sitting near each other watching television, the Respondent placed his hand on the student's leg and the student requested that he remove his hand. The student at the time thought Fort was joking or had no serious intent by this action. Fort then went to bed and the student went to bed, sleeping on the floor in his jeans in a sleeping bag. Some time later that night, the student was awakened and realized that the Respondent had undressed himself and undressed the student and had proceeded to place his hand on and fondle the student's penis. He thereafter attempted to roll Houston over onto his stomach in spite of Houston's objections. In response to the student's objections, the Respondent made a statement to the effect, "Do you want to do it with me?" The student continued to object and to retreat from the Respondent's advances. He retreated to the bathroom where he locked himself in and remained for the remainder of the night. The student was embarrassed because of the incident and elected not to report it to school officials or others for approximately a year and a half. However, Houston did tell his best friend what had happened, who in turn informed Houston's mother of the incident. Eventually, Houston's brother informed another individual of the occurrence, who then informed Mr. Springer, the principal at Lake Weir Middle School, of the incident. Darien Houston, a student there, was then called before Mr. Springer, who investigated the matter. Houston related the information about the subject occurrence to him, in approximately May 1985. Thereafter, the criminal proceeding against the Respondent related to this incident and the instant administrative Prosecutions ensued. The matter became public knowledge among students at Lake Weir Middle School, who teased Houston about the incident, causing him great embarrassment and humiliation. The occurrence was widely reported in local newspapers. Sometime in May 1985, while a teacher at Lake Weir Middle School, during the course of a puppet show being Presented in a sixth grade classroom, Respondent stuck his hand down the back of a minor male student's pants between his underwear and his trousers. This action by the Respondent shocked and embarrassed the student, although it was not established that any bystanders, of which there were a number present, observed the incident. The student, Patrick Hammer, was embarrassed to tell anyone of the occurrence, but ultimately informed his teacher of the incident by writing a note to the teacher concerning it. Other students at the school ultimately became aware of this and teased Patrick Hammer about it, causing him embarrassment and humiliation. In approximately May 1985, the Respondent attended a party at a local hospital. The Respondent was in the company of three minor male students who were then enrolled at Lake Weir Middle School. The students, Steve Hall, Richard Slaughter and Eddie Ericson, or some of them, were drinking beer from a keg or draft dispenser at the party. Steve Hall's mother, who was employed at the hospital, was present at the party and was aware that her son was drinking beer. All three of the boys later left the party and went with Mr. Fort to his apartment. While en route, the Respondent stopped at an ABC Liquor Store and purchased approximately two six-packs of beer. After purchasing the beer, the Respondent took the three students to his apartment where the students swam in the swimming pool and, in his presence and with his knowledge, drank the beer that the Respondent had purchased. It was not established that the Respondent bought the beer with the specific intent of giving it to the students but, by his own admission, he offered no objection to the students' consumption of the beer in his presence at his residence. On May 12, 1986, the Respondent pled nolo contendere to one count of attempted sexual battery and one count of lewd and lascivious behavior. He was sentenced to ten years probation, fined $200, ordered to undergo mental health counseling, to complete 100 hours of community service and to refrain from any custodial or supervisory contact with any person under the age of 16 years. Respondent's arrest, the circumstances surrounding the charges and his plea regarding the above incidents received widespread publicity in the local media and was known to students, faculty and other School Board personnel and the public at large. On or about April 10, 1985, the Respondent received a letter from Nick Marcos, Assistant Superintendent of Administrative Services with the School Board of Marion County, informing him that he would be reappointed to a position as an annual contract teacher with the Marion County School System as soon as he had been issued a regular or temporary teaching certificate for the 1985-86 school year. On or about May 16, 1985, the Respondent submitted a reapplication for a temporary certificate to the Florida Department of Education. On or about August 9, 1955, Respondent received a letter from R. S. Archibald, District School Superintendent, advising him that he had been suspended as an instructional employee of the Marion County School System, pending a meeting of the School Board. Thereafter, on or about August 19, 1985, the Respondent received a letter from Jim Ergle, as Chairman of the School Board, advising him of the Board's decision to suspend him without pay based upon the above-described arrest and charges. In the April 10, 1985 letter, the Assistant Superintendent had informed him that he had been recommended for reappointment for the 1985-86 school year, but reminded him that he would have to renew his teaching certificate to be eligible for reappointment. Upon his application for renewal of his teaching certificate, the application demonstrated that all requirements for renewal had been met. His teaching certificate expired on June 30, 1985. The renewal application was never acted upon by the Department, although it informed Mr. Fort, sometime prior to August 1985, that his application was in order and the certificate would be forthcoming. His suspension without pay was predicated upon the charges pending before the Circuit Court for Marion County concerning the alleged sexual battery and lewd and lascivious conduct, and the letter informing Mr. Fort of it did not indicate that it was at all based on his failure to renew his teaching certificate. The School Board employed the formal suspension process against the Respondent, although his express annual contract had already expired, in an abundance of caution because a grace period is normally allowed teachers to re- apply for renewal of their certificates after expiration and because the Board allows a grace period for reappointment of a contract teacher after the expiration of a teaching certificate, provided the teacher provides evidence that the certificate has been properly renewed. The Respondent was paid for all services rendered by him to the Marion County School Board through the last day of the 1984-85 school year, which was also the last day of his employment pursuant to his last express annual contract. He has never taught in the district since that time.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the EPC permanently revoking the certificate of the Respondent, Michael Fort, and that he be finally dismissed by the Marion County School District and forfeit any back pay. DONE and ORDERED this 14th day of July 1987, in Tallahassee, Florida. COPIES FURNISHED: William E. Williams, Esquire Rex D. Ware, Esquire 111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 215 Knott Building Tallahassee, Florida 32399 P. MICHAEL RUFF 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 14th day of July 1987.
Findings Of Fact The Petitioner was first employed by the Liberty County School Board as a classroom teacher for the school terms 1971-72, 1972-73 and 1973-74 as an English classroom teacher. For the school year 1974-75, the Petitioner was employed for a fourth year as a teacher by Respondent. In November of 1974, the Petitioner requested and was granted maternity leave through the end of the school year, i.e., June 6, 1975. It is undisputed that during the first three school years of the Petitioner's employment with Respondent, her employment was pursuant to an annual contract. However, what is in dispute, is Petitioner's claim that during her fourth year of employment with Respondent, such employment was pursuant to a continuing contract. According to Petitioner, the then principal at the school in which she was employed recommended that she be reappointed for her forth year of employment pursuant to a continuing contract as did the then superintendent of schools, Tom Fairchild. Thereafter, on May 4, 1974, the School Board met and voted favorably on the Superintendent' s recommendation. In this regard, the minutes of the May 4, 1974, meeting of the school Board do not disclose the contractual status approved by the Board, i.e., annual or continuing. 1/ During the summer of 1975, Petitioner advised her principal that she would not be returning for the 1975-76 school year. Accordingly, the principal employed another teacher to replace her. Shortly thereafter, Petitioner informed the principal that she had changed her mind and wanted to teach the 1975-76 school year. She was not, however, rehired, as the position had been filled. During the summer months of 1975, Petitioner had several conversations with her then principal, Jerry Johnson. Initially, during her conversations with Principal Johnson, Petitioner related to him that she thought that she would be returning to her position for the 1975-76 school year. During the latter part of July, Principal Johnson explained to Petitioner the necessity for her to make a final decision with respect to her returning to her position, since he needed to hire a replacement if she was not returning. At that point, Petitioner remarked that, "I think I need to take another year's leave." Mr. Johnson remarked, "Well, we hate that you are not coming back, but if you feel that's best for the baby, I'm supportive of you." Within a few days, Petitioner called Mr. Johnson back and advised, "just pretend I didn't talk to you the other day. I want my job back." At that point, Mr. Johnson remarked, "Vicki, I wish you had told me. I have just hired somebody else." To this, Petitioner remarked, "Well, what do you mean you just hired so00body else. I am on a continuing contract, you know." Mr. Johnson remarked, "Well, I know, but you've got me in an awkward position. This boy has got Board connections." Petitioner remarked, "Well, it couldn't have been more than a verbal agreement. He couldn't have signed anything yet because you don't sign a contract this early in the year." 2/ Mr. Johnson remarked, "Well, that's true but everybody is going to be awfully upset. I can't tell him he doesn't have a job now, and I've told him he has one." Later, Mr. Johnson asked Petitioner to submit a letter of resignation to which Petitioner never responded. Prior to the beginning of the school year in either late August or early September of the 1975-76 school year, Petitioner visited the principal's office in Bristol and explained to him that while she did not want to force the issue, via a lawsuit in a small community, she would appreciate it if she was given the first teaching position that cane open in the school system. (TR 23, 24 and 25.) The Petitioner testified that she was ready, willing and able to work during the 1975-76 school year. Petitioner received a call from Mr. Johnson during October of 1975 wherein he inquired if she was ready to return to work. Petitioner responded that she was ready and had been since the summer. Mr. Johnson indicated that he had a teaching position opening up; however, that position never materialized inasmuch as the teacher who was supposed to have resigned, Carolyn Larkins, needed an additional year of employment for retirement purposes. Petitioner was not assigned to a position at any time during the 1975-76 school year. Toward the end of the 1975-76 school year, Petitioner again informed her principal of her continuing request to be assigned. When no assignment was given her at the beginning of the 1975-76 school year, the Petitioner, out of economic necessity, accompanied her husband to Maine where he had obtained employment. Petitioner made it plain to her principal that she still sought employment with the Board and would return to Florida if and when an assignment was offered her. Finally, in November, 1976, approximately two months after the Petitioner left Florida, her principal assigned her to a teaching position and she returned and resumed teaching in the school system. Petitioner was given an annual contract for the 1976-77 school year and inquired why she was being asked to sign an annual contract. Her principal advised her that it was "customary" to do so. The Petitioner remained on the assignment the remainder of the 1976-77 school year. At the end of the 1976-77 school year, the present Superintendent of Schools, Laquita Shuler, recommended and the Respondent School Board approved, the Petitioner's continued employment. The Petitioner taught the entire 1977-78 school year. During the 1977-78 school year, Petitioner was again tendered an annual contract for execution which she refused to sign. Petitioner, before the School Board meeting in December, 1977, contended that she had a continuing contract and the Board took no action on her contention. At the end of the 1977-78 school year, Petitioner was not recommended for continued employment by the Superintendent. This was so, despite the favorable recommendation of her principal. Petitioner, at all times subsequent to the end of the 1977-78 school year, has been refused further employment by the Respondent. The Petitioner has made efforts to obtain employment during the interim; however, her interim earnings have been minimal. Since her separation from the Liberty County School Board, the Petitioner has been ready, willing and able to work.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Respondent, School Board of Liberty County, make the Petitioner whole for wages including her loss of pay during the 1975-76 school year, her pay from the start of the 1976-77 school year through November 16, 1976, when she was reassigned to her teaching position, her pay from the start of the 1978- 79 school year through the date of her reinstatement, as well as the expenses incurred by the Petitioner as a direct and approximate result of the Respondent's actions. RECOMMENDED this 30th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue in the case is whether the Respondent unlawfully discriminated against the Petitioner on the basis of a handicap or disability.
Findings Of Fact The Petitioner became employed on an annual non-renewing contract as a paraprofessional at Park Elementary School during the 1993-94 school year. The Petitioner was assigned to work in a classroom program for developmentally disabled preschool children. The children were three to four years of age and very active. There were between five to nine children in the classroom. The Petitioner was generally assigned to work with two children and was responsible for monitoring their activity. She was also responsible for physically controlling the children and changing diapers when required. The substantial part of the workday was spent standing, bending, lifting, and moving about with the children. The Petitioner continued her employment in the 1994-95 school year and received satisfactory evaluations. During the 1995-96 school year, the Petitioner continued her employment as a paraprofessional. Although there is evidence that the Petitioner's job performance was of some concern to the class teacher and to the school principal, the Petitioner was not formally evaluated because her employment was interrupted as set forth herein. There is no evidence that anyone discussed the concerns with her or that she had an opportunity to remedy any alleged deficit in her job performance. On January 2, 1996, the Petitioner was riding in a car being driven by her husband and was involved in an automobile accident when another driver struck the Petitioner's car. The Petitioner was injured in the accident and was taken to a hospital where she was treated and released. Subsequent to the accident, the Petitioner continued to have pain in her neck and sought treatment from a chiropractor. Eventually, the chiropractor referred the Petitioner to a neurologist in an attempt to determine the cause of the pain. The medical professionals determined that the Petitioner's injuries were not permanent. The Petitioner's chiropractor described the pain as a "typical soft tissue injury" and eventually stopped treating the pain because the pain did not improve and was not supported by diagnostic testing. The Petitioner's neurologist opined that the neck pain was not a "disability." The Petitioner returned to the school on February 14, 1996, and discussed her physical limitations with the school principal. She showed the principal a copy of a letter from her chiropractor to an insurer that stated that she was "able to work in a limited capacity . . . with a 15 pound limit" and that "she is to avoid excessive bending, stooping and standing." The Petitioner asserts that the school principal told her to go home and return a week later. The Respondent asserts that the Petitioner informed the Principal that she could do the job but only under the restrictions set forth in the chiropractor's letter. The evidence establishes that the discussion related to whether or not the Petitioner was able to return to work was centered on her ability to perform her responsibilities and that the Petitioner decided she was unable to return to work at that time and would return a week later. By letter dated February 15, 1996, the School Board's personnel coordinator advised the Petitioner that she had used all of her sick leave and would not receive any additional pay until she returned to work. The letter suggested that she request an official leave of absence effective January 2, 1996, in order to permit her retirement benefits to be maintained because "time spent on an official leave of absence can be bought back by the employee from the Division of Retirement." On February 21, 1996, the Petitioner contacted the school principal and informed him she would be unable to return on that day due to family matters. On February 22, 1996, the Petitioner returned to the campus and spoke with the principal. The Petitioner told the principal she did not feel physically capable of working as a paraprofessional in the preschool classroom and asked him to provide her with other employment. The principal told the Respondent he did not have any open positions at the school for which she would be physically suited. The principal was also concerned that because the Respondent was physically restricted from bending, stooping, and standing for an extended time, she would not be able to perform the responsibilities of her employment. There is no evidence that on February 22, 1996, or at any time during the remainder of the 1995-96 school year, there were jobs available at the school that did not require physical activity beyond the Petitioner's abilities. On February 26, 1996, the Petitioner contacted the school principal and said she wanted to take a leave of absence as suggested by the personnel coordinator. The principal believed there was a misunderstanding about the availability of the leave of absence to an annual contract employee and suggested that she speak to the personnel coordinator. The principal also called the coordinator and requested that he clarify the matter with the Petitioner. On February 27, 1996, the personnel coordinator telephoned the school principal and said that the Petitioner had been informed that she was not eligible for a leave of absence and said that the Petitioner had suggested she would resign her employment. On March 1, 1996, the Petitioner contacted the principal and said she wanted to apply for a leave of absence. The principal contacted the personnel coordinator who suggested that the Petitioner submit to the school superintendent a letter requesting the leave along with a copy of the chiropractor's letter and then let the superintendent decide whether or not he would recommend to the school board that her leave request be granted. The information was relayed to the Petitioner, who stated that she would submit the letter. By letter dated March 7, 1996, the Petitioner relayed the events to the superintendent and requested "any consideration you can give in resolving this matter." In the March 7 letter, the Petitioner writes, "[d]ue to the activeness of the children in this class the possibility of re-injuring myself is very high." She also advises that she informed the principal that the personnel coordinator suggested that she request the leave of absence and that the principal suggested that she write the letter to the superintendent. The Petitioner asserted that she would not resign from her position. Attached to the March 7 letter were past evaluations, a March 6 letter "to whom it may concern" from her chiropractor restating the symptoms of her injury, and the February 15 letter she received from the personnel coordinator suggesting the leave of absence. By letter dated March 19, 1996, the Petitioner referenced a March 15 meeting with the superintendent and states "[i]f there are no reasonable accommodations for a job replacement, I would like to request a medical leave of absence for the remainder of this year." She enclosed the letter from the chiropractor with the letter to the superintendent. There appears to have been no response from the superintendent to the Petitioner's request for a leave of absence. By letter dated June 4, 1996, the personnel coordinator responded to the request for leave of absence by stating that because the Petitioner was on an annual contract, the request for a leave of absence could not be granted. The letter also stated that due to a lack of funding, some employees would not be called back to work in the 1996-97 school year, and suggested that she should apply for a future vacant position "when you are again able " According to the leave policy set forth in the school board's employment handbook, any employee may request a leave of absence. Such requests must be made at least seven days prior to the requested leave period except in the case of emergency when the request must be made "as soon as possible." The policy requires that the leave application be made in writing and on the form provided for such requests. The policy provides that the School Board "may grant leave, with or without pay." The evidence fails to establish that the Petitioner followed the school system policy in requesting a leave of absence after her accident. The Petitioner did not complete and sign a form requesting a leave of absence. The first written request to the school superintendent for a leave of absence was the letter of March 19, approximately 70 days after the accident. The first time the issue of a leave of absence was verbally addressed by the Petitioner was on February 26, 1996, approximately 50 days after the accident, when she told the school principal that she wanted to take a leave of absence as suggested by the personnel coordinator in his letter of February 15. The evidence fails to establish that the Petitioner has a handicap or disability as those terms are defined under applicable statutes and case law. The evidence fails to establish that the Respondent discriminated against the Petitioner in any employment decision on the basis of a handicap or disability. There is no credible evidence that the Petitioner filed a Request for Disability Accommodation at any time prior to the end of the 1995-96 school year. For the remainder of the 1995-96 school year, a substitute teacher filled in for the Petitioner. The job remained open and available to the Petitioner through the end of the school year. The position was not filled on a permanent basis because school officials were uncertain about whether the Petitioner would be able to return for work. Paraprofessional employees working for the Highlands County School System are employed as annual employees for the first three years. After successful completion of the third year, the paraprofessional becomes eligible for consideration for continuing contract employment. An employee under an annual contract has no automatic right to re-employment. Continuing contract employment provides increased job security to an employee because termination of employment must be for "just cause" or when required by a "reduction in force." Continuing contract employees also receive preference over non-contract employees when workers are recalled after a reduction in force. The successful completion of the third year does not guarantee that the paraprofessional will receive the continuing contract, but only provides that such employee is eligible to receive such a contract The Respondent requires that in order to work a "complete" year, an employee must work for at least 150 days in a school term. Because the Petitioner did not work for at least 150 days in the 1995-96 school term, she did not complete the third year of employment and is not currently eligible for a continuing contract as a paraprofessional employee. The Respondent may permit a paraprofessional employee to work a fourth year, after which the employee automatically receives a continuing contract. Because there were concerns related to the Petitioner's job performance in the 1995-96 school year, the principal of the school would not likely have recommended that a fourth year of employment (and a resulting automatic continuing contract) be permitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Mary Ann Kerney. DONE AND ENTERED this 1st day of June, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 1st day of June, 2001. COPIES FURNISHED: Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Katherine B. Heyward, Esquire John K. McClure, P.A. 230 South Commerce Avenue Sebring, Mary Ann Florida Kerney 33870 4524 Elm Sebring, Avenue Florida 33870 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Wallace Cox, Superintendent Highlands County School Board 426 School Street Sebring, Florida 33870-4048
The Issue Whether Petitioner is eligible to participate in the Florida Retirement System based on his employment from January 29, 2001, through June 30, 2004.
Findings Of Fact The Secretary of the Department of Management Services through the Division is the administrator for the FRS. FRS was established by the State of Florida to provide pension benefits to eligible employees of the State of Florida and county agencies, including county school boards. Petitioner, George Tamalavich ("Petitioner" or "Mr. Tamalavich"), attended Fitchburg State College in Massachusetts, where he received a certificate for teaching in the trade industry. Prior to coming to Florida, Petitioner taught at the Worchester County Trade School for eight years, and participated in the Massachusetts State Pension Plan. In 1990, Petitioner relocated to Florida and obtained a part-time position, first for two days a week, then increasing to four days a week, teaching a computer-aided manufacturing and design course at McFatter Vocational Technical School (“McFatter”) in the Broward County School District (BCSD). In his initial position at McFatter, Petitioner testified that he knew he did not qualify for annual leave or other fringe benefits, including FRS membership, although he claimed not to remember that anyone specifically told him he was not receiving pension credit. From October 1993 until June 1999, Petitioner was employed by the BCSD in a full-time position under the terms of an annual contract. He testified that, with the annual contract, he had a salary, received fringe benefits and did not have to submit time sheets. Because he was employed in a regularly established position, Mr. Tamalavich was eligible for membership in the FRS and received service credit for 5 years and 9 months, through the end of his contract in September 1999. In September 1999, Petitioner requested and received a leave of absence for the 1999-2000 school year. The letter advising Mr. Tamalavich of the approval of his leave included a requirement that he notify the BCSB of his plans for the following year by March 1, 2000. In a letter dated February 14, 2000, the BCSB sent a reminder of the March 1, 2000, deadline. On April 3, 2000, the BCSB sent notice to Mr. Tamalavich by certified mail, with a receipt returned to the BCSB, that his termination would be recommended for failure to respond to the February 14, 2000, letter. Mr. Tamalavich testified that he received notice of his termination after the fact but not the letters setting the March 1 deadline. The notice of termination did not include information on appealing that decision. Mr. Tamalavich was hired at a different school in 2001. When he returned to work he signed agreements dated August 28, 2001, for the 2001-2002 school year; January 27, 2003, for the 2002-2003 school year; and August 25, 2003, for the 2003-2004 school year. Petitioner was employed as a part- time adult vocational education instructor at Atlantic Technical Center (“Atlantic”) in the BCSD during these school years. During his employment at Atlantic, Petitioner submitted time sheets and was compensated on an hourly basis. He acknowledged in his testimony that he was in a temporary position when he returned to work in August 2001. The agreements for part time employment at Atlantic provided that: THE ADMINISTRATOR MAY INITIATE OR TERMINATE THIS AGREEMENT UPON NOTICE. This appointment is contingent upon sufficient enrollment and attendance in the program/course “assigned” or the class will be canceled and this agreement shall be null and void. The employee's signature below indicates acceptance of the appointment subject to all that: terms and conditions of Board Policy 6Gx6- 4107. BCSD policy 6Gx6-4107 provides, in pertinent part, 2. The conditions of employment listed herein apply only to those personnel employed on a part-time, temporary basis to teach courses on a course-by-course basis or to provide part-time instructional support to programs in post-secondary adult vocational education, adult general education, Community Instructional Services, and education for personal improvement. . . . . Part-time temporary teachers shall have no guarantee or expectation of continued employment and may be terminated upon written notice by the location administrator. . . . . 7. Part-time temporary teachers shall be paid an hourly salary based upon the Salary Schedule adopted for part-time, temporary employees. . . . . 9. Part-time, temporary teachers shall not be eligible for a continuing contract or for a Professional Service Contract and are not entitled to fringe benefits regardless of the time of service as a part-time employee. Mr. Tamalavich testified that he saw BCSD policy 6Gx6- 4107 for the first time at the hearing in this case, although he worked at Atlantic from August 2001, until he was forced to leave due to a serious illness on March 12, 2004. The principal of Atlantic, who hired Petitioner, testified that he would determine every nine or eighteen weeks whether enrollment was sufficient and then give Mr. Tamalavich his schedule. Because Petitioner did not have six years in the FRS prior to July 1, 2001, and was not employed in a regularly established position on July 1, 2001, when vesting requirements were reduced from ten to six years, the Division determined that he is not vested in the FRS and therefore he is not eligible to receive retirement benefits from the FRS. Mr. Tamalavich claims entitlement to more FRS service credit because of errors made by the BCSD, which reflected that he was enrolled in the FRS from July 1, 2003, until August 25, 2004, although initially his counsel asserted that the contested period of time extended to June 30, 2005. As a result of a computer programming error, the BCSB incorrectly grouped together all personnel who had worked for more than six months and notified them, including temporary adult vocational education instructors, that they were eligible for FRS service credit. The notice dated May 7, 2003, was sent to "Identified Employees" in temporary positions existing beyond six months advising the employees that they would be enrolled in FRS effective July 1, 2003. Mr. Tamalavich testified that he received the notice. After the notice of May 7, 2003, several temporary adult vocational education instructors began to request the Division to review their entire employment history to determine their FRS service credit. After receiving an inordinate number of these requests and reviewing on a case-by-case basis personnel documents provided by the BCSB, the Division determined that temporary adult vocational education instructors were being reported in error by the BCSD for FRS service credit. In a letter dated June 7, 2004, the Interim State Retirement Director wrote to the Superintendent of the BCSD, citing Florida Administrative Code Rule 60S-1.004(5)(d)(3), which excludes positions established with no expectation of continuation beyond one semester or one trimester. The letter also included other factors related to ineligibility for FRS credit, including compensation at an hourly rate, and employment based on enrollment and funding contingencies. The Superintendent was advised specifically that "[a]dult vocational education instructors are essentially temporary in nature, where there is no promise, claim or right of employment beyond the quarter, semester or trimester to which they are appointed to teach." On June 23, 2004, the Director of the Benefits Department responded for the BCSD conceding that part-time adult vocational education instructors, including those filling temporary positions, were inadvertently enrolled in the FRS beginning on July 1, 2003, and that the FRS contributions would be retroactively reversed. On August 25, 2004, a notice was sent by the BCSB to "identified employees" advising them that adult vocational education teachers were erroneously enrolled in the FRS, and that they would be removed retroactively to July 1, 2003. Mr. Tamalavich received the notice that did not include any information on appealing the decision. There was no claim of erroneous deductions from Mr. Tamalavich’s pay, despite his testimony that FRS contributions were taken out of his paycheck. Employee funds are not withheld for payments into the FRS plan. It is and has been, since 1975, solely employer-funded. For temporary employees who are not eligible for enrollment in the FRS, the BCSB provides a FICA Alternative Retirement Plan administered by Bencor. Contributions to the Bencor-administered plan were made on behalf of Mr. Tamalavich, who requested and received a distribution from that fund in January 2007.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner’s request to participate in FRS from January 29, 2001, through June 30, 2004. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 8th day of April, 2008. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Jane Letwin, Esquire The Law Office of Jane Letwin 10540 La Placida Drive, North Coral Springs, Florida 33065 J. Leonard Fleet, Esquire Fleet Dispute Resolution 625 32nd Avenue, Southwest Vero Beach, Florida 32968 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-0950 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Pursuant to the Order of the Second District Court of Appeal, Dr. Spiegel was reinstated as Chairman of the Orthopaedic Department at the University of South Florida (USF), retroactive to October 31, 1988. He was given a contract as Chairman to run until October 19, 1990. On February 2, 1990, USF commenced proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department, and the matter was referred to the Division of Administrative Hearings for a formal 120.57(1), Florida Statutes, hearing. Prior to the commencement of the formal hearing, Dr. Spiegel's contract as Chairman of the Orthopaedic Department expired and was not renewed by the USF. On the expiration date of that contract, October 19, 1990, the USF proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department became moot. Dr. Spiegel's appointment as Chairman of the Orthopaedic Department ended as provided in this contract, the contract was not renewed, and Dr. Spiegel was no longer chairman of the Orthopaedic Department. Dr. Spiegel timely filed a grievance to challenge the non-renewal of his contract as Chairman of the Orthopaedic Department. By stipulation of the parties, the issues raised in the grievance merged into the instant proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department. Since that issue became moot with the expiration of Dr. Spiegel's contract on October 19, 1990, the only issue now remaining is whether the failure to renew Dr. Spiegel's contract was in violation of Dr. Spiegel's right to academic freedom or for the alleged impermissible violation of his First Amendment right to freedom of speech. In other words, the allegation is that Dr. Spiegel's contract was not renewed because he exercised the rights guaranteed to him under the First Amendment of the United States Constitution.
Findings Of Fact The Respondent, Deborah Green, hold Florida teaching certificate 586445, covering the areas of Math, Elementary Education and Educational Leadership. The certificate is valid through June 30, 1997. During the 1992/1993 school year, the Respondent was a teacher in the Pinellas County Schools GOALS program at Dixie Hollins High School. GOALS stands for Graduation Options - Alternative to Leaving School. It is a drop-out prevention program. Although the evidence did not describe the GOALS program in detail, the evidence suggests that GOALS teachers may be in the position of having to change some of the rules of regular education in order to keep students from dropping out and yet may still be subject to criticism for not conforming to the rules of regular education. Put another way, there appears to be the potential for some of the priorities of the GOALS program to be inconsistent with some of the priorities of regular education, and it was not clear from the evidence how GOALS teachers are supposed to balance the competing interests. One of the Respondent's GOALS students in history class during the 1991/1992 school year was Andrew Patrick. By definition, as a GOALS student, he was at risk to drop out when he entered the program. He also was a poor student, especially in math. Emotionally, Patrick seemed to suffer from an abnormally strong need to feel popular while at the same time failing to realize that the results of his efforts to be popular generally were the opposite of what he intended. After letting down his guard and allowing himself to be friendly and civil with the Respondent, he soon came to like her personally. At the same time, he seemed to sense (probably correctly) that a personal relationship with the Respondent, who was a very popular teacher, could make him popular by association. Over time, a close teacher-student relationship developed between the Respondent and Patrick. The Respondent was able to use this relationship to further her goal of keeping Patrick interested in school. In addition, the Respondent discovered that Patrick became more interested in school the more he was allowed to help the Respondent in the classroom. As a means of legitimate "positive stroking," the Respondent gave Patrick more and more responsibilities in her classroom and praised him for carrying them out successfully. Over time, Patrick developed an adolescent crush on the Respondent. He became unusually interested in her and in the details of her personal life. He learned, accidentally at first, that the Respondent was dating a man named Michael Miller, who was married and who was the principal of another Pinellas County high school. He questioned her repeatedly about her relationship with Miller and also pestered the Respondent's adopted daughter, who also was in the GOALS program, for information about the Respondent and her personal life. (Actually, the girl was the daughter of a close friend of the Respondent. The Respondent and her friend helped each other raise their children. Both families lived in the Respondent's home, and the Respondent referred to the girl as her daughter.) In addition, for a student, he bought her relatively expensive gifts; he also bought her gifts more frequently than the other students. The Respondent did little to discourage Patrick's obvious crush on her. Instead, she exploited it, in part in furtherance of her objectives as his GOALS teacher but also, during the 1992/1993 school year, in part for her benefit. During the 1992/1993 school year, Patrick's role in the Respondent's pre-algebra classroom expanded to what seemed to be practically the Respondent's personal assistant. The Respondent gave Patrick a desk at the front of the classroom near her teacher desk, facing the students, such as a teaching assistant might have. The Respondent had Patrick prepare weekly GOALS progress reports for her to fill out for each student. (He wrote her name in the appropriate blank, but it was not proven that the blank necessarily called for her signature or initials, as opposed to just her identity as teacher.) The Respondent also had Patrick maintain the hall passes for her use. When a student needed a hall pass, she referred the student to Patrick to get one. Patrick would fill out the hall pass and give it to the student. Usually, the hall pass required the Respondent's signature but, on occasion, Patrick forged the Respondent's signature. When the Respondent was made aware that Patrick had forged her signature, she admonished him not to, but she did not monitor very closely or control him very well. The Respondent also had Patrick complete daily attendance slips to be picked up by a runner from the administrative offices. The Respondent also had Patrick use an answer key to grade daily class assignments and some quizzes for his class and other classes she taught and had him enter the grades in a grade book. (There also was one other student who used an answer key to grade some daily class assignments and some quizzes and enter the grades in a grade book for the Respondent, but the other student was not nearly as heavily involved in these activities as Patrick.) It is not clear from the evidence whether Patrick and the other student entered the daily class assignment and quiz grades in the Respondent's official class grade book or in one of the other grade books that the Respondent maintained for other purposes. Patrick usually performed tasks for the Respondent during math class, but sometimes (as the Respondent was aware) he left other academic classes during the school day to the Respondent's classroom to perform tasks for her. Patrick rarely took quizzes himself. The Respondent had determined that Patrick did not test well, and she devised alternative means of measuring his progress in her classroom. Often, Patrick didn't even know when the Respondent was evaluating and grading what he was doing for her in the classroom. Patrick relished his role as the Respondent's assistant, applied himself to it and did a very good job in the role. He obviously tried very hard to please the Respondent, and she gave Patrick credit for his effort and performance. But it seems questionable how the Respondent fairly and accurately could have evaluated and graded Patrick's progress, especially in a class like pre-algebra, based on his performance in the tasks she was assigning him to do for her in the classroom. On the other hand, what she was doing kept Patrick in school, and there was no evidence that the general approach was incorrect in the context of a GOALS program pre-algebra class. During the 1992/1993 school year, the Respondent was under stress at least in part due to her relationship with Miller. It probably comforted her to an extent to allow Patrick to draw her into discussions about subjects such as her relationship with Miller. She stopped short of discussing the intimate details of the relationship, but in some respects Patrick could use his imagination to fill in the blanks. Later in the fall, the Respondent had to deal with the additional stress of having to decide whether to accept an offer of marriage from a well-to-do friend from Texas. She freely discussed her dilemma with Patrick. By January, 1993, the Respondent was having serious difficulty handling the stress and began to suffer physical symptoms. She accepted the advice of her chiropractor, who was treating the physical symptoms of her stress, to take a medical leave of absence. Her application for leave was approved through June 11, 1993, and she began her leave on January 27, 1993. When Patrick inquired about the Respondent's absence from school, and was told that she was gone and probably would not be back, he became hysterical. He went to the principal's office and angrily accused the principal of getting rid of the Respondent because of her relationship with Miller (which the principal knew nothing about) because he was confidant that his (Patrick's) relationship with the Respondent was much too close for her to have left voluntarily without consulting with him. He described the nature of their relationship. When the principal denied that he had anything to do with it, Patrick began to blame himself, saying that he had encouraged the Respondent to drop her relationship with Miller and marry the friend from Texas. The principal calmed Patrick down and had him sent home. That evening, Patrick's mother telephoned the principal to complain about the Respondent. She had talked to her son and obtained new information from him about his relationship with the Respondent and his role in her classroom. After receiving the mother's telephone call, the principal telephoned the Respondent to inform her that a student had made serious allegations about her and that the student's mother had called him very upset. He would not tell her what the allegations were but told her the name of the student. The Respondent declined to talk about it further over the telephone but readily agreed to meet with the principal, Patrick and his mother the next day at 1:00 p.m. The Respondent also agreed to write Patrick and his mother to explain that she was on medical leave of absence. It was not proven that the principal told the Respondent not to talk to Patrick before their meeting the next day. On the morning of the next day, the Respondent telephoned the school office to have Patrick paged to speak to her. The office assistant told her that she only could do so if it was an emergency. The Respondent told her that it was. The Respondent spoke with Patrick for about ten minutes. She asked Patrick what he had said to the principal. When he told her, she admonished him that his statements had put her at risk of losing her job and that he had better "get his story straight." He correctly interpreted her to mean that she wanted him to recant his statements in order to protect her and her job. At the meeting at 1:00 p.m., Patrick recanted his earlier statements and claimed that his mother had blown everything out of proportion. It was improper for the Respondent to use Patrick (and, to a lesser extent, the other student), as she did during the fall of the 1992/1993 school year, as a personal assistant to grade class papers for her and enter grades in grade books for her. Her practice gave Patrick improper access to too many students' grades on papers and quizzes. It also tended to create an unhealthy appearance of favoritism. Although it was not proven that a certain amount of special treatment for good behavior and effort would be inappropriate especially in the context of a GOALS class, the Respondent went overboard when it came to Patrick.) It was improper for the Respondent to engage in the close personal relationship that developed between her and Patrick during the fall of the 1992/1993 school year. It became harmful to the learning environment, it changed the relationship from a teacher-student relationship to a friend-friend relationship, and it tended to create an unhealthy appearance of favoritism. Encouraging Patrick to lie for the Respondent in order to protect her job (and Miller's reputation) exposed him to conditions harmful to his learning and mental and emotional health and safety. The Respondent exploited her relationship with Patrick for personal gain or advantage during the fall of the 1992/1993 school year in that she used him improperly as her personal assistant. Except for the incidents that were the subject matter of this case, the Petitioner has a fine record as a teacher. In fact, at the time she took her medical leave of absence, she was about to be interviewed as part of the School Board's Targeted Selection Process for recruiting and training qualified teachers for promotion to a managerial position. The Respondent's inappropriate conduct during the fall of the 1992/1993 school year resulted from the exercise of poor judgment in the degree to which she varied from the conduct expected of a teacher in regular education while teaching in the GOALS program. The Respondent's poor judgment may have resulted in part from the debilitating personal stress from which she was suffering and which, actually on the eve of her Targeted Selection interview, required her to take a medical leave of absence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission enter a final order suspending the Respondent for 45 days based on the charges that have been proven in this case. RECOMMENDED this 17th day of May, 1995, 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 17th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1629 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated. First sentence, rejected as not proven. Second sentence, accepted and incorporated. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that either graded test papers or that test grades were entered or that grades were entered in the Respondent's official grade book. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as not proven. (She gave them A's in part for the work they did for her, rather than solely for scores earned on tests and quizzes administered to the other students.) Second sentence, accepted and incorporated. Accepted but subordinate and unnecessary. Rejected as not proven that a "sexual relationship" with the Texan was discussed. Otherwise, accepted and incorporated. Rejected as not proven. Accepted and incorporated. First sentence, rejected as not proven. Otherwise, accepted and incorporated. First sentence rejected as not proven that she did not agree to meet until after talking to the student. Otherwise, accepted and incorporated. Rejected in part as conclusion of law. Also, rejected as not proven that it is improper for a teacher to have a student grade another student's daily class assignments and homework assignments for immediate feedback. (This usually is done by exchanging papers in class.) Otherwise, accepted and incorporated. (The extensive use of Patrick as if he were the Respondent's personal assistant was improper.) Rejected as not proven as to Shannon. Accepted and incorporated as to Patrick. Accepted but subordinate and unnecessary. (It was not proven that the Respondent allowed Patrick to forge her signature to hall passes.) Rejected as not proven in the context of the GOALS program. Accepted and incorporated. Rejected as not proven as to Shannon. Accepted and incorporated as to Patrick. Respondent's Proposed Findings of Fact. (For purposes of these rulings, consecutive numbers have been assigned to the unnumbered paragraphs of proposed findings of fact in the Respondent's proposed recommended order.) 1. Accepted and incorporated to the extent not subordinate or unnecessary or conclusion of law. 2.-3. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to facts found and to the greater weight of the evidence that the Respondent just told Patrick to "tell the truth." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Generally accepted but subordinate, some to facts contrary to those found. The documents in evidence reflect that the Respondent did give quizzes in her GOALS classes. And, while evaluators who observed her classrooms saw students grading class assignments, the evidence was not clear that they were aware of the extent of Patrick's role as the Respondent's personal assistant. Last sentence, rejected as contrary to the evidence. But the rest is accepted and incorporated to the extent not subordinate or unnecessary. 7.-8. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as to Patrick as contrary to facts found and to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as contrary to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, accepted and incorporated. The rest is rejected as contrary to facts found and to the greater weight of the evidence. Fourth sentence, rejected as contrary to facts found and to the greater weight of the evidence. The rest is rejected as contrary to facts found and to the greater weight of the evidence. Accepted but subordinate and unnecessary. COPIES FURNISHED: J. David Holder, Esquire Suite 100 1408 North Piedmont Way Tallahassee, Florida 32312 Bruce P. Taylor, Esquire 501 First Avenue North Suite 600 St. Petersburg, Florida 33701 Marguerite Longoria Robinson, Esquire Kelly & McKee, P.A. 1718 E. 7th Avenue, Suite 301 P. O. Box 75638 Tampa, Florida 33675-0638 Karen Barr Wilde Executive Director 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues are whether Respondent committed the acts alleged in the Amended Administrative Complaint; whether the alleged conduct constitutes violations of Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes,1 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(5)(d), and 6B-1.006(5)(e); and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at hearing and the entire record in this proceeding, the following Findings of Fact are made: Respondent holds Florida Educator Certificate No. 544113 that covers the areas of educational leadership, business education, teacher coordinator of cooperative education, and vocational office education. At all times relevant to this proceeding, and since about 1983, Respondent was employed by the Hillsborough County School Board. During most of her tenure with the Hillsborough County School Board, Respondent has worked as a classroom teacher. Respondent's employment with the School Board was terminated on October 13, 2004. 2001 Fall Semester In the 2001 fall semester, Respondent was a teacher in the business department at Jefferson High School ("Jefferson"). At all times relevant hereto, Virginia McGinn, was also a teacher in the business department at Jefferson. As a professional colleague, Ms. McGinn communicated and had contact with Respondent during the workday. During the 2001 fall semester, Respondent was teaching her second-period class in the classroom that was right across from the teaching planning area. Ms. McGinn had a planning period during that time and was walking toward the teacher planning area, when she heard a lot of yelling coming from Respondent's classroom. Observing that the door to Respondent's classroom was open, Ms. McGinn stood in the doorway for a minute and looked in the classroom to see what was going on and to make sure everything was okay. While standing in the doorway, Ms. McGinn observed and heard Respondent yelling and noticed that Respondent seemed and sounded very agitated. After Ms. McGinn determined that everything was all right, she left the doorway of Respondent's classroom and went to the teaching planning area. When Ms. McGinn arrived at the teaching planning area, one other teacher was there, Ms. Zale. A few minutes later and after her class was over, Respondent came to the teacher planning area "in a huff" and immediately took off her blouse. Respondent was wearing a camisole underneath the blouse. According to Respondent she took off her blouse that day because she was extremely hot. Respondent then began "ranting and raving" about what had just occurred in her classroom and seemed to be very agitated and angry. Ms. McGinn and Ms. Zale asked Respondent what had happened in her classroom. Respondent explained that she had been correcting a student, and when she told him something, the student started sucking his teeth. Respondent then stated that when the student started sucking his teeth, she "just went off." As Respondent was recounting what had happened in her classroom (the student sucking his teeth), she still appeared to be very agitated. Ms. McGinn and Ms. Zale tried talking to Respondent in order to get her to calm down. Eventually, Respondent "did calm down some." However, Ms. McGinn described Respondent's behavior during the episode and prior to her calming down, as "abnormal" and "overly agitated." The camisole that was revealed when Respondent took off her blouse was a sleeveless undergarment with thin straps. However, the camisole was not lacy or made of transparent fabric and did not reveal any inappropriate parts of Respondent's body. In fact, the camisole looked similar to some shirts that are worn as outer garments. Nonetheless, that type of undergarment was not typically the kind of top that would be worn as a blouse or other outer garment by a teacher in a school. The teaching planning area is an area used primarily by teachers. According to Respondent, she took off her blouse that day because she was extremely hot. At that time, there were only two female teachers in the teaching planning area. However, there are times when male teachers are in the teaching planning area and times when students and visitors are in the area. Accordingly, the teaching planning area was not an appropriate area for Respondent to remove her blouse even though she was wearing a camisole underneath the blouse. September 20, 2001 Incident In September 2001, in addition to her responsibilities as a business education teacher at Jefferson, Respondent was assigned a senior homeroom class. The classroom in which Respondent's homeroom class met was used by Respondent only for the homeroom period. The homeroom period was immediately after the first period and, generally, was about five or ten minutes. However, on certain days, the school's rotating schedule allowed for a 30-minute homeroom period during which students attended "club" meetings or remained in homeroom for study hall or a silent reading period. On September 19, 2001, Respondent rearranged the student desks in the classroom where her homeroom class met to address disciplinary issues with some of her homeroom students. Prior to making this change, Respondent conferred with Gwendolyn Henderson, then chairperson of the business department, who thought the change would be fine. On September 20, 2001, Respondent arrived for the homeroom period in the assigned classroom. Most of Respondent's homeroom students were already in the classroom and in their seats when Respondent arrived. Upon entering the classroom, Respondent discovered that the student desks/tables were not arranged as she had placed them the previous day. After looking around the classroom for about a minute, Respondent yelled out, "Which one of [you] changed my tables around? This is my class. Everyone move to the back of the room now." Respondent then began pushing one of the tables around and, while doing so, the table hit a student's hand as that student was trying to move out of the way. After the table hit the student's hand, Respondent yelled out, "[You] better move out of my way." Respondent then quickly pushed another table, and as she was doing so, that table hit another student's knee. As Respondent was moving the tables, she kept repeating, "This is my room. This is my room. No one [should] touch anything in my room." Respondent again asked the students, "Who moved my tables around?" She stated, "This is not the way I put them [tables/student desks]." Finally, Respondent asked if someone in the first-period class, the class immediately before the homeroom period, moved the tables. A student in Respondent's homeroom, who was also in the first-period class, told Respondent that the tables "were like this in the first period class." By this time, all the students had moved to the back of the room as they had been instructed to do. Respondent then ran out of the classroom. After Respondent left the classroom, her homeroom students worked together and placed the tables in the "formation" Respondent had them the previous day. At some point during the incident, two students in Respondent's homeroom left the classroom, went to Gwendolyn Henderson's office and told her what had happened in their homeroom. Based on Ms. Henderson's observation, the two students were upset when they came to her office to report the incident. While the two students were in her office, Ms. Henderson heard Respondent come into the area and go to the teacher planning area. Ms. Henderson left her office and went to the teaching planning area to talk to Respondent. When Ms. Henderson entered the teaching planning area, Respondent asked her who had moved the furniture in the classroom. Ms. Henderson did not know who had moved the furniture and could not answer Respondent's question. However, it was apparent to her that Respondent was very upset about the furniture being moved. Henderson attempted to calm Respondent by repeatedly telling her to "calm down, [and] breathe." At some point, Respondent picked up the telephone, called the school office, and demanded that the school principal immediately come to the teacher planning area. In response to Respondent's call, Mr. Cugno, assistant principal at Jefferson, came to the teacher planning area. By the time Mr. Cugno arrived, Respondent, though still upset, was beginning to calm down. When Mr. Cugno entered the teacher planning area, Ms. Henderson was standing near Respondent, holding Respondent's arm and telling her to breathe. Mr. Cugno then approached Respondent and told her to calm down. It is unclear how close Mr. Cugno was to her, but according to Respondent, he was "right up in [her] face" and telling her to calm down.4 Respondent's perception was that Mr. Cugno had yelled at her and, as a result, she became upset and told him, "I will not calm down." At that point, Mr. Cugno used his radio to call for the school's resource officer for assistance. After he completed that call, Respondent asked, "Mr. Cugno, how dare you?" Ms. Henderson was "shocked" that Mr. Cugno had called the "police" (school resource officer) in this situation. For her part, Ms. Henderson had no concerns that anyone's safety was in jeopardy, and she was not "in fear," notwithstanding Respondent's behavior that day. Prior to the school resource officer's arriving, Respondent told Ms. Henderson and Mr. Cugno that she was going for a walk and left the teacher planning area. At some point after Respondent left the teacher planning area, Daniel Rivero, principal at Jefferson, found Respondent sitting on a bench outside the main office. Mr. Rivero, who was aware of the situation that had transpired that day, asked Respondent if she would come into his office, but she refused to do so. He then asked Respondent for the second time if she would come into his office. Respondent again refused to go into Mr. Rivera's office; instead, she just sat on the bench outside the office. Unsure of what to do in this situation, Mr. Rivera contacted Linda Kipley, the general manager for Professional Standards of the Hillsborough County School District ("School District"), for guidance. Referral to Employee Assistance Program On October 2, 2001, Respondent was directed by the School District to participate in the Employee Assistance Program ("EAP"). The School District officials required this mandatory referral due to concerns about whether Respondent should be in the classroom with children. After being referred to the School District's EPA, Respondent participated willingly in the program. Once the School District makes a mandatory referral, Ms. Kipley's office receives information from the provider pertaining to the employee's progress and compliance with the referral, as well as the employee's readiness to return to work. On or about October 12, 2001, after meeting with Respondent, Judy Kuntz, Petitioner's EAP provider, telephoned Ms. Kipley and provided the following general information: (a) Respondent was very cooperative; (b) Respondent wanted to make changes; and (c) the provider and Respondent had discussed some things that had gone on in Respondent's past. The provider also advised Ms. Kipley that Respondent would need to continue with counseling on a regular basis and needed to be out of the classroom "a week or more." Finally, the provider indicated that she would contact Ms. Kipley later in October to "officially" release Respondent from mandatory referral. On October 29, 2001, Ms. Kuntz, called to update Ms. Kipley on Respondent's progress. According to Mr. Kipley's notes, Ms. Kuntz reported that she had diagnosed Respondent with post-traumatic stress disorder ("PTSD") and that Respondent "understands where her anger is coming from and realizes that she needs to redirect it in another way [and] cannot take it out on others." Ms. Kipley's notes also reflect that the provider recommended six to 12 months of additional counseling, reported that Respondent is very agreeable to counseling, and advised that Respondent was not ready to return to the classroom. Finally, according to Ms. Kipley's notes, the provider reported that she "perceives [Respondent] as extremely intelligent and willing to improve." As a result of the October 29, 2001, report from the EAP, Respondent remained on paid leave status from about November 2001 through early-May 2002. 2002-2003 and 2003-2004 School Years From May 10, 2002, through the end of her contract year (end of May or June 2002), Respondent was assigned to Erwin Technical Center, a vocational school for adults. During the 2002-2003 and 2003-2004 school years, Respondent was assigned to Bloomingdale High School ("Bloomingdale"). Respondent was a business education teacher at Bloomingdale in the 2002-2003 and 2003-2004 school years. During the 2002-2003 school year, there is no indication that Respondent was involved in incidents or behaviors that are at issue in this case. Incident With Colleague (2003-2004) In 2003-2004 school years, Jeffrey Peltzer was a teacher at Bloomingdale who taught computer support and web design. One morning Respondent came into Mr. Peltzer's classroom demanding an installation CD for Microsoft Office. Even though Mr. Peltzer sometimes helped the business education classes, he did not have access to software and was not responsible for providing software to those classes. As Mr. Peltzer was attempting to explain this to Respondent, she put her hand near his face and said, "Oh, no you don't." Respondent then ran over to Jack Pallin, a teacher who was in the classroom and said, "You saw what he did to me." Mr. Pallin responded, "I didn't see him [Mr. Peltzer] do anything." Respondent filed a grievance against Mr. Peltzer, presumably related to the installation CD. The grievance was resolved through e-mail communication between Ms. Kipley and Respondent. Mr. Peltzer had no first-hand knowledge about the grievance. Rather, it was his "understanding" that Respondent attempted to file a grievance against him, but he never saw any official grievance. In fact, Mr. Peltzer considered the matter between him and Respondent resolved and simply viewed it as a disagreement between two teachers. Media Center Incident (Fall 2003) At hearing, Clara O'Dell, then department chair at Bloomingdale, testified that on October 23, 2003, Respondent's students came to the media center/computer lab ("media center"). She also testified that the students began arriving at 2:08 p.m., and by 2:15 p.m., all of Respondent's students were in the media center; and that Respondent came into the media center at 2:15 p.m., stayed there for 15 minutes and then left. According to Ms. O'Dell, after Respondent left the media center, she went to the main office, signed out at 2:32 p.m., and noted that she had the approval of the principal to leave early. In a memo dated November 12, 2003, Ms. O'Dell states in part: It has been brought to my attention[5] that you sent your classes to the Media Center with a substitute teacher on the two days that you had CRISS training. [October 28 and November 4]. This caused problems and is against District Policy. . . On the first day of CRISS training your sub was sent back to the classroom. On the second day, your sub was allowed to stay because (1) she had served as a sub in the Media Center . . . . The November 12, 2003, memo indicates the following: on October 28, 2003, Respondent's students were not supervised in the media center because someone sent the substitute teacher assigned to cover Respondent's class back to the classroom; (b) on November 4, 2003, a substitute teacher was in the media center with the students; and (c) on October 28 and November 4, 2003, Respondent was released from her classes to attend some type of training. Student Schedule Change (January 2004) Chris Bowden was assistant principal for student affairs at Bloomingdale in the 2003-2004 school year. At the beginning of the semester, students at Bloomingdale were given the opportunity to change their class schedules. In January 2004, a student in Respondent's business education class, D.W., received a schedule change that moved her from Respondent's seventh-period class to her fifth-period class. The schedule change was necessary to accommodate the student's geometry course. Respondent received the schedule change for D.W. on Tuesday, January 6, 2004. Upon learning of the schedule change, Respondent sent Mr. Bowden an e-mail expressing her concern that the change would impact the "balancing of her class." Respondent also indicated her preference was that D.W. stay in the seventh-period class. In an e-mail response, Mr. Bowden advised Respondent that he would continue to monitor her class loads. Mr. Bowden also indicated that once the elective schedule change period was over, he would make the necessary adjustments to balance Respondent's classes, but that D.W.'s schedule change should be honored. On January 7, 2004, D.W. reported to Mr. Bowden that she went to Respondent's fifth-period class, but was not accepted in the class by Respondent.6 Mr. Bowden decided to escort the student to class to help her earn entry in the class and to clarify any misunderstanding Respondent may have had regarding D.W.'s schedule. At that point, even though Mr. Bowden had sent Respondent an e-mail asking her to honor D.W.'s schedule change, he was not sure Respondent had opened and read the email. Before Mr. Bowden could escort D.W. to Respondent's fifth-period class, the student asked if she could be removed from Respondent's class, and Mr. Bowden granted that request. Although Mr. Bowden made a commitment to allow D.W. to take a fifth-period class other than Respondent's class, prior to such change, D.W. had to "sign out" of Respondent's class. This school-wide procedure was required to provide teachers with notice when students were no longer assigned to their classes and, thus, could be taken off the class roll. In accordance with that procedure, D.W. was instructed to go and "sign out" from Respondent's fifth-period class and then present the schedule change to her new fifth-period teacher. When D.W. returned to Respondent's class, Respondent did not sign the student out of her fifth-period class because she did not believe that D.W. was not in her fifth-period class. Even though Respondent did not complete or sign D.W.'s form as required for the student to be "signed out" of Respondent's class, Respondent wrote a note on the form which stated, "[D.W.] is not in my fifth period [class]. She attended 5th yesterday. I think she skipped her 5th [with] Mr. M. Mason." Under the note, Respondent signed her name. The student returned to Mr. Bowden's office and told him that Respondent would not sign her out of the fifth-period class. Mr. Bowden then signed the schedule change form so the student could begin attending her new fifth-period class. On January 7, 2004, after Respondent did not execute the form allowing D.W. to "sign out" of Respondent's fifth- period class, Mr. Bowden went to Respondent's classroom to explain that there was obviously a misunderstanding. Respondent's class had just left for lunch, and no students were in the class during the following interaction. In his discussion with Respondent, Mr. Bowden attempted to clarify what he presumed to be a misunderstanding on Respondent's part. However, Respondent told him that there was no misunderstanding and that she understood perfectly. At the time, Respondent was sitting at her desk writing a student referral, which is a request for disciplinary action for an infraction of school rules. The referral was for D.W. based on Respondent's belief that the student had skipped her assigned fifth-period class with another teacher the previous day. Mr. Bowden believed that because D.W. had already signed out of Respondent's fifth and seventh-period classes, the student was no longer in any of Respondent's classes or Respondent's responsibility. In accordance with that belief, Mr. Bowden directed Respondent to cease writing the referral and told her that if she wrote the referral, it would not be acted upon. Respondent then told Mr. Bowden that she was going to keep the referral for her records. After the disciplinary referral issue was resolved, Mr. Bowden again reiterated to Respondent that there had been a misunderstanding concerning D.W.'s schedule change. During Respondent' and Mr. Bowden's exchange about the misunderstanding about the schedule change, Mr. Bowden observed that Respondent seemed disturbed and agitated. He also noticed that the issue concerning the schedule change for D.W. appeared to be very upsetting to Respondent. Attempts to Meet With Respondent (January 2004) Based on Respondent's reaction to the schedule change issue, Mr. Bowden decided he needed to meet with Respondent. He then attempted to talk with Respondent about scheduling the meeting, but Respondent cut him off in mid-sentence and told him, "This conference is over." She then stood up from her desk, let out an audible sound of "frustration, distress, a sigh, a moan," walked past Mr. Bowden, and then hurried down the hallway. At that time, the students in the corridor were in the midst of going to lunch. Meanwhile, Respondent continued hurrying, though not running, down the hallway in an apparent attempt to gain space between her and Mr. Bowden. The reason she left the classroom was that Mr. Bowden had insulted her, and she wanted to get away from him. Before Respondent left her classroom, it was clear to Mr. Bowden that: (a) D.W.'s schedule change issue had been resolved; (b) Respondent had agreed to not submit a disciplinary referral on D.W.; and (c) Respondent was upset about the scheduling issue and did not want to talk about that issue. Nonetheless, Mr. Bowden felt it was necessary to meet with Respondent about the scheduling issue and to do so as soon as possible. After Respondent exited her classroom, Mr. Bowden went to his office, confirmed that Respondent did not have a sixth-period class, and determined that that was a convenient time to meet with Respondent. What he did not know was that part of the sixth period was also Respondent's lunch period. Before he could contact Respondent about scheduling the meeting and between the fifth and sixth periods, Mr. Bowden saw Respondent sitting outside of the student affairs office at the beginning of the sixth period. Mr. Bowden then approached Respondent, indicated he had verified that she did not have a class that period, and told her that he needed to meet with her. Respondent then stated in a loud voice, "I am not going to meet with you; you know I do not like to meet with you and I am not going to do it."7 Respondent eventually moved from a side corridor that ran between the student affairs office and the main office and into the main corridor of the school. While in the main corridor, Respondent stopped walking and turned to Mr. Bowden and said, "Why do you want to meet with me?" At some point, Respondent was standing with her hands behind her back, staring at the ceiling. Mr. Bowden attempted to persuade Respondent to go into his office in the main office suite, which was about 15 feet away, rather than have this discussion in the main corridor. During that exchange, students were exiting the lunchroom, which was across from the main office. One teacher who was on duty and was very close to the main office area, heard the interaction between Mr. Bowden and Respondent. However, it was his impression that none of the students and staff members heard the exchange. This was evidenced by the fact that no students or staff members in the corridor at that time stopped and looked toward Mr. Bowden and Respondent. Mr. Bowden tried to direct her from the corridor into his office so he could gauge Respondent's mental state and determine whether she could teach her seventh-period class. Mr. Bowden also wanted to determine if he and Respondent could reach closure on the D.W. scheduling issue. Respondent followed Mr. Bowden's directive and came into the lobby of the main office, but would not go into Mr. Bowden's office. Instead, she told him, "I will meet you right here." She also asked him on what authority was he requesting to meet with her. Mr. Bowden explained that as the administrator on campus, he had the authority to request the meeting. Respondent then said to Mr. Bowden in a condescending manner, "I've told you, I am not going to meet with you. Do you understand that?" Respondent asked Mr. Bowden if she could make a telephone call, and he then directed her to an office where she could use the phone. While Respondent was using the telephone, Mr. Bowden left the main office to arrange for someone to cover Respondent's seventh-period class. After Respondent completed her call, she left the main office. At some point thereafter, Mr. Bowden learned from his secretary that Petitioner had left the office. Prior to the sixth period's ending, Mr. Bowden eventually found Petitioner in her classroom with another teacher, Fadia Richardson. After Ms. Richardson left the classroom, Mr. Bowden told Respondent that her seventh-period class would be arriving soon and that she should not be in the classroom when they arrived. Respondent went over to her desk where she had a jacket, put her arms through the jacket, pulled the jacket over her head, and turned her back to Mr. Bowden. From that point, when Mr. Bowden was trying to talk to Respondent, she placed her hands over her ears or fingers in her ears, looked away from Mr. Bowden into the corner and said, "I'm not listening to you anymore. I'm not listening to you anymore." Mr. Bowden was concerned about Respondent's behavior and found it disturbing to watch a person get to this point. Mr. Bowden acknowledged that he was not a mental health professional or law enforcement officer, and did not "know what [he] was dealing with." However, Mr. Bowden believed "that we were in the middle of some sort of breakdown." While Respondent continued to display the behavior described above, Mr. Bowden continually and repeatedly said to Respondent, "You can not be here when your students arrive." At that point, Mr. Bowden's primary concern was that Respondent leave the classroom before the 25 or 30 students arrived for Respondent's seventh-period class. Prior to the students' arriving for the seventh period, Respondent left the classroom. Because Mr. Bowden did not know what Respondent's mental state was at the time, he decided not to pursue her. Instead, Mr. Bowden followed up to make sure there was another teacher to cover Respondent's seventh-period class. He then went to his duty area, the main corridor outside the main office, to supervise the class change. While he was in the main corridor, Mr. Bowden's secretary informed him that Respondent was waiting for him in the main office. Mr. Bowden went to the main office, saw Respondent sitting quietly on a sofa waiting for him, and observed that she now had a "normal demeanor." Mr. Bowden was surprised that Respondent had come to the office, but given her calm demeanor at that time, he asked if she was there to meet with him. In response, Respondent stated emphatically that she was not going to meet with him. Elizabeth Stelter, the school principal at Bloomingdale, came into the area and heard the exchange between Mr. Bowden and Respondent and offered to sit in on the conference as a third party. Respondent then again stated, "I'm not meeting with him." At that point and with only about an hour remaining in the school day, Ms. Stelter told Respondent that she was free to leave school for the day. After the January 7, 2004, incident involving Respondent's failure to meet with Mr. Bowden, Respondent was removed from the classroom at Bloomingdale. The Jefferson and Bloomingdale incidents were similar in that both involved a male school administrator directing Respondent to come into the office area to meet with that administrator about her (Respondent's) conduct. Grievance Filed by Respondent On January 8, 2004, Ms. Kipley spoke with Respondent about the incident involving Mr. Bowden that happened the day before. Respondent discussed her feelings about the incident and indicated that she felt that the administration was out to get her and that she was being harassed by Mr. Bowden. Respondent also indicated she was upset that Mr. Bowden had interrupted her during her lunch time and believed that he should have approached her at another time. During the meeting, Respondent was visibly upset, but she was even-tempered and not loud. On an unspecified date, Respondent filed a grievance against Mr. Bowden. That grievance was determined to be unfounded. Fitness-for-Duty Evaluation On January 26, 2004, Ms. Kipley informed Respondent that she would have to undergo a fitness-for-duty evaluation. This evaluation was being conducted because of the School District's concern about what appeared to be unstable behavior and insubordinate behavior. The School District wanted this in-depth evaluation to determine: (a) whether Respondent was fit to perform her duties as a classroom teacher; and whether she could safely instruct children and interact appropriately with her colleagues, peers and administrators. Evaluation Results The School District referred Respondent to James Edgar, M.D., for a fitness-for-duty evaluation "because of a pattern of unstable and insubordinate behavior toward parents, students and administration." Dr. Edgar conducted the evaluation in or about early March 2004 and prepared a report summarizing the results of that assessment. Based on the evaluation, Dr. Edgar reached the following conclusions: I find no psychiatric disorder that would account for "pattern of unstable or insubordinate behavior toward parents, students and administrators". From a psychiatric perspective, [Respondent] has no impairment that would interfere with her ability to safely instruct minor children, appropriately interact with students, parents, staff and the administration. Dr. Edgar's report notes that the results of the evaluation are based on information provided by Respondent and records provided by the School District and collateral sources. The specific records provided by the School District were not described or identified. Dr. Edgar's report notes that Respondent advised him of Dr. Feldman's diagnosis of PTSD and that she had been seeing Dr. Feldman for "problems with anger" since 2001. With regard to the PTSD diagnosis, Dr. Edgar indicated that he had not reviewed the records of Dr. Feldman and his evaluation had found no evidence to support that diagnosis. Notwithstanding his conclusion, Dr. Edgar's report states that "additional information not disclosed to [him] could significantly alter the assessment results." Respondent's Current Status During this proceeding, Respondent explained, but did not attempt to defend or excuse her conduct that is at issue in this proceeding. According to Respondent, she realized only after the fact, and after therapy, that Mr. Cugno's voice was almost identical to one of the people who had been aggressive toward her and that Mr. Cugno's "getting in her face" definitely did trigger an episode. Respondent acknowledges that when she went in for her mandatory EPA evaluation in 2001, she was experiencing intense and sudden anger, but felt powerless to prevent it. However, years after receiving that diagnosis and therapy, Respondent is better able to deal with that issue. In therapy, Respondent has learned (a) what will trigger an episode with her and how to guard against it; (b) how to remain aware of the surroundings; (c) how she is interacting with those surroundings and to remove herself from the situation whenever possible; and (d) how to use relaxation techniques, such as deep breathing. Respondent's Disciplinary/Professional Record Except for this case, there have been no disciplinary actions brought against Respondent's educator's certificate. Throughout Respondent's teaching career, she has consistently earned satisfactory ratings on her performance evaluations. Even with the conduct at issue in this proceeding, there have been no allegations regarding Respondent's overall effectiveness in terms of instruction and classroom management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission dismissing, in its entirety, the Amended Administrative Complaint against Respondent, Debra Satchel. DONE AND ENTERED this 30th day of June, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2010.
Findings Of Fact Petitioner was employed by Respondent at the commencement of the 1975- 1976 school year as an industrial arts teacher at the B. F. James Adult Education Center. During the first days of the 1975-1976 school year, Petitioner was employed as a substitute teacher. On November 17, 1975, however, Petitioner entered into a written agreement with Respondent entitled "Contract for Part-Time Instruction." Pursuant to the terms of the contract, Petitioner was to be paid an hourly salary of $8.82 per hour. The contract further provided, in pertinent part, that: The number of hours of instruction will be based upon the courses offered for which the instructor is qualified, and assignment to teach such courses will be made by the county superintendent of schools through his designated adminis- trative representative. This appointment is contingent upon minimum enrollment and attendance in the course assigned. This contract may be cancelled at any time by either party upon ten days written notice. . . (Emphasis added.) During the 1975-1976 school year, Petitioner worked at least seven and one-half hours per day, five days per week, 12 months per year. Petitioner worked a regular day schedule with additional but irregular work performed at night. Like full-time teachers on an annual contract, Petitioner received his pay on a monthly basis. However, as indicated above Petitioner was paid an hourly salary, whereas teachers on either annual or continuing contracts were paid according to a salary schedule negotiated between Respondent and the Broward County Classroom Teachers Association, Inc. In addition, as earlier indicated, Petitioner's work hours were on an "as needed" basis, depending upon student enrollment, the nature of courses offered, and funding for particular programs of instruction. Full-time teachers on annual or continuing contracts were employed on the basis of a school year of not less than 196 days. During the course of the 1975-76 school year, Petitioner inquired of his immediate supervisor concerning the possibility of receiving an annual contract. The supervisor, in fact, recommended Petitioner for such a contract, but that recommendation was not acted upon favorably by Respondent. The record in this cause reflects only that there was "some problem" with Petitioner's personnel file which led to Respondent's decision not to offer an annual contract to him during the 1975-1976 school year. Respondent was again recommended, in a subsequent school year, by his immediate supervisor for an annual contract for 70 percent of a full school day, but again that recommendation was not acted upon favorably. Petitioner continued employment with Respondent during the 1976-1977, 1977-1978, and 1978-1979 school years. During each of those years, Petitioner continued to work at least seven and one-half hours per day, five days per week, 12 months per year. After the initial contract between Petitioner and Respondent for the 1975-1976 school year, however, Petitioner never received another written contract. He did, however, inquire on several occasions concerning his right to receive an annual contract. Respondent, however, never offered Petitioner annual contract status. Respondent classifies the contractual status of its instructional employees as either "annual," "continuing," or "part-time." Part-time employees, unlike annual contract and continuing contract employees, have not been given written employment contracts for at least the last five years. Recommendations to employ part-time instructional employees originate with Respondent's school principals, who transmit their recommendations to the Superintendent. The Superintendent, in turn, recommends the employment of part- time employees to the School Board. Part-time employees are recommended by the Superintendent and voted upon by the Board en masse in June of each year for employment during the following school year. As many as 1,200 to 1,500 part- time employees may be recommended for employment at one time. Once the School Board approves the Superintendent's recommendations concerning the hiring of part-time employees, those persons approved are thereafter available to principals to be hired at any time during the ensuing school year. Respondent places no limits on the amount of time part-time employees may work, notwithstanding their part-time designation, so long as students, courses, and course funding are available. When a course offered by Respondent and taught by Petitioner or other instructional employees similarly situated did not generate sufficient enrollment or failed to receive funding, the course was discontinued and the instructional employee's employment ceased. Sometime during the 1978-1979 school year, Petitioner met with his immediate supervisor to discuss his continued employment with Respondent. Ultimately, Petitioner received a letter advising him that his employment would be terminated at the conclusion of the 1978-1979 school year. Prior to his termination, Petitioner had never been advised, in writing, of any deficiencies in his job performance.
