The Issue Whether Respondent is guilty of an unlawful employment practice by discrimination against Petitioner on the basis of race and/or in retaliation against a protected expression.
Findings Of Fact 1. Petitioner, an African-American female, was employed by Respondent Employer for 53 days, from October 15, 2001, to December 6, 2001. 2. Respondent is an agency of the executive branch of Florida's State government, created under Chapter 20, Florida Statutes. As such, the undersigned infers that the real employer is the State of Florida, and therefore more than 15 employees work for Respondent. 3. During the whole of Petitioner's employment with Respondent she was an “other personnel services" (OPS) employee. This means that she was paid an hourly rate, for each hour worked, at a rate set by the Respondent's Division Director and the immediate supervisor, in conjunction with the budget office. Her employment fell under the "temporary" category of OPS personnel, hired to work until a specific short-term project/task was completed. There are opportunities to extend the period for which an OPS employee is hired, but there is no guarantee of extensions or of continued employment. OPS employees may be removed from the OPS payroll at any time based upon work performance, upon completion of the project/task for which employed, or for any other reason. 4. Petitioner was hired-on by Respondent at $7.00 per hour. She worked at least eight hours per day, five days per week, . 5. For approximately the first four weeks of Petitioner's employment with Respondent, Petitioner and a "white" female employee, Julia Gilbert, typed deficiency letters and answered phones. Ms. Gilbert was also an OPS employee who worked at least an eight hours per day. No evidence of Ms. Gilbert's hourly wage was presented. 6. In most instances, OPS employees are paid at the minimum of the class of career service employees whose duties are comparable. 7. Petitioner and Ms. Gilbert were performing the duties of a Regulatory Specialist I. 8. Another African-American woman, Najla Burt, had been hired in August 2001. At all times material, Ms. Burt performed the duties of an application reviewer. She was paid $10.00 per hour, to work for at least eight hours per day. She continued to be employed by Respondent as of the date of hearing. Although there was no specific testimony on this point, it may be inferred from Ms. Burt's hourly rate that she was/is classified as OPS personnel, but there is no clear evidence that as an “application reviewer" she would have fallen into the Regulatory Specialist I category. 9. Mr. Everett Thompson, an African-American male, hired Ms. Burt and claimed to have hired Petitioner. Petitioner denied that Mr. thompson hired her, but conceded that she reported to him as her immediate superior and to Shirley Rodgers, a "white" female, who was a higher level superior, and that Mr. Thompson fired Petitioner on December 6, 2001.?/ 10. Petitioner's perception was that Mr. Thompson terminated her because he is "prejudiced" and that he discriminated against her as an African-American when he terminated her without also terminating the "white" employee, Ms. Gilbert. 11. Aside from her termination being without warning, Petitioner's offered proof of Mr. Thompson's racial prejudice revolves around an office party. Petitioner, Mr. Thompson, Ms. Burt, and other employees were present. Everyone present was African-American except for two employees whose race is not of record. The undersigned infers, from the evidence as a whole, that these two employees were "white." Mr. Thompson testified that, as a joke, and to avoid eating chocolate cake, which he dislikes, he said, "I don't eat anything darker than me." He testified that he felt his "joke" was acceptable due to the predominance of African-American employees at the gathering. Petitioner and Ms. Burt heard Mr. Thompson's remark differently. Their testimony is consistent on this issue and more credible, to the effect that, in fact, Mr. Thompson said, "I don’t like anything that is blacker than me or eat anything that is blacker than me." 12. There is no evidence to support a finding that Petitioner is a darker- or lighter-skinned African-American than Mr. Thompson. */ 13. With regard to the allegations of disparate treatment of Petitioner and Ms. Gilbert, Petitioner, Ms. Burt, and Mr. Copeland testified that Ms. Gilbert and Petitioner were assigned to answer phone inquiries and Ms. Gilbert repeatedly unplugged her phone to avoid this duty. Petitioner and Ms. Burt testified that Mr. Thompson and Ms. Rodgers held a Meeting of all office personnel and announced that anyone unplugging his or her phone in order to avoid having to answer it would be automatically terminated, and that Ms. Gilbert was not terminated for unplugging her phone or for not answering it, even when Ms. Gilbert again unplugged her telephone after the departmental warning. 14. Mr. Thompson's testimony is credible that several employees, in addition to Petitioner, reported to him that Ms. Gilbert was unplugging her phone but that when he approached Ms. Gilbert about the problem, Ms. Gilbert told him that she had not unplugged her phone. He further testified credibly that when he personally checked Ms. Gilbert's phone, he determined that it was, in fact, plugged-in, and that as a result, he had believed Ms. Gilbert over the other employees. Mr. Thompson also testified that, in the interests of resolving the issue and as a management technique, he went so far as to announce in a meeting with all employees that if anyone did unplug his or her phone, that person would be reprimanded. I accept Mr. Thompson's foregoing testimony as credible, except that Petitioner and her witnesses are more credible to the limited effect that Mr. Thompson and Ms. Rodgers together made a blanket threat of automatic termination, not just reprimand, of anyone found to have unplugged his or her telephone. 15. Ms. Gilbert was not terminated for unplugging her phone or for not answering one. No one testified that Petitioner was terminated for unplugging a telephone or for not answering one. 16. Petitioner also maintained that she was terminated in retaliation for asking Ms. Rodgers why she, Petitioner, was not being paid $10.00 per hour, which Petitioner understood was base pay for her position if she had been a permanent career service employee. However, all Petitioner was able to relate on this issue was that Ms. Rodgers had told her "all OPS employees make the same hourly rate," and Petitioner knew this was not so. Ms. Burt apparently escorted Petitioner to Ms. Rodgers' office and Petitioner told her on the way what she intended to say to Ms. Rodgers, but neither Ms. Burt nor any other witness was in the room during Petitioner's and Ms. Rodgers' conversation. Petitioner apparently had no other direct dealings with Ms. Rodgers after this conversation and was not terminated until two weeks after this conversation. Petitioner was terminated by Mr. Thompson, not by Ms. Rodgers. 17. Mr. Thompson denied that race had anything to do with terminating Petitioner. He related that he had received oral complaints about Petitioner's work from processors. None of these complaints was formalized in writing or placed in Petitioner's personnel file. Mr. Thompson privately corrected Petitioner for misspellings and other typographical errors she made typing deficiency letters during her first four weeks. He also privately corrected Ms. Gilbert for the same sort of spelling and typographical errors, but he also determined that Ms. Gilbert was making far fewer errors than Petitioner. He further determined that Petitioner's deficiency letters were not being done as fast as Ms. Gilbert's letters. He required that each woman correctly re-type her own work. 18. After approximately four weeks, Mr. Thompson moved Petitioner to a data-entry position which required less skill. After approximately two more weeks, he found that Petitioner also was neither fast enough nor accurate enough in her new duties to suit him. Mr. Thompson felt he had no obligation to explain his motivations or reasons for termination to OPS personnel, and he simply fired Petitioner. 19. Mr. Thompson admitted that on two occasions, Petitioner had asked him why she was not earning $10.00 per hour just after he had given her instructions to perform duties appropriate to her project/task. Mr. Thompson was not the immediate superior designated by the employer to set OPS salaries so Petitioner's pay inquiries irritated him, but he testified that he did not retaliate with termination as a result of her pay inquiries. It was Petitioner's overall attitude which was objectionable to him, not just her inquiries about pay. He related that whenever he asked Petitioner to answer the phone, she asked why she had to answer the phone instead of his assigning the task to another similarly-situated employee and that once he justified that order, Petitioner would then immediately ask him if she and the other similarly~-situated employee could take turns answering the phone. This type of negotiation was Petitioner's response to many of his instructions. Petitioner never directly refused an order from him, but Mr. Thompson resented her attitude in never simply complying with his orders as her supervisor and her turning his every instruction into a negotiation. 20. Petitioner testified that she was doing her job well; received compliments from her two superiors; and got no prior warning she would be terminated. Ms. Burt testified that Petitioner was performing her job duties and responsibilities "to the best of her ability" when she was fired. Mr. Keyon Copeland, an African-American male OPS co-worker, testified that Petitioner was performing her job well and worked through lunch and coffee breaks and worked after regular hours to help other employees but she was then fired without warning. He felt "the situation was not handled right." However, neither Ms. Burt nor Mr. Copeland was a superior of Petitioner or of Ms. Gilbert. Neither of them was ever called upon to formally evaluate Petitioner's or Ms. Gilbert's job skills or performance for the employer. Neither Ms. Burt nor Mr. Copeland claimed to have any experience or expertise in employee performance evaluations. Their evidence was essentially anecdotal. 21. Mr. Thompson has held supervisory positions for many years and has evaluated many employees. He credibly denied that race had anything to do with his decision to fire Petitioner. Upon the evidence as a whole, most Particularly the fact that Mr. Thompson is an African-American and he did not terminate other African-Americans including Ms. Burt and mr. Copeland, it is found that mr. Thompson's perception of Petitioner was that she alone had an attitude problem and that this perception, coupled with his assessment that her job performance was not adequate, motivated him to terminate Petitioner. 10
Conclusions For Petitioner: Michele M. Young, pro Se , 1732 Augustine Place Tallahassee, Florida 32301 For Respondent: Michael Wheeler, Esquire, Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
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 Charge of Discrimination and Petition for Relief. DONE AND ENTERED this Lt day of July, 2003, in Tallahassee, Leon County, Florida. 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 day of July 2003.
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on January 7, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this discrimination case, which has an extremely limited factual record and is replete with hearsay, Petitioner, Thornton Alan Bline, who was 52 years of age in October 1997, contends that Respondent, Automax and Pearson Group, unlawfully terminated him on account of his age. Respondent denies the allegation and contends that Petitioner was terminated because of poor performance. A preliminary decision on the merits of the claim was never reached by the Florida Commission on Human Relations (Commission). Respondent is a car dealer that began business in the summer of 1997. Although there is no specific evidence on the issue of whether Respondent is an employer within the meaning of the law, monthly compensation reports received in evidence as Respondent's Exhibits 1 and 2 reflect that during August and September 1997, Respondent employed five team leaders, including Petitioner. Thus, the total number of employees would have been greater. Even so, the record does not show the precise number of persons employed by Respondent, and the undersigned is unable to determine if Respondent is an employer within the meaning of the law and thus subject to the Commission's jurisdiction. Petitioner was hired by Respondent on May 30, 1997, as a floor manager. That position required Petitioner to manage a small team of salespersons who assisted customers in purchasing automobiles. The team's performance was measured by the number of automobiles (units) sold each month. In August and September 1997, Petitioner's team had the lowest sales volume of any team. More specifically, in August 1997, out of 80 units sold by all teams, Petitioner's team sold only 10 units; in September 1997, out of 97 units sold by all teams, Petitioner's team sold only 4. At hearing, Petitioner agreed that these numbers were accurate and that his sales "were down" during that period of time. On October 1, 1997, Petitioner was summoned to the office of the general manager, "Bud" Holian, who advised him that he was being terminated due to low sales performance. At that brief meeting, Holian explained that he "felt bad" about the decision, especially "with all [Petitioner had] done," but that he had to let Petitioner go. Petitioner contended that during the conversation, Holian had also stated that the company needed "someone younger and fresher to liven up the team." He further contended that another floor manager named "Rick" overheard the conversation and could confirm these remarks. However, Rick did not appear and testify. Neither was there was any other corroborating or independent evidence to confirm this allegation. Holian, who is older than Petitioner, denied making the comment. He also established that after Petitioner was terminated, he hired two other salesmen who were older than Petitioner. Finally, the record does not show who replaced Petitioner and the age of that individual. In light of the foregoing, there is insufficient evidence to find that Respondent's employment decision was grounded on discriminatory animus in any respect, or that a discriminatory reason motivated the employer in its actions. Rather, the more persuasive evidence supports a finding that Petitioner was terminated solely because of poor sales performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, the Charge of Discrimination. DONE AND ENTERED this 9th day of August, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 9th day of August, 2000. COPIES FURNISHED: Thornton Alan Bline 5720 Northeast 4th Street Ocala, Florida 34470 Bernard B. Holian, General Manager Automax and Pearson Group 1918 Southwest 17th Street Ocala, Florida 34470 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact Petitioner began employment with Respondent as a Veterans' Affairs Officer I, on August 10, 1987. At all times material hereto, Petitioner was in probationary status. Between August 10, 1987, and November 6, 1987, Petitioner was given extensive and thorough training and counseling by the Respondent on his job duties and responsibilities, as well as information about relevant provisions of Florida and Federal laws and rules pertaining to his job. The training and counseling which Petitioner received was the same as was received by other Veterans' Affairs Officers. From September 8 through 11, 1987, John Whalen conducted a course, "Introduction to Veterans Benefits", which Petitioner attended. The course was given over a four day period rather than the usual five day period, because Labor Day fell during the week of the course. However, since there was only one other student in the course, Whalen testified that he was able to cover all of the material and offer special assistance to students in attendance, and this was his normal procedure whenever there were only two students in a course. Following the course, Petitioner scored 91 out of 100 on a test given covering the course material. Petitioner was allowed to take time during the work day to review materials about veterans' benefits, and was allowed to ask questions of his supervisor, Ron Matson, at the end of each day whenever there was something he did not understand. Matson also conducted numerous counseling sessions with Petitioner in an attempt to explain office procedures and requirements to Petitioner. On or about August 10, 1987, and again on December 1, 1987, Petitioner was provided with copies of the "Essential Elements" and "Performance Standards" for his position. On or about September 2, 1987, he also received a "Career Service System Position Description" for the position which he held. He signed for these documents, and thereby acknowledged receipt. Petitioner's performance was evaluated by Ron Matson, his supervisor, on November 6, 1987, as "Below Performance Standards". Matson met with Petitioner on or about November 29, 1987, and discussed this evaluation. Petitioner declined the opportunity to offer any comments at that time. A second performance evaluation was prepared for Petitioner during December, 1987, and it also reflected performance "Below Standards". Petitioner signed this second performance appraisal on December 31, 1987. This was the second "Below Standards" appraisal received by Petitioner while in probationary status. Petitioner was terminated by the Respondent on December 31, 1987, due solely to his documented failure to perform basic and essential tasks of his job. Specifically, numerous and repeated errors were found in veterans' claims submitted by the Petitioner, and he demonstrated little, if any, ability to retain and recall knowledge and instructions to which he had been exposed in training and counseling sessions. The work he did complete was filled with typographical and other clerical errors, which then had to be brought to his attention and corrected. He was inordinately slow in the performance of his duties, thereby delaying the submission of claims, and repeatedly missing deadlines. As demonstrated at hearing, Petitioner has a minimal ability to communicate, and this impaired his ability to serve veterans who needed assistance in handling claims and other matters. His attitude toward his supervisor and co-workers was uncooperative. Petitioner asserts that he was treated differently from other employees. He complains that he was required to wear a tie, but it was established that office policy required employees to either wear a tie with a dress shirt, or a sport shirt that did not require a tie. This was explained to Petitioner by Ron Matson, and was applied to all employees uniformly. He also complains that Matson was unfriendly and aggressive toward him, but the evidence establishes that Matson did not treat Petitioner unfairly. He did find it necessary to be assertive with Petitioner because of his demonstrated inability to either understand or follow directions. However, Matson's actions were appropriate and justified. Petitioner also asserts that he was not allowed to work a flex schedule, but the evidence establishes that employees in probationary status are always required to work 8:00 A.M. to 4:30 P.M. in order to maximize training opportunities during regular business hours. Finally, he claims he was not allowed to take coffee breaks, but his co-workers refuted this claim. Petitioner was invited to take breaks with his co-workers, but instead he chose to stay at his desk and read. On January 5, 1988, Petitioner filed a complaint of discrimination against Respondent alleging that he had been terminated due to his race. Petitioner is black, and no other employees in the office in which he worked are black. After investigation, the Executive Director of the Commission made a determination of "no cause" concerning Petitioner's complaint, and Petitioner timely filed a Petition for Relief, resulting in this hearing.
Recommendation Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED. DONE AND ENTERED this 12th day of July, 1989, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1989. APPENDIX (D0AH CASE NO. 89-1662) The Petitioner did not file a Proposed Recommended Order with Proposed Findings of Fact. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 5. 4. Adopted in Finding of Fact 2-4. 5. Adopted in Finding of Fact 6. 6. Adopted in Finding of Fact 5. 7. Adopted in Finding of Fact 7. 8. Adopted in Finding of Fact 8. 9. Adopted in Finding of Fact 3. 10. Adopted in Finding of Fact 9. 11. Adopted in Finding of Fact 10. 12. Adopted in Finding of Fact 9. 13. Adopted in Finding of Fact 10. Rejected as simply a conclusion of law. Adopted in Finding of Fact 11. COPIES FURNISHED: Calvin Wright P. O. Box 11433 Tampa, FL 33680 Donald J. Bradley, Esquire P. O. Box 1437 St. Petersburg, FL 33731 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
The Issue The issue is whether Respondent has violated certain child- care standards in the operation of her child-care facility and, if so, what penalty should be imposed.
Findings Of Fact Respondent owns and operates a licensed daycare facility. Her license expires June 30, 1997. On January 28, 1997, during an inspection by Petitioner's inspector, Respondent's facility was inadequately staffed. One staffperson was supervising a group of nine children, three of whom were less than one year old. Also, a child was asleep, unsupervised, in a back room. The inspector also noted on the inspection report that two staffpersons had not completed the required 30 hours of training. Based on Respondent's assurances, the inspector noted on the inspection form that the two employees were enrolled in the 10-hour class that they needed to complete their required training. The January 28 inspection report names the two employees as "Tabitha" and "Donna." "Tabitha" is Tabitha Johnson, whom Respondent hired on January 21, 1997, and who ceased working for Respondent sometime prior to February 17, 1997. "Donna" is not the first name of any of Respondent's employees, but, whoever the inspector intended to name "Donna" also ceased working for Respondent prior to February 17, 1997. The January 28 inspection of staff training was a followup of an inspection on June 14, 1996, at which time the inspector had discovered that four employees were lacking the required 30 hours of training. By letter dated June 24, 1996, Petitioner gave Respondent until December 30, 1996, to correct this violation or face a fine of $25 per day per employee. The inspector reported that these four employees were "Joan," "Dana," "Debbie," and possibly "Westin." On February 12, 1997, a local television-station crew operating a concealed camera visited Respondent's center. Posing as parents interested in placing their child at Respondent's center, the crew videotaped a room that appeared to reveal that a number of children were unattended. However, the evidence failed to establish that the closest staffperson was sufficiently far from the children as to be unable to supervise them. On February 17, 1997, during another inspection by Petitioner's inspector, Respondent's facility was again inadequately staffed. One staffperson was supervising a group of 13 children, one of whom was less than one year old. The inspector also reported that seven children were playing unsupervised on a patio. However, the evidence fails to establish that the closest staffperson was sufficiently far from the children as to be unable to supervise them. Petitioner has cited Respondent repeatedly for inadequate supervision and has fined her twice in 1993.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order imposing a $300 fine against Respondent and dismissing the remainder of the charges against her. DONE AND ENTERED in this 27th day of June, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on this 27th day of June, 1997. COPIES FURNISHED: Susan Mastin Scott Senior Health Attorney Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906-0085 Patricia Morman Post Office Box 1153 Fort Myers, Florida 33902-1153 Richard Doran, General Counsel Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner has cause as set forth in the notice of specific charges to order that the Respondent's professional services contract not be renewed.
Findings Of Fact At all times pertinent to this proceeding, the Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools with the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. North County Elementary School (North County) and Myrtle Grove Elementary School (Myrtle Grove) are public schools in Dade County, Florida. Respondent graduated from North Eastern Illinois University in 1978. She began her employment with the Petitioner at North County at the beginning of the 1987/88 school year. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher pursuant to a professional services contract. Teachers employed by the Petitioner are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system provides for periodic observations of a teacher's performance that is followed by an evaluation of that performance. The evaluator records what he or she considers to be observed deficiencies in the teacher's performance and provides a plan, referred to as a prescription, for performance improvement. At all times pertinent to this proceeding, the TADS method was used to evaluate the Respondent's performance. Respondent taught at North County during the 1987/88 school year. The principal of North County for that school year was Gertrude Pope. Ms. Pope evaluated Respondent's performance based on the TADS method and rated her overall performance as acceptable. Ms. Pope testified that Respondent had difficulty in classroom management during the 1987/88 school year, and that she tried to help Respondent improve her classroom management by giving her materials, having her observe other teachers who were good in classroom management, and by having her view a videotape on assertive discipline. Ms. Pope wanted Respondent to develop and use in her classroom an assertive discipline plan, which consists of strategies to maintain discipline in the classroom and specifies behavioral standards and the consequences for failing to adhere to those standards. Respondent's TADS assessment for the 1988/89 school year was acceptable. In August 1989, Dr. Ruthann Marleaux became the principal at North County, a position she retained at the time of the formal hearing. On October 27, 1989, Respondent's left knee and left instep were injured at school when a child accidentally stepped on her foot. After that injury, Respondent had a significant number of absences from the classroom caused by pain and the buildup of fluid in her left knee. In February, 1990, Respondent underwent surgery to repair the damage to her knee and was placed on worker's compensation leave. Following that injury, Respondent used a cane or crutches to walk. On May 11, 1990, Respondent returned to her teaching duties at North County. This return to work was approved by the Petitioner's worker's compensation department. Following a conference with the Respondent, Dr. Marleaux, and a coordinator of the worker's compensation department, it was agreed that certain modifications would be made to accommodate Respondent's knee problem. Dr. Marleaux arranged for someone to escort the children in Respondent's class back to the classroom after lunch and after physical education. An aide was assigned to assist Respondent during the first week of her return to work. Respondent's TADS assessment for the 1989/90 school year was acceptable. Following several days of absences towards the beginning of the 1990/91 school year, Dr. Marleaux notified Respondent by memorandum dated October 10, 1990, that her absences were adversely impacting the educational environment and the progress of the children assigned to her class. The memorandum contained the following directives pertaining to future absences: Intent to be absent must be communicated directly to me or in my absence, Mr. Peter Harden, assistant principal. This is in accordance with procedures delineated in the site book. Absences for illness must be documented by your treating physician and a written medical note stating an unconditional medical release to return to full duties presented to me upon your return to the site. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. There are 180 days in a school year. During the 1990/91 school year, Respondent was absent a total of 101 days. Despite those absences, Respondent's TADS assessment for the 1990/91 school year was acceptable. Respondent underwent surgery again on her left knee in March, 1992. After another worker's compensation leave, Respondent was assigned a teaching position at Myrtle Grove under the supervision of Cecil Daniels, the school principal. Petitioner was advised that, as of June 4, 1992, the following restrictions were placed on Respondent's activities: No weight bearing for more than 20 minutes at one time on the left knee. No squatting. No kneeling. No climbing. No lifting more than 25 pounds at one time. The duties assigned to Respondent were within the medical restrictions delineated by Respondent's doctor. On June 11, 1992, Respondent refused to assume her assigned duties at Myrtle Grove. Respondent asserted that she was entitled to light duty employment and that she had been assigned too many children. As a result of Respondent's refusal, Mr. Daniels dismissed her for the day and employed a substitute teacher for the day. On June 12, 1992, Mr. Daniels held a conference-for-the-record with Respondent concerning this incident. There was no evidence as to Respondent's TADS assessment for the 1991/92 school year. 1992/93 SCHOOL YEAR Respondent was again assigned to Myrtle Grove for the beginning of the 1992/93 school year. Shortly after school began, Mr. Daniels discovered that Respondent had failed to follow school procedures at the end of the 1991/92 school year pertaining to the records that are kept for students. Mr. Daniels had a conference for the record with Respondent on September 30, 1992, at which he discussed this deficiency with her and also discussed with her two concerns he had about her class management. One concern was the result of a complaint he had received from a parent who reported that Respondent had not attended to an injury to a student. The second concern was that there had been several fights between students in her class. On or about October 8, 1992, Respondent was transferred from Myrtle Grove back to North County. Mr. Daniels had asked the district office to make this transfer. By memorandum dated October 16, 1992, Dr. Marleaux advised Respondent in writing that the directives pertaining to absences from the work site as set forth in her memorandum dated October 10, 1990, were still in effect. Petitioner maintains an employee assistance program (EAP) as a resource for employees who have personal or family problems that may be impacting an employee's job performance. On October 23, 1992, Dr. Marleaux referred Respondent to the EAP because of marked changes in Respondent's mood. Respondent had been seen crying in the classroom and in the teacher's lounge. She was visibly upset and physically shaking. Respondent testified that she was seen by a mental health professional as a result of that referral, but there was no evidence that Respondent benefited by the referral. Respondent testified that she did not think she needed help at the time the referral was made. Respondent was formally observed in the classroom by Dr. Marleaux on October 26, 1992. There was no evidence that the timing of this observation, in light of Respondent's behavior that resulted in the EAP referral, was inappropriate. Dr. Marleaux's observation was between 11:30 a.m. and 12:20 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance as unacceptable in the category of classroom management. Respondent began the instructional activities of the class 20 minutes late and ended the instruction 15 minutes early. There were a number of off-task students to whom Respondent did not respond either verbally or non-verbally. Although Respondent had classroom rules, it was Dr. Marleaux's observation that the behavioral expectations had not been made clear to the students and that Respondent was not implementing her assertive discipline plan. There was a contention that Dr. Marleaux was overly critical in her observations of Respondent. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on October 26, 1992. Dr. Marleaux's observation report included a prescription to remediate Respondent's unsatisfactory performance. This prescription consisted of a number of assignments that Respondent was to complete by a date certain. She was to observe a teacher with a successful assertive discipline plan, develop five strategies used by that teacher to improve classroom management, and review her assertive discipline plan with the assistant principal. She was also to complete activities in the TADS Prescription Manual and to develop lesson plans which required full periods of instruction. The respective deadlines for completing these assignments were between November 6 and November 16, 1992. These prescribed assignments are found to be reasonable and formulated to assist Respondent to improve her job performance. Peter Harden was assistant principal at North County during the 1992/93 school year. Mr. Harden formally observed Respondent in the classroom on November 24, 1992. His observation was between 1:30 p.m. and 2:11 p.m. while Respondent was teaching her third grade class mathematics. Following his observation, Mr. Harden prepared an observation report that rated Respondent's performance in classroom management as unacceptable. Mr. Harden observations were similar to those of Dr. Marleaux during her observation the previous month. Mr. Harden observed that off-task students were neither verbally nor non- verbally redirected. Respondent began the instructional activities 20 minutes late and ended the lesson 19 minutes early. Respondent did not make behavioral expectations clear to the students. The students did not appear to be aware of the class rules and regulations. The observation report contained prescribed assignments that Mr. Harden believed would help Respondent improve her deficiencies in classroom management. A deadline of December 14, 1992, was set for Respondent to complete these assignments. Based on the evidence presented, including the demeanor of the witnesses, it is found that Mr. Harden fairly and accurately evaluated Respondent's performance on November 24, 1992. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 14, 1992, a midyear conference-for-the-record was conducted by Dr. Marleaux with the Respondent and her union representative in attendance. Respondent's TADS evaluations following the formal observations by Dr. Marleaux in October, 1992, and by Mr. Harden in November, 1992, were discussed. Respondent had not completed her prescribed assignments at the time of this conference because she had been ill. Dr. Marleaux extended the deadlines for completing the remaining assignments. Respondent was given notice that if she ended the 1992/93 school year in a prescriptive status, there could be possible employment consequences such as a return to annual contract status or termination of employment. During the conference, Respondent asked permission to observe a handicapped teacher. In response to that request, Dr. Marleaux arranged for Respondent to observe a teacher at Kelsey Pharr Elementary School who had to use crutches to walk. Respondent was formally observed in the classroom by Dr. Marleaux on January 13, 1993, between 12:55 p.m. and 2:00 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance in the following areas as being unacceptable: preparation and planning, classroom management, and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning based on her observation that Respondent did not follow at least half of her lesson plan as required by TADS. Dr. Marleaux rated Respondent as unacceptable in classroom management based on her observation that out of a one hour lesson plan, Respondent taught for only 20 minutes. Dr. Marleaux observed that there was a lot of wasted class time. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction based on her observation that Respondent's teaching methods confused the students, she did not use the media resources skillfully, and she did not provide feedback to the students about their performance deficiencies. Respondent did not make any adjustment in her instruction, despite the confusion of the students. The observation report prepared by Dr. Marleaux following the observation in January 1993, contained prescribed assignments that she believed would help Respondent improve the deficiencies noted in her report. She was to write detailed lesson plans and turn them in to the principal weekly. She was to prepare all activities prior to teaching the lesson. She was to utilize the instructional activities recommended by the textbook. She was to follow the instructional methods outlined in the teacher's edition of the textbook. She was to observe a master teacher. These assignments were to be completed by January 29, 1993. Dr. Marleaux fairly and accurately evaluated Respondent's performance on January 13, 1993. The assignments prescribed were reasonable and formulated to assist Respondent improve her job performance. At the times pertinent to this proceeding, Norma Bossard was Petitioner's Executive Director for Foreign Language Arts and Reading and an experienced TADS evaluator. Ms. Bossard and Dr. Marleaux simultaneously observed Respondent in her classroom on February 19, 1993, and thereafter independently evaluated her performance. This review, referred to as an External Review, was during a language arts lesson between 10:45 a.m. and 12:30 p.m. Both administrators rated Respondent unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated as unacceptable in preparation and planning because she did not follow her lesson plan. Respondent was rated as unacceptable in knowledge of subject matter because she did not develop ideas and information in a meaningful and orderly manner and because there was a lot of wasted class time. Respondent was rated as unacceptable in techniques of instruction because she did not provide feedback to the students about their performance deficiencies and strengths. Out of 23 students, only two students completed the assignment. Respondent was oblivious that students were cheating. Respondent was rated as unacceptable in assessment techniques because she did not examine work completed by students and she did not monitor whether students were learning. Respondent was prescribed activities in an effort to aid her in remediating her unsatisfactory performance. She was given a prescribed lesson format for language arts. She was to observe a seasoned teacher. She was given a series of books called "Teaching and Learning the Language Arts". Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux and Ms. Bossard fairly and accurately evaluated Respondent's performance during their external review on February 19, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On March 29, 1993, the Superintendent of Schools notified Respondent in writing that her performance during the 1992/93 school year had been unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. She was advised that the failure to correct these performance deficiencies prior to April 13, 1994, could result in the termination of her employment at the close of the 1993/94 school year. In the spring of 1993, Respondent entered Charter Hospital, a psychiatric facility, for deep depression and anxiety. She was absent for the remainder of the school year since she was physically and mentally unable to work. On April 2, 1993, Dr. Marleaux again notified Respondent that her absences were adversely affecting the educational environment and academic progress of her students. Respondent was again directed to communicate her absences to the principal or assistant principal, to document her absences by a medical note from her treating physician, to provide a medical release to return to full duties, to provide lesson plans for the substitute teacher when she is absent, and to take leave when future absences appeared imminent. During the 1992/93 school year, Respondent was absent 78-1/2 days. On May 18, 1993, Respondent was notified of her unacceptable annual evaluation by memoranda in lieu of a conference-for-the-record because she was on leave. Respondent's overall evaluation for the 1992/93 school year was unacceptable. She was rated unacceptable in the categories of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Because she had failed to complete the assignments that had been assigned to her in an effort to correct the deficiencies in her unacceptable performance, Respondent's salary level was frozen at the end of the 1992/93 school year so that she did not receive any raise for the 1993/94 school year. 1993/94 School Year Respondent was cleared through the Office of Professional Standards to return to work at North County on August 25, 1993. The medical restrictions delineated by her doctor were implemented. In an effort to reduce the amount of walking she would have to do, Respondent was given a parking space close to the entrance to her classroom and she was given assistance in taking her students to and from lunch, to the library, and to the physical education field. Respondent was also given the same directives pertaining to absences that had been given to her on previous occasions, including in Dr. Marleaux's memorandum of October 10, 1990. Respondent requested permission to observe a teacher in a wheelchair. This request was denied because Respondent's doctor had prohibited Respondent from being in a wheelchair. The doctor preferred that she walk, with crutches if necessary, to reduce muscle atrophy. Beginning September 8, 1993, Respondent was absent again for several weeks. On September 22, 1993, Dr. Marleaux notified Respondent that the deadline for her to complete her prescribed assignments would be extended until October 8, 1993. This extension benefited Respondent since it gave her more time to remediate her deficiencies. In October, 1993, Respondent requested, through her treating physician, that she be transferred to another school, that she be given vocational rehabilitation, or that she be given a leave of absence. These requests were denied. Although Respondent argued that the denial of these requests was unreasonable, the evidence in this proceeding failed to establish that contention. Petitioner made arrangements for Respondent to have a full- time classroom aide for the remainder of the year. After a full-time aide was assigned for Respondent, Dr. Marleaux required the Respondent's aide to leave the room during formal observations. Respondent asserts that this was unfair and evidences Dr. Marleaux's bias against the Respondent. This assertion is rejected since the Petitioner established that the removal of the aide during a formal observation is standard procedure and allows the students to focus on the teacher without being distracted by the presence of the aide. On November 2, 1993, Respondent was formally observed in the classroom by Joyce Daniels, an assistant principal at North County. This observation was during a fourth grade math class and was between 9:00 a.m. and 10:10 a.m. Based on her observations, Ms. Daniels rated Respondent as being unacceptable in the following categories: classroom management and techniques of instruction. Ms. Daniels rated Respondent as being unacceptable in classroom management based on her observation that Respondent appeared to be unaware of certain students who were being disruptive and others who were not on task. Respondent did not redirect the off-task students either verbally or non- verbally. She was not following her assertive discipline plan. Ms. Daniels rated Respondent as being unacceptable in techniques of instruction because she did not use calculators as recommended in the teacher's manual and because she wrote on the board in a manner that the students were unable to see. Ms. Daniels prescribed assignments to help Respondent improve her unacceptable performance. She was to observe two of the teachers at the school and she was to view the assertive discipline plan videos and review the assertive discipline workbook. She was to meet with the media specialist for help with the use of media. Based on the evidence presented, including the demeanor of the witnesses, it is found that Ms. Daniels fairly and accurately evaluated Respondent's performance on November 2, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 3, 1993, Respondent was formally observed in the classroom by Dr. Marleaux. This observation was from 9:00 a.m. to 10:00 a.m. during her fourth grade math class. Based on her observations, Dr. Marleaux rated Respondent's performance as being unacceptable in the following categories: knowledge of subject matter, techniques of instruction, and teacher-student relationships. Dr. Marleaux rated Respondent as being unacceptable in knowledge of subject matter because she made substantial errors during the course of the lesson that created confusion on the part of the students. Respondent did not respond to the students who did not understand the lesson. Dr. Marleaux rated Respondent as being unacceptable in techniques of instruction because she did not use media resources skillfully. She did not use the calculators that were recommended and which were available in the school. She did not have her charts on the blackboard prior to the lesson. When she put the charts on the blackboard, she sat directly in front of them and some of the children could not see. Dr. Marleaux rated Respondent as being unacceptable in teacher-student relationships because Respondent did not consistently utilize the consequences in her assertive discipline plan when students failed to adhere to standards of conduct. The students were punished with different consequences for similar misbehavior. Dr. Marleaux heard Respondent make caustic comments to students. Dr. Marleaux observed that these comments drew attention to these students and embarrassed one of them. Dr. Marleaux again prescribed assignments designed to remediate Respondent's unacceptable performance. The date for submission of her lesson plans was changed to Thursday at Respondent's request. She was to meet with the guidance counselor to learn strategies that would avoid sarcasm and embarrassment to students. She was to meet with the media specialist to learn techniques in the use of media. It was recommended that she use an overhead projector. She was to observe another math teacher who had been helping her. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on December 3, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 13, 1993, Dr. Marleaux held a conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance assessments and assistance and to discuss possible action by the School District if remediation were not attained. Respondent was apprised that unremediated performance deficiencies must be reported to the Department of Education and that she may not be reappointed to her teaching position for the 1994/95 school year. Respondent was formally observed by Joyce Daniels in January, 1994. In her observation report, Ms. Daniels rated Respondent's performance as being acceptable in all categories. Respondent re-injured her left knee when she fell in February, 1994. Respondent asked permission to use a wheelchair following this fall. Because the information that the school had received from her doctor reflected that Respondent should not use a wheelchair, Dr. Marleaux told Respondent not to use a wheelchair at North County. Respondent subsequently began using a wheelchair, and Dr. Marleaux did not object. During 1994, Respondent was given scheduled time to elevate her leg and put ice on her knee. On March 28, 1994, Respondent was again observed in an external review by Dr. Marleaux and Dr. E. Trausche, an administrator and TADS evaluator employed by Petitioner. This observation was between 9:00 a.m. and 10:00 a.m. during a mathematics lesson. Dr. Marleaux rated Respondent as being unacceptable in the following categories: preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Dr. Trausche rated Respondent as being unacceptable in the following categories: knowledge of subject matter and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning because she did not follow her lesson plan. The activities in the teacher's edition were not accomplished. She did not use the suggested materials to accomplish the activities. Dr. Marleaux rated Respondent as unacceptable in knowledge of subject matter because she used erroneous terms in her mathematics lessons and did not seem to fully understand the fractions lesson she was teaching. Dr. Marleaux rated Respondent as unacceptable in classroom management because she did not address off-task student behavior. She did not redirect the students either verbally or non-verbally. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction because her demonstrations were all abstract. She did not utilize methodology outlined in the teacher's edition or teaching aides that were recommended. Her instructional methods did not meet the needs or abilities of the students. She blocked the students' view of work that was on the chalkboard. Many students were confused as to the lesson and some did not even try to do the work. She distracted students by talking to them while they were working. Respondent did not examine the students' work at any time during the lesson. Respondent was again prescribed activities to help her in overcoming her unacceptable performance. She was to observe another teacher. She was to work with the competency-based curriculum math facilitator. The grade level chairperson would work with her. She was to observe another teacher for the use of manipulatives. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on March 28, 1994. No findings are made as to the reasonableness of the observations made by Dr. Trausche since Dr. Trausche did not testify at the formal hearing. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On April 1, 1994, the Superintendent notified Respondent by letter that she had not corrected her deficiencies and he was recommending to the School Board that she not be issued a new professional contract. On April 13, 1994, the School Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1994/95 school year. Respondent's annual evaluation for the 1993/94 school year was overall unacceptable and was unacceptable in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent was not recommended for continued employment by Dr. Marleaux. Respondent testified that on the last day she worked in May, 1994, she began to disassociate and was incoherent. Respondent described disassociating as follows: It's where you're physically located close to someone but it's, your perception is that you are some where else. I could hear her voice but it was, sounded as if I was blocks away or something. Like I could barely hear what was being said of people. It was really frightening. (Transcript, page 218, line 22 through page 219, line 2.) Dr. Marleaux notified Respondent of her unacceptable annual evaluation by memorandum dated June 3, 1994, in lieu of a conference-for-the record, due to Respondent's absences. During the 1993/94 school year, Respondent was absent for 70 days. On many occasions, Respondent was informally observed both at Myrtle Grove and at North County by the same principals and assistant principals who had observed her formally. Respondent's students were often severely off-task and disruptive of other classes. Respondent's class was noisy and out of control. Security monitors frequently came to Respondent's class to get the students under control. Respondent seemed oblivious to the class management problems. Respondent was seen crying three different times. There did not seem to be much teaching and learning taking place. During the 1993/94 school year, Respondent failed to correct the deficiencies in performance which had been identified during the 1992/93 school year, despite many attempts to assist her with activities to remediate her deficiencies. Respondent asserts that Dr. Marleaux's refusal to allow her to use a wheelchair constituted a failure to reasonably accommodate her handicapped condition following the fall. Respondent also asserts that the denial of her request for a transfer, for rehabilitation therapy, or for a leave of absence constituted a failure to reasonably accommodate her handicapped condition. While the Respondent's testimony supports that contention, there is no medical evidence to support this self-serving testimony. The testimony of Dr. Marleaux and Dr. Annunziata established that the school reasonably accommodated Respondent's condition and did not ask Respondent to perform any duties that exceeded the medical restrictions that had been set by her doctors. Respondent also testified as to certain statements and comments that Dr. Marleaux made to her. 1/ The undersigned finds, based on the demeanor of the witnesses and the totality of the evidence, that Dr. Marleaux's denial that she ever made these statements is more credible than the testimony of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE AND ENTERED this 11th day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 11th day of August, 1995.
Findings Of Fact The Respondent, a public employer, has its principal place of business in Lake City, Florida, where it engages in the business of operating a school system. Respondent is created directly by the Florida state constitution or legislative body so as to constitute a department or administrative arm of the government, and is administered by individuals who are responsible to public officials and/or to the general electorate (Stipulation.) The Respondent now and has been at all times material to these proceedings, a public employer within the meaning of Section 447.203(2) of the Public Employees Relations Act (Stipulation.) The Charging Party is now, and has been at all times material herein an employee organization within the meaning of Section 447.203(10) of the Act (Stipulation.) Since on or about July, 1973, up to and including June 30, 1975, Jack W. Adams was a public employee within the meaning of Section 447.203(3) of the Act (Stipulation.) On or about April, 1975, and continuing thereafter, Adams engaged in employee organization-related activities designed to acquaint fellow employees of Respondent with the benefits of organizing and collective bargaining on behalf of the Charging Party (Testimony of Adams.) Adams was hired in July, 1973, by the Respondent as a Refrigeration Mechanic I in the Maintenance Department of the Columbia County school system. There was no one in this position at the time. Adams' duties were to service and maintain the refrigeration and air conditioning equipment at the various county public schools. Shortly after he was hired, he was given an apprentice, Henry Williams, to assist him in his functions. His first supervisor was Henry Stalmaker. Later, the maintenance and transportation functions were separated into different departments and Stalmaker became the Coordinator of Transportation. Ulis Taylor, who had been the "lead man" in the Maintenance Department, became the Coordinator of Maintenance in the summer of 1974. The equipment which Adams serviced had many problems when he was first hired. He improved the state of the equipment during the period that he worked under Stalmaker and the latter received no complaints during that time as to his attitude or the quality of his work (Testimony of Adams, Stalmaker.) In August, 1974, Adams talked to some Maintenance Department employees about the possibility of having a civil service system established for county employees. He received information on such a program and showed it to the employees, but found that they were not interested in pressing for the institution of such a system. In September, Dr. Frank Phillips, Superintendent of Schools, Columbia County, had a meeting with Adams at which he suspended him for two days for being involved in an incident at one of the local schools in which Adams' son allegedly had used a faculty lounge without authority while serving as a high school work-trainee with his father. The son was suspended from school as a result of this incident which allegedly involved the use of profanity by Adams and his son. Adams sought assistance from a school board member to intercede on his own suspension. The board member did so because Adams had not been afforded an opportunity to present his version of the incident. The matter was resolved after the board member discussed the situation with Phillips. Also during the September meeting, Phillips informed Adams that his discussions with employees on civil service had disturbed the school board, and told him to refrain from any further such activities (Testimony of Adams, Williams, Phillips, Markum.) On April 28, 1975, a group of school bus drivers approached Adams to become the president of the Columbia County Transportation and Maintenance Workers Association. He met with the group at the Transportation Department on that day. Authorization cards were notarized at the meeting. Taylor approached Adams and Williams thereafter and informed Adams that he should not go back to the Transportation Department for any reason and that he should keep away from association activities. He further stated that union business got people "ticked off" and upset and not to engage in it any further (Testimony of Adams, Williams). Prior to the above conversation, Taylor, on April 21, 1975, had rendered an annual employee performance evaluation on Adams wherein he rated him as "very satisfactory-substantially exceeds all requirements". This was the second highest evaluation which could be made on an employee. He also at that time recommended him for reappointment for the 1975-76 school term. Taylor's 1974 evaluation of Adams also had been in the second highest bracket with his major strength listed as "promotes unity with the Maintenance Department personnel." Although Adams had an excellent working relationship with Taylor on April 21, 1975, he and Williams testified that after the April 28th incident, Taylor started questioning everything that they did. Taylor, on the other hand, testified that, although the 1974 performance evaluation was basically accurate, he had experienced problems with Adams' attitude and gave him an inflated evaluation on April 21st, hoping that it would influence him to improve and have better relationships within the Department. However, at that time; he was of the opinion that Adams' work performance was perfectly satisfactory. Shortly after that, he sent Adams to an elementary school to repair a freezer. Although Williams worked on the unit, Adams concurred in his judgment as to the problem which later proved to be incorrect. Taylor was of the opinion that they had lied to him concerning the work required, although the evidence supports a finding that they were merely mistaken. The evidence, however, also supports a finding that there had been a number of problems with refrigeration units during the 1975 spring term that were due, in some respect, to an inefficient method of ordering parts by others and also because many compressors had to be replaced. About four years previously, the school system had purchased a rather large amount of refrigeration equipment. These same problems had been in existence prior to Adams' tenure with the school system (Testimony of Taylor, Adams, Williams, Watts; Exhibit 5 & 6.) On May 8, 1975, Taylor wrote to Phillips recommending that the Refrigeration Department be reduced to one man, a Refrigeration Mechanic II (a lower grade than mechanic I), with major problems to be handled by utilization of local contractors. The letter pointed out the difficulties that had been encountered and expressed dissatisfaction with the attitude and competence of the Refrigeration Mechanic I (Adams). In effect, this letter reversed Taylor's prior recommendation that Adams be rehired for the ensuing school year (Exhibit 4.) On or about May 12, 1975, Williams, who was assisting Adams in employee organization work, talked to the president of the secretaries association of the school system at her house concerning the subject of organization. He could not answer all of her questions and it was arranged that Adams would meet with the secretaries the following day. He did so in the school library at 4:15 p.m. after working hours. The next day it was reported to the executive secretary for the school board that Adams had told the group they would have difficulties in securing job benefits unless they were organized. She believed this information was erroneous and had Adams call her on the telephone. He declined to discuss the subject during working hours. Phillips had planned to have a meeting with Taylor and Adams that morning at 9:45 a.m. When he came into the office, the executive secretary told him of her discussion with Adams and he told her that he had had complaints in the Maintenance Department and was going out there to see what the problem was. He was concerned that the maintenance personnel were playing "catch-up" rather than preventing maintenance problems from arising in the first place. These problems had occurred in all areas of the Maintenance Department, including refrigeration work. At the meeting that morning, Phillips informed Taylor that he was suspended because of maintenance complaints, Williams was suspended for incompetence and Adams because of committing an unfair labor practice for allegedly speaking to the secretarial group on school time. At this time, Phillips told Adams that the School Board was not ready for collective bargaining that year, but maybe the next year. Adams informed him that he would continue to engage in employee organization, and Phillips stated that "Well, if you don't cease, you and all personnel involved in this association will all be fired and we will hire new personnel." In spite of Phillips' statements concerning suspension, he informed the employees that he would let them know by that Friday what he was going to do in regard to their status. He did not pursue the question of suspension any further and, as a result, Adams filed an unfair labor practice charge against the school board on May 20, 1975 (Testimony of Adams, Mock, Williams, Wilson, Taylor, Phillips.) Respondent's method of extending the employment of non- instructional personnel was for the superintendent to confer with the department head and, if he concurred in the department head's recommendation as to an employee, the matter would be presented to the Board of Public Instruction for approval. No contracts were involved for such employees, but Respondent operated normally on a school year basis from July 1 to June 30 as the term of employment. Phillips testified that, in May of 1975, he was reevaluating the need for support personnel and decided to look into the possibility of procuring services by contract with commercial firms. He was particularly unsatisfied with the Maintenance Department and disruptions that had occurred therein. He dispatched a letter on May 23 to Adams advising him that his name did not appear on the list of recommendations for reappointment at that time, but that he might be recommended at a later date should a position become available in his field. Since Phillips had until June 30th to make final decisions concerning rehiring of personnel, he investigated and determined that contract services were not feasible and therefore decided to stay with an "in-house" maintenance program. However, in view of the May 8th letter from Taylor concerning Adams, and the problems in refrigeration that had been occurring in the Spring, he recommended to the Board of Education that Adams not be continued as an employee. Nine of the eleven employees in the Maintenance Department received the same letter from Phillips, but Adams was the only one of that group who was not rehired. Adams never received anything further in writing on the matter and was not shown Taylor's letter of May 8 at that time (Testimony of Phillips, Adams, Exhibit 3.) Although the Board did not have a formal system for grievances or appeal of dismissals, Adams was accorded a hearing before the Board on July 10. This was prompted by his discussion with a school board member who showed him Taylor's May 8 letter for the first time and advised him to ask for a hearing before the Board. At the hearing, Adams was given an opportunity to respond to the allegations contained in Taylor's letter except as to Item 10 concerning work orders of which he had no knowledge. The hearing was then continued until July 24th in order to provide Adams more time for his defense. During this period, he secured letters attesting to his good work and cooperative attitude from nine principals of various schools in Columbia County. At the July 24th board meeting, Adams was confronted with a July 21st revision of Taylor's May 8th letter that was rewritten in order to eliminate "inconsistencies" which had appeared in the June 8th letter. The later letter added an allegation that Adams had gone into the Maintenance Department personnel files without Taylor's permission while Taylor was on vacation. This allegation stemmed from an incident in early June when Adams and Williams went into an open file cabinet in the Maintenance Department that was used to store secondary personnel files as well as work orders and manuals, and extracted a copy of their latest evaluation reports. Although they did not seek authorization for this, they informed the acting supervisor that they had obtained what they had gone in for. (Testimony of Adams, Williams, Murdock; Exhibit 3, Composite Exhibit 7, Exhibit 8.) Adams was given an opportunity to present matters at the July 24th Board meeting and the Board voted to support the superintendent's recommendation that he not be rehired. Subsequent to Adams' dismissal, Williams had taken his place for a short period of time and thereafter a new man was hired. Problems with refrigeration equipment have been minimal during the past year, it having been discovered that the wrong type of gas had been used in replacement compressors in the past (Testimony of Taylor, Watts, Williams, Martin.) Respondent has drawn unemployment insurance of $82.00 a week since October 1, 1975. Although he registered with the Florida State Employment Service for a position as a commercial air conditioner and refrigeration mechanic, there have been no jobs of that nature offered to him in the area where he resides (Testimony of Adams.)
Recommendation That the Public Employees Relations Commission issue an order requiring the Columbia County Board of Public Instruction to cease and desist from unfair labor practices as defined in Section 447.501(1)(a) & (b), Florida Statutes, with respect to the Columbia County Transportation and Maintenance Workers Association, and to take prompt action to reinstate Jack W. Adams as a Refrigerator Mechanic I with back pay from July 1, 1975 to date of reinstatement, plus interest at 6 percent per annum, less amounts the aforesaid individual has received from state governmental sources during the stated period. Done and Entered this 7th day of June, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Thomas W. Brooks, Esquire 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301 Terry McDavid, Esquire Box 1328 Lake City, Florida =================================================================
The Issue Whether Respondent, American Pioneer Title Insurance Company, discriminated against Petitioner, Dennise Raines, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (2002).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is an African-American female who worked for Respondent from 1999 until October 11, 2002, when her employment was terminated. Respondent owns and operates a title insurance company and is subject to Chapter 760, Florida Statutes (2002). Petitioner was first employed as a data entry operator. In January 2001, she was promoted to a research position and received a pay increase. After an initial period of positive work performance and interaction with co-employees, Petitioner's attitude changed. Her work and relationships with co-workers deteriorated. As a result, in July 2002, Ms. Kathy Bowles, who had hired and supervised Petitioner and who had recommended Petitioner's advancement, demoted Petitioner due to Petitioner's negative behavior toward co-employees which included addressing them with profanity and demonstrated disrespect toward her supervisors. Although Petitioner was demoted, her pay remained the same. The July 2002 demotion is memorialized by an Employee Performance Enhancement Plan (Respondent's Exhibit 6). Subsequent to her demotion, Petitioner requested that her work hours be adjusted to allow her to attend classes. This request was approved, and Petitioner's work hours were changed. Thereafter, Petitioner's attendance and punctuality suffered. In September 2002, Petitioner was absent or late more than one-half of the work days; of these days, there were seven instances of tardiness. Petitioner was counseled regarding tardiness on September 27, 2002. Similarly-situated Caucasian employees, Mss. Beverly Dease and Linda Shapiro, had only been late for work one time between them for the entire year. Petitioner was late for work twice during the first five work days of October. Following the second tardiness, on October 7, 2002, Ms. Bowles counseled Petitioner that an additional tardiness would result in her being discharged. On the third work day following counseling, Petitioner was absent from work. Following this absence, Petitioner was discharged for her attitude, tardiness, and absenteeism. She was replaced by a Hispanic female. Respondent has an extensive, well-conceived, Equal Employment Opportunity policy which prohibits unlawful discrimination. This policy is posted in the workplace and is distributed to every employee as a part of the Employee Handbook at the time he or she is employed. There are published procedures which can be easily followed by an employee who believes that he or she has been the victim of unlawful discrimination. Although she acknowledged awareness of the policy, Petitioner did not avail herself of it. Ms. Bowles, Petitioner's supervisor, hired, promoted and then, demoted Petitioner. No evidence received supports Petitioner's contention that Ms. Bowles or any other employee of Respondent unlawfully discriminated against Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 15th day of September, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Dennise Raines 1165 West 16th Street, Apartment B Sanford, Florida 32771 Andrew G. Wedmore, Esquire Jill Schwartz & Associates 180 North Park Avenue, Suite 200 Winter Park, Florida 32789-7401 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent Conoco meets the statutory definition of an "employer" within the meaning of Section 760.02, Florida Statutes. Petitioner, Marlan D. Williams, who is black, is a member of a class protected by this statute. Petitioner began work at Conoco on January 4, 1990, as a sales associate and was discharged from his employment on May 27, 1992. When Mr. Williams was hired on January 4, 1990, he was required to sign a new employee agreement. Section 3 of that agreement explains to new employees the importance of good customer relations. After reading the employment contract, Mr. Williams signed the agreement. Mr. Williams testified that he understood the importance of good customer relations. Mr. Williams also testified that he understood that he could be terminated for multiple customer complaints and was aware of a white employee who had been terminated for customer complaints. Conoco's personnel policies and procedures regarding termination state in relevant part that, "involuntary terminations occur for a reason, such as when an employee's performance does not meet acceptable standards, if the employee violates Company policy, or when there is no work available for the individual." The details of Conoco's policy were left up to each sales district's manager. In this case, the district manager was Tammy Hunter. Her policy was that three complaints involving customers would result in termination. Ms. Hunter was not concerned with the truth behind these complaints, but only with the fact of multiple complaints. In the past, Conoco, through Ms. Hunter, has consistently applied its termination policy to employees receiving complaints involving customers in a nondiscriminatory manner. In fact, there was no evidence presented at the hearing that the policy was not applied in a nondiscriminatory or had unintended discriminatory impact. 1/ Over the term of his employment Mr. Williams received at least three complaints. Two of the complaints were made by customers directly to Ms. Hunter. One complaint was reported by management to Ms. Hunter and involved a very heated and nasty argument between Mr. Williams and a manager trainee in front of customers. Numerous other incidences of nonspecific poor customer relations involving employees and poor attitude were noted by the store manager, Julia Meuse. Mr. Williams received informal verbal and written counseling regarding his poor behavior towards customers, from his store manager and two assistant store managers. Conoco accordingly discharged Mr. Williams for violation of the Company policy regarding acceptable performance standards in customer relations and customer complaints. The evidence did not demonstrate these reasons were pretextual. Petitioner failed to present any evidence that he was replaced by a person not from a protected class. Therefore Petitioner has not established a prima facie case of discrimination. Finally, the decision to discharge Mr. Williams was made in good faith, for legitimate nondiscriminatory business reasons, and was based upon the objective application of Conoco's policies. Since Petitioner has failed to prove by a preponderance of the evidence that the reasons given by the Respondent for discharging him were a mere pretext to cover up discrimination on the basis of race, Petitioner has failed to establish he was discriminated against and therefore the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his race in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 2nd day of June, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1994.
The Issue Whether the Respondent should be terminated from her employment with the Dade County School District.
Findings Of Fact At all times material to the allegations in this case, Petitioner was authorized by Florida law to operate the public schools within Dade County, Florida. Such authorization includes, but is not limited to, the employment, control, and supervision of non-instructional employees of the school district. At all times material to the allegations of this case, Respondent was employed as a non-instructional employee of the school district. She was classified as a specialist II and, as such, was governed by the labor contract between the Miami-Dade County Public Schools and the United Teachers of Dade (UTD). Petitioner first employed Respondent in 1992. At that time, as a part-time clerk in the Office of Grants Administration at the Satellite Parent Education Resource Center in Region III, Respondent exhibited unacceptable work performance. Respondent’s interim and overall annual evaluations for her work as a clerk at the satellite center were unsatisfactory. Throughout the 1992/1993 school year Respondent was counseled as to her deficient performance areas. Additionally, she was offered assistance and strategies for improvement, yet failed to improve her work performance. As a result of this initial employment experience, Respondent was fully apprised of the evaluation and remediation process utilized by Petitioner. When Respondent did not improve during the 1992/1993 school year she could not be recommended for full-time employment. Her last day of work for that year was April 23, 1993. Over a year later, Petitioner employed Respondent as a data-input specialist at the Coral Gables AEC. On her May 30, 1995, evaluation, Respondent was advised of several areas of work performance that needed improvement. Among the areas needing improvement were attitudes toward other staff and the public as well as the quality of her work product. The next year, school year 1995/1996, Respondent’s work performance was no better. On May 23, 1996, a conference-for- the record (CFR) was held to review the problems with Respondent’s work performance. At the May 23, 1996, CFR, in addition to reviewing the unacceptable work performance issues, Respondent was given a referral to Petitioner’s Employee Assistance Program (EAP) due to her unacceptable behavior, her mood changes, and conflicts with staff and the public. When Respondent failed to attend two conferences with the EAP, her referral was closed. Respondent requested and was granted a one-year personal leave of absence for the 1996/1997 school year. On or about May 28, 1997, Respondent returned to Coral Gables AEC and was supervised by Alonzo Kilpatrick. On October 30, 1997, Respondent received a directive to adhere to her work schedule. This directive resulted from Respondent’s record of poor attendance or punctuality. On December 12, 1997, Respondent’s mid-year evaluation rated her work performance as unsatisfactory. The areas of work performance inadequacy were fully outlined and explained. Basic areas of performance such as attendance and punctuality were deficient. Additionally, the quality of Respondent’s work was inadequate. As a result of the unsatisfactory performance, Respondent was placed on prescriptive status and issued activities to improve her work performance. This prescription outlined deadlines and specific assignments to be completed by Respondent. On January 12, 1998 a CFR was conducted to address Respondent’s interim unsatisfactory evaluation. Respondent was advised that she had failed to comply with the prescription activities. This CFR ended when Respondent became agitated and refused to participate calmly. On January 23, 1998, Respondent was notified that she had failed to complete her prescription and was directed to attend a CFR for that day to discuss the matter. When she failed to attend, Respondent was notified that failure to attend conferences would be considered insubordination. On February 20, 1998, Respondent failed to attend a conference scheduled for that date to review her prescription activities. On March 6, 1998, Respondent was given notice of a CFR that was to take place on March 12, 1998. The agenda for this CFR was to cover Respondent’s failure to complete her prescription and to attend previously scheduled CFRs. Respondent did not attend the March 12, 1998, meeting. Based upon the failure to attend, on March 24, 1998, the Respondent was given a written reprimand and notice that advised her that continuing failures to complete the prescription, failure to attend meetings, and failure to comply with administrative directives would result in disciplinary action, including dismissal. Another CFR was scheduled for April 15, 1998. Respondent was given advance, written notice of the meeting, yet failed to attend. Consequently, Respondent received a written reprimand. Such reprimand cited Respondent for gross insubordination. Further, Respondent was again directed to comply with the administrative directives given to her to attend conferences and to complete the prescription for work improvement. Respondent was given written prior notice to attend a conference scheduled for May 8, 1998. This conference was scheduled to address her continuing failure to attend conferences as well as her prescription requirements and to review Respondent’s deficient work performance. She did not attend. Respondent’s failure to attend the May 8, 1998, CFR marked the third time Respondent failed to comply with the directive to attend. Moreover, she failed to complete her prescription and failed to offer any credible excuse for having not complied with the directives of the administrator. As a result of the foregoing, Respondent was given another written reprimand outlining the failures. On May 15, 1998, Respondent received an annual evaluation that noted her work performance was unsatisfactory. She was also advised she had failed to complete her prescription for improvement and had failed to offer an explanation for why the prescription activities could not be completed. On May 28, 1998, a district level (as opposed to school level- all previous CFRs had been at the school level) CFR was held with Respondent at the School Board’s Office of Professional Standards. At that time Respondent was advised that the school administration would recommend disciplinary action against Respondent. Respondent had still not completed the prescription activities assigned to encourage remediation of work deficiencies. On June 3, 1998, Dr. Pullum, the principal at Respondent’s work site, recommended that Respondent’s employment be terminated due to her failures to follow directives, to attend CFRs, to complete prescription activities, and to improve work performance. On August 26, 1998, the School Board of Miami-Dade County, Florida, took action to suspend Respondent and to initiate dismissal proceedings for just cause, including incompetency, gross insubordination, and willful neglect of duty.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining the suspension of Respondent and dismissing her from employment with the school district. DONE AND ENTERED this 9th day of November, 1999, in Tallahassee, Leon County, Florida. J. D. 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 9th day of November, 1999. COPIES FURNISHED: Luis M. Garcia, Esquire Miami-Dade County Schools 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132-1308 Theslie Sessions 1348 Northwest 95th Street, No. 301 Miami, Florida 33147 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Roger Cuevas, Superintendent Miami-Dade County Schools 1450 Northeast 2nd Avenue, No. 403 Miami, Florida 33132-1308
The Issue The issue in this case is whether the Respondent has discriminated against the Petitioner on the basis of the Petitioner's race, in violation of Section 760.10(3), Florida Statutes.
Findings Of Fact Based on the testimony of the witnesses at the hearing, on the exhibit received in evidence, and on the matters officially recognized, I make the following findings of fact. The Petitioner, Dr. James J. Weaver, is a black male. He has never been a member of the Respondent, Leon Classroom Teachers Association. He has never applied to become a member of the Leon Classroom Teachers Association. During April of 1985, the Petitioner was a member of the bargaining unit of instructional employees represented by the Leon Classroom Teachers Association. During August of 1955, the Petitioner was not a member of that bargaining unit. The Respondent, Leon Classroom Teachers Association ("LCTA") is an employee organization. At all times material to this case, the LCTA was the bargaining representative for a unit of instructional employees employed by the Leon County School District. Evans Hughes was, at all times material to this case, an organizer for LCTA whose duties included the handling of employee grievances. Evans Hughes is a white male. Petitioner wrote a letter dated March 8, 1985, to Judy Johnson, who is a staff attorney for the School District. In the letter, the Petitioner complained that he had not received regular pay since January 18. He also complained about his erratic work schedule. Petitioner acknowledged his acceptance of a part-time position in February due to his lack of certification in English and he stated: I am not trying to hold the Leon County School Board to our original agreement extending my employment through March 15, 1985. I am only seeking pay at the 1-0 level for the days in which I did work. However, I would never stand in the way of getting a certified teacher in an area of education endeavor that I lack certification. Therefore, I am requesting that immediate action is taken whereby I am paid for the services that I have performed for Leon County School Board starting January 21, 1985 through February 15, 1985 . On April 15, the Petitioner filed a grievance dated April 13, which stated in relevant part: Statement of Grievance: To Mrs. Jackie Daniels, my complaint is centered around the fact that I was mislead or given a false impression by Dr. Paul Onkle, Director of Employee Relations, regarding regular pay for the period extending from January 21, 1985 through February 6, 1985. He told me on March 26, 1985 that he was going to have payroll cut a check for the days in question and I could come back March 27, 1985 and pick up the check but I haven't gotten paid. Relief Sought: Regular pay at the rate of 12.1720 an hour for the period extending from January 21, 1985 through February 6, 1985 (see attached Position Control Personnel Action Form dated 12-18-85). A written explanation as to why I was asked by you to take off one half of the day January 21, all day January 22, 23, and February 7, 1985. An explanation as to why I was not paid on February 15, 1985 along with the rest of the teachers. In filing the grievance, the Petitioner did not intend to raise the contention that Daniels had verbally extended his contract. Rather, because he needed the money, the Petitioner intended to pursue the contract duration issue separately at a later date. The grievance form reflects on its face that the four copies, white, canary, pink and goldenrod, were to be respectively provided to the Director of Employee Relations, the LCTA, the grievant's immediate supervisor, and the grievant. However, the Petitioner did not retain a copy for himself because he thought that he would receive one after the disposition had been made by his immediate supervisor. Upon the filing of the grievance, Clark, the president of the LCTA, directed Evan Hughes to evaluate the Petitioner's complaints. Shortly before April 22, Hughes called the Petitioner and asked that they meet and that the Petitioner bring all pertinent documents. At a meeting conducted on April 22, the Petitioner presented Hughes with various documents related to his complaints, including February, March, and April correspondence with Daniels, McDonald, Johnson, Giordano, Onkle, Couch and Clark. Prior to the April 22 meeting, LCTA had received a copy of the Petitioner's grievance. While the Petitioner may have intended to complain about the duration issue, he did not raise that issue in his discussions with Hughes and Clark. The Petitioner asked Hughes to process the April grievance and Hughes agreed that the LCTA would represent the Petitioner in the portion of the grievance concerning payment as a regular teacher for time that he had worked. However, Hughes explained that the LCTA would not represent the second and third elements of the grievance because the contract did not provide for the requested relief, i.e., written explanations. Article VI of the collective bargaining agreement between LCTA and the School Board outlines the grievance procedure to be followed when filing a formal teacher's grievance such as the Petitioner's grievance of April 13, 1985. Under Article VI, 6.02, Step II of the grievance procedure, if no disposition has been made within ten "Administrative Working Days" of the filing, the grievance shall be submitted to the second level within ten "Administrative Working Days" to the Superintendent. Thereafter, the contract provides that, within twenty "Administrative Working Days" the Superintendent or designee thereof shall meet with the LCTA to dispose of the grievance in writing. However, if the grievance can be resolved to the grievant's satisfaction, then no level two meetings are necessary. Under the parties' practice, at Step I and II, the LCTA generally does not make written proposals, but rather works informally through verbal negotiations. The grievant generally does not become involved in these initial efforts. In the midst of informal negotiations, it is not unusual for the parties to extend the contractual time limits. Normally, when a grievance is not responded to at Step 1 in a timely fashion, this constitutes an effective denial and the grievance automatically proceeds to the next step. Consistent with this practice, Hughes treated the grievance as if it were at the second step and he entered into discussions with Onkle, a representative of the School Board. Onkle presumed that the grievance was at the second step because this is the usual procedure when the dispute centers around the disagreement between an employee and his or her supervisor. About April 25, the Petitioner talked to Hughes, who told the Petitioner that he could negotiate a settlement for the eleven days worked from January 21 through February 6, which amounted to 77 work hours, but that the Board would not pay for the days the Petitioner was absent on January 22 and 23 and February 7. The Petitioner expressly authorized Hughes to settle the matter on those terms. The Petitioner also agreed that the $161 that he had been paid in January as a substitute would be deducted from the settlement. After the Petitioner's authorization, Hughes called Onkle and asked him to have a special check issued, so that the Petitioner would not have to wait for the money until his next regular paycheck. This was an unusual request. Giordano authorized the payroll department to issue the check for the 77 hours certified by Onkle. On May 5, The Petitioner received a check in the gross amount of $707.33. Because he calculated that he would receive $937.24 minus the $161 he received as payment as a substitute teacher, this check was $68.91 less than the Petitioner had anticipated. The check was prepared by Shirley M. Higgins, the District's Payroll Supervisor. The shortage was a consequence of an overpayment the Petitioner had received in his salaries paid to him up to January 18. Higgins had discovered the overpayment and she made the deduction herself without directions from Onkle or Hughes. It is normal for the payroll department to automatically deduct overpayments from an employee's next check and this deduction would have been made from Petitioner's regular paycheck, had a separate check for the settlement not been issued. The deduction did not relate to the Petitioner's grievance. It had not been previously removed from his pay because the Petitioner had not received a paycheck since the overpayment was discovered. As reflected in his April 15 letter to Onkle, Weaver was aware that he had received $68 overpayment in January. Hughes first found out about the $68 disparity after the Petitioner received the check. In a letter from the Petitioner to Hughes written about May 15, the Petitioner acknowledged his consent to settle "for 77 hours, (eleven days) for a total of $937.24 minus $161 paid to me in January as a substitute teacher." However, the Petitioner contended that this would result in a balance of $776.24, instead of the $707.33 that he received. Consequently, the Petitioner requested the difference of $68.91. Hughes called Onkle, who told Hughes that the $68 was an adjustment for a prior overpayment. Hughes relayed this information to the Petitioner. Because Hughes did not consider the disputed amount to relate to the grievance, he suggested the Petitioner consult with the District about the matter. The Petitioner never asked Hughes or Clark to withdraw from the settlement and proceed to arbitration or to file a new grievance on the $68 disputed amount. Around May 16, the Petitioner received from Giordano a copy of a worksheet setting forth the School Board's reasoning for the $707.33. By letter dated May 17, the Petitioner responded to Giordano that he was still owed $68.91. In reaction to this letter, Giordano met with Higgins and inquired about the disparity. Higgins defended the amount paid and Giordano asked her to present documentation so that he could explain the matter to the Petitioner. By letter dated June 17, Giordano explained to the Petitioner the overpayment through an analysis of Petitioner's pay history from November 2, 1984, to February 6, 1985. Giordano said that, for the periods ending on December 10, 1984, and January 18, 1985, the Petitioner worked a total of 308 hours which was paid at the contractual rate of $12.1720 for a total of $3,748.98. However, checks the Petitioner received totaled $3,817.62, which is an overpayment of $68.64. Giordano specified that this was separate from the time period covered by the grievance between January 21 and February 6. Attached to the letter was a worksheet containing the exact calculations of the Petitioner's work and payment history. Giordano acknowledged that the calculations showed the Petitioner had been underpaid by $0.27 in his May 7 settlement check, so he enclosed $0.30 in the letter. During the Petitioner's discussions with Giordano, the Petitioner did not indicate that he would revoke the settlement or file a new grievance. The Petitioner did not dispute that he had been previously overpaid. His complaints centered around the contention that the Board had not abided by the terms of the settlement. The LCTA and the School Board maintain a practice wherein a grievance settled at the second step is reduced to a written agreement. For practical reasons, the written agreements are generally not executed contemporaneous with the settlement. Rather, due to conflicts in scheduling, written agreements are often executed at a later date. At the conclusion of the settlement of Petitioner's grievance, the School Board and the LCTA followed their usual practice of documenting the disposition of his grievance. The terms of the grievance settlement were set forth in a "Stipulation of Agreement" which was signed by Onkle on May 29 and by Hughes on June 10. This agreement reflected that the Petitioner was paid as a temporary regular teacher for the period from November 2, 1984, through February 6, 1985, but that the Petitioner would not receive payment for the days in which he did not work. The three week delay in Onkle's execution of the agreement was due to his tardiness. Hughes executed the agreement on a separate date because he had been on vacation, and he signed it on the day of his return. Upon signing, Hughes followed his regular practice and gave a copy to his secretary and instructed her to file a copy and to send copies to Onkle, Clark, and the Petitioner. Hughes considered this agreement to be the disposition under the contract. Although there is a space for listing the disposition of a grievance on the grievance form, the parties normally set forth a settlement on a separate page due to insufficient space. Because the Petitioner was unsatisfied with the disposition of his grievance, he contacted Board Chairman Donna Harper, who suggested that he make a presentation to the Board. The Petitioner applied to appear at the School Board's June 20 meeting. In a memo dated June 18, which the Petitioner submitted to the Board at their June 20 meeting, he alleged that he had been discriminated against and he complained that: (1) he had not received payment for services performed from January 21 through February 6, (2) that his contract for full-time employment from February 6 to March 15 had been breached, and (3) that he did not receive payment for days taken off at his supervisor's direction on January 22 and 23, and February 7. He also asked for written responses to a number of questions. The Petitioner had not told Hughes or Clark about his intention to make a presentation to the Board and they heard about it from employees of the District. At the June 20 meeting, the Petitioner asked to make a presentation to the Board about a question of whether he was to be represented by the LCTA. He then made a presentation which initially charged that the LCTA had failed to represent him in his seven year effort to attain a job with the District. The Petitioner's presentation lasted about eight minutes, and approximately 90 percent of it concerned allegations that the Board had discriminated against him by denying him interviews and employment in a full-time position. He also complained about Giordano and Onkle's failure to respond to questions asked by him. During the presentation, the Petitioner did not indicate that he was attempting to appeal his grievance. At the meeting it was decided that the questions posed in the Petitioner's memo would be considered at the Board's meeting on July 9. The Petitioner did not attend the Board's meeting on July 9 due to an illness in his family. However, in anticipation of his attendance, Giordano brought a copy of the "Stipulation of Agreement" disposing of the Petitioner's grievance. By letter dated June 10, the School Board's attorney, C. Graham Carothers, advised the Petitioner that the Board had reconsidered the matters raised in Weaver's June 18 memo. The Board had determined that the Petitioner was a member of the bargaining unit represented by the LCTA and that any grievance that he had must proceed through the contractually based grievance procedure, rather than direct presentation to the Board. On August 19, the Petitioner filed a second grievance. In his August 19 grievance, he sought the following relief: (1) answers to the questions raised in his June 18 memo to the Board and June 25 letter to Carothers, (2) pay for the duration of the alleged oral contract extending his employment to March 15, and (3) an explanation as to why he had been denied employment on a full- time basis. Prior to that time the Petitioner had not requested the LCTA to represent him in his contention that he had been persistently denied employment with the Board. When the grievance was filed, the Petitioner was no longer a District employee. Giordano and Carothers met and agreed that the new grievance was an attempt to expand upon the prior one to include a new issue, i.e., the duration of the contract. Giordano felt that this would contravene the settlement and on September 4 he disposed of the grievance on that basis. The disposition did not address the Petitioner's contention concerning his denial of a position because Giordano considered that this issue had to be raised in the grievance procedure covering classified employees. About September 10, the Petitioner consulted with Clark about the August grievance. At that time the Petitioner told Clark that he had received Giordano's denial and he asked the LCTA to represent him in the matter. Clark told the Petitioner that the LCTA would not represent him because he was not a member of the LCTA or the bargaining unit. The LCTA took no action on the Petitioner's behalf in the second grievance. The Petitioner followed up his verbal request with a written request for LCTA representation dated September The Petitioner stated that the School Board had determined that he was a member of the bargaining unit. Clark did not respond to the request because he felt that his verbal response was sufficient. The Petitioner never asked the LCTA to file a grievance or any other type of action against the School Board on the grounds of racial discrimination in its hiring practices. The LCTA processed the Petitioner's grievance dated April 13, 1985, in the same manner as it processed all grievances, and in processing that grievance it did not deviate from its standard procedures. The LCTA has processed the grievances of white and black members and non-members in the same manner as it processed the Petitioner's grievance dated April 13, 1985. There was no evidence presented at the hearing that the LCTA in any manner protected the School Board in its alleged discrimination against the Petitioner by denying the grievance filed by the Petitioner in August of 1985. There was no evidence presented at the hearing that grievances of similarly situated white members or similarly situated white non-members were processed by the LCTA in any way that differed from the way in which the LCTA processed the Petitioner's grievance. There was no evidence that the LCTA failed to process the Petitioner's grievance in a proper manner because of his race. And there was no evidence of any conduct from which it can be inferred that the actions of the LCTA were based on race. In the final analysis, the Petitioner's own testimony shows that the actual conduct he is complaining about is not the LCTA's discrimination against him, but rather the LCTA's failure to do anything to remedy or prevent alleged racial discrimination by the School District. The LCTA's failure to process the Petitioner's August 19, 1985, grievance was legitimate, non-discriminatory, and authorized by statute. The LCTA acted reasonably and without discriminatory motivation in declining to process the Petitioner's August 19, 1985, grievance.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Dr. James J. Weaver. DONE AND ORDERED this 17th day of April, 1987, at Tallahassee, Florida. M. M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3715 The following are my specific rulings on all of the proposed findings of fact submitted by all of the parties. Findings proposed by Petitioner (The numbers below correspond to the numbers of the paragraphs of the proposed findings of fact submitted by the Petitioner.) Accepted. Rejected as not supported by competent substantial evidence. Accepted. Rejected as constituting legal conclusions or argument rather than findings of fact. Rejected as not supported by competent substantial evidence and as irrelevant to the issues in this case. (There are two paragraphs numbered "5.") Rejected as not supported by competent substantial evidence and as irrelevant to the issues in this case. Rejected as procedural details which do not need to be included in the findings of fact. Rejected as not supported by competent substantial evidence and as irrelevant in any event. Rejected as not supported by competent substantial evidence and as irrelevant in any event. Rejected as not supported by competent substantial evidence and as irrelevant in any event. Rejected as not supported by competent substantial evidence and as irrelevant in any event. Rejected as constituting argument rather than proposed findings. Rejected as constituting argument rather than proposed findings. Accepted. Accepted. Accepted. Accepted in substance. Rejected as not supported by competent substantial evidence. First sentence is accepted. Second sentence is rejected as irrelevant. Accepted in substance. Rejected as not supported by persuasive competent substantial evidence. Also rejected as contrary to facts established in matters officially noticed. Rejected as constituting argument. To the extent this paragraph purports to propose facts, it is also rejected as not supported by persuasive competent substantial evidence and as contrary to facts established in matters officially noticed. Rejected as contrary to the greater weight of the evidence and as contrary to facts established in matters officially noticed. Rejected as constituting argument. To the extent this paragraph purports to propose facts, it is also rejected as not supported by persuasive competent substantial evidence and as contrary to facts established in matters officially noticed. Rejected as contrary to greater weight of the evidence. Rejected as not supported by persuasive competent substantial evidence. Rejected as not supported by persuasive competent substantial evidence and as contrary to facts established in matters officially noticed. Rejected as constituting argument. To the extent this paragraph purports to propose facts, it is also rejected as not supported by persuasive competent substantial evidence and as contrary to facts established in matters officially noticed. Rejected as not supported by persuasive competent substantial evidence. Rejected as contrary to the greater weight of the evidence and as contrary to facts established in matters officially noticed. Rejected as contrary to the greater weight of the evidence and as contrary to facts established in matters officially noticed. First sentence accepted. Second sentence rejected as argument. Second sentence also rejected as not supported by persuasive competent substantial evidence. Rejected as argument. Also rejected because the argument is not warranted by the evidence and, in any event, concerns a triviality. First sentence is rejected as argument. Second sentence is rejected as contrary to the greater weight of the evidence and as contrary to facts established in matters officially noticed. First sentence is rejected as contrary to the greater weight of the evidence and as contrary to facts established in matters officially noticed. Second sentence is rejected as subordinate and unnecessary. Last sentence is accepted. Rejected as contrary to the greater weight of the evidence and as contrary to facts established in matters officially noticed. Rejected as contrary to the greater weight of the evidence and as contrary to facts established in matters officially noticed. Rejected as not supported by persuasive competent substantial evidence. There is no paragraph 33.) Accepted. Accepted in substance. Accepted in substance. Accepted in substance. Rejected as not supported by persuasive competent substantial evidence. Rejected as not supported by persuasive competent substantial evidence. Also rejected as irrelevant. Rejected as not supported by persuasive competent substantial evidence. Rejected as constituting conclusions of law rather than findings of fact. Rejected as constituting conclusions of law rather than findings of fact. Rejected as constituting conclusions of law rather than findings of fact. Rejected as constituting conclusions of law rather than findings of fact. Unnumbered paragraph at bottom of page 21 and all of page 22: Rejected as constituting argument or conclusions of law rather than findings of fact. Findings proposed by Respondent (The numbers below correspond to the numbers of the paragraphs of the proposed findings of fact submitted by the Respondent. Accepted in substance. Accepted in substance. Rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. First two sentences accepted. Last two sentences rejected as not supported by competent substantial evidence. Accepted in substance. Rejected as not supported by competent substantial evidence. Also rejected as subordinate and unnecessary. Rejected as not supported by competent substantial evidence. Also rejected as subordinate and unnecessary. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Rejected as irrelevant or subordinate and unnecessary. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Rejected as not supported by competent substantial evidence. First sentence accepted. Second sentence rejected as constituting subordinate and unnecessary details. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Accepted. Accepted. Accepted. Accepted in substance. Accepted in substance. COPIES FURNISHED: Dr. James J. Weaver 3535 Roberts Avenue, Box 290 Tallahassee, Florida 32304 Pamela L. Cooper, Esquire 911 East Park Avenue Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
