The Issue Whether Respondent School Board of Alachua County (School Board) engaged in discriminatory employment practices or retaliated against Petitioner, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Ms. Wright, an African-American woman of Jamaican descent, worked as a teacher in the Alachua County School District (School District) for several years, the last two positions being at Glen Springs Elementary School (Glen Springs), from 2016-2018, and Metcalfe Elementary School (Metcalfe), for the 2018-2019 school year. Ms. Wright possesses a bachelor’s of arts in education and a master’s of arts in education, both from the University of Florida. In 2017, she completed an educational leadership program at the University of Florida. Thereafter, in October 2017, she entered the School District’s administrative pool, and she informed Glen Springs Principal Armstrong of her intentions to seek an administrative position within the School District. The School District did not hire or promote Ms. Wright to an administrative position during the 2017-2018 school year. Mr. Purvis, the School District’s Assistant Superintendent for Human Resources, testified that it is normal for a person who enters the administrative pool for consideration for an administration position to wait some time before receiving an appointment to such a position. Mr. Purvis testified that is not common for an administrative pool applicant to be appointed assistant principal or principal within three months of entering the administrative pool. In December 2017, Ms. Wright approached Principal Armstrong and expressed that she was experiencing what she believed was harassment, including an attempted break-in at her apartment, people tracking or following her, someone tampering with her car’s gas tank, someone hacking her cell phone, and an instance in which a fire truck, which she believed may have been operated by another school principal’s husband, allegedly attempted to block her car from driving to a School District leadership meeting. Ms. Wright requested leave to deal with these issues, which Principal Armstrong granted. On February 9, 2018, while Ms. Wright served as the Behavior Resource Teacher at Glen Springs, she was involved in an incident in the cafeteria, where some students were being served breakfast. Ms. Wright testified that she noticed one student was “staggering” and then fell down. Then, she began to feel “sick” and “woozy,” and noticed three other students who “appeared to look dizzy and sick too.” She also made a statement that she observed other teachers who were falling in slow motion. She then ordered a lockdown of the cafeteria, and ordered all students to their classrooms. Ms. Wright then went to the front office, and Principal Armstrong called the school nurse and district office, which sent a school resource officer from a neighboring school, and Ms. Finley (the School Board’s Supervisor of Human Resources), to Glen Springs. Ms. Wright refused services from the school nurse, although she admitted that she did not feel well. When Ms. Finley and the school resource officer arrived, she agreed to be transported by Ms. Finley to the emergency room at North Florida Regional Medical Center (NFRMC). Ms. Finley drove Ms. Wright to NFRMC, and she and the school resource officer, who followed in a separate vehicle, waited until Ms. Wright was admitted to the emergency room. Ms. Finley testified that she and the school resource officer gave Ms. Wright their cell phone numbers, and told her to call when she was released. Ms. Wright stated that NFRMC discharged her, with little treatment, that same day (a Friday). However, over that weekend, she experienced other issues and requested to be returned to NFRMC, and was transported after receiving EMS services. Ms. Wright’s recounting of this second visit to NFRMC offers a harrowing description of a ten-day hospital stay that included an unusual hospital room with a bed on the floor, visits from a judge, and nurses and doctors (one of whom she believed was the parent of a Glen Springs kindergartner) injecting her with substances that caused partial paralysis. After her second discharge from NFRMC, and after receiving clearance from her treating physician, on March 12, 2018, the School District decided to not return Ms. Wright to her previous position at Glen Springs, but rather placed her in a temporary position at the Student Services Department at the Manning Center, analyzing charter school data and serving as a liaison for charter school families, for the remainder of the school year. Ms. Wright received the same salary and benefits as her teaching position at Glen Springs. Ms. Wright requested that Ms. Finley, an African American woman, facilitate her placement in a new teaching position for the next school year. Ms. Finley offered Ms. Wright a position at Lake Forest Elementary School as a Title I Intervention teacher, which she declined. Thereafter, Ms. Finley offered Ms. Wright a position at Metcalfe as a Title I Intervention teacher for the 2018-2019 school year, which she accepted. During her employment at Metcalfe, Principal Jacquette Rolle asked Ms. Wright to utilize a certain curriculum for instruction and perform assessments in order to track student performance, as required under School Board and state guidelines. When Ms. Wright refused to do so, Principal Rolle issued a 24-hour notice for a meeting to be held at Metcalfe with Principal Rolle and other School District officials, on October 5, 2019. Ms. Wright testified that she had another subsequent meeting with Principal Rolle, in which Principal Rolle “yelled in my face, not in a low tone, at a high tone.” On April 9, 2019, while working at Metcalfe, Ms. Wright contacted the FBI to complain that someone had again hacked her cell phone. The FBI referred her to the Gainesville Police Department, which then contacted Metcalfe’s school resource officer, Officer Davis, to respond. Officer Davis testified that, after the Gainesville Police Department dispatch center contacted him, he met with Ms. Wright. Officer Davis testified that she relayed concerns about events that happened at Glen Springs, that different school principals were following her, that people were in her attic, and that her car had been tampered with at a car dealership. He stated that “[s]he was like continually talking. She would talk about one subject and then all of a sudden she would change to another subject that was unrelated to what she was actually talking about at the time.” Officer Davis testified that, as a police officer, he has received training with respect to identifying individuals experiencing mental health crises, and in de-escalating such situations. Although Officer Davis did not believe that Ms. Wright met the criteria for consideration for a Baker Act, he reported that she was experiencing mental health issues that needed to be evaluated. Officer Davis prepared a report, dated April 9, 2019, that he shared with Principal Rolle and that was also provided to the School District. Principal Rolle also provided a letter, dated April 9, 2019, that summarized her concerns with Ms. Wright, to the School District. Mr. Purvis, the School Board’s Assistant Superintendent for Human Resources, received Officer Davis’s report, as well as Principal Rolle’s letter, and decided that Ms. Wright must undergo a “Fitness for Duty” evaluation, pursuant to School District Policy 3161. This policy states: If the Superintendent believes an instructional staff member is unable to perform essential functions of the position to which the staff member is assigned, with or without reasonable accommodations, the staff member will be offered the opportunity for a meeting to discuss these issues. The Superintendent may require an instructional staff member to submit to an appropriate examination by a health care provider designated by the Board to determine whether or not the staff member is able to perform essential functions of the position to which the staff member is assigned, with or without reasonable accommodations. The Board shall pay any uninsured fees for such examinations. The staff member will be required to execute a release that complies with the requirements of the Health Insurance Portability and Accountability Act (HIPAA) in order to allow the report of the medical examination to be released to the Superintendent and to allow the Superintendent or his/her designee to speak to the health care provider who conducted the medical examination to get clarification. Refusal to submit to an appropriate examination or to execute the HIPAA release will be grounds for disciplinary action in accordance with the terms of the applicable collective bargaining agreement. As required by Federal law and regulation and Board Policy 3122.02, Nondiscrimination Based on Genetic Information of the Employee, the Superintendent shall direct the provider that is designated by the Board to conduct the examination, not to provide any genetic information in the report of the medical examination. Pursuant to State law and in accordance with the Americans with Disabilities Act, as amended, the results of any such examination shall be treated as a confidential medical record and will be exempt from release, except as provided by law. As required by Federal law, if the District inadvertently receives genetic information about an individual who is required to submit to an appropriate examination from a medical provider it shall be treated as a confidential medical record. Upon the recommendation of the Superintendent and approval of the Board, an instructional staff member may be placed on a leave of absence related to fitness for duty. Such leave shall be without pay; however, the employee may use accrued leave, if available. Furthermore, the Superintendent may recommend the instructional staff member’s dismissal based upon the results of the medical examination. The instructional staff member is entitled to a hearing as provided for in Florida law or the terms of the applicable collective bargaining agreement. Ms. Wright contended at the final hearing that she never met with the School District Superintendent, who, under this policy, is the individual responsible for requiring a “fitness for duty” evaluation. Mr. Purvis testified that it is the common practice of the School District for the designee of the Superintendent, such as the Assistant Superintendent for Human Resources, to require a “fitness for duty” evaluation. Mr. Purvis, Mr. Brooks (the School District’s Supervisor of Human Resources), and Ms. Wright met and discussed this policy and the “fitness for duty” evaluation. On April 10, 2019, the School District placed Ms. Wright on paid administrative leave pending the outcome of a “fitness for duty” evaluation. Several doctors examined Ms. Wright and these doctors referred her to a licensed psychologist, who conducted an evaluation on May 2, 2019; the psychologist concluded that Ms. Wright was not fit to return to her duties as an elementary school teacher. On June 5, 2019, Mr. Purvis, Mr. Brooks, Ms. Wright, and Carmen Ward (the teacher union’s president), had a meeting in which Mr. Purvis and Mr. Brooks shared the results of the “fitness for duty” evaluation. Mr. Purvis explained to Ms. Wright that, based on the psychologist’s evaluation, she was deemed to be unfit for duty, and would be placed on a leave of absence for the 2019-2020 school year. At a September 17, 2019, meeting, the School Board approved the placement of Ms. Wright on unpaid leave. Mr. Purvis afforded Ms. Wright the opportunity to use her accrued paid leave during this unpaid leave time period, and gave her a deadline of June 27, 2019, to notify the School District’s human resources department of her decision. Ms. Wright did not meet that deadline, but later, on January 6, 2020, requested some paid leave, which Mr. Purvis granted. Ms. Finley and Mr. Purvis credibly testified that the School District would welcome Ms. Wright back to employment with the School District, if she would receive appropriate treatment and clearance from a medical professional that would indicate she met the “fitness for duty” requirement in School District Policy 3161. After more than a year, Ms. Wright has failed to make any attempt to do so. Ms. Wright presented no persuasive evidence that the School Board’s decision concerning, or actions affecting, her, directly or indirectly, were motivated in any way by race or national origin-based discriminatory animus. There is no competent, substantial evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race or national origin discrimination. Ms. Wright presented no persuasive evidence that the School Board retaliated against her for participating in a statutorily-protected activity. There is no competent, substantial evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Marshalee M. Wright’s Petition for Relief. DONE AND ENTERED this 14th day of October, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Karen Clarke School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 Marshalee M. Wright Post Office Box 141981 Gainesville, Florida 32614 (eServed) Brian T. Moore, Esquire School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
Findings Of Fact Petitioner, Fred D. Greene, began service with the Hamilton County School Board as a teacher in August, 1965. He was employed on annual contract for three school years until he was granted a continuing contract by the school board on July 23, 1968, as a teacher pursuant to Section 231.36, Florida Statutes. After the execution of the continuing contract, Petitioner was assigned as coordinator of vocational education during the 1969-1970 school term but in addition to those duties, continued to teach five classes. As Petitioner was assigned additional duties by the Superintendent, his teaching duties were reduced. Starting in 1970 and continuing through 1973, though the continuing contract as a teacher had not been rescinded, Petitioner and the school board entered into annual contracts of employment in which Petitioner was assigned as Director of Vocational Education. On June 5, 1973, the parties entered into a second continuing contract which described Petitioner's duties as "Director of Vocational, Technical and Adult Education." At no time did Petitioner ever hold a contract as "principal" nor was he ever paid as such. His current Florida Teacher's Certificate shows him certified in, among other things, secondary administration and supervision. Both this contract and the 1968 continuing contract contained a provision that the school board was authorized, upon recommendation of the superintendent of schools, to transfer and assign the Petitioner to a "similar position in any other school" in the district, provided that "the duties shall be similar to the duties originally assigned and the salary shall be as heretofore set forth." From the time he was appointed director of VTAE until January, 1981, Petitioner served in that capacity. As director of VTAE, he considered his position as similar to that of a principal in that he reported directly to the Superintendent of Schools, he supervised the teachers who taught within his program (although he did not rate them) he was paid on the non- instructional salary schedule as is a principal he was responsible for the procurement of and administration of students including their promotion and graduation. Nonetheless, he was not classified as a principal, he served schools throughout the county, the teachers in the program were recruited from regular day teachers and additional personnel who taught only in the night program, and these teachers were rated by their day principal when appropriate. Consequently, his position as Director, VTAE, was not similar to that of a principal. At the time he left the job as Director, VTAE, to assume the office of Superintendent of Schools, he was paid a salary of $21,000.00 per year for a 12 month term and was on step 6 of the non-instructional salary schedule. He has never released the school board from the terms of the continuing contract. In January, 1981, Petitioner took office as Superintendent of Schools. At that time the function of Director, VTAE, was assigned to Ms. Scaff who subsequently also occupied several other positions within the school board system including instructional coordinator, secondary curriculum coordinator, community education director, law education director, and management information systems director. Ms. Scaff did not assume all those functions at one time. The job was built up over a period of years and while the duties changed, the title of Director, VTAE, did not. Ms. Scaff was paid as an instructional director on the non-instructional salary schedule. As Director, VTAE, Ms. Scaff, and Mr. Greene before her, occupied one of the director positions reflected in the directory of the School Board. The School Board uses the same contract form for directors and principals and the director is evaluated by the Superintendent of Schools as is a principal, but there are few other similarities between the function of principal and Director. Petitioner served as Superintendent of Schools from 1981 until November, 1984, when he was replaced as superintendent by Mr. Hinton. Several months before his term expired, in June, 1984, Petitioner recommended to the School Board that it appoint Ms. Scaff, who was at that time serving as, inter alia, Director, VTAE, to a two year contract in that position. This contract was approved by the School Board. Shortly after his defeat in the election, Petitioner allegedly told Mr. Hinton that he did not wish to displace anyone employed by the school system in order to enforce his return rights under the continuing contract he held. It was his position that he would accept a teaching position but at a salary level equivalent to that of an administrator until such time as an administrator's position within the system became open. At a special meeting of the School Board called by Petitioner on the last day of his term as superintendent, Mr. Greene nominated himself for the position as principal at NHE. This nomination, however, was tabled by the School Board upon advice of counsel so that an advisory opinion on it could be requested from the Florida Commission on Ethics. At this point it should be noted that though the position as Principal at NHE became vacant prior to Petitioner leaving his position as superintendent, he did not apply during the period that the·advertisement was open. The only person to do so was Harry Pennington who was subsequently placed in that position. When Mr. Hinton assumed the position of Superintendent of Schools, replacing Mr. Greene, he immediately assigned Petitioner to the position as teacher of business education. Mr. Greene accepted the assignment but requested that he be paid a salary equivalent to the 20th step on the salary schedule for the position of instructional director at a figure of $32,550.00 per year. The figure demanded by Petitioner was not paid, however. After conferring with the State Department of Education regarding the proposed salary for Petitioner, the School Board determined that since he held a continuing contract as a teacher, he would be employed at a salary based on the teacher position. He was given credit for four years of teaching service while serving as Superintendent of Schools which placed him at the 20 year service point. In addition, he was given credit for a master's degree and for teaching in his field of certification. His total salary, therefore, was set at $23,460.00 over a ten month term. Petitioner was not satisfied, especially since Mr. Pennington, who was serving as principal of NHE was receiving $28,100.00 per year based on a 12 month employment contract. On May 27, 1985 the school board rejected Mr. Greene's nomination of himself as principal at NHE. The board's rejection of Mr. Greene was based on the recommendation of Mr. Hinton who felt that Petitioner was not qualified for the position in that he did not hold certification in administration and supervision at the elementary level his contract was not for the position of principal he had no experience as principal or assistant principal he did not apply for the position when it was advertised and because counsel advised that filling the position based on self nomination might violate Florida law. Mr. Pennington on the other hand, was fully certified in administration and supervision for all grade levels involved at NHE. Other positions for which Respondent felt himself qualified came open during the 1984-1985 school year but he was not selected to fill any of them. Included in these were that of principal of Hamilton County High School and administrative assistant positions at both North Hamilton Elementary and South Hamilton Elementary. When Mr. Hinton took over as Superintendent of Schools, as a part of his management program and in an effort to correct what appeared to be a problem regarding the late payment of School Board obligations which existed when he took over, he recommended certain personnel changes including the creation of an office manager position. Mattie Fouraker, formerly the business education instructor at Hamilton High School, was appointed office manager to the School Board at a salary approximately equivalent to that she received as a teacher. It is to her vacant job as teacher of business education that Mr. Greene was assigned. Petitioner contends Ms. Fouraker was appointed to the position before it was ever officially created and approved by the School Board. Be that as it may, however, it becomes clear that the Superintendent of Schools intended that a problem be solved and to do so, created a position designed to correct it. He appointed Ms. Fouraker to the job on a temporary basis and as soon as the School Board met at the next scheduled meeting in December, 1984, it approved the position and confirmed Ms. Fouraker's assignment to it. This formal board action, however, served to increase her pay from that of a teacher at $23,460.00 per year to that of an administrative position at $29,700.00 per year and her position was changed from that of a 10 month to a 12 month employment, along with the benefits accruing thereto. Petitioner's salary as business education instructor was developed through a tailored formula developed with an intent to,-in the opinion of Mr. Hinton, put Mr. Greene in approximately the same position for the four years he was Superintendent of Schools. As was stated previously, Mr. Greene was given credit for his 16 years in the classroom plus his years of superintendent for a total of 20 years experience credit. Added to that was credit for a Master's degree and credit for teaching in his field of certification. When the $23,460.00 salary that was arrived at for this was compared to what it was anticipated he would have earned had he stayed as Director of VTAE, it was seen that had he remained in his position on the same salary schedule, he would have presumably earned $2,362.50 per month ($23,625.00 per 10 month school year) as an instructional director, Step 6. This is approximately $155.00 more over the school year. Had Petitioner been paid at the salary of an instructional support position, Step 6, the monthly salary would be slightly lower. It should be noted, however, that due to schedule changes during the period, this might not be a valid comparison. Positions within the school system are assigned by the Superintendent of schools on the nature of the position. Non- instructional personnel are assigned categories on the salary schedule based on an assessment of their qualifications and value to the system. Teachers, on the other hand, who are generally serving under contracts, are placed on the salary schedule consistent with the number of years experience they have plus certain other additions. It was Mr. Hinton's position that Mr. Greene should be paid as a teacher since he was serving as a teacher and once that decision was made, Mr. Greene was paid the highest amount that a person with his certificate and his experience and qualification could earn in that position. When the Florida Commission on Ethics issued its opinion on the question certified to it regarding Petitioner's recommending himself for the position of Principal of NHE, the opinion indicated the Commission could not conceive of how the Petitioner's actions in recommending himself for a position could not have constituted a misuse of public position. In other words, while not saying that it was, the Commission concluded that it probably was a violation. Thereafter, the School Board requested an Attorney General's opinion on whether a school superintendent may nominate himself for appointment of a principal. The opinion was not received as of the date of the hearing. Turning again to the issue of the function of Director of VTAE, the School Board contends that the function of Director has steadily expanded in scope. For example, Mr. Hinton urges that the work that Mr. Greene was doing as Director, VTAE prior to being elected superintendent now constitutes only 10 to 20% of the currently described duties of the position. The additional functions that Ms. Scaff performs, as described above, he contends, constitute more by far than that which Petitioner did when he held the job. In support of that position, Mr. Hinton refers to the organization and management study conducted in 1983 at the request of Petitioner when he was Superintendent of Schools. Among the pertinent recommendations of that study was the restructuring of the organization within the school district level. The position of Director, VTAE was not one of the three Director and five coordinator positions recommended by the study. Ms. Scaff indicates that when Petitioner was defeated in his bid for re-election as superintendent of schools, she indicated her willingness to step down from the position of Director, VTAE and return to classroom teaching. She does not consider the return to a position of teaching as a demotion nor does Ms. Fouraker. It should be noted, however, that both individuals received substantial increases in salary by virtue of their position changes under the Hinton administration. For example, Ms. Fouraker's promotion to the position of office manager carried a pay increase from $23,460.00 to $29,700.00 per year. Ms. Scaff now earns the same. Mr. Greene was at Step 6 on the non-instructional scale when he left the job of Director, VTAE. These scales were modified in the intervening years, and Ms. Fouraker traced Mr. Greene's position as Director, VTAE, to the new scale as if he had stayed in place. She placed him at Step 6 on the new scale at a salary of $28,350.00. Petitioner contends that he should be treated the same as Mr. Coe, Director of Personnel, who realized a large salary and step increase when the pay scales were changed. If this were done, and he was given an instructional director's position at step 20 on the non- instructional salary schedule, his salary would be $32,500.00. Subtracting that $28,350.00 from the $32,550.00 he says he should be earning, Mr. Greene indicates that he lost approximately $4,958.87 for the period starting November 20, 1984, when he began teaching, to the end of the school year. He further contends that his salary loss is continuing at the rate of $757.50 per month and in addition, he is also being deprived of other benefits of employment such as paid annual leave, sick leave, enhanced retirement benefits, and other like perquisites attached to a 12 month contract. Mr. Greene further contends that since he was involved in litigation with the school board concerning Mr. Coe's contract prior to his leaving the position of Superintendent of Schools, the School Board should have known of his entitlements under the continuing contract since it was shown that it had been established for assignments and transfers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Fred D. Greene, be assigned a non-principal supervisor/director position within the Hamilton County Schools as available that he be paid accordingly when performing in such a position but that he be denied adjustment for back pay and attorney's fees and costs. RECOMMENDED this 29th day of October, 1985, in Tallahassee, Florida. ARNOLD H POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1985. COPIES FURNISHED: John D. Carlson, Esquire Gatlin, Woods, Carlson & Girtman 1030 East Lafayette, Suite 112 Tallahassee, FL 32301 Paul Hendrick, Esquire 111 South Central Avenue Suite 1 Jasper, FL 32052 Owen Hinton, Jr. Superintendent Hamilton County School Board P. O. Box 1059 Jasper, FL 32052 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, FL 32301 APPENDIX Ruling by the Hearing Officer as to the Petitioner's Proposed Findings Of Fact: Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted* Accepted* Accepted* Accepted Accepted except as to the veracity of the reported comment of the School Board member Accepted Accepted Accepted Accepted except as to comments of Ms. Scaff as to her being a principal and signing forms as such Accepted except for Petitioner's comment that he would receive temporary certificate for Elementary Ed principal and would obtain certification in grades K-6 without much problem Accepted Accepted Rejected as irrelevant Irrelevant as a finding of fact should be conclusion of law Accepted Accepted except as to last sentence which is irrelevant unnumbered between and 23 Rejected Rejected Rulings by the Hearing Officer as to Respondent's Proposed Findings of Fact (Respondent failed to number paragraphs.) The unnumbered paragraphs are therefore treated in sequence and numbered herein for purposes of identification only. Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted as to substance Accepted Accepted Accepted except that acceptance of the position was not meant to be acquiesed in permanent assignment Accepted Accepted Accepted Accepted Accepted Accepted as it relates to teacher salaries only Accepted Accepted Accepted Accepted Accepted as to the request made. As of the hearing, the opinion had not been received. It was not offered into evidence and though attached to Respondent's Proposed Recommended Order, was not considered Accepted Accepted Accepted except for the conclusion drawn in the last sentence which was not supported by evidence admitted. Accepted Accepted Accepted Rejected. Position was held by Ms. Scaff who performed the same duties performed by Petitioner when he was the encumbent, in addition to additional duties which he did not *Petitioner's terms describing the personnel changes are not necessarily dispositive of the issue.
The Issue Whether the Respondent's motion to dismiss should be granted.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination based on marital status and recognizing Petitioner has elected to bring a civil action in federal court which is a court of competent jurisdiction to resolve all other claims against this Respondent. DONE AND ENTERED this 10th day of January, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 10th day of January, 1996. COPIES FURNISHED: Jonathan D. Fishbane, Esquire Roetzel & Andress 850 Park Shore Drive Naples, Florida 33490 Steve J. Longariello, pro se 9999 Summerbreeze Drive Apartment 422 Sunrise, Florida 33322 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated the Florida Civil Rights Act 1992, as alleged in the Charge of Discrimination filed by Petitioner on August 10, 2002. of
Findings Of Fact Stipulated Facts 1. Petitioner, Ernest E. Whitehurst, was employed by the Duval County School District (school district) beginning November 26, 1984. 2. Petitioner was discharged from employment effective August 25, 2000. 3. Petitioner was informed of his discharge by a letter signed by Lisa Moore, an employee of the school district, a copy of which was hand-delivered by management. 4. Petitioner suffered an on-the-job injury in September of 1991. 5. After recovering from the on-the-job injury, Petitioner had a permanent injury in that he was restricted in lifting objects. 6. Petitioner filed a charge of discrimination in relation to his termination on or about August 6, 2001. 7. Petitioner is presently suffering from a serious mental disorder. Facts Established by the Evidence of Record 8. The letter of termination stated in pertinent part: Under Civil Service Rule 9.05(1), an employee can be dismissed for inability to perform assigned duties. You were hired as a school [sic] clerk II, after a fitness for duty assessment, job skills inventory and job search, the district has determined that you are unable to perform your assigned duties and that there are no other positions available, 9. Petitioner was hired and worked as a Stock Clerk II. The position description for Stock Clerk II includes the following: KNOWLEDGES, SKILLS AND ABILITIES: Ability to establish and maintain effective working relationships with others. Requires alertness and manual dexterity. Ability to understand and carry out oral and written instructions. Ability to maintain manual and computerized records. Ability to lift 60 pounds. Ability to operate computer. Knowledge of computers regarding maintenance of records and inventories. Knowledge of storeroom methods and procedures. 10. The job description also includes the following as examples of work to be performed: supervising and/or participating in the ordering, receiving, storing, and issuing of a variety of equipment and supplies; assembling, parking, and arranging for transport of stored materials; preparing and maintaining an inventory system using computerized and manual records; and may be required to drive a truck up to 26,000 GUV, as well as to operate a forklift, stock-picker, and other material-handling equipment. Physical Injuries 11. During his first years as a district employee, Petitioner apparently performed his job without serious problem or difficulty. On September 9, 1988, however, he strained and pulled his right arm and shoulder while lifting a gate to open it, which limited his ability to raise his arm over his head and in reaching. Medical records reflect that a long period of limited duty ensued during which Petitioner was medically restricted to lifting no more than 30 pounds and doing no overhead lifting with his right arm. 12. On September 6, 1991, Petitioner was injured on the job again. The description of the accident furnished by the school district, is as follows: Employee was moving storage bins in Warehouse and they fell over on him, hurting his head, nose, back, both shoulders and both knees. 13. Petitioner's treating physician at the time of the 1991 injury, Dr. Lenger, a neurologist, placed work restrictions on Petitioner. The primary work restriction limited Petitioner to lifting not more than 30 pounds. The physical sequela from this accident remained with Petitioner through the time he was dismissed. 14. On August 30, 1995, Dr. Lenger, determined that Petitioner's injury was permanent in nature and irreversible. Petitioner's work restrictions at this point included the following: sitting no more than one hour; driving no more than one hour; standing no more than one hour; no prolonged walking; no repetitive bending; and no carrying or lifting in excess of 30 pounds. These same work limitations were reiterated by Dr. Lenger on March 8, 1996, with the exception of the walking limitation. The last medical report reiterating the physical restrictions was dated April 27, 2000. The restrictions described by Dr. Langer remained in effect when Petitioner was dismissed. 15. In 1999, Petitioner developed carpal tunnel syndrome. On September 17, 1999, Dr. Lenger reported that Petitioner had "worsening CTS [carpal tunnel syndrome] bilat." This finding was reported by Dr. Lenger again on September 27, 1999, along with the notation "requires wrist splints for CTS." Dr. Lenger's January 14, 2000, report indicates "Rt. Carpal 2 This condition also continued to affect tunnel syndrome." Petitioner through the end of his employment with the school district. It hindered his ability to do repetitive work. 16. The school district accommodated Petitioner for his physical disabilities for many years by permitting him to remain on light-duty status. He received generally satisfactory job evaluations. However, his supervisors based these evaluations on the limited amount of work he was able to do, not on the entire scope of the job. Mental Illness® 17. Petitioner also developed manifestations of mental illness during the time frame he was employed with the district. On or about March 8, 1996, Dr. Lenger reported that Petitioner was so upset he couldn't stop crying. Dr. Lenger's progress notes reflect that Petitioner's regular physician put him on an anti-depressant. Petitioner continued to take the anti- depressant through the time he was dismissed from employment by the district. 18. On July 13, 1998, a Monday, Petitioner told his supervisor and another co-worker that he had contemplated suicide during the prior weekend. He also told them that he had hit himself in the head numerous times. Larry McDonald, Director, Consolidated Services Property Manager, told Petitioner to go to the district's Wellness Clinic for counseling, but Petitioner refused. 19. Petitioner admitted to barking from time to time in the workplace. According to Petitioner, he did this to startle people. Petitioner's barking was observed and heard by many district employees, including Larry McDonald, Lee Taylor, Leroy Williams, Michael Myers, Colleen Taylor, and Rufus Harmon. These people found Petitioner's barking disturbing, frightening, strange, or annoying. It occurred frequently, was very loud, and could be heard 300 to 400 feet away, half the length of the warehouse, and while visitors were present in the warehouse. 20. During the course of his employment, Petitioner made threatening remarks concerning management and specifically concerning Larry McDonald, Petitioner's superior through the reporting chain. On one occasion in 1999, Petitioner remarked to a co-worker that he would line management up and shoot them. Petitioner stated that if he lost his job, he would get even, a comment made in a conversation concerning other persons on "light" duty who had been dismissed. 21. Petitioner had a psychiatric examination on August 24, 2000, after he had received his letter of dismissal, but prior to the last day of his employment, August 25, 2000. According to Petitioner's psychiatrist, Dr. Martinez, Petitioner was having intense thoughts of killing himself and his supervisor because of being dismissed. Dr. Martinez hospitalized Petitioner due to suicidal and homicidal ideation on an emergency basis at Ten Broeck Hospital, and recommended long- term psychiatric treatment. It was Dr. Martinez's opinion that Petitioner was not employable at that point. 22. Petitioner acknowledged that when he visited Dr. Martinez on August 24, 2000, he had been homicidal and that he expressed at that point that he wanted to kill Mr. McDonald. 23. Dr. Martinez has continued to see Petitioner on a very regular basis. Petitioner's diagnosis is intermittent explosive disorder, clinical depression, and personality disorder. Dr. Martinez testified that Petitioner functions on a chronic level of paranoia and distrust, which is psychotic. Dr. Martinez stated that Petitioner continues to be permanently mentally disabled as a result of his industrial accident and the psychiatric sequelae following the accident.‘ 24. It is Dr. Martinez's opinion that Petitioner "has always been severely mentally disturbed," that he is very distrusting on a chronic basis, probably since he was a small boy, and that he is suspicious, hypervigilant and explosive. "I think he's been that way for quite a while." According to Dr. Martinez, behavior such as barking in the workplace is indicative of severe mental disturbance. Employability at Time of Dismissal 25. Mr. McDonald estimated that Petitioner was doing only 35 percent of his job and was not carrying out its essential functions at the time of his dismissal. A supervisor estimated that Petitioner did 40 percent of his job. Another supervisor estimated that Petitioner could do between 15 percent to 25 percent of the job. One co-worker stated that Petitioner did very little work. No one testified that Petitioner was able to do all functions of his job. 10 26. In the opinion of Dr. Martinez, Petitioner was not able to do his work: Q: If he hadn't been terminated, I mean, is there any reason you would suspect he couldn't continue working unless there was another triggering event? A: If he had not been terminated? Q: Yes. A: I think that he needed to be out of this work situation. He couldn't do it. Q: Because there were triggering events other than the termination? A: He's fully disabled. You know, he couldn't do his job. But it's how it was handled that I have the issue with. It was--minimize the damage control. It should have been--human resources screen them before they work with children, you know. 27. In 1998, the district had 65 employees in "light" duty positions who could not perform and who had reached maximum medical improvement ("MMI"). The purpose of "light" duty was to allow employees a reasonable period of time to heal if they were injured. The school district hired a new "Safety Director" who was instrumental in the implementation of a process directed toward this large number of individuals who were not performing the full scope of their jobs. A review of their status commenced to either find jobs for them or separate those individuals who had reached MMI. Petitioner was one of the employees who became a subject of this process. 11 28. The evidence is unclear as to whether every step of this process was undertaken regarding Petitioner. The first step was a fitness for duty evaluation. This step was unnecessary regarding Petitioner because the school district already had Dr. Lenger's opinion that Petitioner's physical injuries were permanent. The termination letter indicated that prior to Petitioner's dismissal, a job skills inventory and search for other possible jobs for him within the district had been conducted, although no business records relating to this search was produced. 29. Vicki Reynolds is the current Assistant Superintendent of Human Resources. While she was not in that position at the time of Petitioner's dismissal, she reviewed school district business records relating to available vacancies which the district had in the months immediately prior to Petitioner's dismissal. She also reviewed business records relating to individuals who had been surplused because their positions had been cut for budgetary reasons. Those persons have rights to positions under the collective bargaining agreement and, in the case of teachers, under the applicable teacher tenure law. Ms. Reynolds' review indicated that the school district had no vacant position in which Petitioner could have been placed at the time of dismissal, taking into consideration Petitioner's limitations. 12 30. At the time of Petitioner's dismissal, there were some persons occupying Stock Clerk II positions who did not regularly do lifting, e.g., persons assigned to the purchasing office. However, according to Mr. McDonald, all Stock Clerk II's "are required to have the ability to lift." Regarding those positions, Mr. McDonald stated: Q: He [Petitioner's attorney] mentioned three things, whether stock clerks do computerized work, telephone, typing. Is that all part of a Stock Clerk II's job that goes along with lifting? Do they all do some of that? A: Yeah. The stock clerks that work in the office, their duties are typical clerical duties. They--they're expected to be able to work on a computer, on a computer networking system. They're expected to work on the telephone with both vendors and school board customers and meet personally with the vendors. Q: Do they go into the warehouse ever? A: Yes, they do. Q: What do they do out there? A: The ones on the warehouse side, they are in charge of certain commodities. We have-- in the warehouse, we have 6,000 items, different items. And we break it up by about a third of those for each one. And their duties are to make sure that we are carrying and maintaining our certain inventory levels. This may require them to go out and physically count, physically inspect, move around items, help with the incoming of the inventory when it comes in as an inspector. 13 Q: And. . . but why could Whitehurst not have been placed in one of those jobs, which is the implication, in August of 2000? A: Well, we didn't have any openings. And you cannot bump a person out of a job. It's illegal under the civil service rules and regulations. Q: And any other reason that you can-- A: Well, his physical impairment. Mr. Whitehurst was limited to sitting, standing, walking. He had carpel tunnel on his wrist. He had several reasons that he wouldn't be a candidate for one of those jobs, if I had an opening at the time. 31. Petitioner did not identify a specific vacant position which the district had at the time he was dismissed for which he was qualified. 32. Petitioner had been issued a statement of eligibility for a teaching certificate. However, Petitioner had been evaluated by the school district and found not to be suitable for teaching positions. Dr. Martinez concurred that it would not have been appropriate for Petitioner to work at a school either before or after he was dismissed. 33. Petitioner was dismissed on August 11, 2000, effective August 25, 2000, for inability to perform his assigned duties and because no other position for him was available pursuant to Civil Service Rule 9.05(1). Civil Service Rule 9.05(1) provides that employees may be dismissed for cause. A determination of 14 cause may be predicated on "inability to perform assigned duties."
Conclusions For Petitioner: Arthur G. Santorius, Esquire 1919 Atlantic Boulevard Jacksonville, Florida 32207 For Respondent: Ernst D. Mueller, Esquire Office of the General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is 24 RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Ernest E. Whitehurst. DONE AND ENTERED this aot aay of June, 2003, in Tallahassee, Leon County, Florida. iS 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 20 aay of June, 2003.
The Issue Whether the Petitioners have standing to institute a rule challenge proceeding under Section 120.56, Florida Statutes. Whether a school board may delegate the authority to suspend an employee without pay to the superintendent in specific instances for a limited period of time.
Findings Of Fact The Petitioner, COLLIER COUNTY EDUCATION ASSOCIATION, (hereinafter CCEA) is the instructional bargaining unit for teachers in the Collier County School District. The Petitioner, COLLIER SUPPORT PERSONNEL-NATIONAL EDUCATION ASSOCIATION, (hereinafter CSP-NEA) is the certified bargaining agent for the non-instructional employees of the Collier County School District. The above mentioned Petitioners are affiliates of the Petitioner, FLORIDA TEACHING PROFESSION NATIONAL EDUCATION ASSOCIATION (hereinafter FTPNEA). As a result of collective bargaining agreements which allow the Petitioners CCEA and CSP-NEA to represent specific categories of employees of the school district, sixty five to seventy per cent of these employees are represented by these associations.. The Respondent SCHOOL BOARD OF COLLIER COUNTY, (hereinafter SCHOOL BOARD) has a rule that delegates the authority to suspend employees wholly or partially without pay to the superintendent. Under Rule No. R-18/81, such a suspension cannot exceed a period of three days, and the superintendent's authority is limited to five situations which have been specifically set forth in the body of the rule. A suspension is authorized only if the superintendent finds that the employee has: a) been absent without leave, b) been insubordinate, c) endangered the health or well-being of a fellow employee or of a student or students, d) willfully neglected duty, e) been intoxicated, consumed an alcoholic beverage, or used a controlled substance (unless prescribed by a physician,) while working. The rule cites Sections 230.23 and 230.33, Florida Statutes, as the authority for the implementation of this delegation process. The rule was adopted can December 17, 1981. Rule No. R-18/81 requires that any employee suspended by the superintendent under this rule be given all due process rights under the Florida Statutes, including those authorized by the Administrative Procedures Act. Pursuant to Rule No. R-18/81, the superintendent has suspended at least two employees in 1988. One of these employees is Mr. Robert Koy, who is represented by the Petitioner, CSP-NEA, in a proceeding currently before the Division of Administrative Hearings in which the employee's substantial interests are being determined. The process and procedures utilized by the Respondent SCHOOL BOARD in its suspension of employees without pay falls within the general scope of interests and activities of all of the Petitioners in this case. A substantial number of the members of the Petitioners CCEA and CSP- NEA are substantially affected by the challenged rule as it involves the disciplinary procedures used by the Respondent SCHOOL BOARD to manage its employees. Such procedures are included in the agreement between the Collier County Public Schools and the Petitioner CSP-NEA, which is in effect from October 1, 1987 through June 30, 1990. This agreement has been admitted into evidence in this proceeding. The relief sought by all of the Petitioners in this proceeding is that Rule No. R-18/81 be declared invalid. This relief is an appropriate remedy for each of the Petitioners to seek on behalf of its members in a rule challenge proceeding.
The Issue The issue is whether the Respondent, Cedric Mitchell (Respondent), committed the violations alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Miami-Dade County Public School District. As such, it has the authority to regulate all personnel matters for the school district. See § 1001.32, Fla. Stat. (2006). At all times material to the allegations of this case, the Respondent, Cedric Mitchell, was an employee of the School Board and was subject to the disciplinary rules and regulations pertinent to employees of the School District. On or about July 20, 2005, the Petitioner’s Office of the Inspector General issued a memorandum to Dr. Rudolph F. Crew, the Superintendent of Schools, that referenced 106 teachers who were identified by a grand jury investigation of teachers who obtained academic credits from Eastern Oklahoma State College. The Respondent was one of the teachers. Thereafter, a lead sheet was generated to direct the Miami-Dade County Schools Police Department to conduct an investigation of the allegations. The claim asserted that the Respondent had obtained academic credits for the purpose of certification, recertification and/or endorsements without availing himself of actual academic class time, work, or effort. Michael Alexander, a detective with the Miami-Dade Schools’ Police Department, was assigned to the matter. Detective Alexander interviewed the Respondent on or about November 29, 2005. At that time the Respondent waived his right to representation and freely admitted to the detective that he obtained course credit from Eastern Oklahoma State College but attended no classes and did no coursework. According to the detective, the Respondent described a scenario whereby the Respondent went to Palmetto High School on a Saturday and spoke with a “Dr. McCoggle” who advised him as to the coursework needed for certification and charged him $775.00. After making the payment to Dr. McCoggle, the Respondent did nothing of an academic nature to complete coursework. Sometime later a transcript denoting the appropriate coursework came to the Respondent’s home. Despite having performed no academic work to achieve the credits, when he received the transcripts for the courses, the Respondent submitted them to the Petitioner to achieve certification. Had he not submitted documentation of the courses needed for certification, the Respondent would have been terminated from his employment with the School District. There is no evidence in this record that the Respondent actually ever legitimately completed the academic course work necessary for certification. Even after the Respondent knew or should have known that the procedure he used to achieve certification was unacceptable, there is no evidence that the Respondent ever completed academic course work to support the Respondent’s certification to teach for the Miami-Dade Public Schools. Once the Respondent became aware that he was under investigation for participating in the inappropriate scheme to obtain college credit, he joined the teachers’ union and sought the union representative’s advice regarding the matter. According to the union representative, Michael Molnar, the Respondent did not indicate to him that he had done no course work or attended no classes. Had the Respondent been candid in that matter, Mr. Molnar would have advised the Respondent not to implicate himself or to resign before implicating himself. Because that was not the case, the union representative told the Respondent to be truthful and honest in answering the questions posed by the Petitioner. To that end, the Respondent confirmed the information regarding his credits from Eastern Oklahoma State College when questioned by the Petitioner. The Respondent did not contest the findings reached in Detective Alexander’s report of the investigation. The Respondent did not contest the findings asserted in the Summary of Conference-For-The-Record prepared by Lucy Iturrey. The Respondent was not coerced or otherwise forced to admit that he accepted college credit from Eastern Oklahoma State College and submitted that credit for certification purposes. Had the Respondent been candid with the union representative and been advised that he could refrain from making a statement to the Petitioner (and obviously did not admit the facts of the scheme), the underlying facts regarding the scheme (to give academic credits where no credits were earned) could have been ascertained through other means. The widespread use of the scheme was well- documented and led to the successful criminal prosecution of its “kingpin.” The School Board of Miami-Dade County took action at its meeting on March 15, 2006, to suspend and initiate dismissal proceedings against the Respondent. That preliminary action acknowledged that the outcome of the matter was subject to an administrative hearing if requested by the employee. The Respondent timely requested an administrative hearing to contest the proposed action and the case was timely forwarded to the Division of Administrative hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County enter a Final Order terminating the Respondent’s employment contract. Whether or not the Respondent could be eligible for re-employment with the Petitioner should be based upon whether the Respondent ever achieves the academic status for certification based upon academic performance and coursework completed through a legitimate means. DONE AND ENTERED this 15th day of February, 2007, in Tallahassee, Leon County, Florida. S 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 15th day of February, 2007. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Ave, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 John L. Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Lawrence R. Metsch, Esquire Metsch & Metsch, P.A. Aventura Corporate Center 20801 Biscayne Boulevard, Suite 307 Aventura, Florida 33180-1423
