The Issue Whether there is just cause to terminate the Respondent, Ronnie Bell (Respondent), from his employment with the Petitioner, Miami-Dade County School Board (Petitioner or School Board).
Findings Of Fact The Petitioner is the authorized entity charged with the responsibility to operate, control and supervise the public schools within the Miami-Dade County school district. Such authority includes the discipline of employees of the School Board. At all times material to the allegations of this case, the Respondent was an employee of the School Board. As an employee of the School Board, the Respondent was subject to the laws, rules, and terms of the union contract pertinent to employment with the Petitioner. Nick JacAngelo is the principal of Miami Coral Park Senior High School. Mr. JacAngelo was directly responsible for the employees at the school and personally knows the Respondent. The Respondent began work at Miami Coral Park Senior High School on October 11, 2004. Employed as a custodian at the school, the Respondent was responsible for cleaning the areas assigned to him. According to Mr. JacAngelo, it came to his attention that the Respondent’s work area was not being properly cleaned and maintained. On November 19, 2004, Mr. JacAngelo informed the Respondent that his work was substandard and unacceptable. Mr. JacAngelo informed the Respondent that his work would need to improve. Additionally, the Respondent was advised as to the standard of work that would be required and expected of him in fulfilling his custodial responsibilities including job attendance. A second conference was conducted with the Respondent on December 7, 2004, to again reiterate the duties and expectations for him. The Respondent did not improve his job performance. In addition to his failure to maintain his assigned area, the Respondent was excessively absent from the work site. On January 13, 2005, the Respondent was again informed of a need to improve his job attendance and work performance. Moreover, the Respondent was advised that he could not leave the work site without authorization prior to the termination of his workday. It was expected that the Respondent perform his duties and attend to his assigned area for the entire workday. The Respondent’s work performance and attendance did not improve. On January 28, 2005, the Respondent was cited for poor job performance and insubordination in his continued refusal to improve his effort. On February 14, 2005, Mr. JacAngelo met with the Respondent to address his insubordination, defiance of authority, failure to complete assigned areas of custodial responsibility, and his unauthorized departure from the work site. Because the Respondent wanted to have his union representative present during the discussion the meeting was rescheduled. The parties met on February 15, 2005, to review the items noted above. At that time, the Respondent was reminded that his workday departure time was 11:30 p.m. He was to present for work at 2:00 p.m., take no more than half an hour break for his meal, and remain onsite the entire time. The Respondent’s work performance did not improve over time. On May 12, 2005, he was observed to be in his vehicle the majority of the work shift. He did not perform his work assignment and made no explanation for his failure to clean his area. This incident was memorialized in a memorandum dated May 18, 2005. As to this and other previous incidents, the Respondent did not deny the conduct complained. Based upon the Respondent’s failure to improve, his continued poor work performance, his numerous opportunities to correct the deficiencies, and his insubordination, Mr. JacAngelo recommended that the Respondent be terminated from his employment with the school district. Mr. JacAngelo had attempted verbal counseling, written memorandums, and official conferences with the Respondent. None of the efforts to remediate Respondent’s work performance proved successful. Mr. Carrera is the principal at South Hialeah Elementary School. Mr. Carrera was the Respondent’s supervisor at a work assignment prior to his reassignment to Miami Coral Park Senior High School. According to Mr. Carrera, the Respondent constantly left his work site early, failed to clean his assigned area, and admitted to stealing a police surveillance camera (there had been 70 cases of theft in the area the Respondent was responsible for so the police set up a camera). In short, the Respondent’s work performance at South Hialeah Elementary School was unacceptable. The Respondent was warned during his tenure at South Hialeah Elementary School that continued failure to perform his work appropriately would lead to disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order dismissing the Respondent from his employment with the school district. S DONE AND ENTERED this 5th day of June, 2006, 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 5th day of June, 2006. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, 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 Ronnie R. Bell 16220 Northwest 28th Court Miami, Florida 33054 Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
The Issue Whether Respondent, Joy Deal (Respondent or Ms. Deal), committed misconduct as alleged by the School Board of Sarasota County (School Board), and, if so, whether the School Board had just cause to terminate her employment.
Findings Of Fact The Parties and Personnel Petitioner is responsible for operating the public schools in the Sarasota County School District, including Sarasota High School (Sarasota High). The School Board is responsible for hiring, firing, and overseeing both instructional employees and non-instructional employees within Sarasota County, Florida. Respondent has been an employee the School Board for 22 years. She has worked as an administrative secretary, but relevant to these proceedings, Ms. Deal was employed at Sarasota High as an SSP-5 Attendance Clerk (Attendance Clerk).5 David Jones (Principal Jones) is Sarasota High's principal and has been employed by the School Board since 2005. He previously served as a math teacher, assistant principal, middle school principal, and principal of another high school. He became the principal at Sarasota High at the start of the 2016/2017 school year, replacing Jeffrey Hradek (Principal Hradek). Sarasota High's administrative team was made up of Principal Jones and numerous assistant principals. Both Ryan Chase and Becky Moyer served as assistant principals under Principal Jones during the 2016/2017, 2017/2018, and 2018/2019 school years. Principal Jones, Assistant Principal Chase, and Assistant Principal Moyer all supervised Respondent during these years at different times. Collective Bargaining Agreement (CBA) There is a Collective Bargaining Agreement (CBA) between the School Board and the Sarasota Classified, Teachers Association (SC/TA). Ms. Deal is a member of the SC/TA and subject to the CBA. Article XXI of the CBA (Disciplinary Actions) provides for progressive discipline, with termination of employment as the last step of the disciplinary process: Scope of Article This article covers actions involving oral and written warning, written reprimands, suspensions, demotions, dismissals, or reductions in grade or pay with prejudice. 5 "SSP-5" means Salary Schedule P-5. Disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by sufficient evidence which supports the recommended disciplinary action. All facts pertaining to a disciplinary action shall be developed as promptly as possible. Actions under this Article shall be promptly initiated after all the facts have been made known to the official responsible for taking the actions. * * * An employee whom disciplinary action is to be taken may appeal through the grievance procedure that proposal. An employee against whom action is to be taken under this Article shall have the right to review all of the information relied upon to support the proposed action and shall be given a copy upon request. The Union shall be provided with a copy of all correspondence that is related to the action of the employee the Union is representing. The employee and his/her representative shall be afforded reasonable amount of time to prepare and present appropriate responses to the proposed actions under this article, through Step One of the Grievance Process. This amount of time is to be mutually agreed upon by the parties. * * * Previous charges or actions that have been brought forth by the administration may be cited against employee if these previous acts are reasonably related to the existing charge. All previous charges or actions must have been shared with the employee. Progressive Discipline The discipline, dismissal, demotion, and suspension of any employee shall be for just cause. Where just cause warrants such action(s), an employee may be demoted, suspended, or dismissed upon recommendation of the immediate supervisor to the Superintendent of Schools. Except in cases that constitute a real immediate danger to the district or [sic] the other flagrant violation, progressive discipline shall be administered as follows: Verbal reprimand (written notation placed in site file). Written reprimand filed in personnel and site files. Suspension with or without pay. Dismissal. Sarasota High's administration utilized meetings known as "Weingarten hearings" to make factual findings that would determine whether discipline was warranted for an employee. Employees were provided notice of the allegations against them and allowed to bring counsel or union representation to the hearing.6 Ms. Deal's Job Description As her job title implies, Ms. Deal was responsible for maintaining attendance data and monitoring the comings and goings of students throughout the school day. Ms. Deal's job duties were listed in Board Policy 6.42, Job Description 11 for Attendance Clerk, and include: 6 Article XXI sets forth what is commonly referred to as "Weingarten" rights. See In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975)(holding unionized employee has right to notice and union representation, in instances where member reasonably believes investigatory meetings, conferences, or interviews may result in disciplinary action). Communicate daily with a variety of parents and staff. Assist office staff with answering the telephone and greeting parents. * * * Provide a safe and secure workplace. Model and maintain high ethical standards. * * * (15) Maintain confidentiality regarding school matters. * * * Respond to inquiries and concerns in a timely manner. Follow all School Board policies, rules and regulations. Exhibit interpersonal skills to work as an effective team member. Demonstrate support for the School District and its goals and priorities. Perform other incidental tasks consistent with the goals and objectives of this position. As an Attendance Clerk, Ms. Deal had constant interactions with students and parents when they checked in or out of school. She was privy to the students' personal information because she was the school employee with whom parents would interact if they were picking or dropping off a child (outside of normal school start and stop times) for personal or medical reasons. The attendance desk, Ms. Deal's workspace, was in Sarasota High's front office. The front office also houses the school clinic and the office of the At-Risk Coordinator, Keri Gartland. To enter either the clinic or Ms. Gartland's office, staff and students would have to go through the front office. The clinic also has a sliding glass window looking into the front office. The front office had an "outside door" which was open to the public, and a "campus door" to the school grounds. Anyone coming to school after the start of the school day would have to come in the front office through the outside door, stop at the attendance desk to sign in, and go through the campus door to get to class. Students leaving the school before normal exiting times were required to stop by the attendance desk to sign out of school, or have their parent sign them out. Employment History School administrators utilized memorandums of instruction (MOI) as a non-disciplinary means of working with employees to improve job performance. Although MOIs are not disciplinary in nature, they are intended to be corrective tools to focus an employee's attention on certain guidelines and acceptable standards of conduct in response to performance or behavioral issues. Principal Hradek supervised Ms. Deal from 2003 through 2016. During this period, Ms. Deal received non-disciplinary MOIs from Principal Hradek and assistant principals outlining the need to improve her level of cooperation while working with others, stop gossiping, be more tactful, be more courteous to parents and students, be more patient with and respectful of others, and accept guidance from others regarding these issues. On August 25, 2010, Ms. Deal was issued an MOI with regard to ethical deficiencies. The MOI focused on the Principles of Professional Conduct of the Education Profession in Florida (the Principles) which, as explained below, require employees to take reasonable precautions to distinguish between personal views and those of the School Board, not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression, and not make malicious or intentionally false statements about another employee. In her 2010 evaluation, Ms. Deal was rated "Effective," " Needs Improvement," and " Not Effective." Specifically, the evaluation indicated that Respondent needed improvement accepting constructive criticism and that she needed to increase her ability to accept guidance. The evaluation also stated Ms. Deal was ineffective in the areas of "Cooperation" and "Personal Relationships." Ms. Deal was again reminded to "increase her level of cooperation working with others [and] decrease gossip." Regarding her personal relationships, she was told to "increase tact, courtesy to parents and students, patience and respect for others." At some point during his tenure, Principal Hradek relieved Ms. Deal of her attendance duties and moved her out of the front office into Building Ms. Deal's duties in this new area were to provide secretarial support to the assistant principals, the school resource officer, and the Exceptional Student Education (ESE) liaison. Neither Principal Hradek nor the School Board changed Respondent's SSP-5 Attendance Clerk designation, even though she was no longer performing the duties of that job. In this new role, Respondent had less contact with parents and students. Principal Hradek explained: I think in the role of an attendance clerk with all the public interaction that [Ms. Deal] had with families and various staff it was – that was her flaw. She wanted to talk about things other than her job responsibilities or elicit her opinions. So, moving her over to Building 14, she did a very good job with the special needs students. Ms. Deal had no disciplinary issues or MOIs for a number of years. Then, on August 20, 2015, Principal Hradek issued an MOI to Ms. Deal for having loud outbursts and making profane statements in front of students and staff while contesting new parking procedures. Respondent was again reminded of her ethical obligations and the Principles. When Principal Jones replaced Principal Hradek, Principal Jones made the decision to move Ms. Deal back to the attendance desk in the front office to perform the duties she was designated to do as Attendance Clerk. Shortly after resuming her position as Attendance Clerk, Respondent received an MOI from Principal Jones addressing numerous issues including: her failure to take consistent breaks throughout the day; her use and volume of musical devices during school hours; her verbal communications with colleagues, parents, and students; her failure to bring her concerns to administration instead of voicing them to others; and her need to collaborate with and receive approval from an administrator prior to changing office procedures and protocols. Respondent was reminded again to adhere to acceptable ethical standards and the Principles. On December 1, 2016, Principal Jones received a complaint from a parent complaining Ms. Deal had made an inappropriate comment to his or her child. The student, who suffers from a medical condition, was attempting to address school absences with Ms. Deal. Ms. Deal made rude, embarrassing, and inappropriate comments to the student, her brother, and two other students who were in the front office. The parent's complaint was corroborated by another student. Around the same time, the school administration received another complaint from a different parent regarding inappropriate comments to her child made by Ms. Deal regarding the child's illness. Ms. Deal questioned whether the student should be able to leave the school, and whether the student should be able to obtain work from his or her teachers. On February 1, 2017, as a result of these incidents and after following the proper procedures under the CBA, Assistant Principal Moyer issued Ms. Deal a verbal reprimand for unprofessional behavior. Respondent did not grieve this action. On September 25, 2017, the administration was informed that Respondent had made inappropriate statements regarding a student suffering a seizure to a parent who was signing out another student from school. On September 26, 2017, Respondent was involved in an incident in which she allegedly discussed and laughed at a student's medical issue with a teacher in the student's presence. Ms. Deal refused to allow the student to contact her parents to request a change of clothes needed due to a menstruation accident. Ms. Deal then demanded the student's parent call Ms. Deal even though the student informed Respondent that her parent did not speak English. Ms. Deal allegedly told the student that she did not care if her parents spoke Chinese or Spanish. She then proceeded to discuss the student's medical condition in front of another parent. After an investigation and following the procedures in the CBA, on October 5, 2017, Assistant Principal Chase issued a written reprimand to Ms. Deal for unprofessional behavior in connection with the September 25 and 26 incidents. Respondent did not grieve this action. On August 7, 2018, the administration received two reports from staff regarding inappropriate behavior by Ms. Deal during the distribution of locker assignments. Ms. Deal was frustrated with her computer and was disrespectful to fellow staff members. Ms. Deal also complained to students and parents about the computer and process for assigning lockers, and eventually left school early that day. After an investigation and following the procedures in the CBA, on September 18, 2018, Principal Jones recommended Ms. Deal be suspended for three days without pay for unprofessional behavior. Ms. Deal grieved the suspension. As a result, the suspension was reduced to two days. Ms. Deal did not further grieve or appeal the suspension. At the final hearing, Ms. Deal sought to relitigate the facts underlying these previous disciplinary actions and argued she accepted the discipline based on the faulty advice of her union representative. Ms. Deal presented no evidence contradicting the circumstances regarding these incidents and chose not to testify on her behalf. Even if she had presented such evidence, the time for appealing these previous steps of progressive discipline has passed. November 2, 2018 On November 2, 2018, Ms. Deal had an incident with a student, Johneshia Burks, in the front office (the Incident). The School Board presented no testimony from anyone who was in the front office at the time the Incident started. According to Ms. Deal's PRO, Ms. Burks entered the attendance office, told Ms. Deal that she was there to see Ms. Gartland, and asked Ms. Deal where Ms. Gartland was. Ms. Deal claims she replied, "she did not keep Ms. Gartland's schedule." (Resp. PRO, p.5, ¶8). In her PRO, Ms. Deal also claims she asked Ms. Burks for a hall pass, at which point, Ms. Burks got upset and started verbally attacking Ms. Deal. Ms. Deal also claims Ms. Burks became physically aggressive. (Resp. PRO, p.5, ¶8). Ms. Deal, however, did not testify and offered no credible evidence of the Incident. Although other evidence establishes they were both yelling, there is no evidence that Ms. Burks was physically aggressive or started the argument. Regardless, Denise Masi, the school's security aide and a former New York City police officer, testified as to what she witnessed that day. The undersigned finds Ms. Masi's testimony is unbiased, credible, and convincing; her testimony also is corroborated by various witness statements in the investigative file. Sometime between 11:00 a.m. and noon, Ms. Deal called Ms. Masi for assistance in the front office on the school-issued radio. Ms. Masi arrived at the front office entering from the campus door. She observed Ms. Burks on the side of the door yelling at Ms. Deal, and Ms. Deal behind her desk yelling at Ms. Burks. Although she did not understand what they were yelling about, she heard Ms. Deal yell "you can't stay in here. She has to go." Ms. Masi also observed that there were parents in the office. She also noticed the clinic nurse and assistant looked frightened behind the clinic's glass sliding window, which was closed. Ms. Masi tried to de-escalate the situation by asking Ms. Deal to "keep quiet" and stop yelling. Ms. Deal did not comply. Ms. Masi testified that Ms. Deal was not making it easy to calm everyone down. Realizing Ms. Deal was not going to stop yelling, Ms. Masi removed Ms. Burks from the front office. Ms. Masi assessed that Ms. Burks was waiting to see Ms. Gartland and remained with Ms. Burks. While in a breezeway between the front office and the administrative office, they encountered Ms. Gartland. Ms. Gartland returned to her office through the front office with Ms. Burks without incident. Ms. Masi then went back into the front office to check on the nurse and assistant. The nurse and assistant told Ms. Masi that, in response to hearing the yelling, they suggested to Ms. Deal that she call security and then they closed the glass window into the front office. During Ms. Masi's return to the front office, she observed Ms. Deal was still agitated and kept repeating that she was not Ms. Gartland's secretary. Ms. Masi was interviewed separately by Principal Jones and by Assistant Principal Chase regarding the Incident. Assistant Principal Chase also interviewed Ms. Burks, who gave him a written statement. Based on his conversations with Ms. Burks he learned that Ms. Gartland had requested Ms. Burks to come to her office but Ms. Gartland was not there when Ms. Burks arrived. Ms. Burks claimed Ms. Deal started yelling when she asked her about Ms. Gartland's whereabouts. As part of their investigation, both Principal Jones and Assistant Principal Chase reviewed a video of the Incident. The video had no audio. This video was not retained and was not offered into evidence at the final hearing. The undersigned finds that the testimony regarding what was in the video is not helpful in determining what happened between Ms. Deal and Ms. Burks. Ms. Deal did not testify. Instead, she offered the testimony of Madison Byrd (her daughter and a Sarasota High student), in an attempt to establish that Ms. Deal's actions during the Incident were justified and appropriate. Ms. Byrd claimed she was in the front office during the Incident. According to Ms. Byrd, Ms. Burks was the only person yelling and her mother did not say anything to Ms. Burks. Ms. Byrd admitted she walked into the front office "in the middle of the situation." She also heard the nurse ask Ms. Deal to call security. Ms. Byrd's testimony was subject to bias because of her familial and financial ties to Respondent. Ms. Byrd also indicated she disliked Ms. Burks because of something that happened in middle school. The undersigned finds, to the extent Ms. Byrd's testimony was inconsistent with Ms. Masi's testimony, Ms. Masi's testimony is more reliable and corroborated by other evidence. On November 15, 2018, Principal Jones met with Ms. Deal in a Weingarten meeting to address the Incident. During this meeting, Respondent took no personal responsibility, attempted to lay blame upon Ms. Burks, and denied yelling. Similarly, at the final hearing, Ms. Deal presented no evidence that she accepted some responsibility or that her behavior was appropriate and justified under the circumstances. On November 30, 2018, Principal Jones recommended termination of Respondent's employment based upon Ms. Deal's past disciplinary history for unprofessional conduct in the workplace and the Incident. At the final hearing, Ms. Deal attempted to impeach the School Board's witnesses by asking them if the administration told them to "keep an eye" on her or give written statements against her. There was no evidence anyone was asked to fabricate information about Ms. Deal. It is clear from the testimony and evidence at the hearing that Ms. Deal and Ms. Burks were involved in a shouting match in the front office that could be heard by other parents and staff. Regardless of who started the argument, Ms. Deal was the adult in the room. More importantly, as an Attendance Clerk, Ms. Deal was required to act professionally and according to School Board rules and regulations. Instead, she took no steps to de- escalate the situation, and refused to regain her composure even after being asked by Ms. Masi to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the School Board of Sarasota County terminate Joy Deal's employment. DONE AND ENTERED this 11th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2021. Joy L. Deal 4503 Hale Street Sarasota, Florida 34233 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert K. Robinson, Esquire Rob Robinson Attorney, P.A. Suite 400 500 South Washington Boulevard Sarasota, Florida 34236 Dr. Brennan Asplen, III, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, FL 34231-3365
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 The issue presented is whether Respondent committed an unfair employment practice by terminating Petitioner's employment based upon Petitioner's race, age, sex, ethnicity, disability, or national origin, and, if so, what relief should be afforded to Petitioner.
Findings Of Fact Petitioner Rossy Gamarra-Barco, a female of Peruvian national origin whose primary language is Spanish, began her employment with Respondent Sears, Roebuck and Company in November 1992. She was 52 years of age when she was hired to work in the Sears store located in Westland Mall in Hialeah. Sears is a large retailer. Its stores sell a full assortment of appliances, electronics, home improvement products, apparel, jewelry, and furniture. Over 50 percent of the employees at the Sears Hialeah store are female, and over 80 percent are Hispanic. Sears actively recruits retirees to work in its retail stores, and several employees at the Hialeah store are over the age of 60. One female employee is in her 80s. Sears' fair employment policies prohibit harassment and discrimination against any applicant for employment, associate, vendor, contractor or customer on the basis of race, color, religion, gender, national origin, age, disability, veteran status, pregnancy, citizenship, sexual orientation, marital status, ethnicity, or any other reason prohibited by law. The policies also prohibit retaliation against an individual for complaining about harassing or discriminatory conduct or participating in an investigation of such complaints. Sears informs its employees of its fair employment policies in a variety of ways. Sears posts a poster written in English and Spanish in the employee lunchroom. The poster features a toll-free number for reporting harassment or discrimination issues. The poster also contains a pocket in which are detailed, corresponding pamphlets entitled "Harassment and Discrimination in the Workplace." The pamphlet is written in English and Spanish and advises employees who believe they are being harassed or discriminated against to report the behavior to their immediate supervisor or a manager, and that if they fail to receive a satisfactory response, to report the behavior to that person's supervisor or manager or to the human resources department. The pamphlet further advises that if the employee is not comfortable complaining to any of those persons or does not receive a satisfactory response, to call the toll- free number. Petitioner used the employee lunchroom frequently and was aware of the poster. A similar poster was posted in the human resources department which Petitioner also frequented. The posters existed throughout the twelve years Petitioner was employed at the Sears Hialeah store. Sears' employees are also provided with an employee handbook which sets forth the Sears workplace policies, including Sears' policy prohibiting harassment and discrimination in the workplace and the Sears policy prohibiting workplace violence. Petitioner received the handbook when she was hired. She was familiar with the policies contained in the handbook and with the procedures for reporting harassment or discrimination in the workplace. Although Petitioner testified inconsistently that she complained 3 or 4 times about the behavior of a co-worker Perfecto Blanco either to her supervisor or to his without any resolution, Petitioner admits she never complained to anyone higher up in management at the Hialeah store because she did not like to complain. Further, she admits she never complained about any type of harassment or discrimination to the human resources department and never used the toll-free number to complain. Sears also has a Workplace Violence policy with a goal of establishing and maintaining a totally-safe workplace. The anti-violence policy prohibits, inter alia, starting or participating in a physical or verbal fight, punching, and slapping. The policy provides that an employee violating the policy will be disciplined up to and including termination without prior warning. During the course of her employment with Sears, Petitioner had medical conditions which required accommodation by Sears. Sears did accommodate her by providing her with a sit-down job and a wheelchair to get around the store. Sears also accommodated Petitioner's work schedule so she could take time off for doctors' appointments and physical therapy. Sears calls its employees "associates." On March 5, 2004, Petitioner was working at her sit- down job as a loss prevention associate. She sat on a stool provided by Sears and was responsible for checking merchandise at the door, after customers had retrieved their merchandise from the merchandise pick-up area. On that date Petitioner and Perfecto Blanco, a Hispanic male employed by Sears as a package pick-up associate, became engaged in a confrontation seemingly over who handed the customer the receipt. Blanco yelled at Petitioner not to criticize him in front of a customer. Petitioner walked out of the store, with Blanco following her. She then walked back inside, and he followed her still yelling at her. She turned and slapped his face. He grabbed her wrists and held them to keep her from slapping him again. Guillermo Almaguer, another associate, separated them. Later that day Blanco reported the incident to Maritza Perez, another loss prevention associate, who reported it to Zenaida Perdomo-Leyva in the human resources department. Perdomo-Leyva instructed Perez to interview Petitioner, Blanco, and any witnesses and to obtain their statements. On that same date, Perez interviewed Petitioner who admitted that she had slapped Blanco on the right side of his face for "disrespecting" her. Blanco told Perez the same story, admitting that he yelled at Petitioner. When Petitioner wrote her statement, she changed her story, omitting the part where she struck Blanco, but asserting that "he got me out of control." Blanco's written statement given to Perez was consistent with his oral statement. Perez forwarded the statements she took to Zenaida Perdomo-Leyva in the human resources department. On March 8, 2004, Perdomo-Leyva interviewed Perez, Petitioner, Blanco, and witness Almaguer. She also obtained a written statement from each of them. By the time statements were taken by the human resources department, Petitioner had further refined her story. This time she stated that she "wanted to cover his mouth and he confused it with a slap." However, witness Almaguer's statement confirmed that Petitioner hit Blanco in the face. By the time of the final hearing, Petitioner's version of the incident was that she merely raised her hand to signal Blanco to be quiet. In accordance with Sears' standard procedures, Perdomo-Leyva translated the statements that were written in Spanish into English and forwarded her investigative file to Sears' Associates Service Center in Atlanta for review by the consultant there who would make disciplinary recommendations to the Hialeah store's general manager Michael James. James, who was in his mid-50s at the time, also reviewed the investigative file and, after consulting with the consultant at the Associates Service Center, made the final decision regarding the disciplinary action to be taken against Petitioner and against Blanco. Based upon the information obtained in the investigation, James determined that Petitioner had violated Sears' workplace violence policy by slapping Blanco in the face. Because Sears has a "zero tolerance" policy regarding physical violence, James concluded that Petitioner's employment with Sears must be terminated. He also determined from the investigative file that Blanco was acting in self-defense when he grabbed Petitioner's hands but had violated the policy by yelling at Petitioner. He concluded that Blanco should receive a final written warning for the verbal altercation with Petitioner. James' decisions as to the different disciplinary actions to be taken against Petitioner and Blanco were consistent with prior and subsequent decisions. Prior to Petitioner, he had terminated a Hispanic male associate for shoving another associate into a wall and had given the other associate a warning. Subsequent to Petitioner, he has fired a manager for hitting an employee but did not fire the employee. Similarly, he has never terminated an employee for yelling at another employee or for engaging in verbal abuse. On March 12, 2004, Petitioner was terminated from Sears for violating Sears' anti-violence policy. Blanco was given a final written warning. At the time James terminated Petitioner's employment, he was not aware that she was from Peru. Further, he was not familiar with the word "indio." Similarly, Perdomo-Leyva who conducted the investigation on behalf of Sears and who translated the statements she obtained from Spanish to English did not know Petitioner was Peruvian rather than Cuban like Perdomo-Leyva. At the time James terminated Petitioner's employment, he was not aware that she had Parkinson's disease or rheumatoid arthritis. Prior to her termination, Petitioner never complained to anyone that she was being harassed or discriminated against due to her sex or any disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed in her burden of proof and dismissing the Petition for Relief filed in this cause. DONE AND ENTERED this 21st day of July, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 21st day of July, 2006. COPIES FURNISHED: Rima C. Bardawil, Esquire Law Office of Rima C. Bardawil, P.A. 18520 Northwest 67th Avenue, No. 207 Miami, Florida 33015 Julie R. Waas, Esquire Scott S. Allen, Esquire Jackson, Lewis, LLP Two South Biscayne Boulevard, Suite 3500 Miami, Florida 33131 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner Marion L. Hurst, a black male, has been employed with the Martin County school system since 1969. He presently holds an M.S. degree in Educational Administration and a Rank II certification in administration. Petitioner lacks two hours of graduate courses to add the subject of supervision to his certification. For the past nine years, in addition to teaching social studies classes, petitioner has held the position of team leader at Stuart Middle School, being responsible for the seventh grade reading, language arts and social studies programs. This involves approximately 350 students, six teachers and one or more teacher aides. The duties of a team leader include the scheduling and "levelling" of students, scheduling special assignments to teachers within the team, coordinating information and activities from the administration to the teachers, and weekly meetings with the school administrators. The petitioner adduced evidence that his teacher evaluations during his tenure at Stuart Middle School had been good to excellent overall. In contrast, the respondent presented evidence from several of his coworkers that petitioner occasionally has communication problems with the members of his team, receives complaints from the parents of his students regarding excess paperwork by the students as opposed to teaching by petitioner, and grammatical and spelling errors on petitioner's blackboard. While it is the team leader's responsibility to schedule students, petitioner has for the past several years utilized the reading teacher, Ms. Askeland, to perform that task. The petitioner has applied for many administrative positions in the school system. In April of 1977, petitioner, along with several other persons, applied for the position of assistant principal of Martin County High School -- the only high school in the county. The job description for that position required a Rank II certification with coverage in administration, supervision or curriculum. Petitioner did hold a Rank II certification in administration at the time of his application for the position. Another applicant, Wanda Yarboro, did not hold a Rank II certification with coverage in the required fields in April, 1977. Respondent Navitsky, Superintendent of the Martin County school system, recommended to the School Board that Ms. Yarboro receive the appointment as assistant principal of Martin County High School. Either because of a lack of funding due to the reorganization of the administration at Martin County High, or because Ms. Yarboro did not hold the certification required in the job description, the School Board originally failed to approve her appointment. During the summer months of 1977, a change was being effected in the School Board policy. The change allowed instructional administrators to acquire within twelve months of assignment a certificate covering the areas in which they are placed. Ms. Yarboro's appointment as assistant principal was approved by the School Board in August of 1977, and she received her certification in administration and supervision on September 28, 1977. Conflicting evidence was adduced at the hearing on the issue of whether Dr. Clifford Rollins, a person holding a higher ranked certificate and greater administrative experience than either Ms. Yarboro or petitioner, was also a candidate for the assistant principalship of Martin County High School in April of 1977. While his name appears on several lists of candidates for this position, the greater weight of the evidence leads to the finding that Dr. Rollins was not a candidate for that position. Superintendent Navitsky, though aware of Dr. Rollins desire to return to Martin County, did not consider him a candidate. Dr. Rollins testified that he was not a candidate for the position of assistant principal of the high school. While he did express an interest in returning to the community, he did not apply for this position because he was a former principal of that school and also because he was aware that other teachers and the department chairmen wanted Ms. Yarboro, who had been at the school for some time, to be promoted to the assistant principalship. Dr. Rollins had instructed the school personnel office to keep his application file active and this fact was offered in explanation of why his name appears on the list of candidates for the position. Ms. Yarboro had formerly occupied the position of department head of social studies at Martin County High School, which position became vacant upon her promotion to assistant principal. Although the school principal had recommended that Ann Crook be promoted to department head, Superintendent Navitsky called petitioner Hurst and offered him the position. This position involved responsibility for 33 teachers. Dr. David Anderson, a member of the Martin County School Board, received numerous telephone calls from other teachers at the high school in opposition to petitioner's appointment as department head of social studies. Dr. Anderson became concerned that petitioner was being "set up" in a hostile environment which would eventually lead to poor evaluations of petitioner and dismissal from his administrative position. Anderson believed that such an appointment may not be a good way for petitioner to begin his administrative career. Thereupon, Dr. Anderson arranged a meeting with Superintendent Navitsky, petitioner, himself and several other administrators. Dr. Anderson expressed his concerns at this meeting. Mr. Navitsky offered petitioner his support if he accepted the position. After discussing the matter, petitioner decided to withdraw his name as a candidate for the department head position. Superintendent Navitsky assured petitioner that declining the position would not adversely affect his candidacy for other positions. Petitioner believed that Navitsky was making him a promise that he would be appointed to the next administrative position. Gilbert Miller, the deputy superintendent for noninstructional services, was present at the meeting and recalled that Navitsky made no promise that petitioner would receive a specific appointment at a specific time in the future, but only an indefinite promise of a future administrative position. The next administrative position applied for by petitioner occurred in July of 1978. The former principal of Indiantown Middle School, located some twenty miles west of Stuart, resigned on short notice. Seven or eight persons applied for the position. Superintendent Navitsky interviewed all the candidates, including petitioner and Dr. Clifford Rollins. As noted above, Dr. Rollins had previously been the principal at Martin County High School. He had also been a principal at another Indiantown school and had most recently been a director of teacher education and the acting chairman of the department of education at a college in West Virginia. Dr. Rollins was recommended to the School Board by Superintendent Navitsky to fill the Indiantown Middle School principalship because of his past administrative experience and his previous service with and knowledge of the school district and the Indiantown area. The School Board approved the recommendation of Dr. Rollins. All witnesses, including petitioner Hurst, agreed that Dr. Rollins had better credentials than petitioner for this position. In August of 1978, the administrative position of curriculum coordinator at Murray Middle School became available. Seven or eight persons applied for the position, including the petitioner. The duties of a curriculum coordinator at a middle school include working with teachers to help develop curriculum and choose teaching material, evaluating testing and teaching techniques, assisting and scheduling students, evaluating teachers and a general knowledge of curriculum content at all levels. The principal at Murray Middle School, Edward Sheridan, personally interviewed all candidates for the position and developed a factoring or rating sheet for each candidate. He also discussed the candidates with his assistant principal, Quilley McHardy. The candidate receiving the highest rating was Joan Gallagher and Mr. Sheridan therefore recommended her for the position. Assistant Principal McHardy, a black, concurred in the recommendation. Superintendent Navitsky recommended her to the School Board because of Mr. Sheridan's recommendation and Ms. Gallagher was appointed as the curriculum coordinator at Murray Middle School. Joan Gallagher has been in the field of education for seventeen years. Until 1974, she taught at the elementary school level. Since 1974, she had been a sixth grade teacher at Murray Middle School and was the sixth grade team leader for a few months immediately prior to her appointment as curriculum coordinator. Two witnesses who were employed at Stuart Middle School had worked with both Ms. Gallagher and petitioner Hurst. The curriculum coordinator at Stuart testified that Ms. Gallagher was superior to petitioner Hurst in scheduling techniques. Ms. Askeland, the seventh grade reading and language arts teacher at Stuart who helped petitioner with scheduling at Stuart, testified that Ms. Gallagher had a better knowledge and understanding of curriculum concepts than petitioner. In the summer or fall of 1978, several members of the Young Men's Progressive Association, a civic organization of black businessmen and professionals, met with Superintendent Navitsky regarding the lack of black teachers in high school academics and in administration. According to two witnesses who attended the meeting, Mr. Navitsky acknowledged this problem, was sympathetic to their concerns, and agreed to do what he could to remedy this situation. While these witnesses felt there had been systematic discrimination in the school system, it was acknowledged that progress had been made in the promotion and recruitment of black teachers in Martin County due to the positive efforts of Superintendent Navitsky. Joint Exhibits 1A through 1D illustrate that during the period between 1974 and 1979, black persons received the appointment to an administrative position in those instances where they were candidates sixty percent of the time. In those instances where the only candidate was black, he or she received the appointment. Also, the percentage of black administrators to the total population of administrators in the Martin County school system increased from 13.6 percent in the 1974-75 school year to 19.2 percent in the 1979-80 school year. As of the date of the hearing in this cause, one-half of the ten available administrative positions in the 1979-80 school year were filled or offered to black candidates. In two of the instances where whites were appointed, there were no black candidates for the position.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is recommended that the Commission on Human Relations enter a final order finding that the respondents did not engage in unlawful employment practices in appointing Dr. Rollins to the position of principal of Indiantown Middle School or in appointing Ms. Gallagher to the position of curriculum coordinator of Murray Middle School; dismissing petitioner's petition for relief in this cause; and denying petitioner's motion for attorney's fees. Respectfully submitted and entered this 25th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Paul A. Gamba, Esquire Post Office Drawer 1016 1451 East Ocean Boulevard Stuart, Florida 33494 Douglas K. Sands, Esquire 300 Colorado Avenue Post Office Box 287 Stuart, Florida 33494 Marva A. Davis, Assistant General Counsel Florida Commission on Human Relations 2562 Executive Center, Cricle E Tallahassee, Florida 32301 Norman A. Jackson, Executive Director Florida Commission on Human Relations 2562 Executive Center, Circle E Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent was employed by Petitioner as a physical education teacher at Homestead Junior High School pursuant to a continuing contract. On May 17, 1984, Assistant Principal Woodward sent a memorandum to Respondent regarding Respondent's late notification for absence from duty two days prior. That memorandum read, in pertinent part: I feel that it is essential that I again remind you of the problems caused by your late notification of the need for a substitute. Subs are difficult to get in the morning after the high schools have begun their day. Last year Mr. Rosbaugh covered a portion of your 1st period class at least 15 times. This year you have been out 10 1/2 days in addition to the entire month of December (12 days) and 9 days in January due to injury. You also have arrived late to homeroom on a number of occasions. Please direct your attention to these professional matters. During the 1986-87 school year Respondent was absent approximately 30 days. In addition, Respondent's department head reported him for being tardy 13-15 times although Respondent was tardy on even more occasions. During the 1987-88 school year between the commencement of school in August and December 9 when Respondent was suspended from employment he was absent from school approximately 60 days, 53 of which were leave without pay. He was also tardy approximately 15 times. Because Respondent failed to notify the school when he expected to be tardy and because he repeatedly failed to notify the school when he would be absent, school personnel did not have time to obtain the services of a substitute teacher. Therefore, other teachers had to cover Respondent's physical education classes in addition to covering their own, thereby lessening the safety of the students in those physical education classes. At all times, Respondent's students were left running unsupervised in the hallways, thereby impacting other classes and other students' safety. Respondent's department head discussed the problem with Respondent on numerous occasions during both the 1986-87 and the 1987-88 school years. He gave Respondent verbal directives to be prompt for all his classes since Respondent would be tardy not only for the first period class but would also disappear between periods and be tardy at the beginning of other periods. School personnel had no telephone number for contacting Respondent. During the 1986-87 school year Respondent's department head went to Respondent's home on four or five different occasions to see if Respondent was coming to work since the school day had already begun and Respondent was absent. He also went to Respondent's home for the same purpose two or three times during the 1987-88 school year. Each time he went to Respondent's home, he found him asleep. During the 1986-87 and 1987-88 school years Assistant Principal Woodward had meetings with Respondent on approximately 30 occasions to discuss Respondent's chronic lateness in reporting to work. He also went to Respondent's home after the school day had begun to find out if Respondent would be coming to school that day six or seven times during 1986-87 and two or three times during 1987-88. On one such occasion--March 12, 1987--he went to Respondent's home and awakened Respondent at 10:30 a.m. Assistant Principal Woodward directed Respondent on numerous occasions to observe the school's required procedures for notifying the school of Respondent's absences or tardiness. Each time Respondent was awakened at his home by school personnel, he was very apologetic, promised to do better, and stated that he fully understood the required procedures and the impact on his classes. Each time, he explained that he had overslept and that he had personal problems. Although Respondent promised improvement, no improvement occurred. On a number of occasions Assistant Principal Woodward recommended that Respondent contact the employee assistance program due to Respondent's stated problems with oversleeping and Respondent's repeated advice that he had personal problems and since Woodward noticed that Respondent was losing weight and evidencing some differences in personality. However, Respondent refused to contact the employee assistance program. Principal Chandler had numerous conferences with Respondent both years formally and informally regarding his absences and tardiness. He offered Respondent transportation to school even though Respondent lived only a few blocks away. Respondent declined his offer of transportation. Principal Chandler visited Respondent at Respondent's mother's home at Respondent's request three times during 1987-88. He also had a meeting with Respondent and some of Respondent's associates with whom he was experiencing problems with paternity charges. Based upon Respondent's continued failure to comply with reporting procedures, and based upon Respondent's repeated excuse that he overslept and/or had personal problems, and based upon Respondent's statements made to him during one of the meetings at Respondent's mother's home, Chandler requested Respondent to undergo a fitness examination which Respondent refused. Based upon Respondent's refusal to undergo a fitness examination and Respondent's refusal to comply with the directives to be punctual and to comply with reporting requirements, Chandler contacted the Office of Professional Standards of the Dade County Public Schools. An official conference for the record was scheduled for November 3, 1987, and Respondent failed to appear. A second conference for the record was scheduled for November 18, 1987, and Respondent attended that conference. Respondent was requested to sign the notice acknowledging that he had been notified of the conference he was attending, and he refused to acknowledge receipt of that notice Respondent was ordered to undergo a fitness determination, and he refused to comply. On November 18, Respondent was assigned to his home, thereby terminating his assignment to Homestead Junior High School. On November 23, he was assigned to the Area Office but he refused to report to the Area Office. On December 1, 1987 he was temporarily assigned to Arvida Junior High School. However, he indicated he had transportation problems and could not report there. On December 2, he again indicated that he had transportation problems and again would not report there that day. On December 3, he again indicated that he had transportation problems and that he could not accept the assignment on that day or any other day. Respondent's absences exceeded the amount of accumulated leave and sick leave during both 1986-87 and 1987-88. Respondent never indicated to any of his superiors that he was unable to comply with the directives to improve his attendance and correct his tardiness. Respondent never indicated that he was sick; rather, he continuously maintained that his problem was simply a matter of oversleeping resulting from his personal problems. Accordingly, the extended sick leave provisions in the union contract between the teachers in Dade County and Petitioner do not apply to Respondent. Even if they did, there are no provisions in that contract which permit a teacher to continually be tardy for that teacher's first period class and to disappear between classes and report for the next class 10 or 15 minutes late as was Respondent's pattern of behavior. Petitioner has exhausted all available resources in its attempt to assist Respondent, and there is no expectation of improvement on Respondent's part. Respondent's effectiveness as a teacher has been impaired by his failure to be in regular and punctual attendance for his assigned duties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing Respondent from his employment with the School Board of Dade County and denying him any claims for back pay and benefits. DONE and RECOMMENDED this 9th day of August, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 9th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5596 Petitioner's proposed findings of fact numbered 1 has been adopted in this Recommended Order. Petitioner's proposed findings of fact numbered 2-16 have been rejected as not complying with Rule 22I-006.31(3), Florida Administrative Code, and also as not constituting findings of fact but rather as constituting recitation of the testimony. Respondent's proposed findings of fact numbered 1 and 2 have been adopted in this Recommended Order. Respondent's proposed finding of fact numbered 3 has been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 4 and 5 have been rejected as being subordinate to the issues under consideration herein. Respondent's proposed findings of fact numbered 8 and 17-19 have been rejected as being irrelevant to the issues under consideration herein. Respondent's proposed findings of fact numbered 12, 14, and 15 have been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 6, 7, 9-11, 13, 16, and 20 have been rejected as not constituting findings of fact but rather as constituting either recitation of the testimony or argument of counsel. COPIES FURNISHED: Joseph A. Fernandez, Superintendent Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Johnny Brown, Esquire Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Lorraine C. Hoffman, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129
