The Issue Whether Angel Villanueva (Respondent) imposed his personal religious views and views about gender identity on students during classroom and other instructional time, and, if so, should his employment with the Lee County School Board (Petitioner) be terminated as a result of his conduct.
Findings Of Fact Stipulated Facts Pursuant to the Joint Pre-hearing Stipulation, the following facts are admitted: Respondent imposed his personal religious beliefs and views regarding gender identity on students during classroom and other instructional time. Respondent made comments in the presence of students regarding the sexual preferences of individuals and professed that those that do not agree with him are wrong and would regret their lifestyle and suffer consequences later on in life. Respondent’s conduct unreasonably denied students access to diverse points of view, exposed students to unnecessary embarrassment and disparagement, and was unbecoming of a school district employee. Background The Board is responsible for hiring, terminating, and overseeing all employees in the school district. At all times material to this case, Respondent was employed by Petitioner as an JROTC instructor at East Lee County High School. Respondent has been employed by Petitioner since October 25, 2002. Respondent is an instructional employee and is governed by the collective bargaining agreement between the School Board and the Teachers Association of Lee County (TALC). Respondent is employed pursuant to a professional services contract. On or about May 13, 2016, a concerned parent notified Petitioner of a video posted on Instagram which shows Respondent making comments in class regarding the sexuality of Caitlyn Jenner, the former Olympic decathlon gold medalist who recently came out as transgender. M.G. recorded the video and is responsible for posting the same on Instagram. The video, which is in evidence, speaks for itself. As a result of the concerns expressed by the parent, Petitioner initiated an investigation regarding Respondent’s alleged conduct. As part of the investigation, Petitioner interviewed M.G., who is a transgender student who recently “came out” regarding his gender. M.G. testified that he came out as transgender in March of 2016 and during this time he was a student in Respondent’s JROTC class. M.G. stated that Respondent made some initial comments to him in March of 2016, which led him to inform his guidance counselor, who asked M.G. to write his concerns in a statement. M.G. explained in his written statement that the statements made by Respondent regarding gay rights, religion, and homosexuality made him feel that generally he “wasn’t human,” that he was being “pushed down,” and that he did not like the way Respondent’s statement made him feel. M.G. also explained that when Respondent became aware that he was going to come out as transgender, Respondent reacted by saying, “Oh, no, you can’t do that” and told him that he will always be a female. M.G. testified that in April when he first told the guidance counselor about Respondent’s comments, he did not want anything bad to happen to Respondent. However, that changed when, according to M.G., Respondent’s conduct caused M.G. to start having feelings of depression. Respondent admits that he wanted to persuade M.G. not to come out as transgender. Respondent also admits that he made comments in the presence of students regarding the sexual preference of individuals, and further that he told students in his class that individuals who do not agree with him are wrong, will regret their lifestyle, and will suffer consequences later on in life. Respondent testified that his concern for M.G. stems from his personal beliefs as a devout Christian, and that if M.G. had informed Respondent that he was bothered by his comments, then he would not have been as aggressive in stating his opinions to M.G. Respondent acknowledges that he overstepped his boundaries and “should have stayed in his own lane.” During the final hearing, Respondent expressed genuine feelings of concern about M.G.’s well-being.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order concluding that: Just cause does not exist to terminate Respondent’s employment: and Just cause does exist to impose against Respondent discipline other than termination of employment. DONE AND ENTERED this 9th day of January, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 9th day of January, 2017.
The Issue By this action, the Petitioner, Ambrose Garner, President of Hillsborough Community College, Tampa, Florida, is attempting to discipline David C. Dye, Respondent, employee of the Board of Trustees, Hillsborough Community College, Florida, in accordance with the provisions set forth in Rule 6A-14.411, Florida Administrative Code. Specifically, it is alleged that: David C. Dye did aid and assist another college instructor in wrongfully obtaining the procurement and contract for a course of instruction. David C. Dye did knowingly aid and assist another college instructor in wrongfully obtaining payment for a course of instruction. David C. Dye did pay or assist another in paying a portion of tuition for students improperly transferred to another class of instruction. David C. Dye did aid and assist another college instructor in the wrongful transfer of students to another course of instruction without the students' knowledge or authorization.
Findings Of Fact David C. Dye is currently an Associate Professor at the Hillsborough Community College in Tampa, Florida. In the Winter Term for that institution, beginning January 27, 1979, and concluding March 17, 1979, the Respondent Dye served as a part-time Community Service faculty member and taught a course referred to by number as Art 005-H27, Pottery. This was an elective Community Service course not for credit, with student attendance optional. For his work, the Respondent was paid $208.00 by the Hillsborough Community College. The Respondent's pottery class was formed and met during the aforementioned Winter Term. Among the students enrolled in that class were Beatrice K. Parson and Irene Powe. The pottery class taught by Dye in the Winter Term of 1979 was scheduled to meet on Saturday and did in fact meet at that time. Although the students, Powe and Parson, were scheduled to attend the Saturday class, for reasons of convenience they attended the Tuesday session of a Tuesday and Thursday academic art course that was being taught by the Respondent. This pattern of attendance took place for a period of two weeks in the Winter Term. In view of the different status between academic students and Community Service non-credit students and the perceived needs of a fellow instructor, one Carl H. Norton, the Respondent undertook to have the students, Powe and Parson, transferred to Carl H. Norton's class, Art 013-G25, Sculpture, a class in the Hillsborough Community College not for credit. Dye also had a concern for the student, Beatrice Parson, who was legally blind and who needed special instruction, which the Respondent felt he could not afford her in the context of his academic class on Tuesday and which he felt Norton could give her in his, Norton's Saturday class. Specifically, Dye's concern about having non-academic students attending the academic course on Tuesday pertained to his ability to devote sufficient attention to these non-academic students and still instruct the regular class. On the subject of Norton's problem, in a discussion with Norton he was led to believe that Norton's course would not be allowed to go forward due to an insufficient number of students enrolled. Norton explained to him in the beginning of the term that thirteen students were in attendance and it was the Respondent's and Norton's perception that fifteen students would be necessary to conduct that class. In reality, a minimum enrollment of ten students would have been sufficient and Norton had ten students even without Powe and Parson. (The minimum enrollment number of ten is borne out by a copy of the syllabus of the Norton sculpture class for the Winter Term approving the minimum enrollment by the Community College administration. A copy of this document may be found as Respondent's Exhibit No. 6 admitted into evidence.) Dye and Norton envisioned that Dye would speak with the students, Powe and Parson, about transferring to the Norton Saturday class and arrange for that transfer. Beyond the point of transfer, Dye hoped that Powe and Parson would attend the Norton class and also attend his Tuesday and Thursday sessions of the academic course as they desired. Dye received no remuneration from Norton in furtherance of this agreement to transfer the students, he did not discuss with Norton the method to be used in placing the transferred students on Norton's classroll, nor the method to be used in indicating their attendance at the classes. The Respondent took no action to see that Norton was paid for delivering the course of instruction in Art 013-G25, Sculpture. Dye was unaware that there was a differential between the salary that Norton was being paid and that of Dye, in that Norton was paid $288.00 for the course, Art 013-G25, which caused a difference in tuition for the students. Dye did not become aware of this disparity until after the instructional term in question. That differential for Powe and Parson once transferred to the Norton class was paid for by Carl Norton, without the knowledge of Dye. The transfer of the students was effectuated beginning in the third week of the academic course being taught by Dye on Tuesday and Thursday. (That course had an earlier starting time than the pottery course in which those students were enrolled, by one or two weeks.) The Respondent explained to Powe his perception that Norton needed extra students and also explained that Norton might be able to help Parson, keeping in mind her special circumstance related to blindness. Because Powe had accompanied Parson to the session, Dye expected Powe to be willing to make the transfer also, to assist in bringing Parson to the class. Powe acquiesced in the transfer arrangement by giving her permission to transfer her name from the Dye course to the Norton course. She did not take steps to further this arrangement and she did not attend Norton's classes, notwithstanding the fact that the Norton Saturday class met in relative proximity to Dye's Saturday class. After this conversation with Dye, she attended two more Saturday sessions with Dye and then dropped out. The following week beyond the conversation with Powe, Dye spoke with Beatrice Parson and although Parson seemed confused by the whole arrangement, she did in fact acquiesce in the transfer of her name from the Dye art class to that conducted by Norton. She took no further action to bring about the transfer nor did she attend any of the classes beyond the time of this conversation. David Dye spoke with Doris Zimmer, an Administrative Assistant in the Ybor Campus of the Community College, and she made the paper transfer of the students, Powe and Parson, from the Dye class, Art 005-H27, Pottery, to the Norton class, Art 013-G25, Sculpture. She did this by completing an adjustment and transfer form related to the students, Parson and Powe, copies of which may be found as the Petitioner's Composite Exhibit Nos. 3 and 4 admitted into evidence. Through this arrangement, Doris Zimmer signed the students' signatures for them. Parson and Powe were unaware of this adjustment to their enrollment. The arrangement for the transfer of Powe and Parson from the Dye class to the Norton class was by prior standing unwritten policy of the Community College, there being no written policy concerning the transfer of non-academic students from one course to another. In this regard, it was commonplace to allow the execution of the transfer forms without the signature of the student for the Community Service non-academic students upon relation that the transfer was approved by the student, as was the case herein. After the transfer had been mode, Norton carried the students, Powe and Parson, on his roll and marked them present, notwithstanding the fact that they did not attend his class and this may be seen through the Petitioner's Exhibit No. 1 admitted into evidence, which is a copy of his classroll. The students were dropped from David Dye's roll and he did not indicate any further attendance by those students in his Saturday pottery class as may be seen by a copy of his classroll, which is Petitioner's Exhibit No. 2 admitted into evidence.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Charges placed against the Respondent, David C. Dye, be DISMISSED and that he be allowed to go forth without further answer. DONE AND ENTERED this 1st day of December, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of December, 1980. COPIES FURNISHED: David E. Bryant, Esquire, 401 East Kennedy Boulevard Tampa, Florida 33602 John J. Chamblee, Jr., Esquire Law Offices of Frank, Chamblee & Kelly, P.A. 341 Plant Avenue Tampa, Florida 33606
Findings Of Fact The business of the Respondent. Respondent is, and has been at all times material herein, created directly by the Constitution of the State of Florida and constitutes a Department or administrative arm of the government that is administered by individuals who are responsible to public officials or to the general electorate. At all times material herein, the Respondent is engaged in and has been engaged in the business of operating a county school system in Pasco County, Florida. The labor organization involved. Pasco Classroom Teachers Association is now, and has been at all time material herein, an employee organization within the meaning of Section 447.203(10) of the Act. The issues. Whether the Respondent unlawfully refused to employ Ronald Eckstein on a continuing contract status; whether it unlawfully refused to reappoint him as department chairman and whether it unlawfully refused to grieve the above acts in violation of Florida Statutes. Whether the Respondent unlawfully terminated Sharyn Disabato and also, whether the Respondent unlawfully failed to grieve the termination of Sharyn Disabato pursuant to Article 12 of the parties collective bargaining agreement. Whether the Respondent unlawfully terminated Fred Rydzik and whether it unlawfully refused to grieve the termination of alleged discriminatee, Fred Rydzik. Whether the Respondent unlawfully adopted a salary schedule which amounted to a 5 percent wage reduction for employees in the certified bargaining unit; whether it unlawfully froze every employee's increment steps and three; whether it unlawfully reduced all supplements paid to bargaining unit employees and also whether it unlawfully postponed previously scheduled preschool planning days. Whether the Respondent unlawfully refused to process dues authorizations card executed by bargaining unit employees in violation of Section 447.303 of the Act. Alleged unfair labor practices. (a) The Facts The Pasco Classroom Teachers Association, hereinafter sometimes referred to as PCTA, was certified by the Public Employees Relations Commission, hereinafter sometimes referred to as PERC, on April 17, 1975, as the exclusive representative of the certified personnel employed by the School Board, except those who hold supervisory authority specifically excluding the Superintendent, Assistant Superintendents, District Level Supervisors, Directors, Principals, Assistant Principals, and Curriculum Assistants from functioning as a second-in- command in the building. The PCTA and employer were as stated parties to a collective bargaining agreement which by its terms was effective August 6, 1974, through June 30, 1975. Larry Smith is PCTA's designated bargaining agent and Ronald Forguson is the Employer's designated bargaining agent. The Respondent employs approximately 2500 instructional employees throughout the county at 25 or more locations or school districts. The employer operates in a manner which is somewhat unique to most school districts in that a school year begins in approximately July of each year and the instructional personnel work a 45 day schedule and they are off approximately 15 days. This system is referred to as the Track system and there are 4 tracks described as A, B, C and D. Alleged discriminatee, Sharyn Disabato, was employed by the employer from the school year 1973 through June of 1975. Ms. Disabato testified that her duties consisted of providing an atmosphere for students to learn science, math, social studies, art, music and physical education at Schrader Elementary School, where she was employed. Schrader is an open school, which means that there are no classroom areas partitioned off and all student's and teachers are somewhat visible at all times. Disabato's students consisted of fourth, fifth and sixth graders. Her most recent employment contract was for a 196-day period beginning July 24, 1974 through June 30. She testified that she was very active in curricular activities as well as extracurricular activities. For an example, she testified that she served on the construction committee, which was a committee formulated to provide input for an addition to the facility. Ms. Disabato testified that she sponsored the bus patrol group and assisted several teachers on science projects and assisted new teachers in locating resource materials, filing cabinets, new books and to generally review the overall physical plant. During her last year of employment, she received the "Teacher of the Year" award for her school. Her principal at Schrader Elementary School gas Larry Robison. She also served as the building presentative, which meant that she handled grievances filed by the other teachers. She assisted Mr. Larry Smith in contacting her fellow employees to execute payroll deduction authorization forms. She was approached by her principal sometime in October of 1974 and was asked by him to form a committee of volunteers to make up the association's building committee. That committee was designed to present and resolve grievances that the other teachers were experiencing at the school. She also asked employees to serve on the committee to "maintain the collective bargaining agreement". She was the assistant committee chairperson and during committee meetings, Mr. Robison attended. Mr. Robison also asked her to schedule all building committee meetings. She joined the union at the inception of her employment with the employer. Beginning in January of 1974, she researched the contract and proposed and formulated several provisions which are now presently contained in the contract. She also served on the bargaining team during January of 1974; she conducted surveys and spent approximately 3 hours, 3 times each week for a total of more than 100 hours preparing contract proposals. According to her testimony, in addition to the above activities in which Mr. Robison would know of her union activities, she also indicated that her name appeared on several union flyers which were distributed throughout the facility and also, on one occasion, she was approached by Mr. Robison, who at that time told her that "bargaining wasn't what she thought it to be." At Schrader, during the school year 1974-75, there were approximately 580 students and approximately 26 instructional personnel. She testified that the building representative association meetings were conducted on a monthly basis and that she presented and resolved grievances which were filed by both union as well as non-union members and that she acted as a conduit for resolution of all employee grievances. Sometime prior to November, Disabato testified that she mentioned to Mr. Robison that all vacancies had to be advertised, whereupon Mr. Robison approached Mr. Smith and asked him if that was in fact the case. According to Disabato, Smith informed Mr. Robison that vacancies were to be advertised. During January 1975, Disabato began formulating new contract proposals and a flyer was distributed around the school building, which somewhat depicted her activities in this regard. She testified that Mr. Robison may have seen the flyer. The alleged discriminatee testified and the record reflects that she often criticized school and administration policies and in those instances in which she felt that the contract was being violated by the administration, she would immediately call such to their attention. She testified further that Mr. Robison did not take kindly to such criticism. She testified that during the school year 73-74, she received an outstanding rating and at no place on her evaluation form did there appear any teaching deficiencies. During school year 74-75, she indicates that she was evaluated by Mr. Robison sometime in February 1974. On that evaluation, she testifies that Mr. Robison informed her and noted on her evaluation form that she needed improvement as to her rapport with fellow employees. Also, that as to her personal qualities, she was uncooperative. Specifically, he mentioned an incident wherein she had interceded on behalf of another fellow teacher, Mayna Radacky, and that her interjection upset Mrs. Radacky. When she was presented with the evaluation form, the alleged discriminatee felt that she needed a witness present and at that meeting she took Mrs. Radacky along with her. On voicing her objections to the alleged deficiencies noted on the evaluation form Mr. Robison merely indicated to her that she lacked rapport with her fellow employees and aside there from, he was very unspecific. Upon receipt of this evaluation, Ms. Disabato wrote a letter to Mr. Robison indicating her dissatisfaction with the evaluation and she relayed this to him by giving a letter to his secretary. According to M. Disabato, Mr. Robison told her that her letter would be attached to her evaluation. By letter dated March 14, Ms. Disabato was informed that she would not be rehired. When asked the reason, Mr. Robison informed her that "he would hire someone to do a better all-around job." Ms. Disabato testified that she did not request a written list of reasons for Mr. Robison's refusal to rehire her. She testified that her attitude with Mr. Robison was very good prior to her participation in negotiations for the collective bargaining agreement, but thereafter Mr. Robison's attitude, in her opinion, changed. She testified that after her participation in negotiations, problems occurred on a daily basis for her to resolve. She testified that during a faculty meeting held sometime in November December 1974, Mr. Robison announced to the faculty members that "you do not have a guardian angel" and their problems should be addressed to him. During the beginning of the 1974-75 school year when all of the faculty personnel were introduced, Ms. Disabato indicated that Mr. Robison omitted introducing her to the other faculty members and that such omission was purposeful on his part inasmuch as he was reading from a printed list and further that the same situation occurred on another occasion. She indicates that after all the other instructors were introduced, Mr. Robison tried to pretend that the omission was inadvertent and he thereupon introduced her. Sometime in September or October of that year, Disabato testified that she was called in to a conference with Mr. Robison whereupon he indicated that she was insubordinate to him; that she did not respect him, and that he "should be respected." He also told her at that time that she was a "gutsy lady and that if this had occurred three years earlier, she'd be walking the streets. Upon learning of Ms. Disabato's discharge or nonrenewal of her contract, a petition was circulated by other teachers supportive of Ms. Disabato and approximately one-half of the instructional personnel signed such petition. In an effort to resolve her non-renewal grievance, Ms. Disabato first talked to Larry Smith and they completed a grievance form. On various occasions, Smith and Ms. Disabato attempted to meet with Mr. Robison in an effort to resolve the grievance to their satisfaction, and on each occasion, Mr. Robison refused to meet with them. Ms. Disabato, when asked, knew of no other contract teachers who were not rehired during the school year 1975-1976. On cross-examination, Ms. Disabato related two instances wherein grievances advanced by her to Mr. Robison were resolved. Specifically, she raised an objection to a janitor vacuuming the halls during school hours and this procedure was stopped. Also, with regard to posting vacancy announcements, Mr. Robison, subsequent to her protest, advertised all vacant positions. She also worked with and mutually resolved the problem or a problem regarding long distance phone calls and the utilization of subs during the school year. She also reiterated on cross-examination the fact that her name was deliberately omitted from other lists, but she was not specific in indicating other lists which her name was omitted from as she previously testified to on direct examination. Larry Smith, PCTA's Executive Director, testified that he attempted to grieve the non-renewal of Sharyn Disabato's contract by initially attempting to contact Mr. Robison by telephone sometime in mid-March, 1975. Thereafter he called Dr. Ferguson with no success. The next day he contacted Mr. Robison and Mr. Robison informed him that he would contact him the following Friday. On or about March 21, Smith called Dr. Forguson by telephone and he would not accept the grievance indicating the the grievance was invalid and the non-renewal of an annual contract teacher was not a grievable item. He was also, at that time, instructed by Mr. Robison to deal a with Dr. Forguson. Smith made several attempts to send a written grievance to Mr. Robison and Dr. Forguson and on each occasion the grievance was returned. The procedure of sending a grievance by certified mail was also futile. Finally, the association's president, David Suttle, was able to get the grievance served by the sheriff's department, but the Respondent, and/or its agents, would not hear the grievance. Smith testified that they failed to accept the grievance in order to "prevent binding arbitration." Smith states that Superintendent Thomas Wateman and their counsel, Mr. Joe McClain, gave this opinion. Smith testified that not only M. Disabato's grievance would be handled in a similar manner, but that Ronald Eckstein and Fred Rydzik's or any other grievance of a similar nature would not be a matter subject to the grievance provision of the collective bargaining agreement. Smith stated that they (the Respondent) made it clear to him that grievances dealing with renewal of a contract was not a grievable item under the contract. Thereafter, Smith indicated his opinion that the grievance was not appealed to level 3 because it would be futile to do so based on his prior attempts. Smith testified that employees voiced extreme concern about their job security after Ms. Disabato's contract was not renewed and that several employees, specifically the annual contract teachers who are non-tenured, asked to withdraw their authorizations for payroll deductions of their dues check-off. Larry Robison has served as the principal at Schrader Elementary School for approximately 3 years and he is in charge of the overall operation of the school. He testified that in the employment process, he makes what is essentially the final recommendation in that an employee cannot be hired, that is, an instructional employee, cannot be hired without recommendation by him to obtain a teaching position at the school. Robison testified that he evaluates new teachers approximately 3 times annually and that both annual contract teachers and continuing contract teachers are evaluated only once per year. Robison testified that the evaluation process consists of conferences, both informal and formal visits, and that in making his evaluation, he relies on mental notes primarily. He testified that in instances wherein he notes deficiencies in an instructor's teaching skills, he advises them of such deficiencies and provides ample time for them to correct any deficiencies that, in his opinion, are warranted. He testified that the amount allotted a deficient teacher varies according to the teacher's ability to correct the problem that he notes. Robison testified that he was aware of Ms. Disabato's position as the building representative in 1973 and that this fact was a matter of common knowledge throughout the school. He was also aware of her participation on the union's bargaining committee during school year 1973. He also admitted asking either Ms. Disabato or Richard Culp to formulate the building committee, which was in his opinion, a forum to resolve grievances. David Suttle, PCTA's vice president and an elementary teacher at Elfers School for approximately five years was called and testified that he was a "building rep" for the school year 1973-1974 and served on the negotiating team for 1974 and 1975. Suttle testified that the binding arbitration provisions included in the contract was based on passage of Florida Statute 74, Chapter 100 and Chapter 447, Florida Statutes. Suttle testified that PCTA attempted to grieve the matter of Ms. Disabato's separation, but that the Respondent refused to accept the grievance and that based on the fact that this grievance was not accepted and the employer failed to grieve it, the union felt that it would be futile and fruitless to attempt to grieve the discharges of the other two discriminatees contained in the consolidated Complaint. 2/ Suttle testified that the union received the letter from the sheriff's department indicating that they would no longer serve grievances filed by the union. Suttle testified that during a union meeting with management in mid-May, 1975, the employer indicated that they had the right to determine "what was or was not a grievable matter." Suttle testified that the subject charges were filed when it became clear that issues regarding the renewal or non-renewal of annual contract teachers would not be accepted. Suttle testified also that during this meeting in mid-May the employer was informed that unfair labor practices would be charged with PERC based on their failure to accept the grievance regarding the non-renewal of annual contract teachers. Suttle testified that various employees indicated to him that they felt reprisal would be taken if their union activities were known by the employer. Suttle testified that union deduction authorizations were cancelled and that salaries were unilaterally cut. Suttle testified that the fear of reprisals was not only confined to union members but also to non-union members as well. After Suttle was examined and excused, the general counsel and the charging party rested their case with regard to the allegations contained in Case No. 1040. At the outset of the defense to the charge in this case, the Respondent made a Motion to Dismiss which the undersigned denied, based on his opinion that the general counsel and charging party had presented a "prima facie" case. Respondent's Defense to CA-1040 3/ Minnie Kownach, secretary to Mr. Robison for approximately three years, testified that on March 24, 1975, Larry Smith visited the office at approximately 2:30 p.m. She advised Mr. Robison of Mr. Smith's presence. Mr. Robison was in the office interviewing another teacher; she buzzed Mr. Robison and he asked her to tell Mr. Smith that he would be glad to see him at another time. She testified that Mr. Smith stayed in the office and at approximately 2:45 on that day, Ms. Disabato came down and she and Mr. Smith stayed until approximately 3:00. She testified that Mr. Smith did not make an appointment to see Mr. Robison on that date, i.e., March 24. Marsetta Haspelhorn, assistant principal at Schrader since January, 1974, testified that she was on the team with Ms. Disabato and Sharyn Watson for a period of time and that she observed Ms. Disabato's teaching. She testified that she had a conversation with Ms. Disabato about the non-renewal of her contract when she learned about it, and during a break during April, 1975, in the teachers' lounge, she asked Ms. Disabato not to file unfair labor practice charges inasmuch as it would "ruin her reputation." She testified that Ms. Disabato informed her the "the union would take care of her." She testified that she and Ms. Disabato are friends. She testified that Ms. Disabato is an effective teacher; however, her discipline leaves something to be desired. She testified that Ms. Disabato sometimes stops a pupil and tells him that he should not be doing something and that she is "harsh with the students." She testified that Ms. Disabato is vocal if another employee or person expresses views contrary to her own. She testified that she was aware that Ms. Disabato had problems with some teachers; however, she "got along with others", She testified that she and Ms. Disabato were not on good terms and that she did not try to help new teachers, whereas other teachers helped. She testified that Ms. Disabato was antagonistic towards Mr. Robison and that this attitude was pervasive and increased as the year progressed. She noted no change in the attitude or demeanor of employees since Mrs. Disabato's separation and that employees of Schrader are "always open." She testified that the employees never expressed any fear or reprisal for voicing complaints. She acknowledged that Mrs. Disabato was the building committee representative. She testified that Mrs. Disabato always questioned school practices during faculty meetings and that she did so more frequently than other employees. She testified that she was not a union member because she felt that she did not "need the union's backing." She testified that although no teachers other than Mrs. Disabato complained to Mr. Robison, they were not afraid of him. She testified that she never observed Mr. Robison refusing to speak to Mrs. Disabato or to introduce her. She testified that Mr. Robison omitted her name in an open house meeting and that she did not take it as an insult. She testified that Mrs. Disabato and Mrs. Radacky had a good relationship and that Mrs. Disabato approached Mrs. Radacky about the problem regarding the students missing the bus. However, she testified that she did not overhear Mrs. Disabato tell Mrs. Radacky not to take the students home. She testified that the separation of Mrs. Disabato has had no effect on the employees' freedom of expression at the school and that Culp was a building "rep" during the time that Mrs. Disabato was a building representative and is still employed and continues to serve as a building representative. She testified that Mrs. Disabato has an "explosive personality" and that if she cannot get things her way, she would walk away with a "sarcastic" look. The charging party introduced a telegram into evidence which purports to be a message to Mrs. Disabato signed by Carolyn White, Mary Garrison, Sue Walsh, Jane Foteys, Karen Johnson, Russ Willie, James Baretti, Tom Barnard, Gene Turner, over the Respondent's objection. The hearing officer received the exhibit into evidence. On cross examination Mrs. Haspelhorn testified that she did not know whether Mrs. Disabato was well thought of by her peers. She testified that she purchased a home from Mr. Robison. She testified that the problems of Mrs. Disabato and Mr. Robison related to school policies, and that the problems were not union related. She testified that she was unaware of Mrs. Disabato's union activities. She testified that Mrs. Disabato complained of school practices and often disagreed with school policy and that her disagreement was aired in a "loud tone." She testified that Mrs. Disabato told her that she would be employed by the union. She also testified that the other employees have not talked to her about Mrs. Disabato's separation. Leona Supurka, an elementary teacher at Schrader for the past two years, was called and testified that she has been employed in Maryland and in Pennsylvania as a teacher for approximately 16 years. She testified that she did not work in close proximity to the alleged discriminatee, and that she (Mrs. Disabato) did not offer any assistance to her. She testified that Mrs. Disabato's attitude toward the principal was rude and it was the type of rudeness in which she had never experienced a teacher voice to a principal. She testified that she was presented with a petition supportive of Mrs. Disabato on two separate occasions; that she refused to sign it and also that she resented being approached on two occasions by employees who felt that she should sign the petition. She also testified that Mrs. Disabato was disruptive and not always with, and in fact, frequently questioned school policies. She testified on cross examination that Mrs. Disabato offered no assistance to her. However, she also testified that no occasion arose wherein the alleged discriminatee would have needed to assist her. She testified that Mrs. Disabato expressed rude manners in faculty meeting on two occasions that she could recall In late September or early October, 1974. She testified that on one occasion Mrs. Disabato disagreed with the arrangement or timing of the lunch schedule and that Mrs. Disabato was insubordinate at faculty meetings. She testified that in her opinion, the employer is the boss and the employee should go along; that if there is disagreement, it should be voiced in a private conference. She testified that she was of the opinion that Mrs. Disabato was a disruptive influence on the faculty at Schrader and that she probably discussed this fact with Mr. Robison during the school year. Catherine O'Conner, an employee of approximately ten months in Pasco County, testified that she does not know Mrs. Disabato as a teacher, but that she was approached on two occasions to sign a petition supportive of Mrs. Disabato. She also testified that she felt intimidated by being approached on two separate occasions, inasmuch as she had voiced her opposition to signing the petition. Mrs. O'Conner testified that she did not know whether or not Mrs. Disabato was irrational or not and she was very vague about meetings regarding the presentation of contract to teachers within the "required" 30-day period. She testified that the contracts were presented later and that she was upset that the contracts were not presented timely. She could not recall if Mrs. Disabato assisted her when she became a teacher at Schrader. Larry Robison, the principal at Schrader, was called and testified that he received an evaluation by PCTA in mid-May, 1975. He testified that he was unaware that Mrs. Disabato was a union officer. He testified that his decision to non-renew Mrs. Disabato's contract had nothing to do with union activities. He testified and the record evidence shows (see Respondent's exhibit no. 4, which is received in evidence) that his overall rating was 3.4 out of a possible 5. He testified that he received his lowest evaluation in the areas of (1) reacting positively to constructive criticism; (2) seeks to lessen the non-teaching burden by avoiding excessive paper work and supervises without favoritism by equalizing teaching loads and administrative assignments. He testified that he was aware that Mrs. Disabato was a building rep and that she was a union member. He testified that in early 1974, Mrs. Disabato was very active in the union. He testified that he could have discussed Mrs. Disabato with other faculty members. He testified that he discharged Mrs. Disabato based on her behavior, her rudeness to students, her poor rapport with peers and uncooperativeness. He also testified that he also discharged her based on her difficulty with regard to "getting along with the administration." He testified that the Radacky incident played a small part of his decision to non-renew Mrs. Disabato's contract. Mr. Robison testified that he was the party who upset Mrs. Radacky during the incident. He testified that he left a note to Mrs. Radacky indicating that he was sorry that he caused her to be upset and that he was sorry that he had created discord with one of her peer groups. However, in an affidavit given to the Public Employees Relations Commission dated on or about May 29, he testified that the reason he discharged Mrs. Disabato was based on her harshness, her lack of cooperation, and interference with other affairs of the building that's none of her business. He later testified on redirect that she was not rehired because she was a building representative, nor did he observe any increase in her union activity during the prior year. On re-cross examination, he testified that he made the decision independently not to rehire Mrs. Disabato. Gary B. Potts, teacher-coach and department chairman, social studies, Hudson High School, testified that he knew Ron Eckstein and that he did not tell Ron Eckstein or anyone how he got to be department chairman. He testified that he received more votes than anyone in the recommendation to the principal for the social studies department chairmanship. He testified that he did not vote in the election and that there were perhaps five or six employees in the social studies department who would have been eligible to vote for the recommendation. He testified that prior to the election, there was a lot of conversation regarding the vote and as to how the department was being run under Mr. Eckstein's chairmanship. He testified that he talked to approximately two of the four or five employees in the social studies department regarding their vote and the chairmanship election and that on one occasion Mr. Coy Pigman, the principal, called him in to ask him if he would assume the chairmanship if offered. He also testified that he spoke to a Mr. Ronald Clayback, an employee in the math department. He testified that he was a union member, however, there was some mix up in his dues authorization and the authorization had not been either executed on time or the Respondent was not deducting the dues pursuant to his dues check off authorization. Margaret Rose De Jong, a teacher at Hudson Senior High School from July 1974 through November 1974, testified that she resigned her duties at Hudson due to Ronald Eckstein; however the reasons cited in her resignation indicated that she resigned due to health reasons. She testified that she disagreed with Ronald Eckstein and Mr. Sinholtz, also an employee instructor in the social studies department and when she attempted to interject new ideas in the classroom, they were met with extreme criticism from Eckstein and Sinholtz. She testified that Mr. Eckstein attempted to utilize the inquiry method in a classroom setting of approximately 40 to 50 students and that that procedure was not a proper one in a class of that size. On cross examination she testified that she never spoke to Mr. Pigman regarding the stated reasons in her resignation letter. She also testified that she suffered a miscarriage approximately one month after leaving her duties at the school. She testified that health reasons played no part in her decision to resign. Case No. 1037 Jerry Morriss, an employee of Gulf High School since 1970 and the current PCTA vice president testified that he served on the negotiating team and he was the chief negotiator for the parties current collective bargaining agreement. Morriss testified that the contract contains specific language pursuant to Florida Statutes 74.100 regarding sick leave, grievance procedure, etc. He testified that he had filed grievances and that he has known Ronald Eckstein since the 1973-74 school year. He testified that Eckstein became a union member in the summer of 1973, and that Coy Pigman, Principal, knew of Eckstein's union activities based on the fact that Eckstein was a building representative. In March 1975, he testified that Pigman told him that his attitude towards him had changed. He testified that Eckstein was Instrumental in filing a grievance protesting the overlap in the teachers work schedule i.e., the 5 period vs. the 6 period day. He testified that during March, 1975, Eckstein showed him a copy of what in actuality is a renewal of his employment status only on an annual contract basis as opposed to a continuing contract. He testified that Eckstein accepted the annual contract status inasmuch as he felt that it was his only employment opportunity as Mr. Pigman was not recommending him for employment on a continuing contract basis. He testified that Eckstein asked for but was not given a list of deficiencies. Sometime in April of 1975, he testified that the issue regarding Ronald Eckstein's renewal on an annual contract basis was brought up and he was of the opinion that Eckstein was entitled to a list of reasons as to what area(s) he was deficient in. He testified that he discussed procedural due process requirements and to that Pigman did not respond. He testified that Pigman sought his advice regarding Eckstein and Pigman indicated to him that Mr. Eckstein was "riling up". According to Morriss, Pigman told him that teachers should come to him individually and not collectively. He testified that the principal told him that Mr. Weightman, the superintendent, attempted to abort his contract. On cross examination he testified that he had no direct knowledge that Eckstein applied to the county for a continuing contract but that he was present when Eckstein accepted the 4th year annual contract employment. He reiterated the fact that the principal sought his advice on many matters. He testified that Eckstein was a good teacher and his performance was better than some teachers that Pigman gave continuing contract status. He testified that he informed Mr. Pigman that he was as good as Don Roland (apparently an employee whom Mr. Pigman had given a continuing contract) and that Pigman nodded in approval. On redirect Morriss testified that as a result of Mr. Eckstein's separation, the union was experiencing a more difficult time signing members, that employees are concerned about their union activities and the union is concerned about its loss in membership. Morriss testified that he did not feel inhibited. Ronald Eckstein, the alleged discriminatee herein, was a teacher at Pasco County for approximately 3 years and testified that he was County Social Studies Chairman during the school year 1973-74 and he was a member of the skills committee during the school year 1974-75. During the school year 1973- 74, he received the "Teacher of the Year" award at Hudson Senior High, he was a member of the chess club, the faculty scholarship fund, co-sponsor of the student government association, a union member since 1973, an executive board member, a county parliamentarian, building representative during the school year 1973- 74, an FEA member during school year 1973, chairman of the constitutional revision committee and during school year 1974-75, senior building representative which required him to coordinate all building representatives. In addition, he presented grievances to the principal and organized the teachers to support the principal, Coy Pigman, to the school board. He also testified that he informed the principal of the elected members of the PCTA. He testified that on one occasion, Pigman asked him how the collective bargaining agreement negotiations were going. Be also distributed union materials in the school and his picture is on the inside cover page of the collective bargaining agreement which is Petitioner's Exhibit no. 3 received in evidence. During January 1974, Mr. Pigman, the principal, asked Eckstein why were problems relayed through him. He testified that he handled complaints for both union as well as non-union members. His testimony is that during the late part of the 1974-75 school year, the principal told him that PCTA was drawing lines and that the principal associated him with the "Uniter", which is a union publication. Eckstein was evaluated by Mr. Pigman on approximately March 21, and at that time Mr. Pigman informed him that he was "having difficulty filling out his evaluation. He testified that Mr. Pigman questioned him regarding Pigman's receipt of an anonymous letter written by a parent which was critical of some teaching practices allegedly attributed to Mr. Eckstein. He testified that Mr. Pigman failed to be specific regarding any deficiencies that he might have in his teaching abilities. He testified that overall he was graded either excellent, outstanding or not applicable, but he was rated needed improvement in the areas of not accepting comments favorably and that Pigman indicated to him that his teaching methods were good and he was knowledgeable, active and reliable. He testified that Pigman informed him that he did not like to rate teachers exceptional or outstanding. Eckstein asked Pigman if he would receive continuing contract and he replied that he was having a "difficult time". Specifically, that he had a "feeling" which he (Pigman) could not put in words. Eckstein testified that he was told by Pigman that he was more effective than others whom he had given continuing contract status. Eckstein testified that he accepted the annual contract offer because he had no alternative and that when he asked Mr. Pigman for the reasons, he replied that he "was not obligated to state reasons for denial of continuing contract status". Eckstein asked Pigman for a letter indicating the reasons for the denial of continuing contract status and also that he was extremely concerned about Pigman's "feelings". Pigman replied that he thought it would be a good idea for him to serve a 4th year on annual contract status. He testified that during a meeting during the early part of the school year he was given a letter noting that he "failed to meet the educational requirements of the community". (See Charging Party's Exhibit No. 19 received in evidence.) During that same year Eckstein was not awarded the social studies department chairmanship. Eckstein testified that he did not attempt to grieve the non-renewal of the continuing contract or of his failure to be awarded the chairmanship. He testified that he was told (apparently by Pigman) that he was "too enthusiastic". Eckstein testified that the "too enthusiastic" remark related directly to his union activities; that he has been ostracized since the non-renewal of his continuing contract; that this event inhibited other employees from freely associating with him especially the annual contract teachers and that based on this action he was declined to serve as building representative. Eckstein testified that he was asked by Pigman whether or not he wrote various articles of the "Uniter". Coy Pigman, Principal, Hudson Senior High School for the past 2 years and prior thereto served as guidance counselor for approximately 3 years, was examined as an adverse witness based on his position as principal. Pigman testified that in making the recommendation for a continuing contract teacher he consults with his curriculum advisor and evaluates classroom performance as well as other responsibilities. He testified that he also consults with his assistant principal as to whether or not a particular employee he has in mind should receive a continuing contract. He testified that if an instructor is not given verbal or written deficiencies, he would expect that that teacher would expect to be renominated on a continuing contract basis. He testified that he prefers dealing with teachers on a professional basis rather than a written basis or via written communications. He testified that in evaluating instructors he utilized day to day staff contacts. He testified that he made the recommendation regarding the departmental chairmanships during the first two weeks in April testified that he rated Eckstein strongly but that after the evaluation he told him to be "more tactful". Pigman testified that it was not uncommon for instructional personnel to have personality differences but that several employees were forced to resign due to differences that they had with Eckstein. Pigman testified that the problems with regard to personality differences were personal in some instances, for example, a Mr. Corvalis, but that as the differences related to other staff instructional personnel, the problem was significant. He related an incident regarding Ms. De Jong, who testified that she was harassed and that Mr. Eckstein made her appear immature in the presence of fellow teachers, and that the curriculum assistant and the assistant principal made similar remarks to him. He testified that according to the resignations records, Ms. De Jong resigned based on ill health, however, in actuality, she resigned due to her differences with Eckstein. Pigman also related an incident regarding a student who had been sent to see the dean by Mr. Eckstein and when the dean, Gus Manticus, was informed that the student had filled out her own discipline slip, Mr. Manticus sent the student back to Mr. Eckstein's class. There-after, Mr. Eckstein approached Mr. Manticus and shouted, "Why did you send her back to my class" Pigman testified that he asked Mr. Eckstein to refrain from yelling at his dean, Mr. Manticus. Pigman testified that he granted Eckstein leave to attend the FEA convention and the he told Mr. Eckstein to keep politics out of the school. He said he did this on a precautionary measure and that to his knowledge the witness did not engage in any politics during school hours. He testified that during Mr. Eckstein's evaluation he noted the resignations that had allegedly been occasioned by difficulties regarding personality clashes and the anonymous letter received from a parent. He testified that he thought that Eckstein was in fact the teacher whom the letter was directed to because Virginia Collins (also an instructor at the school) indicated that she was having a difficult time with students following her lesson plans and that when he visited Mrs. Collins' class, one of the students stated Mr. Eckstein and gasped and closed his mouth in a surprised manner, which in Mr. Pigman's opinion concluded that Mr. Eckstein had in fact made a statement that students should be able to choose their lesson plans; that the students outnumbered the faculty and that in a democratic society they should be able to voice their opinions. Pigman testified that he used the evaluation form as a motivational item and that he gave Eckstein a 4th year annual contract due to differing philosophies and actions. He acknowledged the fact that Eckstein was not the only teacher whom he had differing philosophies with. Be noted that Eckstein was above average and that he possessed outstanding teaching abilities and techniques, that he was not irrational or militant. He testified that he denied Eckstein the chairmanship for the social studies department based on his non-recommendation to him by his fellow instructors. He testified that he rated Eckstein as needing improvement regarding students making their own decisions with regard to what they do in class. He also acknowledged the fact that he told Eckstein that he was "over zealous". He testified that he was aware that PCTA opposed the superintendent, Mr. Weightman's, nomination. Be also testified that he knew that Mr. Eckstein was actively involved in union activities. He further recalled meetings he had with Mr. Eckstein regarding the resolution of grievances. Pigman testified that he and Eckstein had a good relationship until school year 1974-75. He testified specifically that Eckstein was not given the chairmanship due to personnel problems and recommendations in the social studies department. He also emphasized that Eckstein possessed good abilities and techniques. Pigman testified that he was unaware that the professional practices code required him to give any instructor who requests such a list of written deficiencies. On cross examination, Pigman testified that he made the decision independently regarding appointing Eckstein as a annual contract teacher rather than a continuing contract teacher. Kenneth B. Sennholtz, Jr., an employee in the social studies department was called and testified that he has known Mr. Eckstein for approximately three years. He testified that he was present during the meeting with Mr. Pigman and Mr. Eckstein in which Eckstein received his evaluation. He also testified that during that same time he received his evaluation he and Eckstein reversed roles as witnesses for receipt of their evaluations. He testified that he was impressed that the principal liked the teaching techniques, the professional preparation of developing the social studies curriculum but that the principal stated that he had "this feeling" about Eckstein. He testified that he did not quite understand what Mr. Pigman's "feelings" were but that he knew that as a teacher, Mr. Eckstein was "more effective than other teachers". He testified that Mr. Pigman informed him that employees had left and that he knew they left but it's not Mr. Eckstein's fault; that Mr. Eckstein was not to blame and that Mrs. De Jong had personal illness. He testified that Mr. Pigman later learned that it was due to the difficulties that Mrs. De Jong and Mr. Eckstein were experiencing. Sennholtz testified that he asked Mr. Pigman why he wasn't advised that other members on the social studies staff were having difficulties with him whereupon Mr. Pigman indicated that he felt that they were not that important. Sennholtz testified that Eckstein was rated outstanding or one below in most categories and that he was not aware of or knew exactly how to incorporate Pigman's "feelings" into the evaluation form. He testified that Pigman indicated reservations about filling in needs improvement on the evaluation but that he did not know where else to put it. He testified that Eckstein was not given his evaluation but he was permitted to look through his personnel file. He testified that Pigman informed him that form A was strictly an "inhouse" form and that it would not be placed in Eckstein's personnel file. On form B Eckstein was rated outstanding or exceptional in all ranges. Sennholtz testified that Eckstein asked Pigman if he would be considered for continuing contract and he replied that it was "a difficult question". Sennholtz testified that Mr. Pigman informed him that he intended to align himself with Mr. Weightman during the coming school board election and that he was aware that he, Eckstein and the union actively supported the incumbent superintendent Ray Stuart. Pigman advised Mr. Sennholtz that he would not hold his or Eckstein's political differences against them. He testified that Pigman's philosophy was one of "fitting students into the society" whereas Eckstein's philosophy was one of "developing students to their maximum potential; that society is dynamic and students should be so prepared". Sennholtz also testified that Eckstein and he had done an excellent job in dealing with controversial issues which Pigman noted and that he would handle such issues in a similar manner if he was in a classroom. Sometime during October, 1974, Pigman and Sennholtz had a conference regarding the anonymous letter which is charging party's exhibit no. 20 received in evidence. According to Sennholtz, Pigman called a conference to rebut or to be prepared for any charges that might arise as a result of the "anonymous" letter, and that he paid little credence to the letter inasmuch as the party failed to identify themselves and further that the comments would not be used against them in any manner. Sennholtz related an incident regarding a problem with the stage door during a play in which Mr. Eckstein was involved. He testified that Manticus slammed the door and the door fell down and Eckstein indicated to Manticus that the door was important whereas Manticus jokingly said that "he would fix it; it's simple to fix." Eckstein disagreed but remained calm according to Sennholtz. Sennholtz testified and the evidence is clear that the Pasco County Teachers Association supported the incumbent superintendent Steward whereas Corvalis, according to Sennholtz, stated that the union should not endorse a candidate but that if one was in fact endorsed, it should be Mr. Weightman. Sennholtz testified that Eckstein and De Jong had little or no contact but that he and De Jong worked together as a team. He testified that De Jong wasn't happy because there was a lack of independence with regard to the track program and that Eckstein modified the program to satisfy Mrs. De Jong. He testified as to problems, small problems, with Lucinda South but that they were basically political and philosophical differences and that as to the alleged difficulty with Virginia Collins, Eckstein and she are good friends. Sennholtz related his opinion that Eckstein's demotion inhibited the employee association; that they fear reprisals and that its difficult to recruit building representatives because they are fearful of criticizing board policies. He testified that he is more cautious in his dealing with school rules and regulations because he does not want to inadvertently violate a rule or regulation which could be regarded as "just cause" for his dismissal. On cross examination he testified that he had no knowledge of any family problems that existed between Eckstein and his wife and that they are mutual friends; that he (Eckstein) according to his information, was experiencing no financial difficulties, that he recently purchased a home and was thinking of purchasing a pool etc. He also testified that he attached little credence to the 'anonymous' letter and also the principal asked them to "forget about it." He testified also that Potts asked Eckstein why wasn't he selected chairperson inasmuch as Potts was only at the school approximately 1 year whereas Eckstein was a better teacher and that the opposition (to Mr. Weightman) resulted in discrimination, i.e., quasielective (appointive) positions were given to those who supported Mr. Weightman, i.e., the dean, the assistant principal, etc. He testified that no union member was given a higher position than they previously held after January, 1975. He testified that after Eckstein's nonrenewal of continuing contract, it is difficult to solicit union members. He also testified that Weightman advised employees to cancel their dues authorization forms. He testified that he noticed that Eckstein had gone through an entire school year receiving commendations and was suddenly "framed." He testified that Pigman asked Eckstein for a copy of the collective bargaining law in January and Eckstein gave a copy to Pigman. He testified that Pigman forced his respect and acknowledged the right of employees to have philosophical differences and that he (Pigman) advised that he noted "an appreciable increase in his union activities." He testified that he and Eckstein supported Mr. Pigman in obtaining the principalship at his school. He testified that Pigman felt that he was being put up to do things by Mr. Eckstein. He also testified that Pigman was given a copy of all union materials and that Mr. Eckstein was told to report directly to him. Respondent's defense to CA 1037 Richard Coot, Assistant Principal, Hudson Senior High School testified that he tallied the votes in the social studies department. The evidence surrounding the tally is reflected in Respondent's Exhibit no. 5 admitted into evidence over the objection of the Charging Party based on the fact that copies were not the "best evidence." Coot testified that he tallied the ballots on or about April 15. Coy Pigman was recalled and testified that he was aware that both De Jong and Kratovill resigned due to difficulties with Eckstein. He denied telling anyone that he placed instructor Rodey on continuing contract status although he was a better teacher than Eckstein. Pigman testified that he received an overall evaluation of 2.6 by PCTA. Pigman testified that Eckstein's union activities played no part in his decision to not renew his continuing contract. He testified on cross examination that Eckstein cooperated with him on filling out discipline slips and he also indicated he asked Rose De Jong to write a list of difficulties that she had with Ronald Eckstein. He testified that he was unaware of any health problems of Mrs. De Jong however in later testimony, he acknowledged that he was aware that health problems existed at the time of her resignation. He was unclear as to whether he was testifying that the health problem played a part but that the health reason would be the easiest way out rather than to cite the health reason which then would just be a pretext for the real reason i.e. the difficulty with Ronald Eckstein. He testified that in March, 1975, the determination was made that based on projections that at least two new teachers would be needed in the social studies department, however, the two individuals who allegedly would be permitted to vote (recommend) were not told that they would be in the social studies department. Specifically, the record tends to indicate that they were Mr. Carvealis and Mr. Manticus. He testified that he made an error in his affidavit and that there was no rating of the social studies department chairmanship recommendations. He states that he appointed Potts as chairmen of the social studies department because in his opinion "he was a better teacher than Eckstein." Case No. 1041 Fred Rydzik was employed by the county in September of 1973, as a substitute teacher and approximately 10 days later he was appointed a full time substitute teacher. Thereafter in January of 1973, he was appointed to a full time position and he was employed through June 30, 1975. His lest employment was at Gulf Jr. High School where his principal was James Campbell. Rydzik served as co-sponsor for the conservation club during the school year 74-75, he sponsored several field trips, managed the publication of the yearbook for the school year 74-75 end in order to do this, he gave up his planning period. He was also on the guidance committee, coach for the "powder puff" football team, chairman of the tutorial committee based on the selection by the guidance counselor, director of the energy management center and he taught power and industrial arts as a substitute teacher. As a full time instructor, Rydzik taught English and Personal Development. He testified that during his evaluation by Mr. Campbell, he was asked to sign blank evaluation forms in Spring 1974. He was evaluated as being effective. Rydzik refused to sign blank forms because in his mind it was not a proper thing to do based on his prior military experience. During the spring of 1974, he became involved with employees who were trying to form an affiliate of the American Federation of Teachers (a labor organization). He testified that several co-workers approached him about forming an affiliate and during the summer of 1974, in a conversation with Campbell, Campbell spoke to him about the union not being viable. Campbell, according to Rydzik concurred and suggested some building association (i.e. an in-house employee group) rather than a union. During the fall of 1974, he testified that Monique Lefebre, his department chairman, told him that he would have to wear a tie. Thereafter he was called into the office and was asked by Campbell "why wasn't he wearing a tie?" Campbell told him that "he would wear a tie." Rydzik testified that he was unaware of any rule or regulation which prohibited an instructor from coming to school without wearing a tie however he complied with Campbell's directive. The effort to form an affiliate of AFT was unsuccessful although Rydzik testified that he successfully solicited and obtained signed authorization cards for approximately 160 employees. He testified that the AFT president denied a charter to Pasco County, due to political infights. In late September, 1974, Rydzik spoke to PCTA's president Larry Smith about merging the solicited employees with PCTA and that conversation resulted in the solicited employees merging and joining PCTA as a joint group. Rydzik testified that Campbell was aware of his union activities based on conversations he had with him and because his name appeared on various flier's which were distributed throughout the school. Rydzik testified that during early spring 1975, he spoke at a faculty meeting regarding a union meeting and the principal told the faculty that they didn't have to remain whereas they had been asked to remain for other activities such as pitches for the sale of life insurance and cookware sales and other utensils on the school's proper. Rydzik testified that he was rated effective in most areas in his evaluation but that he was rated as needing improvement in the area of turning in his plan book. Rydzik testified that he asked Campbell what he meant about needing improvement and Campbell replied that "he heard that his plan book was on most occasions, turned in late." He testified that his plan book would be one or two days late. Rydzik testified that in order to rectify his problems regarding his plan book, he talked to various experienced teachers who shared ideas and that each teacher who observed his plan book indicated that his plan books were better than most. He testified that two week units, a planning period, was a requirement whereas he was required to submit three week units and that his percentages were always rejected whereas other teachers were not. Rydzik testified that he did not grieve his problems regarding his plan book because of his annual contract status and also because various teachers warned against grieving that matter. Rydzik testified that criticisms regarding his plan book grew worse as the year proceeded and although he tried to correct whatever problems he experienced, he was never able to do so. He testified that to his knowledge, he was never personally observed by Mr. Campbell or Mrs. Lefebre in the classroom. However, he testified that during his evaluation he was told that "he had a good class." During the evaluation he was criticized about not patrolling bathroom duties as scheduled, however, he testified that he in fact followed the schedule. Rydzik testified that he was tardy approximately six times during the school year (school started at 6:30 am.). He states that on two occasions he was late approximately 15 minutes, and four or five times he was late less then 10 minutes. He also testified that on two occasions he was late as much or more than an hour. 4/ On April 2, 1975, Rydzik returned to work after having been on a 15 day off duty track and was at the time told by Campbell that he would not be recommended for employment. Rydzik asked Campbell why he was not being recommended for employment for the coming school year and Campbell replied "he could get someone better all around." Rydzik testified that he and other union members including Larry Smith, had discussed this problem and Smith informed him that he would not file a grievance inasmuch as similar grievances had been rejected by Respondent. He testified that Campbell informed him that he would reply to his request for a written list of deficiencies but Campbell never replied. He testified that he was a member of the bargaining team, that proposals were formulated sometime in January, 1975, and the bargaining sessions commenced during the spring of that year. In addition to serving on the bargaining team, Rydzik ran for the union vice president but lost that election. Rydzik testified that he received his second evaluation which is Charging Parties no. 25 received in evidence on the date therein noted although the date of the writing is different from the date that he actually received it. That is, the observation period as reflected on the exhibit covers a period from June 1974 thru June 1975 whereas Rydzik received it on April 22, 1975. Rydzik testified that he was regarded as the information source regarding any contract problem and fellow employees constantly inquired of him the status of the contract. He testified that the Math Department Head, Mr. Gibson, inquired of him regarding suggestions during January thru March of 1975, and he was viewed by him as a leader regarding contractual knowledge. Charging Parties no. 26 is a petition supportive of Rydzik and is signed by approximately 35 of the 60 instructors. Rydzik testified that employees were fearful to associate with him especially the annual contract teachers due to their financial obligations. He testified that several employees indicated that "if the union could not protect its own certainly it could not protect them." Rydzik testified that Mike Thomas of PCTA cautioned against his taking an active role in the union inasmuch as he was on annual contract rather than other employees who had tenure and could provide the leadership. James Campbell, the principal since February, 1972, was called and examined as an adverse witness. Campbell testified that there are approximately 75 instructional personnel including the support personnel. He testified that he evaluates on the basis of his daily observation of employees end that he hired Rydzik based on a recommendation of a Mr. Tucker. He testified that he evaluated Rydzik at least once although according to regulations he was required to do so at least three times per year. Charging Parties no. 27 received into evidence is the evaluation of Fred Rydzik. Campbell testified that he rated Rydzik in the low to strong areas in most categories and that he was "satisfied with his work." He denied ever asking Rydzik to sign a blank evaluation form. He recalled calling Rydzik in to discuss the incident regarding his not wearing a tie during school hours. He testified that Rydzik informed him that he could grieve the matter but that he would wear a tie until the grievance was resolved favorably on his behalf. He recalled the faculty meeting wherein Rydzik was introduced as a union representative. He testified that he called Rydzik in to inform him of his tardiness and his failure to fulfill his bathroom duties. He testified that Rydzik was late as much as 5 minutes on two occasions and 30 minutes on several occasions; he also recalled the problem with regard to Rydzik's planbook. He testified that his rapport was somewhat weak in that he failed to speak with and listen to his department head. The only deficiency notes on his evaluation was lateness in turning in his planbook. He was aware of no other instructional personnel that Rydzik had problems with. Campbell testified that Rydzik inquired why he was not being recommended for employment for the coming school year whereupon he informed him that it was a personnel cutback. He testified that he lost a total of six employees and he filled three of those positions which included a Spanish instructor and an industrial arts instructor. He testified that Rydzik was not appointed or recruited for the industrial arts position inasmuch as he lacked state certification in industrial arts. Campbell testified that he did not respond to Rydzik's request for a written list of deficiencies because he felt that that was "within his discretion." Campbell testified that he did not personally observe Rydzik. He testified that he would see Rydzik in the hall and around the campus but he relied on the evaluations of his curriculum assistant and the assistant principal and it was his own decision not to rehire Rydzik based on his discretionary authority. Campbell testified that he retained teachers normally with effective evaluations. Campbell testified that from the period of March 21, which was the date of his first evaluation of Rydzik thru April 2, 1975, which was the period that he made the decision not to renew or rehire him, he witnessed no improvement in Rydzik's tardiness, his bathroom duties or his plan book difficulties. Campbell also denied that he told Rydzik that he preferred a local building representative rather than a union. With regard to Rydzik's protest of the failure to provide english books to each student, Campbell testified that he referred the letter to the language arts department wherein they advised that books would not be a worthwhile expenditure for the current year but the parties did agree to provide books for the coming school year. Campbell indicated however that he did not respond to the union's letter concerning this problem. He testified that he is of the opinion that he is an administrator and the department head can best determine the needs of students due to their daily contact. Campbell testified that he was never told by Dr. Forguson that the discharge of Rydzik was not a grievable matter. Campbell admits having knowledge of Rydzik's union activities and also of knowing that Rydzik and others were interested in breaking away from PCTA and forming an affiliate of FTA. Campbell testified that he was unaware of Rydzik's relationship with his peers or what they thought of him personally. Campbell testified that he did not personally observe Rydzik's plan book prior to his determination to not renew his contract. Campbell testified that he was rated by PCTA in June and that his overall rating was 3.6. Linda Elkins, an art teacher of approximately 5 years and who is on continuing contract has known Rydzik for approximately 1 year. Elkins testified that she approached Rydzik regarding forcing a union and that he attended several meetings with officials of AFT. She testified that Rydzik was very active in the union's organizational drive. Elkins testified that she had a son who was one of Rydzik's students end he rated Rydzik as the "top teacher" of the school. She testified that she taught some of the same students as Rydzik and she heard favorable comments from several students regarding his teaching ability. She testified that she observed Rydzik's plan book and it was more thorough then many others whose plan books were approved and she was accordingly led to believe that Rydzik was about to be "axed." She also testified that it was probably true that Rydzik should not have played an active role in the union drive. She testified that since the discharge of Rydzik, most employees without continuing contracts status are afraid to participate in collective activities. On cross examination, she testified that several employees informed her that inasmuch as they were on annual contracts they would not sign the petition supportive of Rydzik. She testified that over 100 students commended Rydzik on his teaching abilities. Elkins testified that she was late and she received a note cautioning her to not be late again. She reiterated the fact that morale seemed to drop after Rydzik's separation. Donald W. Livesey, an employee for approximately 5 years was called and examined as follows: Livesey testified that Rydzik assisted him in trying to bring an affiliate of AFT into the school. He testified that Rydzik solicited him to join the union and that Rydzik got along with most employees. He testified that Rydzik "could have had a problem with his department head, Monique Lefebre." He testified that Rydzik asked to borrow his plan book which he loaned to him. He testified that Rydzik took his plan book home and based on his observation of Rydzik's plan book, it was better than most teachers. He testified that Rydzik was one of the "better dressed teachers in the school," end the parents often expressed a desire to have him teach school there based on his good rapport with kids. He testified that Rydzik was very active in all the plans and extra curricular activities end that his plan beak was very good. He expressed the opinion that Rydzik was a "superior teacher" and does not remember Rydzik not being on bathroom duty. He testified that during early 1975, the tension mounted after the commencement of collective bargaining negotiations. He also testified that a co-employee, a Mrs. Snell, did not sign a petition supportive of Rydzik until she was informed that she would be recommended for employment for the coming school year. He stated that it is common knowledge throughout the school that employees fear reprisals for testifying and they are expressing tenseness due to Rydzik's separation. He expressed his opinion that Rydzik was terminated due to his union activities. On cross examination he reiterated basically the same testimony that he testified to on direct. Barbara Snell, an employee at Hudson High School for approximately 3 years was called next and examined as follows: Snell testified that she had been tardy approximately 6 times during the period from July 1, 1974 thru April 1, 1975. She testified that she arrived earlier on numerous occasions, approximately 10 minutes and she on occasions remained late. She testified that she shared bathroom duty with Rydzik and that because she knew that they were being watched, she made a special effort to avoid being remiss in her bathroom duties. She testified that she could overhear Mr. Rydzik's class lectures because their planning periods were staggered and in her opinion Mr. Rydzik was "one of the best teachers she had seen". She testified that she feared reprisals from her employer due to the fact that she is an annual contract teacher. She voiced her opinion that the atmosphere around the campus has been somewhat tense and the employees fear being critical of the principal, Mr. Campbell. She testified that she signed the petition supportive of Mr. Rydzik after she had been rehired for the current school year. Bruce Bluebaum, a math teacher of approximately 4 years was called and testified that he knew Mr. Rydzik and that their homerooms were on opposite sides of the hall facing each other. He testified that on numerous occasions he observed Mr. Rydzik on bathroom duty and he was always in and around the bathroom during the class period changes. He testified that students liked Rydzik very much and always "flocked around him". Bluebaum testified that Rydzik worked diligently about his planbook and in his opinion, his plan book was excellent. He testified that Rydzik's planbook would always be turned down based on the dislike that existed between Mrs. Lefebre, his department head, and he. He opined that Mrs. Lefebre would search to find a way of "axing him". He testified that Rydzik was regarded as the "leader in the school". As to Rydzik's teaching abilities, he related an incident wherein he put on a mock trial and he also generally stated that Rydzik was "very innovative and a very good teacher". He gave the opinion that Rydzik was dismissed because he was "too vocal" in union activities and due to the dislike of him by his department head. On cross examination, he also opined that the teachers around the campus felt that the principal, Mr. Campbell, was led astray and made the wrong decision with regard to discharging or, that is, not rehiring Rydzik. He testified that when a union meeting was announced, Mr. Campbell would make the announcement in a manner which tended to show that he somewhat disliked having union meetings held on the campus facility whereas employees were asked or "forced" to sit through meetings regarding sales of "pot and pans". He indicated this same procedure with regard to insurance sales. Bluebaum testified that grievances were not well accepted around Gulf High School. Ruth J. Morris, a community school manager and employed at Gulf Junior High for approximately 9 years testified that she has known Fred Rydzik for approximately 2 years. Morris is presently the school's building representative. She testified that she had dealt with the principal, Mr. Campbell, on numerous occasions and she has assisted in the development of evaluation forms. She testified that evaluations tend to lose their worth because "different standards are used" nor do principals place much reliance on evaluations but that a new teacher will tend to feel that if they are not evaluated highly, it will play some important role in whether or not they will be rehired the next year. She testified that she evaluated Mr. Rydzik's planbook and told him that it was excellent. She testified that the employees in her opinion were afraid of criticizing Mr. Campbell but in cross examination she also testified that complaints were received satisfactorily by him. Campbell, she noted, was rated very good in an evaluation conducted by PCTA. Respondent's Defense to CA-1041 Monique Lefebre, Department Chairman, Social Science at Crawford Junior High School, has served in that capacity for approximately 5 years. She was the alleged discriminatee, Fred Rydzik's department chairman. Lafebre testified that Rydzik turned in his planbook only once or twice and that she did not talk to him about not timely turning in his planbook. She testified that initially Rydzik failed to perform his bathroom duty but that after warning him, he fulfilled his duties in that regard. This was noticed by her particularly after Rydzik received his mid-term evaluation. Lefebre also testified that she noted certain deficiencies in Rydzik's planbook percentages and that based or the manner in which she criticized them, there was no way that he could correct the deficiencies inasmuch as the time period had passed wherein such deficiencies could have been corrected. She testified that during a faculty meeting at the early part of the school year, male instructional personnel were told to wear a tie during school hours and to refrain from walking out of the faculty lounge with coffee. She testified that she observed Rydzik not wearing a tie for a period of approximately 15 days after this rule was announced and when she spoke to him about not wearing a tie and he failed to heed her advice, she then spoke to the principal. She testified she was aware that other teachers violated the coffee rule also although she did not personally see them. She testified that this was an unwritten rule and to the best of her recollection Rydzik was not present when the principal announced the rules regarding males wearing a tie or that they were not to walk out of the faculty lounge with coffee. She testified that the problem with regard to Rydzik not performing his bathroom patrolling occurred during the early part of the year, perhaps in late August or early September but that after he was evaluated during the early part of the year she did not notice him failing to perform his bathroom duty. James Campbell, the principal at Gulf, indicates that the sign in sign out sheets have been in effect for quite some time at the school. Respondent's exhibit no. 9 reflects inter alia, the sign in - sign out records of Rydzik and other instructional personnel at the school. He testified that he noted on a few occasions Rydzik would write in or drawn in a "smiling face" in the spot where he was to sign in. Campbell testified that based on his calculation Rydzik was late on approximately 51 occasions during the school year and that 3 occasions his secretary called him and he was late for as much as one hour. Campbell was rated by PCTA and on that evaluation form he was rated 3.6 of a possible 5. (See Respondent's exhibit no. 10, received in evidence). Campbell testified that union activities played no part in his decision to not rehire Rydzik nor did he have any knowledge as to Rydzik's serving as a building representative or running for any union office. On cross examination, Campbell testified he evaluated Rydzik on or about September 22 and his final evaluation came approximately 3 weeks later. He testified that in his opinion, 3 weeks was sufficient for Rydzik to correct any deficiencies noted on his evaluation. Campbell testified that school officially starts at 6:30 and homeroom begins approximately 6:45 a.m. He also testified that during the early part of the school year the time clock was not working and a small clock was used to apprise the employees of the correct time. A casual or cursory look at the time sheets indicates that there were a number of instructors who were late and that the correct time was not always adhered to nor was there any rigid policing of the time sheets. That is to say that instructors would often record that they would come in at say 6:30 a.m. whereas they might in fact arrive at 5:30 a.m. or on the other hand they might arrive at 6:45 a.m. and the same is true for signing out. Specifically employees may sign out at 2:00 and leave the building at say 1:30 or they may leave as late as 4:00. Campbell testified that he did net regard the fact that employees signed in when in fact they arrived earlier than that period as being violative of the "sign-in" rule and that the only objection he had to such procedure was a situation where for example a faculty member would leave the school say at 1:40 and sign out at 2:00. The records reflect that other employees were late a number of times. One case in point is Lucia Adkinson. Her time sheet reflects that she was late as much as 27 times during the past school year for a total of 665 minutes. The record also reflects that there was no method whereby one could determine whether employees were late or whether they were out on school business. Campbell's testimony regarding the sign-in, or time sheets reflect that a number of employees were late and this can be established by looking at the time sheets for Gene Lydman, Debbie Snyder, Mrs. Fisk, William Lynch, and a number of other employees, too numerous to recite herein. It was also noted that the time sheets are recorded in pencil and are easily distorted and difficult to determine if in fact an alteration has been made. Testimony was also heard by Campbell that on the PCTA evaluation form his lowest rating was in the area of "evaluating objectively after sufficient observation". Dr. Ferguson was called and testified that based on an examination after the hearing in the subject case commenced, he was able to determine that 5 employees were promoted to managerial or non-unit positions after Mr. Weightman was nominated. He testified that one employee was put on 4th year continuing contract and served as a building representative rather than on annual contract. He testified that throughout the county, approximately 19 annual contract teachers were not rehired and that 7 teachers were put on 4th year annual contracts. He testified that an examination of the school boards records indicate that on June, 1975, there were approximately 590 employees on dues check off and that on July 28th the number was 429 employees and the 429 figure does not reflect those employees who were serving on D track. Ferguson testified that the only alleged discriminatee that he knew was Ron Eckstein and this knowledge came from observing his picture in the collective bargaining agreement which is charging parties exhibit no. 3 received in evidence. At the conclusion of case numbers 1037; 1040 and 1041, counsel for Respondent asked the hearing officer to take official notice of the official regulations of the Department of Education and official notice of Florida Statutes 447. Thereafter Respondent rested as to cases 1037; 1040 end 1041. General Counsel end Charging Party's rebuttal in cases 1037, 1040 and 1041 Ronald Claybeck, an unemployed male teacher who served the previous school year at Hudson Senior High testified that his prior experience included serving as a teacher in New York State's school system for approximately 12 years. Claybeck testified as to conversations preceding the election and subsequent to the election of the social studies chairmen at Ronald Eckstein's school. Claybeck testified that there were conversations regarding the number of possible ballots to be cast regarding the recommendation to the principal for the social studies chairmanship and there was some discussion as to whether two deans who were working in the social studies or other departments would be permitted to vote. Those individuals are a Mr. Carvealis and a Mr. Menticus. He said the conversation was generally that the two deans would be permitted to vote in the election. He testified that Carvealis indicated that he would vote for Potts who in fact received the chairmanship due to a personality clash that Carvealis had with Eckstein. Clayback expressed a reluctance to testify end in fact testified under subpoena because he "feared his wife's job (an elementary teacher at Hudson Elementary School)." Claybeck testified that he and Potts are neighbors and that Potts told him that Eckstein was "a competent teacher end that he (Potts) indicated as much to the principal, Coy Pigman". He testified that Potts indicated to him that he was called in by Pigman and asked if he wanted the chairmanship. Clayback testified that Potts remained neutral as to the chairmanship because Eckstein was a good teacher although he differed with him regarding his teaching methods. Clayback testified that it was obvious that Carvealis and Eckstein did not agree with each other. Clayback testified that another factor leading to his reluctance to testify was occasioned by the fact that he was called approximately two days before his appearance and he had an unlisted phone number. He testified that he was told that if he testified, "his wife's job would be in jeopardy". On redirect examination Clayback testified that he attended the union hall and was given a subpoena by Mr. Matthew, charging parties' attorney and he also gave his phone number to Larry Smith, union president. Fred Rydzik was also recalled and testified that he was not given a new school book by his department head, Mrs. Lefebre. Rydzik also testified he was not evaluated by Lefebre, nor did she assist or advise him of his duties nor did she tell him that he was deficient. Rydzik testified that he turned his planbook in approximately 12 times at 3 week intervals as per the schedule and that to the best of his recollection he failed to turn the planbook in only on two occasions meaning that he in fact turned the planbook in approximately 10 times. He testified that his planbook was never approved by Mrs. Lefebre. He testified that he was unaware of any dress code relating to males wearing a tie. He also denied that he failed to wear a tie on 15 occasions as testified to by Mrs. Lefebre. Mr. Rydzik also denied taking coffee to areas other than the yearbook planning and production area and that he served his bathroom duty daily. Rydzik testified that the schedule relating to patrolling the bathroom and the hall was "a loose schedule". Rydzik testified that on 3 occasions the office secretary called and informed him that he forgot to sign in and in those instances, his entry for signing in remained blank. He testified that he was late on no more than seven occasions and this was for a period of 5 minutes or so. He testified that there were approximately 3 times that he was late as much as 1 hour and that his examination of the time sheets indicate that there were approximately 12 alterations. On redirect examination, Rydzik testified that sometime in January, 1975, Campbell told the employees that they would not sign others out and that he obeyed this mandate. Josephine Lofland was also called to testify and testified that it was common practice to sign in at the proper time even though employees did not always arrive at the time recorded. She testified that on example of this was Art Engle, a curriculum coordinator who was late on several occasions according to a Mrs. Williams. This concluded the evidence taken in cases 1037, 1040 and 1041. Case Number Ca-1062 and Case Number CA-1082 Larry Smith, the union president was called and testified that he assisted in the negotiations for end ratification of the current collective bargaining agreement. (Charging Parties' exhibit no. 3). Smith testified that both parties were pleased to ratify the contract and they discussed the amiable relationship that existed based on the contract. Smith testified that good faith bargaining existed through November, 1974, end that the union supported the incumbent superintendent, Ray Stewart, actively. Smith testified that he started working with the newly elected superintendent Weightman, late in November, 1974. Smith testified that in late January or early February, 1975, the negotiations and the atmosphere appeared to, in his opinion, "breakdown." He testified that he requested voluntary recognition and that he presented to Dr. Ferguson, the Respondent's designated collective bargaining agent, approximately 90 percent of the employees who had executed authorization forms. He testified that Dr. Ferguson recommended recognition be granted on a voluntary basis. Accordingly, PCTA was certified by PERC on April 17, 1975. Negotiations for a collective bargaining agreement began on or about April 24, 1975, and a mediator was assigned approximately 60 days thereafter, after the parties had reached an impasse. Smith testified that he contacted a mediator and the mediator indicated that he would be pleased to assist the parties at arriving at a settlement but based on his experience in the mediation field, it would be fruitless to do so unless he was requested jointly by both parties. Smith testified that a special master was assigned sometime in early July, 1975. Smith testified that he received a written authorization from Mr. Weightman designating Ferguson as the school board's agent for collective bargaining. Smith testified that he was present at all the negotiations and acted as the union's chief spokesman. The proposal submitted by the union included salary and increment proposals, planning days etc. Smith testified that at a school board meeting on or about May 6, 1975, the school board, over his objection, adopted the proposed schedule as provided in the old collective bargaining agreement i.e., (Charging Parties' exhibit no. 3). Smith indicated that this objection came through oral objection and by a letter sent to Mr. Ferguson prior to May 6. Smith testified that Ferguson was not prepared to and did not present salary proposals, based on a claim that the parties or the school board did not know its true financial condition. Smith testified that at no time did the union waive its right on salaries, planning days or salary increments. He testified that increments were cut by approximately 5 percent and instructional personnel salaries were frozen at the old rate. Smith recalls making an objection after he was shown charging parties' exhibit no. 33 which was received in evidence. Smith testified that he had no indication that check off authorizations would be revoked prior to the cut off by the school board. Charging parties' exhibit no. 33 received in evidence is a reflection of the evidence regarding dues check off. Smith testified that he advised Ferguson that the dues authorizations were continuous in nature and that article 2, section 2, page 3 of charging parties' exhibit no. 3 in fact provides for continuous check off. Smith testified that he was afforded a short period i.e., from July 28th thru August 5th to sign the D Track teachers and this is evidenced by charging parties' exhibit no. 34 received in evidence. He testified that he expressed concern about the short period of time to Dr. Ferguson. The testimony indicated that D Track teachers were off duty during the period In question and therefore they had to be contacted either at their homes or through other means. Smith testified that he thereafter contacted PERC regarding the dues check off problem and PERC indicated its opinion which in essence is an advisory opinion indicating that in its opinion the dues check off authorizations were not in violation of Florida Statutes, 74, Chapter 100. On cross examination Smith reiterated the fact that after Mr. Weightman took office the bargaining relation ship appeared to "breakdown." Smith testified that on July 2, Dr. Ferguson advised him that if employees were not signed by the date indicated in his letter i.e., August 5, they would not be deducted.
Recommendation Based on the foregoing findings and conclusions I hereby recommend that the Public Employees Relations Commission enter an order finding that the actions by Respondent, as set forth above and more specifically in the subject administrative complaints, constitute unfair labor practices within the meaning of Section 447.501(1)(a) and (b), Florida Statutes, as alleged. RECOMMENDED this 28th day of April, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact The Respondent caused the experience increments which had been in effect for all adult education teachers to be modified or terminated, and reduced the hourly wage amounts paid to adult education teachers. However, the real question presented is whether adult education teachers were included within the bargaining unit. The position of adult education teachers was not mentioned either in the inclusions or exclusions of the descriptions of the bargaining unit. Whether they would be included therefore turns upon whether adult education teachers are regularly employed certificated personnel." Adult education teachers were not required to be certificated, one primary requirement for inclusion in the unit. In addition, persons employed in the adult education program included both certificated day-time teachers and administrative personnel specifically excluded from the unit. Their employment was not contractual and could be terminated if a particular class was cancelled or dropped based upon lack of student enrollment. In such a case the adult education teacher's employment would be automatically terminated. Adult education classes were presented at night and the maximum number of hours that any adult education teacher would work would be six (6) hours per week. For both groups, employment as an adult education teacher was in addition to their regular employment. From a budgetary standpoint, adult education teachers were compensated from a separate functional breakout within the school budget to which that portion of their compensation earned as an adult education teacher was charged. No deductions were made from the adult education portion of a teacher's salary for retirement or Social Security. Based on the foregoing facts, the Hearing Officer finds that adult education teachers are not "regularly employed certificated personnel" and therefore, are not within the bargaining unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no action be taken on the charges as stated in Paragraphs 10(A)(B)(C)(D)(E)(F)(G)(J)(H) and Paragraphs 11(A) and (B). Based upon the foregoing Findings of Fact and Conclusions of Law relating to Issue XI and Paragraph 10(H) of the complaint, the Hearing Officer would recommend that the Commission enter its order requiring the Respondent to cease and desist its refusal to bargain upon request over mandatory items of collective bargaining. DONE and ORDERED this 29th day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ron Meyer, Esquire Frank & Meyer, P.A. Flagship Bank Building Tampa, Florida Norman J. Smith, Esquire Brinson and Smith, P.A. Post Office Drawer 1549 Kissimmee, Florida 32741 Austin Reed, Esquire Public Employee Relations Commission 2003 Apalachee Parkway Tallahassee, Florida 32301 Mr. Leonard Carson, Chairman Public Employees Relations Commission 2003 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether Petitioner has just cause to terminate the employment of Respondent.
Findings Of Fact Petitioner first employed Respondent, as a custodian, in late 1991. Respondent's first job was as a substitute custodian, which was a temporary assignment offering few benefits. Petitioner assigned Respondent to Sarasota High School. The substitute position is also known as a non-appointed position. On February 1, 1994, Petitioner changed Respondent's status from non-appointed to appointed. Respondent successfully completed the six-month probationary period. Two years later, Petitioner transferred Respondent from Sarasota High School to the Oak Park School. This transfer resulted from the settlement of a grievance proceeding concerning a matter unrelated to the issues in this case. At the end of the 1996-97 school year, Petitioner transferred Respondent to Sarasota High School. By this time, Respondent had sufficient seniority to be able to bid for a job at a school of his choosing, and Respondent desired to work at Sarasota High School. Respondent began to experience serious job-related problems during the 1997-98 school year. He did a poor job cleaning the classrooms and other assigned areas. His supervisor estimated that Respondent would complete about 60 percent of his assignment. Frequently, Respondent was a "no call, no show," meaning that he neither appeared for work when scheduled nor called in advance of his nonappearance. On at least one occasion in December 1997, Respondent left work early, without permission, so that his supervisor had to have another custodian finish Respondent's job. From the 1997-98 school year until Respondent's departure from employment with Petitioner, he was repeatedly late, absent, or early in departing. On the many occasions on which Respondent was a "no call, no show," Petitioner was required to assign Respondent's work to another custodian working the same shift. This custodian would have to complete his or her own work and Respondent's work in the same shift. This repeated situation undermined the morale of Respondent's coworkers, who resented the extra work for which they received no additional compensation and their inability to do a good job, in the available time, on their assignment and Respondent's assignment. By letter dated April 16, 1998, Petitioner suspended Respondent for one day without pay due to his insubordination. After receiving this discipline, Respondent continued to require reminders from Petitioner about Petitioner's policies for requesting leave and documenting sick leave. Respondent's repeated failure to comply with these policies constituted insubordination. In January 1999, another custodian was serving as acting head custodian during the night shift that Respondent worked. A vendor representative visited the high school to examine some equipment. When the acting head custodian asked Respondent to show the representative a piece of equipment normally used by Respondent, Respondent refused. Angry at the persistence of the acting head custodian in repeating the request, Respondent then attacked the acting head custodian, grasping the man's neck so hard as to leave marks. Respondent was again disciplined for his insubordination. By letter dated March 17, 1999, Petitioner suspended Respondent for three days without pay. On March 3, 1999, Petitioner transferred Respondent from Sarasota High School to "Regional," which refers to an area encompassing several schools. During the summer of 1999, Respondent worked at the Sarasota County Technical Institute. On July 13, 1999, the senior head custodian could not find Respondent, who had already displayed the same work habits and attendance problems that had characterized his earlier employment with Petitioner. When the head custodian finally found Respondent, the head custodian accused Respondent of shirking his work. The record does not permit a finding as to whether Respondent was really performing his work. However, about an hour after giving Respondent a new assignment of cleaning some windows, the senior head custodian checked up on Respondent. Finding him productively at work, the senior head custodian complimented Respondent by saying, "Good job." Respondent replied, "You don't know who you are messing with." Respondent left the job early, without permission. The next day, Respondent called the regional manager for the Facilities Department, who is the supervisor of the senior head custodians. He warned her that if she sent him back to Sarasota County Technical Institute, he might do something bad to the senior head custodian. The regional manager immediately reassigned Respondent so that he could work at Riverview High School. After initially proposing to terminate Respondent, by letter dated August 18, 1999, Petitioner suspended Respondent for one day with pay for insubordination. As the 1999-00 school year proceeded, Respondent continued his pattern of "no call, no show," tardy appearances, and early departures. For example, from October 11, 1999, through March 24, 2000, Respondent was "no call, no show" on 11 occasions. The other custodians increasingly resented Respondent's unreliability because they had to perform Respondent's work without additional pay. Evidently learning of the dissatisfaction of one custodian, Respondent angrily confronted her by getting in her face, shaking his finger at her, and warning her that if she did not have anything good to say, she should not say anything at all. Despite the exhortations of his supervisors and coworkers, Respondent continued to disregard Petitioner's attendance and notification policies. Finally, on March 24, 2000, Respondent showed up with 15 minutes left in the eight-hour shift that he had specifically requested the night before and explained that he had had car trouble. He did not offer an explanation for why he had failed to call his supervisors and Petitioner's district office to notify them of this claimed problem. This incident effectively ended Respondent's employment with Petitioner. By letter dated June 19, 2000, Petitioner terminated Respondent's employment, effective July 12, 2000, due to insubordination. During his employment with Petitioner, Respondent repeatedly disregarded Respondent's policies regarding notification and documentation of leave, repeatedly disregarded the reasonable requests of his supervisors that he comply with these policies, repeatedly ignored the reasonable requests of his supervisors to perform specific assignments in a competent manner, and repeatedly abused coworkers, to the point of grasping one by the throat. In context, these behaviors by Respondent constituted gross insubordination.
Recommendation It is RECOMMENDED that the Sarasota County School Board enter a final order terminating Respondent's employment with the school board effective July 12, 2000. DONE AND ENTERED this 18th day of September, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 18th day of September, 2000. COPIES FURNISHED: Dr. David Bennett, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231 Honorable Tom Gallagher, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Charles D. Bailey, III Bowman George 22 South Tuttle Avenue, Suite 3 Sarasota, Florida 34237 Wayne Goff 107 20th Street West Palmetto, Florida 34221
The Issue The issue in this case is whether the School Board of Pinellas County (School Board) should accept the Petitioner's recision of her resignation from her position as a high school teacher and reinstate her to her former position on the ground that her resignation was given under legal duress.
Findings Of Fact During the 1992/1993 school year, the Petitioner, Deborah Green, taught high school in the GOALS (drop-out prevention) program at Dixie Hollins High School. In January, 1993, she applied for a year of medical leave of absence due to stress and stress-related symptoms. The School Board approved leave starting January 27, through June 11, 1993. Shortly after going on medical leave, the Petitioner was notified that a student had made serious accusations against her. One of the accusations was that the Petitioner freely told the student details about her romantic relationship with a Michael Miller, who was married and the principal of another Pinellas County high school. She contacted the student to find out what the accusations were and met with her principal and the student and his mother to discuss the accusation. At the meeting, the student recanted. The Petitioner left for Dallas, Texas, shortly after her leave began, but she continued to receive telephone messages locally through her friend and former housemate. Not long after the Petitioner left for Dallas, the student who had accused her, and then recanted, again accused the Respondent, alleging that he had recanted because the Petitioner had asked him to lie for her. When this happened, the principal of Dixie Hollins referred the matter to Stephen Crosby, Director of Personnel Services for the Pinellas County Schools. Crosby called the Petitioner at her local telephone number and left a message. When the Petitioner returned the call from Dallas, Crosby explained that he was investigating serious charges that had been made against her and that, as always in such circumstances, it was important for him to meet with her about them as soon as possible. The Petitioner declined, stating that she was not emotionally, mentally, or physically prepared at the time to handle the situation or the stress of the situation. She insisted that her meeting with Crosby be postponed. As an accommodation to the Petitioner, Crosby agreed to postpone the meeting, and the two agreed to meet on March 1, 1993. On or about February 28, 1993, on a return trip to Pinellas County, the Petitioner visited her school and left a written message for Crosby to tell him that she still was unable to meet with him and would not attend the scheduled March 1, 1993, meeting. Crosby did not get the message until the morning of the scheduled meeting. On receipt of the message, Crosby turned to the School Board's legal office for advice on how to proceed. Based on the advice of counsel, Crosby sent the Petitioner a letter stating that he viewed the delay in the interview until March 1 to be an unusual accommodation, since teacher interviews normally are conducted as soon as he becomes aware of the charges. He wrote that, since the Petitioner would not meet on March 1, as they had agreed, he would have to proceed exclusively on the basis of his interviews of students and others. In accordance with normal procedures, he also advised her that, unless she chose to resign by March 12, 1993, he would be recommending to the School Superintendent that he recommend to the School Board that the Petitioner be dismissed. On March 3, 1993, the Petitioner received Crosby's March 1 letter and wrote back in response to offer her resignation, effective June 11, 1993. In the Petitioner's own written words, she resigned "for my personal sanity and for the credibility of Michael Miller." Crosby processed the Petitioner's resignation to be considered at the March 24, 1993, School Board meeting. It is standard operating procedure to process resignations before their effective dates, if possible, so that replacement personnel can be hired. The School Board accepted the Petitioner's resignation (among others) at its March 24, 1993, meeting. The Petitioner tried unsuccessfully several times after March 24, 1993, to contact Crosby by telephone to rescind her resignation. She was unable to speak to him but was told that the School Board already had accepted her resignation and that it was too late to rescind it. In April, 1993, the Petitioner learned that the Florida Education Practices Commission of the Florida Department of Education also was investigating the allegations against her, notwithstanding her resignation. On or about June 3, 1993, the Petitioner returned to Pinellas County and met with a lawyer about getting her teaching position back and about defending her teacher certificate. On June 8, 1993, the lawyer wrote a letter to the School Board Attorney (which was received on or before June 11, 1993) purporting to rescind the Petitioner's resignation. It was not proven that the Petitioner had no choice but to resign from her position as a teacher between March 1 and March 12, 1993, due to her emotional, mental and physical condition at the time. As a result of her long-standing membership in the local teachers' union, the Pinellas Classroom Teachers Association (PCTA), the Petitioner knew that dues-paying members of the PCTA may be entitled to the services of an attorney, free of charge, in a teacher dismissal proceeding. She claimed that she did not know she still was entitled to free legal counsel after going on medical leave of absence as of January 27, 1993, and ceasing to pay union dues while on leave. However, there was no evidence that she inquired as to the availability of paid counsel until after the effective date of her resignation. Had she done so in a timely fashion, she would have learned before her resignation was accepted that she was entitled to the services of an attorney, free of charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the Amended Petition for Administrative Hearing. RECOMMENDED this 16th day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6074 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. Second sentence, rejected as not proven. Third sentence, accepted but subordinate and unnecessary. Rejected as not proven that she spoke to Crosby more than once. Explaining the discrepancies between her testimony and his is problematic. But some of the telephone conversations she supposedly had with Crosby would have been on weekends (e.g., January 16 and 23, 1993), giving rise to a question as to the accuracy of her testimony. In addition, the Petitioner's own evidence suggested that her condition during this time period impaired her thought process and memory. Perhaps the Petitioner is counting unsuccessful attempts to contact Crosby as actual conversations with him. Rejected as not proven that the Petitioner acted on the advice of her physician in cancelling the March 1, 1993, meeting with Crosby. Otherwise, accepted and incorporated. Accepted and incorporated. First sentence, rejected as not proven. Second sentence, rejected as not proven that she resigned "under protest because of her inability to participate in the investigation due to her medical condition"; otherwise, accepted and incorporated. First sentence, rejected as not proven. See 7., above. (Some of the telephone conversations she supposedly had with Crosby during this time period would have been during the spring school holidays when all school offices were closed.) Second sentence, accepted and incorporated. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected in part as not proven as to "rational decisions with respect to her employment"; otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. 4.-7. Accepted but subordinate and unnecessary. 8.-20. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. 23.-26. Accepted but subordinate and unnecessary. (As to 25., the referee appeared to be referring to Green's medical leave of absence.) COPIES FURNISHED: Mark F. Kelly, Esquire Kelly & McKee, P.A. P. O. Box 75638 Tampa, Florida 33675-0638 Keith B. Martin, Esquire Assistant School Board Attorney Pinellas County Schools Administration Building 301 Fourth Street SW Largo, Florida 34649-2942 Dr. J. Howard Hinesley Pinellas County School Board 301 4th Street SW Largo, Florida 34640-3536 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent, Jar Robert Roth, holds Florida Teaching Certificate 333599 issued by the Department of Education covering the areas of social studies, administration and supervision, and junior college. The Petitioner is an agency of the State of Florida charged with the licensure of teachers, regulating the licensure status of teachers and enforcing the professional practice standards related to teachers, and imposing disciplinary sanctions where proven to be appropriate. At all times material to this proceeding, the Respondent was employed by the Lee County School District as a teacher at Alva Middle School (Alva). At the beginning of the 1982-1983 school year, the Respondent taught an eighth grade physical education class. During the school year, the Respondent was teaching out of his field and had little prior experience with middle school students. The Respondent taught the physical education class for a short time, probably less than nine weeks. During this period of time, he had no difficulties or disciplinary problems between student Richie Jones and himself at all. One day in December 1982, Richie Jones, a 12-year old student, was walking down a hallway at Alva Middle School when he saw the Respondent approaching him. In a joking vein, Richie called the Respondent "ugly." The Respondent replied, "come here, kid" or words to that effect and advanced towards Richie. Richie replied to the effect that the Respondent should beware because he knew karate. At that juncture, the Respondent grabbed the student by the collar or lapels and pushed him against the wall, picking him up off the floor slightly (Richie was 12 years old and a very small child for his age). When this occurred, Richie told the Respondent that he was just joking. The Respondent replied "you'd better be," or a similar admonishment, possibly regarding sending Richie to the principal's office, and walked away. Richie walked away in the other direction. The record does not reflect whether the Respondent's comment before walking away was in a serious or joking vein. However, as revealed by Alice Moore, the Petitioner's own witness, a teacher who observed the incident, she saw Richie and the Respondent laughing and joking during the incident when the Respondent physically grabbed Richie, picked him up and pushed him against the wall. According to Ms. Moore, the time elapsed from the point when the Respondent and Richie were laughing and joking, to the time that the Respondent put him down and walked away, was only a matter of seconds. Richie possibly was briefly scared by the incident, but was unhurt, and, by his own admission, forgot about it and thought no more of it thereafter. No report of this incident to other teachers was made by Richie or anyone else. On the afternoon of January 6, 1983, at approximately 3:30 p.m., John Gouley, Glenn Dyess and Paul Meloy, Alva Middle School students, were walking to Alva Supply Store approximately one to one and a half blocks from the school, after school hours, to obtain refreshments. Paul was walking several steps ahead of John and Glenn as they were waling down the side of the road. At that time, John and Glenn were engaged in an argument. They were approximately one hundred yards from the school at that time. As the boys were walking along the side of the road, the Respondent passed them when leaving the school grounds in his van. The Respondent, in the belief that John Gouley had shouted "Roth sucks" or made an obscene gesture, or both, slammed on his brakes, jumped out of the van, and approached the boys. The Respondent got close to John Gouley, facing him, and Gouley asked "What did I do?" The Respondent replied, "I heard what you said" and the Respondent then pushed Gouley with the open palms of his hands applied to the boy's chest. Following this pushing, Gouley either fell into the ditch behind him or went down on one knee. The evidence in this regard conflicts. Gouley had grass stains on the seat of his pants as well as his knees. He maintains he fell into the ditch on his back, while the Respondent maintains the he merely grabbed Gouley's lapels causing him to go down on one knee. In any event, the Respondent admits to physically touching Gouley in this instance. Gouley was unhurt, although somewhat shaken and upset. The three boys then returned to school and reported the incident to Ms. Louise King, a physical education and health teacher at Alva Middle School, who was in the principal's office at the time the boys sought out the principal, who was absent at the time. The boys explained the incident to Ms. King. Ms. King observed Gouley's chest and saw that it was red, although not bruised and with no finger marks. Gouley was upset and crying at the time, and his clothes appeared dirty. Ms. King made notes of the incident and informed Mr. Watson, the Principal, by calling him at home. Both Glenn Dyess and Paul Meloy observed the incident, and two female students were present in the office when Ms. King and John Gouley were discussing the incident. Mr. Thomas Benton, Director of Personnel Services for the Lee County School District, interviewed the Respondent the following day, January 7, 1983. The Respondent told Mr. Benton that he did indeed push the student, indicating that he regretted it, but simply acted impulsively. In any event, the incident with John Gouley was related by Gouley to people at his church; his friends and other teachers were in various ways made aware of the incident. The fact of the incident was published in a newspaper of general circulation in Lee County, the Fort Myers News Press. Mr. Roth has been in the teaching profession for approximately 12 years, most of that time as a teacher and as a dean at Riverdale High School in Lee County. The last one and a half years before his resignation were spent in middle school, where he was required to teach out of his field with students younger than those he was accustomed to relating to and instructing. Mr. Roth's entire career has been characterized by exemplary performance of his duties, also characterized by a vital concern for his students' education and personal and social development. He is greatly concerned with the success of his students. Upon beginning teaching at Alva Middle School, when he observed many failing students in the sixth grade, he organized "Parent's Nights" so he could discuss the students' problems with parents and assist parents in helping the students at home so that more of them would pass his courses. His practice of the profession has also been characterized by extracurricular activities he has organized in order to attempt to make learning interesting for his students, and to assist to motivating them. Indeed, one parent, Mrs. Helen Henderson, thought that the Respondent made a substantial contribution to education in Lee County, finding him to be a dedicated, considerate teacher who is the only teacher in the 17 years this parent had children in both Riverdale and Alva Middle Schools, who bothered to call her from his home in the evening to discuss the problems here child was having, and to offer his assistance. That assistance for her daughter resulted in her raising her poor grade average to an "A" average. This parent found the Respondent always willing to share his knowledge and give extra help to students, and the students in his seventh grade science and other classes were taught extra skills compared to other sections dealing with the same subject matter and grade level. Additionally, the Respondent taught an extra first aid class which he organized and offered on his own for the benefit of his students, and this parent found his method of teaching, based upon experience with her daughter's progress in Roth's classes, to be both fun and interesting. This parent, who was aware of the incident involved in the case at bar and the publicity related to it, obviously would allow the Respondent to educate her children if that were still possible, even with that knowledge. Ms. Karen Dyess, another parent, who had a son in the Respondent's class, also found him to be an exemplary teacher. This parent's son was having difficulty with the subjects in Mr. Roth's class and Ms. Dyess attended a number of classes to observe. The Respondent's class was well organized and the Respondent had a good rapport with his students. He conducted himself in a totally professional manner. The Respondent made extra efforts to enable Ms. Dyess' son to pass the course, to no avail. Ms. Dyess, however, believes the Respondent put forth a lot of extra professional effort in assisting her son, and she was impressed with his sincere desire to help him, and indeed Ms. Dyess has commended the Respondent to his Principal, Mr. Watson. This parent, also with knowledge of the altercation involved in the case at bar, has a high opinion of the Respondent as a teacher and finds it would be regrettable to lose his services on "our teaching staff." The Respondent is married and the father of three children. There is no evidence that any such incidents have ever arisen in his professional career prior to those involved in the charges at issue. The Respondent enjoys teaching and working with young people and desires to continue teaching in the Lee County School System.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the penalty of a written reprimand shall be imposed as provided for in Section 231.262(6)(f), Florida Statutes. DONE AND ENTERED this 21st day of November 1984 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November 1984. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 John C. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Fort Myers, Florida 33901 Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Donald Grieshiemer, Executive Director Education Practices Commission Knott Building Tallahassee, Florida 32301
The Issue Whether Respondent's educator's certification should be sanctioned for alleged gross immorality or an act involving moral turpitude, and other offenses in violation of Section 231.2615(1)(c), (e), (f) and (2), Florida Statutes.
Findings Of Fact Respondent, Daniel Ayers, holds Florida Educator Certificate number 735644, which was valid through June 30, 2005. At all times relevant hereto Respondent was employed as a second grade teacher at Gulfport Elementary School in the Pinellas County School District during the relevant school year. On July 5, 2000, at about 8:15 p.m., Respondent entered the public restroom at Lake Seminole Park, Pinellas County Florida, where he was observed by Deputy James Brueckner of the Pinellas County Sheriff's Office. It is a well-used park, and people were present that evening. It was still light at that time, and Lake Seminole Park was being used by families and children. The playground is close to the northeast corner of the restroom Respondent entered. Respondent approached a urinal, and, after facing it for about 30 seconds, he went to the back wall where it was possible for him to observe, through the openings, anybody approaching the restroom. At that point, Respondent had his penis in his hands and was masturbating by holding his penis and fondling it. He then replaced his penis in his pants through the fly, pulled down his shorts, and began moving his hand up and down on his penis in a rapid motion. Deputy Brueckner, who was inside the restroom, removed his badge and identified himself to Respondent. He told Petitioner that he was a detective and showed him the badge. He told Respondent that he was under arrest, but that he should be calm. They would go out to his vehicle to do the paperwork. Respondent made a move towards the door, as if he was going to run. Deputy Brueckner grabbed him, and Respondent shoved the deputy and fled. Deputy Brueckner pursued Respondent and caught him. Respondent swatted the deputy several times. Two other deputies came to Deputy Brueckner's assistance, and Respondent was subdued. Respondent was charged with indecent exposure of sexual organs (a misdemeanor) and with resisting arrest with violence (a felony). He subsequently entered a plea of No Contest to the charge of indecent exposure of sexual organs and to the reduced charge of resisting arrest without violence in Pinellas County Circuit Court. He was adjudicated guilty on both charges by the court and placed on probation. Respondent admitted to Michael Bessette, an administrator in the office of professional standards, Pinellas County School District, that he was the person arrested and charged as a result of the incident on July 5, 2000. In Bessette's expert opinion, the public would not tolerate the type of behavior exhibited by Respondent on July 5, 2000, at Lake Seminole Park. Respondent's effectiveness as a teacher was seriously reduced to the point where the school district had to remove him from teaching duties. In Bessette's opinion Respondent engaged in conduct that constitutes gross immorality and would not be tolerated under state or local ethical standards. Respondent resigned his teaching position with the Pinellas County School District on April 25, 2001, following his conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent did violate the provisions of Section 231.2615(1)(c), (e), and (f), Florida Statutes. It is further RECOMMENDED that a final order be issued revoking Respondent's teaching certificate for three years, imposing a $1,000 fine for the above violations, and that upon re- application for certification, imposing such conditions as are just and reasonable. DONE AND ENTERED this 14th day of April, 2003, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2003. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731 Daniel Ayers 7096 111th Street, North Seminole, Florida 33772 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Mary Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400
The Issue The issues are as follows: (a) whether Respondent committed an unlawful employment action by discriminating against Petitioner based on his age and gender in violation of Section 760.10, Florida Statutes; and (b) whether Respondent retaliated against Petitioner for filing a grievance.
Findings Of Fact Respondent is a public taxing district responsible for educating Bay County's children from pre-kindergarten through high school. Respondent employs roughly 6000 instructional, support, and administrative personnel. Respondent's instructional employees are covered by Respondent's anti-discrimination policy and a collective bargaining agreement (CBA) between Respondent and the local bargaining unit, the Association of Bay County Educators (ABCE). The CBA governs many aspects of the employment relationship between the District and its teachers, including procedures for involuntary transfers and lay offs due to funding issues. Respondent's schools are divided as follows: (a) high school includes ninth grade through twelfth grade; (b) middle school includes sixth grade through eighth grade; and (c) elementary school includes kindergarten ages through fifth grade. Petitioner is a 51-year-old male. He began working for Respondent as a teacher in 1990. For the 2008/2009 school year, Petitioner worked as a teacher at Respondent's Haney Technical High School and Center (Haney). At that time, Haney operated two concurrent programs: a technical education program and a high school program. Petitioner taught physical education and science in the high school program. During the 2008/2009 school year, Respondent decided to eliminate the Haney high school program due to budget cuts and lower student census. Respondent also made the decision to combine the Haney technical education program with an adult education program from another closed school. The Haney high school program was not Respondent's only major adjustment for economic reasons. Respondent also closed five other schools and cut over 100 positions. This process resulted in 154 displaced teachers. All of Haney's high school teaching positions, including Petitioner's, were to be eliminated. Sandra Davis, principal at Haney, asked for voluntary transfers. No one in the high school program volunteered to transfer. Ms. Davis requested that certain high school teachers remain at Haney to teach in the restructured program at Haney. Ms. Davis made the decision to keep the teachers at Haney based on consideration of the projected need in the restructured Haney program for the upcoming year and after considering the teachers' certifications and experience. Teachers with continuing contracts or professional service contracts, who were not to remain at Haney, were placed in the displaced teachers' pool. The pool included Petitioner and all teachers who worked in schools or programs that Respondent intended to eliminate. There was a meeting on April 20, 2009, between Superintendent William Husfelt, the District's Personnel Department, and the displaced teachers in the District. At the meeting Respondent explained the procedures for transferring/reassigning displaced teachers. The displaced teachers were provided with a list of all of Respondent's vacant positions. Respondent then asked each displaced teacher to list their top three positions. Every teacher was granted an interview for their top three positions. Petitioner selected positions at Hiland Park Elementary School, Lynn Haven Elementary School, and Mowat Middle School. According to Petitioner, he listed the middle school because it was close to his home. He was granted and attended interviews for all three positions. Petitioner recently obtained his certification in elementary education. However, he had no recent substantive experience teaching elementary students. The principals who interviewed the displaced teachers selected the people to fill vacant positions at their respective schools on a competitive basis. During one such interview, it became apparent that Petitioner was not as familiar with the method of teaching reading as more experienced teachers and/or even other recently certified elementary education professionals. The vast majority of Petitioner's experience was teaching high school students. He was used to working with students more similar in age and behavior to middle school students. The principals who interviewed Petitioner did not select him to fill any of his top three positions. At the end of this interview/selection process, there were 34 teachers who were not selected for any position, including Petitioner. During the hearing, Petitioner confirmed that he did not believe any discrimination or retaliation took place prior to and through the time of the interviews. Petitioner understood it was a competitive selection process with over 100 applicants. On or about April 28, 2009, Respondent conducted a second meeting with the remaining displaced teachers. At the meeting, displaced teachers were again asked to list their top three choices for placement from the remaining vacant positions. Petitioner listed Hiland Park Elementary, Tommy Smith Elementary, and Lucille Moore Elementary. Superintendent considered the displaced teachers' lists, their certifications and experience, the vacant positions, and other factors. At no time did Respondent promise to place a displaced teacher in a position of the teachers' choice. Superintendent Husfelt placed Petitioner at Everitt Middle School, teaching science. Petitioner was qualified to fill the position, but it was not one of his choices on his second top-three list. Female applicants were appointed to fill all of the positions at the elementary schools. On or about May 11, 2009, Petitioner and Ms. Davis met to discuss Petitioner's informal grievance relative to his involuntary transfer. Ms. Davis denied the informal grievance. On May 26, 2009, Petitioner filed a formal Grievance with Ms. Davis regarding his involuntary transfer/reassignment. She denied the grievance. On June 10, 2009, Petitioner and Superintendent Husfelt's designee, Pat Martin, had a Step II grievance meeting. Respondent subsequently denied Petitioner's grievance. Sometime in June 2009, Petitioner applied for five vacant positions at Hiland Elementary School. There were fifth grade vacancies, two fourth-grade vacancies, and one third-grade vacancies. Petitioner received an interview for these positions. However, all five positions were filled with female teachers. The involuntary transfer did not cause Petitioner to suffer any loss of pay, benefits, or seniority. The new position was approximately five miles away from his former position. During the hearing, Petitioner testified that he researched the Internet to determine the percentage of male teachers in Respondent's elementary schools, kindergarten through grade five. According to Petitioner, four percent of the teachers are male. Respondent presented evidence that approximately 11.58 percent of its elementary school teachers, kindergarten through sixth grade, are male. These raw statistics, standing alone, are not competent evidence that Respondent is intentionally excluding male teachers in its elementary schools. Petitioner admitted during the hearing that he had no evidence regarding the age of Respondent's elementary school teachers, male or female. Therefore, there is no evidence of age discrimination. Petitioner stated at hearing that the transfer to the middle school caused him to suffer an adverse action because industrial air pollution in the area caused him to take more sick leave than when he taught at Haney, about five miles away. This argument has not been considered here because Petitioner raised it for the first time during the hearing and because Petitioner had no competent medical evidence to support his claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2010. COPIES FURNISHED: Robert Christopher Jackson, Esquire Harrison, Sale, McCloy, Duncan & Jackson, Chtd. 304 Magnolia Avenue Panama City, Florida Gerry D. McQuagge 1608 Georgia Avenue 32401 Lynn Haven, Florida 32444 Jerry Long, Ed. D. 803 Skyland Avenue Panama City, Florida 32401 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent Gadsden County School Board (the School Board or Respondent) discriminated against Petitioner Ronald D. Jones by terminating him on the basis of his gender in violation of the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes
Findings Of Fact Petitioner is a male, who, in the past, has held a professional teaching certificate from the Florida Department of Education. Petitioner held a professional teaching certificate from July 1, 1994, until June 30, 1999, with a certification to teach social science to students in grades five through nine. Petitioner's professional teaching certificate expired on June 30, 1999, and, as a result, Petitioner was no longer deemed eligible to teach by the Florida Department of Education. Petitioner, however, was still eligible to be employed as a substitute teacher. The School Board is the governing body responsible for the administration of public schools in Gadsden County, Florida. The Discrimination Complaint filed by Petitioner alleges: I believe I was terminated because of my sex (male). I was initially hired as a substitute teacher in March 2007 and received an appointment to an instructional position on February 26, 2008. I received a letter from Superintendent Reginald James dated July 29, 2008 informing me that I would not be reappointed for the 2008-2009 school term. I was replaced by a female employee. Petitioner's Discrimination Complaint is based upon the fact that he was not reappointed at George Munroe Elementary School (George Monroe) for the 2008-2009 school year. Petitioner initially worked at George Monroe beginning March 2007, as a substitute teacher. For the 2007-2008 school year, Petitioner continued to work as a substitute for George Monroe until he was hired on January 14, 2008, to an instructional position, left vacant by the resignation of another teacher. In this position, Petitioner taught fourth grade from February 28, 2008, until the end of the school year. At the time he was hired to the instructional position, Petitioner did not hold either a temporary certificate or a professional certificate to teach in Florida. Rather, Petitioner had applied to obtain another certificate to teach social science for grades 5 through 9 and held an Official Statement of Status of Eligibility (Official Statement) from the Florida Department of Education dated August 1, 2007. According to the Official Statement, in order to obtain a three-year nonrenewable Temporary Certificate covering Social Science (grades 5-9), Respondent needed to submit: a) verification of employment and request for issuance of certificate on the appropriate form from a Florida public, state-supported, or nonpublic school with an approved Professional Education Competence Program; and b) the results of his fingerprint processing from the Florida Department of Law Enforcement and FBI. In addition to the submissions required for a temporary certificate, the Official Statement advised that in order for Petitioner to receive a Professional Educator Certificate valid for five years covering Social Science (Grades 5-9), Petitioner must also submit: a) a completed CG-10 Application Form; b) a $56 fee; c) a passing score on the Professional Education Test; d) a passing score on the social science (grades 5-9) subject area examination; e) evidence of completion of an approved competence program; and f) evidence of additional semester hours or teaching experience in specified areas. At the time that Petitioner was hired to the instructional position in January 2008, because George Monroe was experiencing a shortage of teachers, it was possible for individuals with an application pending with the Florida Department of Education to be placed in an instructional position where there was an immediate need, pending completion of all requirements. Therefore, even though Petitioner did not have either a temporary certificate or professional certificate, Petitioner was hired to the instructional position because there was an immediate need and he had a pending application. His hiring, however, was also considered an "out-of-field" placement because he did not hold either a current or a pending certificate to teach the fourth grade. Near the end of the 2007-2008 school year, George Monroe began preliminary classroom and grade assignments in preparation for the 2008-2009 school year. Petitioner was preliminarily assigned to a fifth-grade position pending appointment by the Superintendent. This preliminary assignment was reflected in the agenda and supporting materials for a faculty meeting held May 28, 2008, at George Monroe to discuss the upcoming year. The grade and room assignments showed Petitioner as tentatively transferring from teaching fourth grade in B3 room 6 to teaching fifth grade in room P 99-08. In addition to Petitioner's tentative assignments, there were a number of other preliminary grade and tentative room assignments reflected in the agenda and supporting materials for the May 28, 2008, faculty meeting. In addition to Petitioner being preliminarily assigned to fifth grade, Ms. Avila and Mr. Clum were tentatively transferred to fourth grade, and Ms. Sylvester was moved from fourth grade to fifth grade. The agenda and supporting materials also reflect new room assignments for those teachers. Being given a preliminary grade or tentative room assignment as reflected on the agenda and supporting materials was not a guarantee of continued employment. Because of budget constraints for the upcoming 2008- 2009 school year, George Monroe's school district (School District) instructed its school principals to reduce staff. Staff reduction strategies from the School District included the suggestion that principals recommend to the Superintendent for termination those teachers who were not certified or were teaching out-of-field. Teaching "out-of-field" occurs when a teacher, although holding a temporary or professional teaching certificate, is not certified to teach the particular subject area or grade level to which they have been assigned. In Florida, teachers are not considered highly qualified if they are teaching out of field. The strategy of recommending for termination those teachers who are uncertified or teaching out-of-field was designed to meet budget constraints by first reducing teachers who were not highly qualified. Ida Walker, who at the time was the principal of George Monroe, met with Petitioner at the end of the 2007-2008 school year, but prior to June 30, 2008,1/ to discuss the status of his teaching certificate. During that meeting, Petitioner acknowledged that he was having problems obtaining his temporary certificate, and Ms. Walker reminded him that in order to teach, he had to have the paperwork to show that he was qualified to teach. Ms. Walker, together with School District staff, recommended to School Board Superintendent Reginald James (Superintendent) that he not reappoint six teachers at George Monroe, including Petitioner, who had not provided evidence of a valid teaching certificate or who otherwise did not meet the requirements for certification set forth in their individual statements of eligibility received from the Department of Education. Consistent with that recommendation, in a letter dated July 10, 2008, the Superintendent informed Petitioner that Petitioner would not be re-appointed for an instructional position for the 2008-2009 school year.2/ Unknown to Ms. Walker or the Superintendent, on July 7, 2008, prior to the date of the July 10, 2008, letter from the Superintendent, the Florida Department of Education (Department) issued Petitioner a temporary certificate certifying Petitioner to teach social science for grades five through nine. There is no evidence, however, that Ms. Walker, the School District, the School Board, or the Superintendent received notice that the temporary certificate had been issued. The Department, as a matter of course, does not provide such notification. Rather, it is the responsibility of the applicant, in this case, Petitioner, to provide such notification. In a letter to the School Board dated July 29, 2008, the Superintendent listed the names of various teachers and other personnel employed by the School Board that he recommended for termination. Petitioner's name, as well as the names of five other teachers at George Monroe that had been earlier identified by Ms. Walker and District staff for non- reappointment, was included on the Superintendent's list of recommended terminations. The other five teachers from George Monroe on the Superintendent's termination list were all female. At the School Board meeting held July 29, 2008, the School Board approved the Superintendent's recommended terminations. Of the six teachers from George Monroe who were not initially reappointed, two, not including Petitioner, were subsequently rehired by the School Board after they provided proof of proper certification, reapplied to a particular school, and were accepted by a receiving principal. Prior to the final hearing in this matter, Petitioner never provided a copy of his temporary certificate that was issued by the Department on July 7, 2008, to anyone in an effort to be reappointed to teach at George Monroe. In fact, November 15, 2010, the date of the final hearing in this case, was the first time that either Ms. Walker or the School Board was made aware of the fact that Petitioner had been issued a temporary certificate on July 7, 2008.3/ Even if Petitioner had provided George Monroe or the School Board with a copy of his temporary certificate, he still would not have been reappointed to George Monroe for the 2008- 2009 school year. That is, because Petitioner's certification is in social science, not elementary education, and his continued teaching at George Monroe would have been considered out-of-field. In addition, the evidence does not support Petitioner's allegation that he was replaced by a female employee. Although Petitioner was teaching fourth grade at the end of the 2007-2008 school year and was preliminarily assigned to the fifth grade, Petitioner was not guaranteed a position teaching fourth or fifth grade at George Monroe for the next school year. The evidence shows that there were two teachers, one male and one female, moved from the third grade to teach fourth grade, and one new female teacher from another school hired to teach fifth grade at George Monroe. All three teachers had valid professional teaching certificates in elementary education and were qualified to teach in the grades they were assigned at George Monroe. In contrast, Petitioner failed to demonstrate that he was qualified to teach elementary school at George Monroe for the 2008-2009 school year prior to his termination. There was otherwise no evidence submitted by Petitioner indicating that his termination was based on anything other than his failure to submit proof of his qualifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 19th day of January, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, 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 19th day of January, 2011.
