Findings Of Fact Respondent, Michael B. Smith (Smith), has been continuously employed as a teacher by Petitioner, School Board of Dade County (School Board) since 1977. During the 1985-86 school year, Smith was employed under a continuing contract as a work experience teacher at Miami Norland Senior High School. The Assault and Loan Among the students in Smith's second period work experience class was Colleen Ann Dougherty (Colleen); a 15 year old female and 10th grade student. Colleen had been a student of Smith's since September 1985, and they enjoyed a good student- teacher relationship until the events which gave rise to these proceedings. 1/ On February 10, 1986, Smith asked Colleen to remain after class. Once the other students had left the classroom, and Colleen and he were alone, Smith engaged Colleen in a brief conversation concerning the progress of her outside employment. Gauging the conversation at an end, Colleen picked up her purse and book bag preparatory to moving to her next class, but was distracted when Smith asked her what was in her purse. As Colleen looked into her purse, which was hanging from her right shoulder, Smith placed his left hand on her right hip and his right hand on her left shoulder. When Colleen looked up, Smith pulled her toward him, and kissed her on the lips. Smith's conduct was uninvited and unexpected; Colleen, disconcerted, left the classroom. On February 11, 1986, Smith was covering Colleen's first period class for her regular teacher. After the class had started, Smith asked Colleen into the hall and, exhibiting his divorce papers and a sense of urgency, asked to borrow $50.00 by the end of third period. Colleen informed Smith that she did not know if she could get the money by then since she would need to go to her boy friend's house for the bank book. Thereupon, Smith gave Colleen a pass to visit her friend Jessica to see about transportation. After arranging for transportation with Jessica, Colleen returned to Smith, who was still standing in the hall outside the classroom, and informed him that Jessica and she could get the money. At this time, Smith told Colleen that he liked her and suggested that they meet at school one night so he could repay the money. When Colleen expressed a lack of understanding concerning Smith's comments, he told her to look down and said, "even standing next to you excites me." On looking down, Colleen observed that Smith had an erection. Colleen quickly changed the subject and left with Jessica to get the requested $50.00 from the bank, which she later gave to Smith. Colleen was troubled by what had transpired and was afraid that if she reported the incident the administration would not credit her statements over those of a teacher. However, on Wednesday, February 12, 1986, Colleen told her boss what had transpired between Smith and her, and on the evening of February 12, 1986, she informed her grandmother. On February 13, 1986 Colleen, together with her boss and grandmother, informed the principal of Miami Norland Senior High School concerning the events of February 10-11, 1986. Smith was subsequently suspended from his teaching position, and this administrative proceeding duly followed. In choosing to credit Colleen's recollection of the events of February 10-11, 1986, as opposed to Smith's, I am not unmindful of minor discrepancies in the proof. However, the candor and demeanor of Colleen, coupled with the corroborating proof, compels the conclusion that Smith did commit, without invitation or provocation, the acts set forth in paragraphs 3-5, supra. Smith's conduct was inconsistent with the standards of public conscience and good morals, and was sufficiently notorious to bring himself and his profession into public disgrace or disrespect. Due to the notoriety of his conduct, Smith's service in the community, as well as his effectiveness in the school system, has been severely impaired. The Excessive Absences The proof establishes that Smith was absent from his employment on 26 days during the 1985-86 school year. Five of those days, and possibly six, were for personal reasons, rather than illness. While teachers are generally allowed only 4 personal days each school year, the School Board offered no evidence to rebut the proof that the additional 1-2 days were authorized by Smith's supervisor, or that all time off was duly approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the School Board enter a Final Order sustaining the suspension of Respondent, Michael B. Smith, from his employment, and dismissing Respondent, Michael B. Smith, from his employment with the School Board. DONE AND ENTERED this 21st day of November, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1986.
The Issue Whether Respondent’s alleged conduct is a violation of Pinellas County School Board Policy 8.25 and/or Section 231.36, Florida Statutes, and is just cause for his dismissal as a teacher in the Pinellas County School District.
Findings Of Fact Respondent, Reginald K. Reese, is a teacher certified by the State of Florida, holding a professional service contract with Petitioner, the Pinellas County School Board (School Board). Respondent was employed as a substitute teacher by the School Board in August 1988. Respondent was hired as a full- time teacher in the Pinellas County School System in August 1989, and has been a teacher in the district since that time. At all times relevant to this proceeding, he was employed as a teacher at Riviera Middle School. Throughout his tenure with the School Board, Respondent's teaching career has been exemplary and he has consistently received good evaluations. It is undisputed that Respondent is held in high regard and considered an excellent teacher by many parents of children he has taught and by his colleagues and administrators with whom he has worked. Respondent is viewed by his former principal and current assistant principals as an excellent educator. His co-workers view him as an excellent teacher, the epitome of quality, a wonderful teacher, top-notch, one of the best, innovative, creative, compassionate with children, an inspiration to students, and one of the teachers students come back to the school to see. Two parents whose children were taught by Respondent several years ago believe that Respondent's work and effort as a teacher had turned their children around and made them responsible, productive adult members of society. Prior to the recommended disciplinary action which is the subject of this proceeding, Respondent has never been the subject of disciplinary action by the School Board or any of its administrators. On Wednesday, November 10, 1999, at about 1:00 p.m., Respondent parked his vehicle at the entrance of the south trail near the mangrove area in the vicinity of 4th Street and 115th Avenue in St. Petersburg, Florida. Respondent then exited his vehicle and entered the south trail of the mangrove area. It is undisputed that while in the mangrove area, Respondent engaged in a sexual activity, specifically oral sex and masturbation, with two other adults. The contact between Respondent and the other individuals was consensual and involved adults who were strangers to each other. This sexual activity was observed by Corporal Ward of the Pinellas County Sheriff’s Office. The mangrove area in which the incident occurred was not clearly visible from the street. However, the area is considered a public place and is next to a busy four-lane road. Moreover, within that vicinity, people engage in recreational activities, including sunbathing, fishing, and boating. After the sexual activity had concluded, Respondent was arrested at the scene of the incident described in paragraph 7 by an officer with the Pinellas County Sheriff’s Office who had observed the acts. As a result of the incident, Respondent was charged with committing an unnatural and lascivious act and exposure of sexual organs. Respondent pled nolo contendere to exposure of sexual organs and an Order Withholding Adjudication of Guilt was entered on December 30, 1999. Further, an Order Withholding Adjudication of Guilt on a Plea of Nolo Contendere to the charge of unnatural and lascivious act was entered on December 30, 1999. An Order to Seal Criminal History Record was entered on January 4, 2001. On the advice of counsel, Respondent did not report his arrest, the charges filed against him, or the orders entered resolving the criminal matters to School Board officials at or near the time they occurred. Respondent reported his arrest in a letter dated June 10, 2001, to the School Board’s Office of Professional Standards, when he applied for renewal of his teaching certificate. Upon receipt of the June 10, 2001, notification of Respondent’s arrest, the School Board investigated the matter. Following the investigation, on July 18, 2001, Respondent was notified in a certified letter that Dr. J. Howard Hinesley, Superintendent of Pinellas County Schools, would be recommending to the School Board that Respondent be dismissed from employment. The basis of the recommendation of dismissal is that the conduct engaged in by Respondent on November 10, 1999, violated Pinellas County School Board Policy 8.25 and the Code of Ethics and the Principles of Conduct of the Education Profession in Florida. It was alleged that these violations constitute just cause for Respondent's dismissal pursuant to Section 231.36, Florida Statutes. Dr. Hinesley's recommendation of dismissal is based on several factors. First, Dr. Hinesley believes that the conduct engaged in by Respondent on November 10, 1999, was immoral in that it took place in a public area. Second, Dr. Hinesley believes that dismissal of Respondent is warranted because Respondent's actions were inappropriate and embarrassed the school system and the school. Finally, Dr. Hinesley believes that the conduct engaged in by Respondent was inappropriate and impaired his effectiveness as a teacher in the Pinellas County School District. Information regarding the subject incident has not been widely disseminated because the record was sealed by court- order. However, all of the witnesses testifying in support of Respondent were advised of the details of the incident. In light of this knowledge, teachers who have worked with Respondent, a former administrator who supervised Respondent, former students of Respondent, parents of Respondent's former students, and community members supported Respondent. While admitting that Respondent made a mistake or had a lapse in judgment, they believe that his exemplary teaching record and dedication to students and to the profession will allow him to overcome the challenges that may arise if and when the incident becomes public. Many of them also believe that his service to the Pinellas County School District community will not be impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order that dismisses Respondent from his position as a teacher with the Pinellas County School District. DONE AND ENTERED this 2nd day of January, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 2nd day of January, 2002. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jacqueline Spoto Bircher, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Honorable Charlie Crist Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 Fourth Street, Southwest Largo, Florida 33770-3536 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact Vincent P. Durso (Respondent) holds Florida teaching certificate number 380932 valid through 1997. He is certified in the areas of Biology, Social Sciences and Middle Grades. From March 1984 to June 1984, the Respondent was employed as a teacher at Leto High School by the Hillsborough County School Board. From July 1984 to August 1985, the Respondent worked as a job training specialist by the Marion County School Board. From August 1985 to October 1987, the Respondent was employed as a teacher at Chamberlain High School by the Hillsborough County School Board. From February 1988 to August 1988, the Respondent was employed as a teacher at Carver Junior High School by the Los Angeles, California Unified School District. Since 1989, the Respondent has been employed by the School Board of Pinellas County under a professional services contract issued pursuant to Section 231.36(1)(a), Florida Statutes. While at Chamberlain High School, the Respondent taught a peer counseling class during the 1986-87 school year. The class was intended to address the needs of students at risk of dropping out of school. Roxanna Fitzgerald (Fitzgerald) and Jeaneen Boyas (Boyas) were students in the Respondent's peer counseling class during the 1986-87 school year. Ms. Fitzgerald is now known as Roxanna Fitzgerald Violette. Ms. Boyas is now known as Jeaneen Boyas Riches. For the purposes of this Recommended Order, they are identified by the names they were known by during their enrollment at Chamberlain High School. While at Chamberlain High, Ms. Fitzgerald and Ms. Boyas frequently skipped classes and often received passes from the Respondent which excused them from the missed classes. On June 19, 1987, Ms. Fitzgerald and Ms. Boyas were driven to the Respondent's house by a friend, Michael Ramsey. The alleged purpose of the visit was to permit the women to take a photograph of the Respondent. Upon arriving at the house, the two women went around to the rear of the house and attempted to look through the windows. Because the blinds were closed, they could not see inside the house. The two women then walked back to the front of the house and knocked on the door. The Respondent opened the door and invited them in. A few minutes later, Mr. Ramsey went to the front door and was also invited inside by the Respondent. After the three students were inside, the Respondent provided them with soft drinks and excused himself to shower. While in his bedroom, with the door closed, the Respondent telephoned a coworker with whom he had spoken earlier that day. During the earlier conversation, the Respondent had made arrangements to drive to the coworker's house and get a book. In the second call, the Respondent told the coworker about the students coming to his house and said that he still planned to go to the coworker's house and get the book. Ms. Boyas had to comply with a curfew, so while the Respondent showered, Mr. Ramsey and Ms. Boyas left his house and returned to Ms. Boyas home. Ms. Fitzgerald refused to leave with them, and chose to remain in the Respondent's house. When the Respondent returned to his living room, he saw that only Ms. Fitzgerald remained. She told him that her two friends had left. The Respondent told Ms. Fitzgerald he had an errand to run and invited her to go with him. She agreed to accompany him. The two drove in the Respondent's car to the coworker's house. The Respondent spoke briefly to the coworker and retrieved the book. Ms. Fitzgerald remained in the car. After the brief outing, the two returned to the Respondent's home to find Mr. Ramsey waiting. Mr. Ramsey attempted to convince Ms. Fitzgerald to leave with him, but after she declined, he left. Ms. Fitzgerald and the Respondent reentered the house. He offered her a soft drink and they sat on the sofa and talked. At some point during the evening, they went into his bedroom and engaged in sexual intercourse. Later that same evening, Mr. Ramsey returned and Ms. Fitzgerald agreed to leave with him. Because she had told her mother she was spending the night with Ms. Boyas, Ms. Fitzgerald slept in Mr. Ramsey's truck. Mr. Ramsey drove Ms. Fitzgerald to her home the next morning. During the period from June 19, 1987 to September 8, 1987, the Respondent and Ms. Fitzgerald engaged in sexual intercourse on five occasions. After the meeting on June 19, 1987, the sexual activity was initiated by the Respondent. He would call Ms. Fitzgerald and ask her to meet him at a prearranged location, generally down the street from her home. Each time, she would sneak out her bedroom window and wait for the Respondent. He would pick her up in his vehicle and take her to his house. He would return her to the location after the sexual activity had concluded. The sexual activity took place in his dark bedroom. He wore condoms during intercourse. He asked her not to disclose the relationship because it would damage his teaching career. During the summer of 1987, Ms. Fitzgerald's mother learned that her daughter had been sneaking out of the house. On August 19, 1987, Ms. Fitzgerald's mother received a telephone call from a man identified as "Cliff Durso" who said he was a teacher calling to wish her daughter a happy birthday. On September 8, 1987, Ms. Fitzgerald was involved in an auto accident while skipping school with Ms. Boyas. After leaving the site of the accident, the two women spoke with the Respondent who offered suggestions as to how to deal with the situation. Later that evening, Ms. Fitzgerald and her mother returned home from an appointment to find several people waiting to discuss the auto accident. At that point, Ms. Fitzgerald had not disclosed the accident to her parents. After the nature of the accident was disclosed, Ms. Boyas mother contacted the Respondent, apparently in an attempt to obtain whatever information she could about the accident. The extent of the Respondent's knowledge about the details of the accident is unclear. Late during the evening of September 8, 1987, the Respondent contacted Ms. Fitzgerald. As was the usual procedure, she left her house, went to the prearranged location and was picked up by the Respondent. After the two went to his house and engaged in sexual intercourse, he returned her to the same location. At some point after September 8, 1987, Ms. Fitzgerald's mother discovered hidden behind a poster in her daughter's room, photographs of the Respondent and a series of letters to the Respondent written but not mailed by Ms. Fitzgerald. In the letters, she discussed her activity with him and indicated that she would protect him. Ms. Fitzgerald's mother asked her daughter to explain the letters and the situation with the Respondent. Although the evidence establishes that Ms. Fitzgerald became upset, her actual response to her mother's inquiries is unclear. On September 12, 1987, Ms. Fitzgerald's parents contacted law enforcement officials regarding the activities of their daughter. At her home on September 13, 1987, Ms. Fitzgerald told Hillsborough County Deputy Sheriff James Mock that she had been engaged in a sexual relationship with the Respondent. She identified September 8 as the date of their last sexual activity. She told the deputy she did not want to get the Respondent into trouble. Later on September 13, 1987, after the conversation with Officer Mock had occurred, Ms. Fitzgerald's mother received a telephone call from the man identified as "Cliff Durso," who said he was a teacher of her daughter. The caller stated that he expected to see the mother the next morning at 9:00 a.m. for a school conference at which they would discuss the "problems" being caused by Ms. Fitzgerald. Ms. Fitzgerald's mother described the call as threatening. She did not meet with the caller the next day. On September 14, 1987, Ms. Fitzgerald spoke to another Hillsborough County Deputy Sheriff Detective, M. G. Marino, and recanted her story from the previous day and explained that she'd been "confused." On September 15, 1987, the Respondent was summoned to the principal's office at Chamberlain High School and was met by Officer Marino who advised the Respondent that he was a suspect in a criminal investigation. The officer read a "Consent to Interview" form to the Respondent. The first sentence of the "Consent to Interview" form states, "I, Vincent Paul Durso, do hereby consent to being interviewed by Detective M. G. Marino concerning the offense of sexual battery/in custodial authority." After Officer Marino began reading the form, the Respondent invoked his constitutional right to counsel and exited the principal's office. The interview was not completed. On September 22, 1987, Officer Marino again met with and interviewed Ms. Fitzgerald. At that time, she acknowledged that her recantation was not truthful and told the officer that she had been engaging in sexual activity with the Respondent. On September 23, 1987, Captain Wayne Dasinger of the Hillsborough County School System Security Division met with and interviewed Ms. Fitzgerald. The interview was taped until Ms. Fitzgerald instructed Captain Dasinger to turn the recorder off. She continued to discuss the matter after the recording was stopped. During the discussion, she acknowledged engaging in sexual activity with the Respondent and expressed her concern that the Respondent not get into trouble because of the activity. Also on September 23, 1987, Captain Dasinger met with the Respondent. Captain Dasinger told the Respondent that he was investigating allegations of misconduct with a student. The Respondent declined to be interviewed. On October 5, 1987, the Respondent resigned from the Hillsborough County School System for "personal reasons." The allegations of sexual activity with a student were at least a part of the "personal reasons" cited by the Respondent in his October 5 resignation. In a letter dated November 30, 1987 and written by the Respondent, he "vehemently objects" to the "one dimensional report into my personal life" being placed into his personnel file "especially since it was agreed on October 5th, 1987, that it would not be placed in there in accordance to the conditions of my resignation...." Other than as to the matters at issue in this proceeding, there is no evidence that any other inquiry into the Respondent's "personal life" was conducted or was the subject of any investigation reports. From February 10, 1988 to August 3, 1988, the Respondent was employed in Los Angeles, California. On January 3, 1989, the Respondent submitted an application for employment with Pinellas County School System. On January 15, 1989, the Pinellas County School System received on behalf of the Respondent a reference form which purports to be from the principal of Leto High School. The signature is illegible. The evidence establishes that the Respondent received the reference forms with his application form, wrote his name and address at the top of each reference form, and distributed the forms to his "references." The Leto reference form was completed and signed by someone other than a principal of Leto High School. The form was not completed by any person employed as the principal of Leto High School during or since the employment of the Respondent at the school. The Leto reference form was not completed by any person employed as an assistant principal or secretary to the principal of Leto High School during or since the employment of the Respondent at the school. The allegations related to the Respondent became a matter of public knowledge after an article appeared in a local newspaper. According to the Superintendent of the Pinellas County School System, School Board practice and policy provides that any type of sexual conduct between a teacher and a student constitutes just cause for termination of the offending teacher's employment. Such conduct further constitutes misuse of the teacher's position and impairs the effectiveness of the teacher in the classroom. At the hearing, the Respondent sought to establish his activities on June 19 and September 8, 1987, which would "prove" that Ms. Fitzgerald's recollection was fabrication. The greater weight of the credible and persuasive evidence establishes that the events occurred as set forth in the preceding findings.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that The School Board of Pinellas County enter a Final Order terminating the employment of Vincent P. Durso. The Commissioner of Education enter a Final Order permanently revoking the teaching certification of Vincent P. Durso. DONE and ENTERED this 28th day of August, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 28th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASES NO. 95-2994 and 96-0861 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner Pinellas County School Board The Pinellas County School Board's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 7. Rejected, not supported by evidence. The address set forth in the proposed finding is incorrect. 24. Rejected, unnecessary. 28-29. Rejected, subordinate. 31. Rejected, unnecessary. 33. Rejected, unnecessary. 35. Rejected as to Respondent's inquiry as to how caller obtained his telephone number, irrelevant. Rejected, subordinate. Rejected, the assertion that Ms. Fitzgerald left home "as a result of her sexual involvement" with the Respondent is not supported by credible and persuasive evidence. 55-58. Rejected, unnecessary. 59. Rejected, cumulative. 62. Rejected. The evidence fails to establish that the Respondent caused a forged document to be submitted to the School Board. 68-69. Rejected, unnecessary. Petitioner Frank T. Brogan, Commissioner of Education The Commissioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 6. Rejected, not supported by evidence. The address set forth in the proposed finding is incorrect. 23. Rejected, unnecessary. 27-28. Rejected, subordinate. 30. Rejected, unnecessary. 32. Rejected, unnecessary. 34. Rejected as to Respondent's inquiry as to how caller obtained his telephone number, irrelevant. Rejected, subordinate. Rejected, the assertion that Ms. Fitzgerald left home "as a result of her sexual involvement" with the Respondent is not supported by credible and persuasive evidence. 54-57. Rejected, unnecessary. 58. Rejected, cumulative. 61. Rejected. The evidence fails to establish that the Respondent caused a forged document to be submitted to the School Board. 67. Rejected, unnecessary. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 34649 Karen Barr Wilde, Executive Director Education Practices Commission 224B Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649 J. David Holder, Esquire 1408 North Piedmont Way Tallahassee, Florida 32312 B. Edwin Johnson, Esquire 1433 South Fort Harrison Avenue Suite C Clearwater, Florida 34616
Findings Of Fact Thomas W. Bennett was employed by the Sarasota County School Board in the 1967-68 school year, and assigned Shop and Drafting at the Venice Junior High School. In 1968 he was assigned a satisfactory evaluation by his principal, Mr. Guy Rose, for this school year. Respondent continued to receive satisfactory evaluations from Mr. Rose, and acquired continuing contract status or tenure. By 1971 the principal, Mr. Rose, was becoming concerned about Respondent's behavior patterns involving both students and faculty. Specifically, he was cornered about Respondent allowing students on one occasion to ride on a flat bed trailer without guard rails, and about erratic behavior evidenced by notes to other faculty members left on light cords and other odd places which in tone and content sometimes irritated the recipients. On one occasion Mr. Rose was notified that some students were at the shopping center a few blocks from the school during school hours, and upon investigation he learned they were assigned to Respondent's class and had been sent out of the class because they did not have materials with which to work. On another occasion Mr. Rose found the shop area unlocked and Respondent not in attendance. This latter he considered a safety hazard both from the standpoint of potential injury to students due to unattended power tools, as well as a potential loss of small hand tools due to pilferage. At a meeting held on March 4, 1971 to consider Respondent's request for additional lumber for his classes, these concerns were discussed and Mr. Bennett was advised by Mr. Rose that his performance needed to improve. Exhibit 2 documenting the meeting held March 4, 1971 was admitted into evidence. In 1971 and 1972 two incidents came to light regarding Respondent striking or otherwise committing a battery on students. On one occasion he struck Douglas Letson on the back of the head with a small piece of plywood approximately 1/4" thick. While working in his shop class Letson carelessly drilled through the piece of plywood into the table. When he observed this incident Respondent said "God dammit, don't drill through my table", (or words to that effect), picked up the piece of plywood on which Letson had been drilling and hit Letson on the back of the head with sufficient force to cause contusions and a subsequent swelling. The skin was not broken. On another occasion a student with a bleeding scalp wound reported to the Assistant Principal (Mr. Guy Bennett) that Respondent Bennett had struck him. Respondent denies ever having touched this student and the evidence was insufficient to support a finding that a battery was in fact committed. In 1973, after Mr. Guy Bennett had succeeded to the position of principal at Venice Junior High School, he received a report of Respondent Bennett striking a student and had the Acting Assistant Principal investigate. Exhibit 18, the Affidavit of Brett Gordon Derby attesting to being battered by Respondent, was admitted into evidence. Shortly after Guy Bennett succeeded to the position of principal he prepared a Performance Agreement, Exhibit 13, for Respondent Bennett. Therein he listed those areas wherein he considered Respondent's performance below acceptable levels. Following the concept of positive thinking these deficiencies were phrased as Operational Objectives. One operational objective was "Teacher will demonstrate self control - VJA goal #12 (no striking of students)". Another was "Teacher will maintain mutual respect in classroom - VJH goal #22 (no profanity directed at students)". Those schoolwide goals are contained in Exhibit 15, extraction from the FIO Manual presented at the hearing. Mr. Guy Bennett was also concerned regarding Respondent's grading practices. On one occasion after the principal suspended a student on Respondent's recommendation the parents of the suspended student appeared with their son's report card showing Respondent had marked their son "A" in merit and "E" (for excellent) in citizenship. At times Respondent assigned grades recommended by the class. Principal Bennett considered the drop-out rate in Respondent's class to be much higher than it should have been, and that many more of his disciplinary problems should have been resolved in the classroom. Once Principal Guy Bennett had Respondent apologize to two visiting parents who heard Respondent, after being advised over the high school public address system that he had a telephone call, respond over the public address system "aw shit". In February, 1975, while assigned to bus duty, Respondent saw Annette Lanning, a 13-year-old 8th grade student, enter the line getting on a bus at a point near the beginning of the line. Annette Lanning and the bus driver both testified that she had been pushed out of the line and was returning to her rightful place when Respondent told her to go to the end of the line. She went near the end of the line where her older sister told her to get in the line along side her. Upon Annette's arrival at the bus door, Respondent pushed her out of the line with his hand on her throat some 6 to 10 feet to a fence. He pushed her against the fence several times and made threatening gestures with a clenched fist. The bus driver who observed the entire episode from inside the bus, rushed off the bus to pull Respondent back from Annette. When released Annette ran toward the bus. The bus driver, Mrs. Walsh, submitted a report of the incident immediately afterwards. This report was admitted into evidence as Exhibit 12, and the witness testified that the report accurately reflected what she observed and did. As a result of this incident Annette's parents filed criminal charges against Respondent Bennett. When Principal Bennett returned to Venice the evening of February 7, 1975 he was advised of the incident, and contacted the Lannings to request that they withdrew their complaint before a warrant was issued. After Principal Bennett convinced them that he could better handle the problem at the school level, the Lannings withdrew the complaint. A copy of the complaint report was admitted into evidence as Exhibit 11. In May 1975, a local businessman, Mr. Robert Anderson, gave Respondent permission to conduct his students on a field trip through Mr. Anderson's plant. During the visit and after ascertaining that smoking was not prohibited in the plant, Respondent advised the students they could light up. Mr. Anderson was sufficiently concerned about Respondent's permitting the smoking, which was in violation of school policy, that he wrote letters complaining about the incident, and testified at the hearing. Witnesses testifying on behalf of Respondent considered Respondent to be a good teacher who appeared well liked by his students. They never saw Respondent lose his temper, hit any students, or swear in their presence. They would not condone striking a student over the head with a board, or choking a student. Respondent acknowledged that he had hit Douglas Letson with the board through which Letson had drilled into the desk below. He further admitted that he sent students to the library when they did not have materials to perform shop projects, and he did not follow up to ascertain if they went to the library as he directed. With respect to the Annette Lanning incident, Respondent acknowledged pushing her from the line with his hand against her throat, but he denied choking her or threatening her with a clenched fist. He acknowledged signing the letter dated February 10, 1975, Exhibit 16, which was prepared by Principal Bennett but he has not sought professional help respecting his temper. In Exhibit 16 Respondent acknowledged that he overreacted in this situation.
Recommendation RECOMMENDED that he be dismissed as a teacher from the Sarasota County School System. DONE and ENTERED this 8th day of December, 1975, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard W. Conney, Esq. Box 6167 Sarasota, Florida 33578 Louis Jackson, Esq. c/o Richard W. Cooney, Esq. Box 6167 Sarasota, Florida 33578 Sidney L. Matthew, Esq. 208 W. Pensacola Street Tallahassee, Florida 32301
Findings Of Fact The Respondent, Michael Fort, at times pertinent to the charges in the Administrative Complaints, held teacher's certificate number 514033, issued by the State of Florida Department of Education (Department). That certificate authorized practice as a teacher in the area of music education. The Respondent was employed as a teacher at Lake Weir Middle School in the Marion County School District. The Respondent was under an annual contract with that school system from November 23, 1983, through the 1984-85 school year. The Respondent's last annual contract expired on June 7, 1985. The Respondent's teacher's certificate expired on June 30, 1985. Some time prior to the expiration of his teacher's certificate, the Respondent applied to the Department for its renewal. That application still pends before the Department. In October 1983, the Respondent had a minor student spend the night at his apartment. The minor student had previously been a close friend of the Respondent and had socialized with him in the past, including spending the night at his residence on other occasions. The Respondent had entered into a close, friendly relationship with the minor, Darien Houston, by frequently letting him stay at his residence during periods of time when Darien Houston's parents were fighting or otherwise engaging in domestic discord, which apparently was very disturbing to the student. Darien Houston, although a student in the Marion County School System, was not a student of the Respondent. Indeed, the Respondent was not yet employed by that school district. In any event, during the course of the evening in question, while they were sitting near each other watching television, the Respondent placed his hand on the student's leg and the student requested that he remove his hand. The student at the time thought Fort was joking or had no serious intent by this action. Fort then went to bed and the student went to bed, sleeping on the floor in his jeans in a sleeping bag. Some time later that night, the student was awakened and realized that the Respondent had undressed himself and undressed the student and had proceeded to place his hand on and fondle the student's penis. He thereafter attempted to roll Houston over onto his stomach in spite of Houston's objections. In response to the student's objections, the Respondent made a statement to the effect, "Do you want to do it with me?" The student continued to object and to retreat from the Respondent's advances. He retreated to the bathroom where he locked himself in and remained for the remainder of the night. The student was embarrassed because of the incident and elected not to report it to school officials or others for approximately a year and a half. However, Houston did tell his best friend what had happened, who in turn informed Houston's mother of the incident. Eventually, Houston's brother informed another individual of the occurrence, who then informed Mr. Springer, the principal at Lake Weir Middle School, of the incident. Darien Houston, a student there, was then called before Mr. Springer, who investigated the matter. Houston related the information about the subject occurrence to him, in approximately May 1985. Thereafter, the criminal proceeding against the Respondent related to this incident and the instant administrative Prosecutions ensued. The matter became public knowledge among students at Lake Weir Middle School, who teased Houston about the incident, causing him great embarrassment and humiliation. The occurrence was widely reported in local newspapers. Sometime in May 1985, while a teacher at Lake Weir Middle School, during the course of a puppet show being Presented in a sixth grade classroom, Respondent stuck his hand down the back of a minor male student's pants between his underwear and his trousers. This action by the Respondent shocked and embarrassed the student, although it was not established that any bystanders, of which there were a number present, observed the incident. The student, Patrick Hammer, was embarrassed to tell anyone of the occurrence, but ultimately informed his teacher of the incident by writing a note to the teacher concerning it. Other students at the school ultimately became aware of this and teased Patrick Hammer about it, causing him embarrassment and humiliation. In approximately May 1985, the Respondent attended a party at a local hospital. The Respondent was in the company of three minor male students who were then enrolled at Lake Weir Middle School. The students, Steve Hall, Richard Slaughter and Eddie Ericson, or some of them, were drinking beer from a keg or draft dispenser at the party. Steve Hall's mother, who was employed at the hospital, was present at the party and was aware that her son was drinking beer. All three of the boys later left the party and went with Mr. Fort to his apartment. While en route, the Respondent stopped at an ABC Liquor Store and purchased approximately two six-packs of beer. After purchasing the beer, the Respondent took the three students to his apartment where the students swam in the swimming pool and, in his presence and with his knowledge, drank the beer that the Respondent had purchased. It was not established that the Respondent bought the beer with the specific intent of giving it to the students but, by his own admission, he offered no objection to the students' consumption of the beer in his presence at his residence. On May 12, 1986, the Respondent pled nolo contendere to one count of attempted sexual battery and one count of lewd and lascivious behavior. He was sentenced to ten years probation, fined $200, ordered to undergo mental health counseling, to complete 100 hours of community service and to refrain from any custodial or supervisory contact with any person under the age of 16 years. Respondent's arrest, the circumstances surrounding the charges and his plea regarding the above incidents received widespread publicity in the local media and was known to students, faculty and other School Board personnel and the public at large. On or about April 10, 1985, the Respondent received a letter from Nick Marcos, Assistant Superintendent of Administrative Services with the School Board of Marion County, informing him that he would be reappointed to a position as an annual contract teacher with the Marion County School System as soon as he had been issued a regular or temporary teaching certificate for the 1985-86 school year. On or about May 16, 1985, the Respondent submitted a reapplication for a temporary certificate to the Florida Department of Education. On or about August 9, 1955, Respondent received a letter from R. S. Archibald, District School Superintendent, advising him that he had been suspended as an instructional employee of the Marion County School System, pending a meeting of the School Board. Thereafter, on or about August 19, 1985, the Respondent received a letter from Jim Ergle, as Chairman of the School Board, advising him of the Board's decision to suspend him without pay based upon the above-described arrest and charges. In the April 10, 1985 letter, the Assistant Superintendent had informed him that he had been recommended for reappointment for the 1985-86 school year, but reminded him that he would have to renew his teaching certificate to be eligible for reappointment. Upon his application for renewal of his teaching certificate, the application demonstrated that all requirements for renewal had been met. His teaching certificate expired on June 30, 1985. The renewal application was never acted upon by the Department, although it informed Mr. Fort, sometime prior to August 1985, that his application was in order and the certificate would be forthcoming. His suspension without pay was predicated upon the charges pending before the Circuit Court for Marion County concerning the alleged sexual battery and lewd and lascivious conduct, and the letter informing Mr. Fort of it did not indicate that it was at all based on his failure to renew his teaching certificate. The School Board employed the formal suspension process against the Respondent, although his express annual contract had already expired, in an abundance of caution because a grace period is normally allowed teachers to re- apply for renewal of their certificates after expiration and because the Board allows a grace period for reappointment of a contract teacher after the expiration of a teaching certificate, provided the teacher provides evidence that the certificate has been properly renewed. The Respondent was paid for all services rendered by him to the Marion County School Board through the last day of the 1984-85 school year, which was also the last day of his employment pursuant to his last express annual contract. He has never taught in the district since that time.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the EPC permanently revoking the certificate of the Respondent, Michael Fort, and that he be finally dismissed by the Marion County School District and forfeit any back pay. DONE and ORDERED this 14th day of July 1987, in Tallahassee, Florida. COPIES FURNISHED: William E. Williams, Esquire Rex D. Ware, Esquire 111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 215 Knott Building Tallahassee, Florida 32399 P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 14th day of July 1987.
Findings Of Fact Carl H. Norton is currently a part-time instructor at the Hillsborough Community College in Tampa, Florida, and held that position during the February, 1979, Term in the academic year 1978-1979. That Term lasted from January 27, 1979, through March 17, 1979. During the session, the Respondent, Norton, taught Art 013-G25, a non-credit course, with optional student attendance. He was paid $288.00 for his services. The administration of the College purportedly authorized the course to be conducted only if a minimum enrollment figure was achieved. This enrollment figure was ten (10) students. (See Respondent's Exhibit 1 admitted into evidence.) Notwithstanding the statement of minimum enrollment, the February 17, 1979, reporting period for class attendance showed nine (9) students as reflected by the class roll, and there is no indication that the administration attempted to close the course at that juncture. In the next reporting period, March 17, 1979, thirteen (13) students were shown by the clams roll to be in attendance for the course of instruction. (See Petitioner's Exhibit 2 admitted into evidence.) Two of the named students reported on the class roll found in Petitioner's Exhibit 2 and signed by Carl H. Norton as instructor were Beatrice K. Parson and Irene Powe. Norton had marked those students in attendance of eight (8) separate class meetings, when in fact the students had not been in attendance on those occasions or at any other time. Norton's act of marking the students Parson and Powe as attending was not through mistake or oversight. This activity was in keeping with an arrangement which he had made with another instructor, one David C. Dye, in which Dye was to request that students Parson and Powe allow him to drop them from his class roll in the course, Art 005-H27. The students in question would then be allowed to continue to attend Dye's class, while their names were added to Norton's class roll in Art 013-G25. The students were in fact dropped from Dye's class roll, as may be seen in examining Dye's class roll for the reporting period March 7, 1979. As stated bcfore, they were added to the Norton class roll. The idea that Dye and Norton had in mind was to achieve the minimum number of students necessary to authorize the class, Art 013-G25, to meet during the February, 1979, term. With the addition of Parson and Powe to the class roll in the reporting period, March 7, 1979, Carl H. Norton had three (3) more students than were necessary for authorization. Instructor Dye spoke with student Powe and asked her if it would be acceptable to transfer her to Norton's class, because according to Dye, his class was full. He assured her that her instruction would continue in the same way as before with Dye being her teacher. Dye made no communication with Parson and the Respondent, Norton, never met with either Powe or Parson. One Doris Zimmer, an employee of the Community College, completed a "drop and add" form for the students, Powe and Parson. In the records of the Community College, they were removed from the Art 005-1127 cour;t and added to the Art 013-G25 course. (See Petitioner's Composite Exhibits 5 and 6 admitted into evidence.) Parson and Powe were unaware of any adjustment of their enrollment and did not sign the adjustment form as would appear in the above-referenced exhibit. Parson and Powe were unaware Norton was carrying them on his roll and had marked them present. Finally, Art 005-H27 carried a tuition fee of $12.00 as opposed to Art 013-G25, which called for a tuition fee of $20.00. The $8.00 differential in cost for each student was paid by Norton.
Recommendation Based upon the finding that the Respondent was guilty of those Charges Three (3), Four (4) and Five (5), and in keeping with the authority set forth in Section 6A-14.411(6), Florida Administrative Code, it is RECOMMENDED that the Respondent, Carl H. Norton, be dismissed as an employee of Hillsborough Community College, Florida. DONE AND ENTERED this 30th day of June, 1980, in Tallahassee, Florida. COPIES FURNISHED: David E. Bryant, Esquire The Dixon Building 620 East Twiggs Street Tampa, Florida 33602 Carl H. Norton 3905 East Louisiana Tampa, Florida 33610 CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 30th day of June, 1980.
The Issue The issue is whether Respondent discriminated against Petitioner by refusing to employ him as a school teacher.
Findings Of Fact Dr. Weaver is a person of the African-American race, who is over the age of 40. He is not married. He holds a Doctor of Philosophy degree from Florida State University. He has applied for various teaching positions with the School Board annually since 1979. He has applied to the School Board for more than 1200 positions since 1991. The School Board has determined that it does not wish to hire Dr. Weaver. Dr. Weaver has filed a succession of judicial and administrative actions against the School Board over the past 17 years. Dr. Weaver's 1985 administrative case and its aftermath Dr. Weaver's initial legal skirmish with the School Board occurred in 1985 when he filed an administrative complaint with the FCHR alleging racial discrimination because the School Board refused to employ him. The matter was heard before the Division. Hearing Officer Stephen F. Dean found that Dr. Weaver had presented a prima facie case of discrimination and that the School Board failed to present a legitimate, nondiscriminatory reason for not hiring him during the period 1979 to 1985. Subsequently, the FCHR issued a final order directing the School Board to hire Dr. Weaver in a full-time teaching position and to provide him with back pay. This matter was appealed to the First District Court of Appeal which upheld the FCHR's order to the extent that it required the School Board to hire Dr. Weaver. The Court reversed the order to provide back pay. School Bd. of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990). The events surrounding this litigation are set forth in detail in Petitioner's Motion for Summary Final Order Pursuant to Chapter 28-106.204(4), Florida Administrative Code. Because of Dr. Weaver's successful suit, the School Board hired Dr. Weaver as a teacher for the 1990-1991 school year. He taught at Deerlake Middle School for a time and then was transferred to Nims Middle School. Because the School Board believed his work to be unsatisfactory, his contract was not renewed at the end of the school year. Subsequent litigation in the Circuit Court of the 2d Judicial Circuit Dr. Weaver, subsequent to the 1990-91 school year, applied for many jobs with the School Board. He was rebuffed on each occasion. He thereafter filed an administrative complaint with the FCHR regarding the School Board's refusal to hire him after the 1990-1991 school year. On March 17, 1992, the FCHR entered an order entitled, "Determination: No Cause." This order explained that Dr. Weaver had not demonstrated a prima facie violation of Section 760.10, Florida Statutes, and that the School Board had articulated legitimate, nondiscriminatory reasons for the actions set forth in Dr. Weaver's complaint. This determination gave Dr. Weaver the right, pursuant to Section 760.11(7), Florida Statutes (Supp. 1992), to have the matter heard before an administrative law judge of the Division. In October 1992, the Equal Employment Opportunity Commission (EEOC) issued a similar determination after conducting an investigation. The EEOC's determination informed Dr. Weaver that he had the right to sue in federal district court should he disagree with the determination. In January 1993, Dr. Weaver brought an action in the circuit court of the 2d Judicial Circuit, in Leon County, pursuant to Title VII of the Civil Rights Act of 1964, as amended, and Title 42 U.S.C. Sections 1981 and 1988. This case was designated Case No. 93-200. In his complaint, Dr. Weaver alleged that shortly after he began work pursuant to the FCHR's order in 1990, the School Board initiated "a racially discriminatory and retaliatory course of action" that included (1) payment of an inadequate salary for his educational level, (2) a reassignment to less favorable classes in a different school, (3) the failure to renew his teaching contract at the end of the 1990-1991 school year, and (4) the failure to hire him in numerous other positions for which he applied. Dr. Weaver alleged that he had been treated differently from white teachers and applicants, and from other individuals who had not opposed racial inequities. The School Board filed an answer and raised 13 affirmative defenses. Subsequently, the School Board moved for summary judgment and the court granted the motion. An appeal followed. The First District Court of Appeal remanded the case back to the circuit court stating, "Without commenting on the likelihood of success of Dr. Weaver's racial discrimination claims under the instant facts, we must conclude, at this stage, that genuine issues of material fact exist for trial regarding Dr. Weaver's allegations relating to all claims, thereby precluding summary judgment." Weaver v. School Bd. of Leon County, 661 So. 2d 333 (1st DCA 1995). A trial pursuant to the complaint was held in circuit court in October 1998. Dr. Weaver was permitted to introduce evidence of alleged discrimination occurring between 1991 and October 1998. A jury of his peers decided against Dr. Weaver, necessarily finding that the School Board had demonstrated legitimate, nondiscriminatory reasons for its refusal to employ him. Dr. Weaver appealed to the First District Court of Appeal which, in a per curiam decision, affirmed the action of the trial court. Weaver v. School Bd. of Leon County, 757 So. 2d 504 (Fla. 1st DCA 2000). Dr. Weaver's first lawsuit in the U. S. District Court for the Northern District of Florida In 1997, while Dr. Weaver's case was pending in state court, he filed a lawsuit against the School Board in the U. S. District Court for the Northern District of Florida. This suit was designated Case No. 4:97cv272-RH. This suit alleged violations of Title VII of the Civil Rights Act of 1964, as amended, and Title 42 U.S.C., Section 1981. Dr. Weaver alleged that the School Board refused to hire him due to his race (Black), gender (male), and in retaliation for an earlier claim of discrimination. His claims were limited to 32 positions for which he applied during the 1994-1995 school year. The School Board moved for summary judgment on the merits. Magistrate Judge William C. Sherrill, Jr., issued a Report and Recommendation stating that the School Board had offered legitimate non-discriminatory reasons for refusing to hire Dr. Weaver. In arriving at that conclusion, the Report and Recommendation cited his poor job performance while working for the School Board during school year 1990-1991. The Report and Recommendation noted that seven letters and a number of oral communications from parents were received by the principal at Deerlake Middle School during Dr. Weaver's tenure as a teacher there. These communications complained that Dr. Weaver's performance as a teacher was unacceptable. The Report and Recommendation revealed that Dr. Weaver admitted that his relationship with some of the parents was very bad. The Report and Recommendation quoted Dr. Weaver as saying that, "These harassing parent conferences went on almost on a daily basis." The Report and Recommendation noted that when Dr. Weaver was transferred to Nims Middle School his teacher assessment in the majority of the graded categories was less than favorable. It also noted that at Nims Middle School Dr. Weaver was unable to maintain control over his students. Magistrate Judge Sherrill found that the fact that Dr. Weaver filed a claim of discrimination with respect to the School Board's refusal to hire him in 1985, and was successful on that claim, does not constitute direct evidence of the School Board's improper motive in 1994 and 1995, since there was no connection between the two events. Magistrate Judge Sherrill noted that the School Board presented evidence of a legitimate, nondiscriminatory reason for refusing to employ Dr. Weaver. Since Dr. Weaver was unable to advance any evidence that the explanations of the School Board were pretextual, Magistrate Judge Sherrill concluded the motion for summary judgment should be granted. After the conclusion of the circuit court case, the School Board moved for summary judgment on the additional ground of res judicata, citing the jury verdict in favor of the School Board in circuit Case No. 93-200. Magistrate Judge Sherrill thereafter issued another Report and Recommendation finding that the School Board was entitled to summary judgment on the basis of res judicata as well. On March 30, 1999, U.S. District Court Judge Robert Hinkle adopted the Reports and Recommendations in Case No. 4:97cv272-RH and determined Weaver's claims to be both "unfounded on the merits" and "barred by the doctrine of res judicata." He ordered judgment in favor of the School Board. Dr. Weaver appealed this order to the U.S. Court of Appeals for the Eleventh Circuit, which affirmed Judge Hinkle's ruling on March 9, 2000. The opinion noted that the School Board's assertion that it did not hire Dr. Weaver during the 1994-95 school year because of prior unsatisfactory and inadequate performance during the 1990-91 school year in which he was a full-time seventh grade social studies teacher at Deerlake and Nims Schools. The opinion continued, "Weaver has wholly failed to bring forward sufficient evidence to demonstrate that these reasons for failing to hire him were a pretext for discrimination." Dr. Weaver's second lawsuit in the U. S. District Court for the Northern District of Florida In 2000, Dr. Weaver filed another complaint in the Northern District of Florida alleging that the School Board violated Title VII of the Civil Rights Act of 1964, as amended, by failing to hire him into positions for which he applied from 1995 through 1997. This was designated Case No. 4:00cv91-WS. He alleged discrimination based on race, sex, and age, and further alleged retaliation on account of his previous lawsuits against the School Board. The School Board moved to dismiss the complaint on the ground of res judicata. The School Board argued that all allegedly discriminatory failures to hire occurring before October 1998, were barred by Dr. Weaver's loss in the circuit court. The School Board also argued that claims subsequent to 1998 were barred because the circuit court and the U.S. District Court for the Northern District of Florida had both found that the School Board did not discriminate against Dr. Weaver when it refused to hire him. The School Board asserted that pursuant to Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 517 F.2d 110 (5th Cir. 1975), the School Board could not be continually assailed for refusing to hire Dr. Weaver in the future. The School Board asserted that because various trial and appellate courts had determined that the School Board had a legitimate, nondiscriminatory reason for refusing to hire Dr. Weaver, the School Board is free to continue to refuse to hire him. Magistrate Judge Sherrill issued a Report and Recommendation finding that res judicata barred the lawsuit. Judge Sherrill wrote: [Weaver's] pleading demonstrates that there are no new facts, no significant changes, but simply that[the School Board] continues to refuse to hire [Weaver]. This conduct was deemed nondiscriminatory in the prior litigation between the parties. Four courts have now held that [the School Board's] actions were lawful and, thus, the issue may not be raised again in subsequent actions. U.S. District Court Judge William Stafford adopted Magistrate Judge Sherrill's Report and Recommendation and ordered judgment in favor of the School Board in Case No. 4:00cv91-WS. The court also denied Dr. Weaver's motion to amend his complaint to allege post-1998 discriminatory refusals of the School Board to hire because the claims were barred by the doctrine of collateral estoppel as set forth in Exhibitors. In determining that collateral estoppel barred Dr. Weaver from amending his complaint, the U. S. District Court stated: [T]he [Exhibitors] court held that collateral estoppel bars a plaintiff from assailing the defendants for proceeding without change upon a course of conduct previously held lawful against plaintiff's identical attack. Otherwise, collateral estoppel would afford no peace to those, such as defendants here, who pursue a continuing course of conduct once adjudged lawful. * * * [Weaver's] pleading demonstrates that there are no new facts, no significant changes, but simply that [the School Board] continues to refuse to hire [Weaver]. This conduct was deemed nondiscriminatory in the prior litigation between the parties. Four courts have now held that [the School Board's] actions were lawful and, thus, the issue may not be raised again in subsequent actions. Judge Stafford's order was upheld by the Court of Appeals for the Eleventh Circuit. Thereafter, Dr. Weaver filed a motion for relief from the subsequent judgment. Dr. Weaver's motion was deemed frivolous as were thirteen other motions he filed. U.S. District Judge William Stafford then ordered that Weaver be enjoined from filing any lawsuit alleging discrimination against him by the School Board unless Dr. Weaver paid the School Board's attorney fees and, moreover, enjoined him from filing future complaints of discrimination unless such complaints had attached to them an affidavit of a third person setting forth competent evidence of discrimination.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing Dr. Weaver's Petition. DONE AND ENTERED this 23rd day of August, 2002, in Tallahassee, Leon County, Florida. ___________________________________ HARRY L. HOOPER 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2002. COPIES FURNISHED: C. Graham Carothers, Esquire Ausley & McMullen Post Office Box 391 Tallahassee, Florida 32302-0391 William R. Mabile, III, Esquire Fuller, Johnson & Farrell, P.A. 111 North Calhoun Street Tallahassee, Florida 32302 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether "just cause" exists to authorize Respondent's dismissal from employment with the Miami-Dade County School Board ("MDCPS"), for the violation(s) outlined in Petitioner's Amended Notice of Specific Charges.
Findings Of Fact Based on the evidence presented and the record as a whole, the undersigned makes the following findings of material and relevant fact. Stipulated Facts At all times material hereto, Petitioner was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX § 4(b) Constitution of the State of Florida and section 1012.23, Florida Statutes. At all times material hereto, Respondent was employed pursuant to a professional service contract at Campbell Drive K-8 Center, a public school in Miami-Dade County, Florida ("also known as LEOMHS"). At all times material hereto, Respondent's employment was governed by the collective bargaining agreement ("CBA") between Miami-Dade County Public Schools and the United Teachers of Dade, as well as the policies of MDCPS and Florida law. Facts Established at the Hearing Respondent's Termination from the City of Aventura In 2000, Respondent was hired as a police dispatcher by the City of Aventura, Florida ("COA"). Respondent became a police officer where he served until March 24, 2011. Pet. Ex. 4A. On March 24, 2011, Respondent was called to a meeting with several Aventura Police Department ("APD") officials. At the meeting, he was confronted with evidence that he had purposely misrepresented the amount of overtime hours he had been working. At the meeting, Respondent's employment was terminated. Pet. Ex. 4D, p. 45. Respondent's manner or reasons for departure from APD became a point of contention in this case. In short, Petitioner alleged that Respondent falsified his application to work at LEOMHS, by leaving out certain information regarding his termination from APD. Petitioner further alleges that this served as an independent basis to terminate him from employment with MDCPS. At the final hearing, Respondent explained that he had mistakenly entered his overtime hours incorrectly at APD. According to the investigative report issued by APD, Respondent admitted to a fellow officer after his termination that a portion of the overtime hours he did not work was because "he got behind on his bills." Pet. Ex. 4D, p. 45.1 Following his termination at APD, Respondent filed a charge of discrimination with the Equal Employment Opportunity Commission in September 2011 and sued APD in May 2012. APD and Respondent settled the lawsuit. They entered into a settlement agreement in November 2012. The agreement contained a confidentiality provision. Pet. Ex. 4C, pp. 28, 32-33; Pet. Ex. 4A. There was no real dispute in this case that the express terms of the confidentiality provision, reasonably interpreted, prohibited Respondent from disclosing or discussing the facts of the case, the terms of the settlement or the circumstances surrounding the matter with any other person. Pet. Ex. 4C, pp. 32-33.2 The confidentiality provision with APD also provided that if it was breached by Stevens, a $2,000.00 liquidated damages penalty would be assessed against him, and injunctive relief and payment of the City's attorney's fees against Stevens could be awarded. Application for Employment at MDCPS In 2013, Respondent first applied for a position with MDCPS as an interventionist. As part of the application process, Respondent filled out an electronic questionnaire using the E-Recruiting system. Question Number 25 of that questionnaire asked Respondent the following: "Have you ever been disciplined, the subject of an investigation, reprimanded, suspended, non- 1 Regardless, it is important to note that Respondent's conduct at APD is not the crux or primary issue in this case, nor did his misconduct at APD form the basis for this termination. Rather, the issue here is whether Respondent improperly answered the relevant questions on his MDCPS applications; and, if so, whether this justifies his termination. 2 Petitioner has made no compelling argument to the contrary. reappointed for performance reasons, terminated, requested to resign through mutual agreement, or resigned in lieu of termination from an educational institution, the State of Florida or any other employer/organization, including the military?" In response to this question, Respondent answered "No." Pet. Ex. 10, p. 121. Sometime after filling out the first questionnaire, Respondent applied for a full-time position with MDCPS as a teacher. By this time, MDCPS was using a different employment application system called PowerSchool. This system required Respondent to fill out a questionnaire with a similar question. Question Number 3 asked: "Have you ever been disciplined, the subject of an investigation, reprimanded, suspended, non-reappointed for performance reasons, terminated, requested to resign through mutual agreement, or resigned in lieu of termination from any employer/organization, including the military?" In response to this question, Respondent also answered "No." Pet. Ex. 10, p. 124. Had Respondent answered either of these questions with a "Yes," his applications would have been forwarded to the Office of Professional Standards ("OPS") for further review. OPS would have gathered additional, follow up information. After reviewing this additional information, OPS would then make the decision of whether to hire. Carmen Molina ("Molina"), the District Director of OPS, testified that had Respondent answered in the affirmative to either question, "in his experience" Respondent would not have been hired.3 3 In light of testimony credited by the undersigned regarding Respondent's conversation with the new principal and assistant principal at LEOMHS about his confidentiality provision with APD, this speculative testimony by Molina carries limited weight. More directly, there was no affirmative and persuasive evidence offered for this specific case that Respondent's failure to answer the question in the affirmative would have resulted in him not being hired. The only thing that is certain is that it would have been referred to OPS for "further review." This evidentiary point and distinction are important. Someone's "experience" may prove to be At the final hearing, Respondent steadfastly denied being untruthful on the MDCPS application. He explained that he was initially uncertain of what the answer should be, in light of the binding confidentiality provision he had signed with COA. He understandably sought and needed advice from his prior counsel regarding his rights under the circumstances. After consulting with counsel, who investigated the matter, and upon his counsel's strict direction, he answered "No" to the application question. Added to this explanation, and perhaps more importantly, the undersigned credits Respondent's testimony that before he applied for the Interventionist position at LEOMHS, he met informally with Principal Chin ("Chin") and Assistant Principal, Dr. Lashinda Moore. Both were interested in meeting him after hearing about Respondent from mutual acquaintances. During this introductory meeting to discuss his experience and what he could offer to support the school's criminal justice program, he informed them both that he had a "non-disclosure agreement" with APD and that he had voluntarily resigned from that job. He also told them that the confidentiality provision prevented him from discussing the facts of his case against COA.4 After learning of Respondent's dilemma and the restrictions he was under, Chin informed Respondent that his dispute and confidentiality provision with APD would not be a problem. The principal was more concerned with whether his dispute with COA involved a felony conviction, a drug related problem, or improprieties involving children. Chin was satisfied true--but it may not. In this case, for instance, there are unique circumstances that may have resulted in Respondent being hired after OPS investigated and gathered additional information. At a minimum, the undersigned is left wondering what would have occurred? This is particularly true since the principal, an authorized representative of the District, was aware that Respondent had issues of some sort at APD, but told him it would not be an impediment to his hiring at LEOMHS, so long as his background check was passed. 4 This information he shared was accurate. See Pet. Ex. C, p. 28 of 124. with Respondent's explanation, so long as he could pass a criminal background check. Dr. Moore was offered at the hearing as a witness by Respondent. Although she admitted meeting Respondent at an introductory meeting consistent with his testimony, she did not "recall" discussing any confidentiality agreement with Respondent. However, she did not affirmatively testify that the discussion about Respondent's APD resignation did not occur. Unfortunately, former principal Chin was not called by either party to corroborate or refute Respondent's version of the pre-hiring discussion. Respondent offered distinct and clear testimony that the pair told him it was "not an issue" and they only cared if he could pass a background check. Based on the more detailed, clear, and specific recollection offered by Respondent, he established that he adequately disclosed to Chin and Dr. Moore that he had been involved in a workplace dispute with COA. Both were authorized representatives of Petitioner. In light of this, Respondent did not intentionally mispresent or fail to disclose any material facts to MDCPS concerning his dispute with COA. The Nature of the Education Provided at LEOMHS Principal Tony Ullivari ("Ullivari") began working at LEOMHS in the 2018-2019 school year. In addition to traditional high school subject matters, the school offers unique academic tracks in the areas of homeland security, law, and forensic science. The homeland security track offers students training in the areas of criminal justice and police dispatching. Respondent was the lead homeland security teacher and taught criminal justice and police dispatch classes to the students. The curriculum for the homeland security program was developed prior to Ullivari's arrival by Respondent and the prior administration. There was, however, a general framework for the topics provided by the state of Florida. Respondent developed the lesson plans for defensive tactics courses. As part of the coursework, Respondent developed a Defensive Tactics curriculum ("DT") and also a program Respondent came up with on his own referred to as "extended defensive tactics ["EDT"]." On a day-to-day basis, Respondent was the one who decided what would be taught in classes inolving DT and EDT. The program was conducted under a paramilitary command structure and emphasized discipline. Respondent described the DT program as a "system of controlled defensive and offensive body movements that are used by criminal justice officers around this country to respond to a suspect's aggression or resistance. It's a combination of boxing, martial arts and wrestling." There was no serious dispute that the DT program involved a sanctioned and frequent amount of close physical contact and maneuvers between students, and between students and trainers. The DT training ordinarily began in the students' sophomore year. However, any student could participate in the related Florida Public Service Association ("FPSA") competitions involving DT. According to Respondent, he developed EDT because he takes such training "very seriously" and believes it is important for a career in law enforcement and for self-defense. To ensure that the parents' of the students were aware of the training curriculum and defensive tactics that were taught, Respondent utilized a written permission form. Resp. Ex. 1 and 2. The form was approved by the administration and provided to the students and parents. The form was thorough and clearly disclosed to the parents that DT and EDT would involve a list of activities that included close physical contact. The form further explained that while defensive tactics were "inherently dangerous," they would be conducted in a "very safe and structured manner." According to Ullivari and several of Petitioner's witnesses, as well as some of Respondent's own witnesses, DT was supposed to be taught at several locations, depending on availability. The most ideal and preferred location was the DT room of the City of Miami police station, located in a building adjacent to the school. This room is entirely padded and was, therefore, the safest place for DT instruction. The second best place to conduct DT classes was the school gymnasium where there are ample mats for safety. A third, but acceptable choice, was Respondent's classroom where furniture such as desks and chairs would be moved out of the way and a mat would be placed on the ground to better ensure student safety. Respondent offered several photographs showing DT training being done within the confines of either a safe padded room, in controlled environments, or with the use of padded "Red Man" combat suits. Resp. Exs. 5-10. None of these photographs depict DT being done without matting (when the students would be engaging each other on the ground). According to one of Respondent's student witnesses, N.M., anytime DT took place in a classroom all the furniture would be cleared from the area to better ensure that it was "100% safe." Another of Respondent's witnesses, Jesus LaMadrid, testified that anytime DT tactics required the students to be on the ground in the classroom, it "never" occurred without the furniture being moved and mats being used. Respondent acknowledged that DT is a "high liability area [sic]" since it poses a greater risk of injury to his students. As a result, he took DT very seriously to help ensure that students were not injured. He testified that his emphasis on safety precluded him from permitting any "horseplay" whatsoever. He described the DT training as "very disciplined and structured." The undersigned credits Respondent's testimony and other evidence that he took active, sensible, and constant precautions to ensure, as best he could, that the DT was done in a structured and safe environment. What is equally, if not more, significant is that Respondent's DT training and tactics were open, obvious, and well known by the administration at LEOMHS. In short, the defensive tactics training program taught by Respondent was fully sanctioned and approved by the administration at LEOMHS. From the facts credited and their reasonable inferences, the undersigned also finds that MDCPS knew or should have known that high school students taking the sanctioned DT and EDT courses would likely engage in horseplay on occasion, especially those who were involved in DT training. Respondent controlled this to the best of his ability. The undersigned also finds it a bit disingenuous for the administration to sponsor and encourage risky physical DT contact training at LEOMHS, yet jump normal disciplinary steps and impose the most punitive sanction of dismissal against the employee without any persuasive evidence that other sanctions were considered. This seems particularly unfair when the employee had no prior discipline and there was no evidence to suggest that he ever received counseling, warnings, or corrective suggestions. The undersigned also finds that Respondent strove very hard to maintain control of his young and, frequently, rowdy and energetic students destined for careers in law enforcement. One has to ask: Did the administration seriously believe that occasional horseplay or other questionable physical contact would not occur within this environment? Finally, the undersigned heard no persuasive evidence that the administration actively monitored or observed Respondent's DT training or warned and counseled Respondent about his tactics or other horseplay as mentioned in the CBA. See infra. While these concerns do not excuse Respondent's failure to better control or prevent horseplay, it does support a conclusion that any penalty or discipline should fit the offense and take into account Respondent's lack of any prior discipline. Further, the undersigned was able to observe Respondent's demeanor and attitude at the hearing. He was articulate, well-mannered, controlled, and responsible during his appearance at the hearing. The reasonable inference from these observations is that he handled himself in a similar manner as the DT trainer at LEOMHS. Classroom Videos The witnesses presented by Petitioner described a classroom environment in Respondent's class that at times was disciplined and structured, but on occasion, devolved into "horseplay" between the students and Respondent, as well as each other. Pet. Ex. 8, pp. 106. Most of the horseplay was between Respondent and the male students, although females were sometimes involved. One of the student's also testified that they did not initially report the "horseplay" to the administration because the students were very fond of Respondent, and had just learned to accept this behavior from him. The witnesses presented by Respondent testified that Respondent conducted himself very professionally and the classroom was always very regimented and "horseplay" was never allowed. If it occurred, those involved would be subject to swift reactions by Respondent. Petitioner attempted to corroborate its allegations of "horseplay" by admitting into evidence two older cell phone videos. Pet. Ex. 11. In the first video, Respondent is involved in what can best be described as a "soft take down" of him by several male students. When the male students approach and take hold of him, Respondent does not resist or struggle. He goes along as he is slowly taken down to the floor by four or five male students. All the while students are laughing as they surround him and take him to the ground. Respondent ends up on his back on the floor for four to five seconds. As the students are getting off Respondent one-by-one, one of the male students stays pressed on top of Respondent--chest to chest. Notably, the student was not embraced or held down by Respondent. In this position the male student rapidly thrust his hips multiple times while on top of Respondent. Everyone breaks out in laughter, and Respondent is promptly helped to his feet by several friendly students. Significantly, Respondent is not being physically or verbally abusive to any of the students. They appear to be having fun with Respondent who reluctantly goes along with the maneuver and appears a little embarrassed by it all. In the second video, Respondent is videoed through a classroom door window. He is on the floor, perpendicular to and on top of a male student who is face down. Respondent is engaged in what appears to be a static defensive wrestling type hold and there was no movement by either. There are no other students present in the room, and there is no indication to determine if this was a part of any formal instruction. It does not appear, and there was no other evidence to prove, that the male student was struggling, thrashing about, or that he suffered any injuries. When confronted with these videos during the investigation, Respondent did not claim they were inaccurate, and told the investigating officer that he believed the videos had been shot approximately two years prior. At the hearing, Respondent explained the videos in more detail. As to the first video, he claimed he was trying to show a group of students how suspects can sometimes achieve "superman powers" that require a group of officers to take down a suspect. As to the second video, Respondent claimed he was doing EDT with a student that involved using loud verbal commands. The videos are reasonably consistent with the explanations offered by Respondent. Incidents with Certain Students Student Nayeli Aguilar During the course of the hearing, there were proven instances where Respondent's contact with several female students crossed the line, and was not appropriate. For instance, during the 2017-2018 school year, Nayeli Aguilar ("Aguilar") was a junior at LEOMHS. She participated in the FPSA program. As part of that program the students took a field trip to the Broward County Sheriff's Office ("BCSO"). She testified that on the bus ride either to or from the BCSO, she recalled that Respondent sat next to her. He placed his hand on her thigh and then slid it higher on her thigh before she grabbed his forearm to make him stop. Respondent then let go. There was no evidence that Respondent massaged or caressed her thigh. Aguilar was stunned by the incident and stated that she felt violated. She did not report the incident at the time because she was an officer in Respondent's class and did not want to violate the "code" by snitching on other law enforcement personnel. She was also too embarrassed. There were no other witnesses. During the 2018-2019 school year, there was another incident during which she and Jonathan Lavernia ("Lavernia") were doing paperwork in the back of Respondent's classroom. They spontaneously began to play fight with one another. Lavernia lightheartedly called for "backup" (Signal "3-15"), which alerted Respondent to come to the back of the classroom. Respondent participated in the play fighting by wrestling with her to the floor. Once on the floor, Respondent performed a "pressure point" on her thigh, leaving a minor bruise. Aguilar identified pictures she took of the bruise at the hearing and testified that she did not report this incident because she was too embarrassed. Pet. Ex. 7, p. 80. Even after these incidents, she still looked up to Respondent and went to his classes. But she felt that it was best to keep her distance from him because he had crossed the line and acted inappropriately with her. Student I.G. During the 2018-2019 school year, I.G. was a junior at LEOMHS. She had Respondent as a teacher in the FPSA program. One day during a lunch period in either October or November of the 2018-2019 school year, she was play fighting with Respondent, and he took her down to the ground. While she was on the floor, Respondent slapped her on the butt three times. According to I.G., she and other students had a comfortable enough relationship with him that they would push or shove him and play fight, but this time she felt it went too far. While the incident made her uncomfortable, she had an attachment to Respondent at the time, and just chalked it up to Respondent being himself. At the time of the school's investigation she believed the incident was being blown out of proportion, but suggested that Respondent had crossed a line he should not have. Pet. Ex. 8, p. 106. Shelsea Martin ("Martin"), a senior at LEOMHS, also testified. She witnessed this incident between I.G. and Respondent. The only significant difference between their testimony is that Martin believed there was one butt slap, which occurred while Respondent was lifting I.G. up from the ground. I.G. appeared to Martin to be shocked by what had happened. While Martin stated that play fighting with Respondent was common, the butt slapping was unusual and was "like a red flag" to her. Pet. Ex. 8, p. 105. She testified that she reported this incident to Ms. Joseph at some point in time, close to the day it occurred. There was no evidence presented to prove that during this incident Respondent squeezed, grabbed, or caressed I.G.'s buttocks. Student S.P. During the 2018-2019 school year, S.P. was a junior at LEOMHS and Respondent was her teacher. During the year she would play fight with Respondent in jest--playfully hitting and pushing each other. She testified that sometimes he would grab her thigh when she was sitting next to him. This occurred several times. Respondent applied a "pressure points" on her thigh and squeezed it. Initially, she was not affected by it because such behavior was "normalized [sic]" in Respondent's class, but eventually stopped play fighting with him. Pet. Ex. 8, p. 107. There was no evidence presented to prove that during this incident Respondent rubbed or caressed the female student's thigh.5 Student Eric Cardenas During the 2018-2019 school year, Eric Cardenas ("Cardenas") was a senior at LEOMHS. He testified that one day while entering Respondent's classroom late, the class was watching a video. As he entered the room Respondent spontaneously put him in the corner and grabbed at his crotch area. Cardenas also testified that Respondent would communicate with him via Snapchat while he was a student. On one occasion Respondent sent 5 It is noted that training, in the use of "pressure points," was listed on the parental permission form. Cardenas "what appeared to be" a picture of someone on a toilet that contained either human excrement or a penis. Whatever the picture was, it made Cardenas uncomfortable. He did not elaborate. As is customary with pictures sent via Snapchat, the picture disappeared after a few seconds. Pet. Ex. 8, p. 109. However, Cardenas did not attempt to keep a "screen shot" of the alleged Snapchat picture. His testimony regarding the contents of the picture was vague and indistinct. Despite a classroom full of students, there were no witnesses presented by Petitioner to corroborate the "crotch grabbing" incident that allegedly occurred during the video showing. Respondent unequivocally denied that either incident took place. The evidence from Cardenas was not credible or persuasive. The undersigned finds Respondent's testimony more credible and persuasive, and finds that the incidents were not adequately proven by Petitioner to have occurred. Student A.M. During the 2018-2019 school year, A.M. was a student at LEOMHS and participated in the FPSA program. During the school year she recalled two separate incidents between Respondent and her that she felt were inappropriate. She testified that after school one day, during the FPSA program, Respondent spontaneously laid her down to the ground with a leg move while in the hallway. He pinned her to the ground and slapped her butt. This made her feel uncomfortable. She claimed that another student, A.W., was present and she spoke to her about it. A.W. was not called as a witness to corroborate the incident. She only provided a brief written statement. A.M. wrote in her written statement submitted to MDCPS that she "laughed off the incident." Her written statement contradicted her testimony, in part. Unlike her live testimony, her written statement added that she tried to drop Mr. Stevens to the ground first, but couldn't. She said that during this second incident, while she was training for incident report writing, Lavernia pinned her to the ground and Respondent slapped her butt. T. pp. 182-183; Pet. Ex. 8, p. 110.6 She explained that she and the other students would joke about the things Respondent would do because they were not aware at the time that these were things a teacher should not do. A.M.'s testimony was vague and not persuasive. It does not support a finding that Respondent slapped her butt in this second incident. Jonathan Lavernia Respondent had a fairly close and personal relationship with one of his higher ranking officers, Jonathan Lavernia. That close relationship still exists today. On direct examination Lavernia testified that he had stayed at Respondent's home for a few days after Hurricane Irma. This was done with the approval of Lavernia's parents and due to disruption of services at his home. According to Lavernia, Respondent occasionally gave him rides to school in his private vehicle. Principal Ullivari never gave Respondent permission to either transport Lavernia in his car or let him sleep at his house and was unaware that this violation of MDCPS policy was occurring. Under the circumstances which existed, these limited instances of providing needed housing and transportation assistance to Lavernia, did not rise to the level of severe or serious misconduct by Respondent. 6 Interestingly, it was only after prompting during cross examination, that A.M. even mentioned a second incident. Other Relevant Facts Respondent was employed by Petitioner beginning in August 2013. Pet. Ex. 9. During that six-year period, there was no evidence presented that Respondent had ever been the subject of any prior disciplinary proceedings or misconduct. Therefore, these allegations of misconduct in office are Respondent's first instances of potential infractions or disciplinary action while at MDCPS. Based on the Findings of Fact, the nature of the physical contact inherent in the close contact DT training, and the testimony that there did not appear to be any significant physical or mental harm to the participants, the undersigned finds that any horseplay during classroom training did not constitute severe or serious misconduct. The horseplay involved does not justify Respondent' dismissal from employment under the progressive discipline policy in place at MDCPS. See generally, Quiller v. Duval Cty. Sch. Bd. 171 So. 3d 745 (Fla. 1st DCA 2015) ("…[T]he progressive disciplinary policy mandated that the Board was required to follow progressive steps in administering discipline unless a severe act of misconduct warranted circumventing the steps.").
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board impose a 30 to 60 day unpaid suspension and order retraining as a fair and proper sanction under the unique circumstances of this case. DONE AND ENTERED this 4th day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 4th day of December, 2020. 7 MDCPS is best suited to make the final decision on the length of a suspension period. See generally, Dep't of Prof'l Reg. v. Bernal, 531 So. 2d 967, 968 (Fla. 1988); Gonzalez-Gomez v. Dep't of Health, 107 So. 3d 1139 (Fla. 3rd DCA 2012). COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
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
