Findings Of Fact In March of 1987, the Petitioner, Mitchell M. Green, was employed with the Department of Health and Rehabilitative Services as a child support enforcement investigator. He had been employed by the Department since 1982. On March 17, 18 and 19, 1987, the Petitioner did not report for work, and did not call in to any of the persons who supervised him to explain his absence. Previously, the Petitioner had not requested leave for March 17-19, and leave had not been authorized. On March 20, 1987, the Department notified the Petitioner that his failure to report for work on March 17, 18 and 19 when he was scheduled to work, without contacting his supervisor, and without authorized leave, constituted abandonment and resignation from the position under Rule 22A-7.010(2), Florida Administrative Code, and that his employment was terminated. The Petitioner was aware of the abandonment provision in the Department's rules. He had acknowledged receipt of a copy of the Department handbook containing these rules on July 8, 1986. The testimony of the Petitioner, his father, and his mother established that the Department had given the Petitioner an "Exceeds Performance Standards" rating on his last evaluation, that the Petitioner had been diagnosed as having cancer in February of 1985, that the Petitioner had requested leave in January, 1987, but was refused because he had no more leave, and that the Petitioner was upset about conditions at work. These factors are irrelevant, however, because they do not excuse or justify a failure to report to work without obtaining authorized leave or notification that assigned work will not be performed because of absence.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Ms. Williams has been employed by the School Board for 15 years and is currently a 12-month custodian at Longwood Elementary School (School), located in Seminole County, Florida. As a 12-month custodian, Ms. Williams is allowed sick and annual leave. Ms. Williams requested leave beginning July 7, 2010, to September 29, 2010, for back surgery. On August 10, 2010, the School received a letter dated July 8, 2010, from Ms. Williams's physician, advising that Ms. Williams had undergone surgery for a spinal disorder on July 7, 2010, and would need 12 weeks to recover prior to returning to work. On October 1, 2010, Ms. Williams called the School and advised that she was not able to return to work and requested leave from September 30, 2010, through October 28, 2010. Her physician sent a letter dated September 30, 2010, to the School, advising that Ms. Williams would need an additional four weeks for recovery. By this time, Ms. Williams had exhausted all her paid leave and was on leave without pay. Ms. Williams was unable to come to the School to sign the application for leave; however, the leave was approved by the principal of the School, Virginia Fisher (Ms. Fisher), who was Ms. Williams's direct supervisor. By November 2, 2010, Ms. Williams was still unable to return to work, and her physician sent another letter to the School, advising that Ms. Williams would need an additional four weeks for recovery. Ms. Williams requested leave from November 2, 2010, to November 30, 2010. Again, Ms. Williams was unable to come to the School to sign the application for leave, but it was approved by Ms. Fisher. By December 1, 2010, Ms. Williams was still unable to return to work and requested leave from December 1, 2010, through January 3, 2011. Her physician sent a letter to the School, stating that Ms. Williams needed an additional four weeks for recovery. Ms. Williams was unable to come to the School to sign the application, and the leave request was approved by Ms. Fisher. Ms. Williams's physician sent a letter dated December 27, 2010, to the School, stating that Ms. Williams had not quite reached maximum medical improvement with respect to her recovery and that he would need to see her in four weeks for reevaluation. Ms. Williams signed and submitted an application for leave for January 4, 2011, through January 24, 2011. The leave was approved. Ms. Williams's physician submitted a Return to Work/School Certificate dated January 21, 2011, to the School, stating that Ms. Williams would be able to return to work on January 24, 2011, with the following restrictions: "light duty with no repetitive lifting over her head, lifting restriction of = 30 lbs." Ms. Williams discussed the issue of light duty with Steve Bouzianis (Mr. Bouzianis), director of Human Resources, Staffing and Operations for the School Board. She told him that she had been advised by staff at the School that she needed to come back to work or submit a request for additional leave. Mr. Bouzianis informed her that she could not do the custodial job with the restrictions set by her physician. Ms. Williams was advised to submit a request for leave and was told that it would be approved. By February 18, 2011, Ms. Williams had not submitted a request for leave or submitted a letter from her physician stating that she needed to be absent from work due to an illness. By letter dated February 18, 2011, Ms. Fisher enclosed a leave request form and directed Ms. Williams to complete the form and return it to her, along with a physician's statement substantiating Ms. Williams's need for her absences no later than February 23, 2011. Ms. Fisher further advised that, if Ms. Williams could not obtain a physician's statement, Ms. Fisher would approve the leave for the remainder of the year as personal leave without pay. Ms. Fisher advised in the letter of the consequences for failure to request leave and stated: Should you fail to return to me your signed request for leave form and the supporting physician's statement (if applicable) by the date identified above [February 23, 2011], you will be considered as absent from duty without approved leave, and in violation of adopted School Board policy. In that event, the Superintendent of Schools will recommend to the School Board that you be suspended from your duties and further that your employment with the School Board of Seminole County, Florida[,] be terminated. The School received a letter dated February 22, 2011, from Ms. Williams's physician, who stated that Ms. Williams could return to work on January 24, 2011, with the same restrictions previously listed on the Return to Work/School Certificate. On February 23, 2011, Cynthia Frye (Ms. Frye), who is Ms. Fisher's assistant, attempted to call Ms. Williams at her sister's telephone number, which is the number that Ms. Williams had given the School to contact in case of an emergency. At the time, Ms. Williams was living with her sister and staying some of the time with her son. Ms. Frye called at 2:37 p.m., and got no answer, and called again at 3:15 p.m., at which time she spoke to Ms. Williams's sister. Ms. Frye told the sister that it was important that Ms. Williams call Ms. Frye. Ms. Williams had not called Ms. Frye by the morning of February 24, 2011. Ms. Frye attempted to call Ms. Williams twice during the morning of February 24, 2011, and three times during the afternoon. On the last call, she left a message with Ms. Williams's sister that it was imperative that Ms. Williams call Ms. Frye that night or Ms. Frye could not help Ms. Williams. By March 4, 2011, the School still had not heard from Ms. Williams. Ms. Fisher sent Ms. Williams a letter dated March 4, 2011, stating that, because Ms. Williams had not contacted the School to request leave, Ms. Williams's absences since January 25, 2011, were considered as absences from duty without approved leave. Ms. Fisher advised Ms. Williams that, based on Ms. Williams's third and continuing absences, Ms. Fisher would recommend to the superintendent of schools that Ms. Williams's employment with the Seminole County Public Schools be terminated. When questioned at the final hearing concerning her reasoning for not requesting leave, Ms. Williams indicated that she wanted to work, but the School would not let her come back to work with light duty restrictions. She contacted her attorney and, based on his advice, did not request leave. Ms. Williams's employment is governed by the Official Agreement between the Non-Instructional Personnel of Seminole County Board of Public Instruction Association, Inc., and the School Board (Agreement). Article VII of the Agreement provides: Section 4. * * * B. A regular employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. * * * Section 5. A. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following provided that just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employees leaves the work site after the equipment, if applicable, has been checked in Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools, or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. * * * Section 11. Absence Without Leave Employees will be considered absent without leave if they fail to notify their principal, appropriate director or supervisor that they will be absent from duty and the reason for such absence. Absence without leave is a breach of contract and may be grounds for immediate dismissal. * * * Section 15. Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures: 1st Offense--Written reprimand and one day suspension without pay. 2nd Offense--Five day suspension without pay. 3rd Offense--Recommendation for termination. Each day that an employee is AWOL shall be considered a separate offense. However, any documentation of offenses in this section shall be maintained in the employee's personnel file.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Ms. Williams's employment with the School Board. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 28th day of July, 2011.
The Issue The issue is whether Respondent’s conduct constitutes just cause for her dismissal from employment with Petitioner.
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22 (1)(f), Fla. Stat. According to section 4.4-1 of the Teacher Collective Bargaining Agreement (Agreement): Progressive discipline shall be followed, except in cases where the course of conduct or the severity of the offense justifies otherwise. Unusual circumstances may justify suspension with pay. Progressive discipline shall be administered in the following steps: verbal warning in a conference with the teacher, (A written confirmation of a verbal warning is not a written reprimand); (2) dated written reprimand following a conference; (3) suspension without pay for up to five days by the Superintendent and (4) termination. “Letters of Concern” are not a form of discipline. Progressive discipline is generally recognized as the process of using increasingly severe measures when an employee fails to correct a problem after being given a reasonable opportunity to do so. The measures range from mild to severe, meaning they can be as simple as a verbal warning to correct conduct, to employment termination for repetitive conduct that endangers others. Ms. Hirsch has been employed by the School Board for 14 years. She has been employed pursuant to terms of the Agreement. Ms. Hirsch taught kindergarten at Dundee Elementary School (Dundee) for eight years. In 2013, she took a medical leave of absence to attend to family health matters out-of-state. When Ms. Hirsch returned to Florida in January 2014, she was placed at Eastside Elementary School (Eastside), and assigned to teach first grade. On April 8, 2014, Johna Jozwiak, Eastside’s principal, issued a verbal warning with a written confirmation to Ms. Hirsch regarding her excessive absences. Ms. Hirsch had been absent from school for ten days, two of which were without any accrued leave time. Ms. Hirsch was put on notice that this verbal warning was the first step of Progressive Discipline as outlined in section 4.4-1 of the Agreement. Eight days later, Principal Jozwiak issued a written reprimand to Ms. Hirsch regarding her failure to leave adequate substitute lessons plans on the days of her absences. This written reprimand was the second step of Progressive Discipline as outlined in section 4.4-1 of the Agreement. Principal Jozwiak testified that Ms. Hirsch was mailed a certified copy of the written reprimand; however, no evidence was introduced that Ms. Hirsch actually received a copy of it. Ms. Hirsch’s written request for her second family leave/medical leave of absence without pay indicated a “Beginning Date” of April 17, 2014, and a “Return Date” of August 11, 2014. Principal Jozwiak testified that she was uncertain if Ms. Hirsch would return to Eastside to teach in the 2014-2015 school year.3/ When Principal Jozwiak found out Ms. Hirsch would return, Ms. Hirsch was assigned to teach a fifth grade class.4/ Ms. Hirsch’s fifth grade classroom was the last portable on the far end of the school property. Beyond her portable were private residences separated only by a chain-link fence. Ms. Hirsch felt there were times when her request for assistance was delayed because of the distance to administrative support services at the front of the school. Ms. Hirsch had new curriculum for the fifth grade and a different teaching method to follow called Common Core. Ms. Hirsch had difficulty in controlling her class room, and in utilizing the Common Core teaching method. On September 10, 2014, Ms. Hirsch participated in an instructional assistance conference with Principal Jozwiak. During this conference several aspects of Ms. Hirsch’s teaching techniques were discussed, and seven specific suggestions were provided to improve her teaching techniques. On October 2, 2014, Principal Jozwiak issued a verbal warning with a written confirmation (Petitioner’s Exhibit 5)5/ regarding Ms. Hirsch’s professional performance. The verbal warning reminded Ms. Hirsch of the September 10 conference, and the suggestions offered to improve her teaching techniques. Ms. Hirsch was offered continued support to improve her teaching techniques. Ms. Hirsch was put on notice that the verbal warning was the first step of Progressive Discipline as outlined in section 4.4-1 of the Agreement. Almost four months later, on January 22, 2015, Ms. Hirsch was issued a verbal warning with a written confirmation regarding her failure to follow the prescribed [Common Core] pacing schedule and daily plan. Again, Ms. Hirsch was put on notice that this verbal warning was the first step of Progressive Discipline as outlined in section 4.4-1 of the Agreement.6/ On Friday, February 6, 2015, Eastside was placed in a “lockdown”7/ after the school day started. Although some students helped Ms. Hirsch put up the black paper to shield the windows, the overall class atmosphere was agitated. Students screamed and ran around the classroom. Eventually the students calmed down; however, it was difficult to keep them on task that day. The lockdown ended and the school day progressed. Principal Jozwiak was unable to recall whether there was a lockdown on February 6. Near the end of the school day, the students became agitated again, and would not listen or pay attention to Ms. Hirsch’s lesson. Ms. Hirsch turned the lights off and on, she clapped her hands, and she asked the students to “give me five” (which meant the students were to be quiet for five minutes). The students did not quiet down and Ms. Hirsch became frustrated. In her frustration, Ms. Hirsch swept a basket off a shelf right next to her desk. The basket contained four or five little reader books. When the basket was swept off the shelf, neither it nor the reader books hit any students. The three students who testified corroborated Ms. Hirsch’s statement that it was a little basket that was swept off a shelf. Although two students testified there was nothing in the basket, the third testified a book almost hit her. No testimony was adduced about the size of the books, other than Ms. Hirsch’s testimony that they were “little.” Ms. Hirsch voiced her frustration by calling the students “dumbasses.” Ms. Hirsch immediately apologized to the students, and broke down in tears. Principal Jowiak became aware of the language and book incident at the end of the school day on February 6. Principal Jowiak determined to address the matter on the next school day, Monday, February 9. On Monday, February 9, Principal Jozwiak contacted the School Board’s human resource department. Upon questioning, Ms. Hirsch admitted she slid her arm across a bookshelf and knocked a green and yellow basket off the shelf. In her frustration with the students’ behavior that day, Ms. Hirsch told them they were acting like “dumbasses.” Principal Jozwiak obtained written statements from the students in Ms. Hirsch’s class. Over the next several days, parents called to complain and the School Board then conducted an investigation of the incident. On February 9, Principal Jozwiak wrote Superintendent Kathyrn LeRoy the following: On 2/6/15 it was reported to me that Ms. Hirsch, a teacher at our school, got angry with her students and threw buckets full of books off the shelves. While she was doing this, she called all of her students “dumbasses.” After school on Friday, two students told another teacher about this issue. Two parents also called the office to report this incident. Administration interviewed all students. They confirmed that this happened. I have a statement from the staff member and others, and have verified that this took place as stated. On 2/9/15, administration asked Ms. Hirsch about this issue. She admitted to doing all the above actions. We have documented on-going shortcomings in Ms. Hirsch’s professionalism as a teacher at this school. She received a verbal warning for her failure to follow the procedural schedule and plan. A copy of the documentation for that step of Progressive Discipline is attached.[8/] I am of the opinion that Ms. Hirsch’s recent lack of professionalism rises to the level of serious misconduct and just cause for further disciplinary action. Accordingly, pursuant to Section 4.4-1 of the Teacher Collective Bargaining Agreement, I request that you consider suspending Ms. Hirsch without pay for a period of five days in accordance with the third step of Progressive Discipline. (emphasis supplied). Approximately 10 days later, Principal Jozwiak had a meeting with the head of the School Board’s human resource office, an associate superintendent, and her regional associate superintendent. The decision to terminate Ms. Hirsch’s employment was made based on her admission. On March 16, 2015,9/ Superintendent LeRoy wrote Respondent asserting that the School Board had just cause to terminate Ms. Hirsch’s employment based on the following: On March 6, 2013, you received a verbal warning (Step I) for issues regarding student safety. You received a verbal warning (Step on March 8, 2014 for excessive absenteeism. On April 16, 2014 you received a written reprimand (Step II) for failure to leave lesson plans when required to have a substitute cover your class. You received a verbal warning (Step I) on October 2, 2014 due to performance issues. On February 19, 2015 you received a written reprimand (Step for excessive absenteeism. On February 6, 2015 there was an incident in your classroom where you became angry with your students. According to the witness statements that were collected, during your agitated state you threw or shoved buckets full of books off of shelves in the room and also called your class “dumbasses.” These actions violate The Code of Ethics and The Principles of Professional Conduct of The Education Profession in Florida (3)(a)…”shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety” as well as (3) (e) … “shall not intentionally expose a student to unnecessary embarrassment or disparagement.” Based on these findings, it has been determined that your actions constitute serious misconduct and that there is “just cause” for your termination as a School Board employee. You have the right to request a hearing before the final action is taken by the School Board on this recommendation. Such request must be submitted in writing, addressed to Superintendent LeRoy, sent to the attention of Cynthia Sprouse, Office of Employee Relations, Polk County School Board, 1915 South Floral Avenue, Bartow, Florida 33830 no later than 4:00 p.m. on Wednesday, March 25, 2015. If you request a hearing, you will be suspended without pay at the April 14, 2015 Board Meeting pending the outcome of the hearing and the School Board’s final action on the Hearing Officer’s Recommended Order. The allegations in this case are set forth above. Ms. Hirsch is alleged to have received three verbal warnings and two written reprimands over the course of approximately 23 months. On February 6, 2015, Ms. Hirsch was alleged to have thrown “or shoved buckets full of books off of shelves in the [her class] room” in addition to calling her class “dumbasses.” A careful review of the evidence proves otherwise. While at Dundee Elementary School, Ms. Hirsch received a verbal warning regarding student safety issues. Although a March 6, 2013, letter was submitted into evidence to support this allegation, no direct testimony was received regarding it. Ms. Hirsch was placed at Eastside in January 2014. No testimony was presented about a March 8, 2014, verbal warning with written confirmation about Ms. Hirsch’s excessive absenteeism. Ms. Hirsch was served (and acknowledged receipt of) an April 8, 2014, verbal warning with written confirmation regarding her excessive absenteeism. The April 16, 2014, written reprimand identified Ms. Hirsch’s failure to leave adequate substitute lesson plans when she was absent from school, and was presented as a second step in the Progressive Discipline scheme. Ms. Hirsch testified that she always provided lesson plans when she was absent. Ms. Hirsch’s Exhibit No. 2, an email from February 22, 2015, providing “Lesson Plans for Week of February 23-27” is well after the alleged incident occurred. In early October 2014 of the next school year, Ms. Hirsch received a verbal warning with a written confirmation regarding her professional performance. While Eastside’s administration was continuing to provide support to Ms. Hirsch, this verbal warning was considered the first step of Progressive Discipline. Although a verbal warning with a written confirmation about Ms. Hirsch’s “failure to follow the prescribed pacing schedule and daily plan” was issued on January 22, 2015, this notification was not within the superintendent’s March 16 letter recommending termination. Further, the superintendent’s use of the verbiage that Ms. Hirsch “threw or shoved buckets full of books off of shelves in the room” is not supported by the evidence presented. There is no doubt that Ms. Hirsch used inappropriate language with her students. Further, her sweeping the basket off its shelf was inappropriate behavior. Her demeanor and actions were inconsistent with professional behavior by a teacher. Petitioner has proven by a preponderance of evidence that there is just cause to discipline Ms. Hirsch.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, suspend Ms. Hirsch for five days without pay. DONE AND ENTERED this 1st day of September, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 1st day of September, 2015.
The Issue The issue in this case is whether Petitioners' application for licensure of a child care facility should be approved or denied.
Findings Of Fact Petitioner, Oakcrest Early Education Center, Inc. (Oakcrest), is a formerly licensed child care facility located at 1606 Northeast 22nd Avenue, Ocala, Florida. Its license was not renewed following an incident on June 7, 2005, to wit: A three-year-old child was left unattended in an Oakcrest vehicle for approximately three hours, resulting in harm to the child. Petitioner, Joanne Jones (Jones), is the owner of Oakcrest. DCF is the state agency responsible for, inter alia, licensing and monitoring child care facilities. Oakcrest has not been licensed as a child care facility since the June 2005 incident. However, the Final Order in DOAH Case No. 05-2616 gave Oakcrest the right to re-apply for a license at any time. Based on that allowance, Jones filed an application for a child care facility license with DCF on June 17, 2007, some two years after the last license application was denied. The basis for denying the latest application was that Jones had done nothing to address the violations precipitating the previous non-renewal of license. At the final hearing in the current case, Jones presented no evidence to convince DCF that prior violations would not be repeated. In fact, Jones candidly admitted that her only reason for seeking a license was so that she could sell the building housing the child care facility for a higher price. Jones admitted she had no intention of operating the child care facility if a license was issued to her. The violations in 2005 were serious. The child who was involved continues to suffer residual effects from the trauma suffered at that time. He has on-going physical and psychological issues directly related to being left in the hot day care van for about three hours.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by DCF denying the application for licensure of a child care facility to Oakcrest and Jones. DONE AND ENTERED this 6th day of November, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 6th day of November, 2007.
The Issue Whether the Respondent discriminated against Petitioner on the basis of age, handicap and retaliation in violation of the Civil Rights Act of 1992, Sections 760.01-760.11, Florida Statutes.
Findings Of Fact Petitioner, who was 52 years of age during the relevant time period, was employed as a guidance counselor at Apollo Elementary School during the 1996-97 school year. Petitioner was one of two guidance counselors employed at the school. The other guidance counselor was Peggy Davis, who was 42 years of age during the relevant time period. Both Petitioner and Davis were licensed teachers and certified guidance counselors. The Brevard County School District has a staffing plan that allocates to each school teaching units according to student population. Based upon the staffing plan, each school is funded to employ a certain number of teachers in each relevant certification and specialty. The principal of each school is permitted to shift allocated teaching units among the different certifications and teaching specialties to meet current program needs. In 1995, Alice Graves was assigned as Principal of Apollo Elementary. When Graves arrived at Apollo, both Petitioner and Davis were employed as full-time guidance counselors. Prior to Graves' assignment to Apollo, the school had earned 1.5 units in guidance based upon student population. In order to fund two full-time guidance counselors, the prior principal had borrowed 0.5 of a teaching unit from the regular program. Graves continued this guidance allocation until the 1997-98 school year. During the 1995-96 school year, the Apollo Elementary School community of parents and teachers decided to implement a computer lab to increase technology instruction in the school. As part of the process a three-year technology plan was developed and submitted to the district and the State Board of Education to fund and staff the computer lab. By the spring of 1997, the school community had raised the necessary funds and purchased 28 computers for the lab. The school was ready to activate the computer lab for the 1997-98 school year. It needed to hire a computer teacher to staff the program. Staffing the computer lab required one full-time teacher. However, Apollo Elementary received no additional staffing from the District because of the computer lab. As a result, the principal was required to staff the lab within the school's existing staffing plan. The principal examined the school's program needs and existing staffing. She determined that the most appropriate way to obtain the full teaching unit needed to staff the computer lab was to take a half unit from the basic program and match it with the half unit that had been allocated to fund one of the two full-time guidance counselor positions. This staffing reallocation would have the least impact on class size, program needs and the student's educational environment. This plan also reduced the existing staffing in guidance by one-half unit, thereby returning it to the 1.5 units actually earned by the school based upon student population. In order to accomplish the staffing reallocation to open the computer lab for the 1997-98 school year, the principal was required to reduce the existing guidance counselor staffing by one-half unit. To do this, the principal had to find another school in Area IV of the School District to share one full-time unit of guidance. In the spring of 1997, the principal began working with the Area IV superintendent's office to find a school to share the guidance unit. In the early summer of 1997, a part-time position in guidance became available in Area IV at Enterprise Elementary. Principal Graves received permission from the Area superintendent to transfer one-half unit of guidance to Enterprise if that school's principal agreed. This would require that one of the two guidance counselors at Apollo be shared between the two schools. The principal contacted the District's Labor Relations office for instructions on how to carry out the transfer of one- half unit of guidance to Enterprise Elementary. She was instructed to follow Article VI F.3.a.(8) of the Collective Bargaining Agreement (CBA) between the School District and the Brevard Federation of Teachers. That provision governs transfers of teachers for reasons other than declining enrollment. In accordance with the CBA, the principal sent certified letters to both guidance counselors assigned to Apollo Elementary, Davis, and Petitioner notifying them that a reduction in guidance staffing was going to take place in the upcoming school year and asking for a volunteer to transfer to the shared position. Davis responded in writing that she did not wish to be transferred. Petitioner did not respond to the letter. The principal then contacted Petitioner by telephone and asked her response to the letter. Petitioner told the principal she was not interested in the transfer. Since neither Petitioner nor Davis volunteered to transfer to the shared position, the principal was required to select one of them to be involuntarily transferred. Principal Graves decided to retain Davis in the full-time guidance position at Apollo Elementary and transfer Petitioner to the shared position effective at the beginning of the 1997-98 school year. The criteria the principal used in deciding which guidance counselor would remain in the full-time position at Apollo and which would transfer to the shared position was based upon the contributions each counselor made to the programs and students in the school. Davis was much more involved than Petitioner in the school community and was active in the School Advisory Committee, the Student Council Program, and other school activities that were essential to promoting community services and self-esteem for students. Davis was selected by her peers as the school's Teacher of the Year three times, was an exemplary teacher and guidance counselor, and was excellent at diffusing concerned and upset parents which was important in a guidance counselor in that position. Graves believed that Davis was a more effective guidance counselor than Petitioner. For all these reasons, Davis was retained as the full-time guidance counselor at Apollo and Petitioner was transferred to the shared position effective at the beginning of the 1997-98 school year. Petitioner was notified of the transfer. Thereafter, Petitioner requested a meeting with the Area IV superintendent to protest the transfer. Petitioner was accompanied at the meeting by Fran Baer, President of the Brevard Federation of Teachers. The Area IV superintendent upheld the transfer. Neither Petitioner nor Brevard Federation of Teachers grieved the transfer under the CBA. Petitioner worked the shared position commencing at the beginning of the 1997-98 school year. Petitioner divided her time between Apollo Elementary and Enterprise Elementary alternating days at each school. Petitioner retired from the Brevard County School District effective the end of the 1997-98 school year. Part-time or shared teaching assignments are commonplace in the Brevard County School District. The CBA between the School District and the Brevard Federation of Teachers recognizes this practice in Article VI of the CBA. Currently, the guidance counselor staffing at Apollo Elementary is still 1.5 units and a guidance position is shared with Enterprise Elementary. Although Petitioner did not desire the transfer, the principal had to transfer either Petitioner or Davis to the shared position to accommodate the staffing of the computer lab for the 1997-98 school year. The decision to staff the computer lab teaching position by reducing the guidance allocation to the 1.5 units earned by student population was based upon the program needs of the school and to avoid increasing class size in the regular program. The reasons articulated by Respondent for the reallocation of teaching units and the transfer of Petitioner to the shared position are credible and constitute legitimate non- discriminatory reasons for the actions taken. The evidence does not support Petitioner's assertion that her age was a factor in the decision, nor was Petitioner's physical condition a factor in the decision. Although Petitioner had some physical problems that occurred from time to time, the school staff was not aware that Petitioner claimed to be disabled or handicapped and the staff did not perceive Petitioner to be handicapped. The evidence does not support the assertion that Petitioner was retaliated against based upon her age, physical condition or for filing the charge of discrimination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the petition. DONE AND ENTERED this 27th day of January, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2000. COPIES FURNISHED: Carol A. Gainer 1627 Rice Avenue Titusville, Florida 32796 Harold T. Bistline, Esquire Stromire, Bistline, Miniclier & Griffith 1970 Michigan Avenue, Building E Cocoa, Florida 32922 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
