Findings Of Fact Based upon the evidence adduced at hearing, the stipulations of the parties, and the record as a whole, the following Findings of Fact are made: Respondent holds Florida teaching certificate 254645, which covers the areas of administration and supervision, health education, adult administration, and physical education, and is valid through June 30, 1997. Following his graduation from Florida A&M University in 1969, Respondent obtained a teaching position with the Dade County School Board (hereinafter referred to as the "Board"). Respondent remained in the employ of the Board as a teacher and then as an administrator until he retired effective May 28, 1992. During the 1990-91 school year, Respondent was the assistant principal for community education at L.C. Evans Elementary School (hereinafter referred to as "Evans"), a position he had held since November of 1987. Dorothy Mindingall was the principal at Evans and Respondent's immediate supervisor. Among Respondent's responsibilities as the school's assistant principal for community education was to bring to the school adult education classes, offered by the Miami Northwestern Adult Center (hereinafter referred to as the "Center"), that the community wanted. During the 1990-91 school year, adult education sewing classes taught by Irlina Moore, adult education parenting classes taught by Joni Singleton, and adult education GED classes taught by Bertha Cochran and Sophia Ann James Hall were offered at Evans in the evening hours. As the only school administrator on duty at Evans that time of day, Respondent was responsible for monitoring the activity that was then taking place in the building, including that related to these adult education classes. The adult education teachers viewed Respondent as their immediate supervisor, even though it was actually Betty Major, the Center's assistant principal for adult education, not Respondent, who had been assigned that supervisory responsibility. Major had little or no contact with the teachers. The adult education classes at Evans had been established only after Respondent had approached the principal of the Center, Will Miller, and requested that Miller authorize the establishment of the classes. While Miller did not exercise any supervisory authority over Respondent, the classes could not be offered at Evans without Miller's authorization. Miller gave his authorization and hired the teachers Respondent had recommended to teach these classes. He did so, however, with the caveat that the classes would be discontinued if they had enrollments of less than 25 students. After their hiring, Respondent told the teachers to recruit students for their classes and to assist the students in the registration process. In addition, he suggested to Moore that she pay for the registration of students who were unable to afford the registrations fee. Moore did as she was told. She was subsequently reimbursed by only a few of the students. The adult education classes held at Evans during the 1990-91 school year were poorly attended. Many students who were registered, including those whose registration fee had been paid by Moore, rarely, if ever, showed up for class. Generally, only two or three students were actually present for Moore's sewing classes. Cochran and Hall, on the average, had eight to ten and four to eight students, respectively, attend their GED classes. Respondent was aware of these attendance problems. He also knew, as did at least some of the adult education teachers teaching these classes, that if a student was marked absent for six consecutive days the student would no longer be considered enrolled in the class for purposes of determining whether class enrollment was sufficient to justify the continuation of the class. Respondent instructed Moore to mark students present who were actually absent from class. Thereafter, at a meeting held in November of 1990, the subject of which was the recruitment and enrollment of adult education students, Respondent gave similar instructions to the teachers in attendance-- Moore, Cochran and Singleton. Moore and Cochran acted in accordance with Respondent's instructions and intentionally falsified their class attendance records. Cochran, though, did so for only approximately one month before deciding to resign her position at Evans. Hall was not present at the November, 1990, meeting. On two or three different occasions, however, in the hallway outside of her classroom, Respondent advised her to mark students present who were actually absent from class. In or around January of 1991, Hall began following Respondent's advice and, as Moore and Cochran had already done, and Moore was continuing to do, started submitting attendance records that she knew overstated the number of students actually attending her classes. She continued to do so until March or April of that same year. In submitting falsified attendance records, Moore, Cochran and Hall were motivated by a desire to retain their jobs teaching at Evans-- jobs they knew were at risk because of the relatively small number of students who were regularly attending their classes. Respondent used these attendance records, which he knew were inaccurate, to prepare the community school activity reports it was his responsibility, as assistant principal for community education, to submit to his supervisor his each month-- in particular, those portions of these reports which reflected the number of enrolled students in Moore's, Cochran's and Hall's classes and the number of "participant hours" purportedly generated by these classes during the reporting period. Accordingly, these reports, as Respondent was aware, made it appear that more students were participating in the adult education program at Evans than was actually the case. Had the truth been revealed in these reports, it may very well have raised questions as to whether Respondent was satisfactorily performing his responsibility of providing the community with what it wanted in the way of adult education classes. Respondent therefore had a motive to keep the truth from his superiors and to mislead them regarding the actual extent of community participation in the adult education program at Evans. Respondent's superiors, however, ultimately uncovered the truth following an investigation into the matter. During the investigation, Moore, Cochran and Hall were each questioned on more than one occasion by Michael Malone, the Board's police coordinator. Initially, neither of them specifically admitted falsifying attendance records. Cochran and Hall, in fact, specifically denied engaging in such activity. Subsequently, however, they all told Malone the truth and in so doing implicated Respondent. Moore and Hall did so only after they had met with Cochran, who had already revealed the truth, at Cochran's home to discuss the matter. Neither Moore nor Hall told Malone about the meeting. Hall did mention to Malone, though, that she had attended a meeting at the Center at which "Miller had told everyone present about the investigation and how four teachers were in serious trouble" and that, as a result, "she now realized how serious this matter [wa]s." After Respondent was formally advised of the results of the Board's investigation at a March 11, 1992, conference-for-record, he decided to retire. His retirement as an employee of the Board was effective May 28, 1992.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission enter a final order finding Respondent guilty of the violations found above and disciplining him for having committed these violations by suspending his teaching certificate for a period of three years and placing him on probation, subject to such conditions as the Commission may deem appropriate, for a period of two years following the end of his suspension. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of November, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1993.
The Issue The issue is whether Respondent should be suspended from employment for twenty days without pay for misconduct and unprofessional conduct in violation of School District Policies 1.013 and 1.014, Florida Administrative Code Rules 6B-1.001(3) and 6B-1.006(4)(b), (5)(a) and (5)(h), and School Board Bulletins #P-12542-CAO/COO-Count Day and Class Size Reduction Review, and #P-12519-CAO/COO-Florida Department of Education Student Enrollment Procedures.
Findings Of Fact Petitioner, Palm Beach County School Board (the Board or Petitioner), operates, controls, and supervises all public schools within the Palm Beach County School District (the District), as authorized by Subsection 1001.32(2), Florida Statutes (2008). The District School Superintendent, Dr. Arthur C. Johnson (Superintendent Johnson) is responsible for the administration, management, and supervision of instruction in the District, as provided in Subsection 1001.32(3), Florida Statutes (2008). Respondent, Dr. Gwendolyn Johnson (Dr. Johnson or Respondent) was the principal at Independence Middle School (Independence) during the 2007 to 2008 school year. In her thirty-five years with the District, Dr. Johnson was a principal for eight years, an assistant principal for eleven and a half years, a guidance counselor for approximately nine years, and, before that, an elementary and high school occupational specialist. At Independence, Respondent's assistant principals were Kathleen Carden, Martest Sheffield, and Scott Duhy. Although the projected enrollment was 1174, not the minimum number of 1201 required to justify having a third assistant principal, Dr. Johnson requested and, on May 15, 2007, received approval to keep the third assistant principal, Mr. Duhy, subject to reaching or exceeding the required enrollment by the time the count of students was taken on or about the eleventh day of school in the fall. The increase over the projection was possible because Independence was the 2007 receiving school for students whose parents transferred them from D- or F-rated schools under No Child Left Behind Act. For the 2007-2008 school year, Dr. Johnson assigned primary responsibility for maintaining a count of the student population to another one of the assistant principals, Dr. Carden. In addition to determining the number of assistant principals, the enrollment count is used by the District to determine other staffing, including the number of teachers, and guidance counselors assigned to each school. Attendance at Independence was reported by teachers each school day on bubbled attendance sheets. The sheets were scanned each day and the data stored in a computer program called the Total Education or Resource Management System (TERMS). The sheets were returned to the teachers who used them to record attendance for a two-week period before signing and submitting them, and receiving new computer-generated biweekly attendance scan sheets. On August 23, 2007, the District notified all principals, including Dr. Johnson, by memorandum (Bulletin # P- 12519-CAO/COO/FO/FTE), that any student who had never attended any period since the first day of school must have a withdrawn code entered into the TERMS program by August 27, 2007. Dr. Johnson e-mailed the Bulletin to her administrative staff and convened a meeting of that group to review it. Her secretary also e-mailed a reminder of the requirements to the staff on August 27, 2007. Teachers reported students who never attended school from the beginning of the year, the so-called "no-shows," by making handwritten notes or by drawing lines through the student's name on the attendance sheets, expecting those names to be removed from their rosters. Students who never showed up were not bubbled absent on the attendance sheets. A student aide in the student services office scanned the sheets, so the school's data processor, Angela Jones, did not see the teacher's notes and make changes in the computer. Once teachers kept getting biweekly attendance sheets with the names of no-shows and transfers on them, they started e-mailing or otherwise notifying Ms. Jones who began to keep a running list of no shows and transfers. Ms. Jones was not allowed to enter the withdrawal code in TERMS until authorized to do so by either Dr. Johnson or Dr. Carden, as shown by their e-mails. Rather than following the instructions in Bulletin # P-12519 to withdraw all no-shows by August 27, 2007, no-shows were treated like transfers and were not withdrawn until the student's new school requested their records. Dr. Johnson's claim that she was not aware that procedures outlined in the District's Bulletin of August 23, 2007, were not being followed by Ms. Jones and Dr. Carden, is not credible. She was present at the meetings in her office and her conference room, well after the August deadline, during which Ms. Jones continued to receive instructions to wait for approval to make withdrawals. On August 31, 2007, the District notified all principals, including Dr. Johnson, by memorandum (Bulletin # P- 12542-CAO/COO) that the District's enrollment count day was September 7, 2007, and that the count would be taken from TERMS. Dr. Johnson sent an e-mail to all teachers to count students, as directed in the Bulletin of August 23, by only including students who had been in attendance at least one period since school began on August 22, thereby excluding no-shows from the count. Prior to 2007, this would have been the enrollment number that the school faxed or e-mailed to the District. For the first time in 2007, the number used by the District was the number taken from TERMS summary enrollment screen that included no-shows at Independence. The District also relied on that data for its Full Time Equivalent (FTE) survey and report to the State Department of Education (DOE). The FTE count is used to determine per pupil funding by the State. The actual number of students at Independence on September 7, 2007, was 1188 but the number taken from the TERMS database and reported was 1214, a twenty-six student discrepancy that was later, after an audit, reduced to twenty-four. In October 2007, Dr. Johnson falsely verified the accuracy of the FTE survey that was, subsequent to the audit, determined to be an over-count of 23 students. Dr. Johnson testified that she verified the accuracy of the count relying on the work of Dr. Carden, Ms. Jones, Exceptional Student Education Coordinator Carol Lee, and ESOL Coordinator Ann Costillo. She denied attempting to fraudulently inflate the number to gain or maintain resources allocated by the District, but she knew there was a difference in the numbers based on a September report from Dr. Carden. She also knew that, if the teachers followed her instructions regarding how to count students, the "actual" number of 1214 from TERMS, written in by Dr. Carden, had to be incorrect. TERMS data also was uploaded to another program called Grade-Quick. When it was time to give grades at the end of nine weeks, Ms. Jones no longer had the ability to alter the rosters and teachers were required to give a grade to each student on their roster. David Shore was the Grade-Quick technical support person at Independence. At the suggestion of Dr. Johnson, he sought advice from the District's technical support person, Bruce Roland, who told him to have teachers give each no-show student a grade of "F" to avoid an error code. The uploaded grades for students who did not attend Independence, according to Mr. Roland, would be deleted from the District's mainframe. Fearing other consequences of giving "Fs," including the possibility of generating letters to parents whose children did not attend Independence, and doubting Mr. Shore's advice because he was relatively new in his position, some teachers refused to give "Fs" to no-shows. After discussions with Dr. Johnson, Mr. Shore instructed teachers to give a grade of "C" instead and to be sure also to give a conduct grade. One teacher apparently found a way to give a conduct grade, but no letter grade, to students who were not enrolled in her class and to somehow avoid a computer error code. Some time during the fall semester, anonymous complaints concerning the enrollment at Independence were made to the State Auditor General's Office, who referred the matter to an auditor in the District's office. In December 2007, the audit confirmed that the count at Independence was incorrect largely because no-shows and withdrawals were not withdrawn timely from the computer in TERMS before the District's initial count on August 27, 2007; before the District's eleven-day count on September 7, 2007; nor before Dr. Johnson twice verified the accuracy of the FTE count in October 2007. Dr. Johnson made no effort to make corrections, after she admittedly was aware of the errors in October, November, and December. Dr. Johnson blamed teachers who were unprofessional, racist, and disgruntled over her more strict adherence to the attendance rules for teacher planning and professional development days, and over proposed spending of A-plus money. She testified that they deliberately failed to bubble no-shows as absentees. That assertion contradicts the testimony of her witness that the proper procedure was followed by teachers who drew lines through the names of no-shows rather than bubbling them as absent. It also contradicts the instructions she gave in a memorandum to teachers, on October 5, 2007, telling them to write codes next to students' names on their rosters, NS for no- show, WD for withdrawn - If a student was present at least one day..., T for transfer, and A for add. Her memorandum instructs teachers to give the information to Ms. Jones on October 11, 2007. Ms. Jones said she did look at rosters for FTE reporting and she did make corrections. She too says her count was accurate at the time unless teachers withheld information. The teachers' rosters were maintained and, from a review of the class rosters, the auditor concluded that the error was made in not correcting TERMS to comply with teachers' reports. Dr. Johnson also blamed her supervisor, Marisol Ferrer, for sending a less experienced manager, Joe Patton, to attend a meeting, on October 11, 2007, with her of the Employee Building Council, a group that included some teachers who were antagonistic towards Dr. Johnson. It is true that only later did Mr. Patton recall that, after the meeting and after Dr. Johnson left, some of teachers told him there were problems with the student count at Independence. At the time, however, Mr. Patton did not tell Ms. Ferrer or Dr. Johnson about the comments. Dr. Johnson testified that, had she been told after that meeting on October 11th about the problems, she could have corrected the numbers before she submitted her verification of accuracy. She did know that Dr. Carden showed her two sets of numbers on September 7, 2007. Although she testified that she believed the fluctuations were normal because students come and go during the day for doctor's appointments or for other reasons, Dr. Johnson took no further steps to determine if that was in fact the cause of the discrepancy. After Dr. Johnson and Dr. Carden instructed Ms. Jones to begin making withdrawals after the October FTE report, some of the withdrawals were backdated showing the no-show students' withdrawal dates as the first day of school, August 22, 2007. The District submitted corrections to DOE before the deadline for incurring penalties, ultimately reducing the FTE count at Independence by 23 students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order suspending Respondent for twenty days without pay. DONE AND ENTERED this 16th day of April, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 16th day of April, 2009. COPIES FURNISHED: Frederick W. Ford, Esquire 2801 PGA Boulevard, Suite 110 Palm Beach Gardens, Florida 33410 Sonia Elizabeth Hill-Howard, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, C-302 Post Office Box 19239 West Palm Beach, Florida 33416-9239 Dr. Arthur C. Johnson, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, C-302 West Palm Beach, Florida 33416-9239 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-2500 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-2500
The Issue Whether the School Board of Miami-Dade County (School Board) committed the unlawful employment practices alleged in the Petition for Relief filed by the Petitioner and, if so, what relief should he be granted by the Florida Commission on Human Relations (FCHR).
Findings Of Fact The Petitioner is a Black male who, at all times material to this proceeding, was employed by the School Board both as a full-time K-12 teacher and as a part-time evening adult education teacher. The Petitioner continues to be employed by the School Board in his full-time position. His complaint in this case does not arise from any matters concerning his full-time position. The issues in this case arise from matters that occurred with regard to the Petitioner's employment as a part-time evening adult teacher. At all times material hereto, the School Board 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. The School Board adheres to a policy of nondiscrimination and provides complaint procedures to assure compliance with federal and state laws which prohibit discrimination. It is the policy of the School Board that no person will be denied employment on the basis of race or color. In December of 1988, the Petitioner was first hired by the School Board as a part-time teacher. In August of 1998, the Petitioner became a full-time teacher in the K-12 school day program and was assigned to teach in a middle school. The Petitioner is still employed as a full-time teacher in the K-12 school day program and continues to teach in a middle school. In addition to the Petitioner's full-time teacher position, in recent years the Petitioner has also worked as a part-time teacher in the evenings at the South Dade Adult Education Center ("Adult Center"). At the Adult Center the school year is divided up into three terms which are commonly referred to as trimesters. The Adult Center employees part-time teachers on a term basis, one term at a time. During each school year, the first term starts in August and ends in December. The second term starts in January and ends in April. The third term starts in April and ends in August. The Petitioner worked at the Adult Center for several terms, including the following trimesters: 2002-1 (first trimester of the 2002-03 school year), 2002-2 (second trimester of the 2002-03 school year, 2002-3 (third semester of the 2002- 03 school year), and 2003-1 (first trimester of the 2003-04 school year). During his employment at the Adult Center, the Petitioner taught English for Speakers of Other Languages ("ESOL"). ESOL courses are offered at several levels ranging from ESOL-PRE, which is the most basic course, through ESOL Levels 1 through 5, with Level 5 being the most advanced course. At the Adult Center student attendance is voluntary. The Adult Center receives funds from the State based on the number of students who complete the "Literacy Competency Points" ("LCPs"). At the Adult Center, the initial assignment of students to a particular course is done by the registration clerk. However, once assigned to a particular course, students have the choice of requesting a transfer to another class or of withdrawing from the course altogether. The administrators at the Adult Center are inclined to grant student requests for transfers whenever possible in order to reduce the likelihood that the student might withdraw from the program. During the first trimester of school year 2002-03 (term 2002-1), the Petitioner was assigned to teach an ESOL Level 4 class with an enrollment of thirty-one students. During the second semester of school year 2002-03 (term 2002-2), the Petitioner was assigned to teach two classes of ESOL Level 1; one class with 61 students and the other with 62 students. During the third trimester of school year 2002-03 (term 2002-3), the Petitioner was assigned to teach one class of ESOL Level 1 with an enrollment of 41 students. For the first trimester of school year 2003-04 (term 2003-1) the Petitioner was assigned to teach two classes of ESOL-PRE with an enrollment of 5 students each. These were "targeted ESOL Classes" under the Skills for Academic, Vocational, and English Studies ("SAVES") program. The SAVES program requires smaller ESOL classes; usually between 8 and 15 students. SAVES students qualify for free textbooks, free tuition, free child care, and free bus transportation. School Principals have the discretion to make SAVES classes even smaller. At the Adult Center, under School Principal Gilda Santalla's discretion, enrollment for SAVES classes had to be between 5 and 10 students in order for a SAVES class to remain open. In order to meet the needs of the students and the needs of the program, the class assignments change each trimester for several teachers, not just for the Petitioner. The Petitioner was assigned to teach lower levels of ESOL because the student demand for the lower level of ESOL courses was higher than the demand for Level 4 and 5 ESOL courses. During the time period material to this case, demand for ESOL Levels 4 and 5 was "dwindling." In the first semester of the 2003-04 school year (term 2003-1) the Petitioner was assigned and accepted to teach a course in the SAVES Program. The SAVES Program is funded by the U.S. Department of Health and Human Services through the Florida Department of Children and Family Services, Office of Refugee Services. It was created to address the training needs of the refugee population. Students participating in the SAVES Program must meet eligibility criteria imposed by the funding program in order to qualify for "refugee" status. Ms. Santalla assigned the Petitioner to teach ESOL-PRE SAVES classes because she thought he was well-qualified for the position. The Petitioner had a counseling certification and also in his full-time teaching job he had experience teaching children with special needs. Teaching children with special needs often requires a great deal of patience. Many members of the SAVES student population had special needs. The administrators at the Adult Center selected the Petitioner for the SAVES program because they believed he "had the skills to build this program and to teach those students." When planning for the first semester of the 2003-04 school year, the administrators at the Adult Center were confident that, because of the large demand for ESOL-PRE and ESOL 1 classes, they would have at least 8 to 10 people in each SAVES class. Initially, 27 SAVES eligible students were identified. The following term the number went up to 50 SAVES students, and more recently there were approximately 120 SAVES eligible students. The standard employment contract for part-time adult education teachers, which is the type of contract signed by the Petitioner each time he taught at the Adult Center, clearly specifies that the employment is for a specific course for a specific time period delineated in the master schedule. The standard part-time adult teacher employment contract also includes the following language: Nothing herein shall be construed to grant the Part-Time Teacher an expectation of continued employment beyond the length of the course designated by this contract. * * * 4. The Part-Time Teacher shall not be dismissed during the term of this contract except for just cause as provided in [Section] 231.36(1)(a), Florida Statutes. Notwithstanding the dismissal for just cause provision of this contract, the Part-Time Teacher is responsible for maintaining the minimum required student enrollment for the course taught. Classes with fewer than the required number of students are subject to cancellation. Cancellation of a class will automatically terminate the School Board's obligations under this Contract. The Adult Center's Teacher Handbook also states: PART-TIME TEACHING ASSIGNMENTS South Dade Education Center employs instructors in a part-time capacity. Part- time teachers are those who are paid on an hourly basis. Part-time teachers are hired as needed for a trimester. There is no guarantee that a class may continue the entire trimester if enrollment falls below the required number of students. Classes may be closed and employment may cease. A written contract, per trimester, is issued to all teachers. Before each term all part-time teachers are given a Teacher Agreement indicating their new assignment. A teacher may be assigned to more than one class per semester. If so, and if only one class is cancelled due to low enrollment, the teacher can continue to teach the remaining classes that were not cancelled. In this regard it is important to note that the "cancellation of a class" is not equivalent to "dismissal for good cause." In September of 2003, during the first trimester of the 2003-04 school year (2003-1), the attendance reports for Petitioner's assigned classes indicated that his SAVES classes had 2 to 3 students attending each class. After 4 consecutive absences a student is officially withdrawn from a class. Accordingly, student M.G. was withdrawn from the courses with reference numbers OJL4 and OJL5, leaving only 1 student (student T.C.) in those courses. Courses with references numbers OJL8 and OJL9 had the same 3 students in both courses (students M.J., C.B., and F.N.). Enrollment in the Petitioner's classes was below the minimum number required to keep the classes open. Therefore, the Petitioner's classes were cancelled during September of 2003. The Petitioner's classes were not the only classes cancelled during the first term of school year 2003-04. Part- time Hispanic instructor Carmen Roman also had her ESOL-PRE class cancelled. Ms. Roman's ESOL-PRE class, like Petitioner's, had an initial enrollment of 5 students. In the third term of school year 2002-03 (2002-3), Fabian Mayta's ESOL-PRE class was cancelled. Mr. Mayta's class had an initial enrollment of 7 students. During that same term, Tomasita Neal's ESOL-PRE class was cancelled. Ms. Neal's class had an initial enrollment of 6 students. During the second term of school year 2002-03 (2002-2), the ESOL-PRE class assigned to Fabian Mayta was cancelled. The student enrollment was 5. Part-time teachers Mayta, Neal, and Roman are not Black; they are all Hispanic. Fabian Mayta taught two classes of ESOL-PRE during the first trimester of 2002-03 (term 2002-2). During the second and third trimesters of 2002-03 (terms 2002-2 and 2002-3), Mr. Mayta had an ESOL-PRE class closed each semester. During the first trimester of 2003-04 (term 2003-1), Mr. Mayta taught no ESOL-PRE classes at all. However, Mr. Mayta returned in the second semester of 2003-04 (term 2003-2) to teach ESOL-PRE. Mr. Mayta was also assigned to teach ESOL-1 during that same period of time, and he was assigned to teach ESOL-2 in the first trimester of 2003-04 (term 2003-1). However, this last-mentioned class was cancelled due to low enrollmant. Ms. Claudia Hutchins expected the Petitioner would return to teach the following semester. These expectations were evidenced in part by the fact that the computer print-out for the Master Schedule of classes dated November 7, 2003 (which was two months after the closure of Petitioner's classes), shows the Petitioner listed as an instructor of the Adult Center. The Petitioner made no attempt to contact the Adult Center after his classes were cancelled in the first trimester of the 2003-04 school year. The Petitioner did not indicate any interest in teaching at the Adult Center after the cancellation of his classes. The course assignments of part-time teachers may vary from term to term. The Petitioner was not the only part-time teacher whose class assignments changed from term-to-term. The Petitioner was expressly notified by the language of the standard employment contract and by the guidelines described above that low enrollment could cause classes to be closed. The cancellation of classes due to insufficient student enrollment is a separate and distinct event from the termination of employment or dismissal of an employee for "good cause." The Petitioner's classes were cancelled, but no employment dismissal proceedings were taken against him by the School Board. A memorandum summarizing the terms and conditions of employment is issued to part-time teachers at the Adult Center at the beginning of each term. The memorandum includes the following statement: "There is no seniority with regard to part-time employment." The Petitioner compares himself to teacher Raymond Rivera. In this regard the Petitioner alleges that he was replaced in his assignment to teach ESOL-4 during the second semester of the 2002-03 school year (term 2002-2) by teacher Raymond Rivera, who was a Hispanic full-time teacher. Mr. Rivera is certified by the State of Florida Department of Education to teach English and to teach ESOL. Unlike Mr. Rivera, the Petitioner has a Miami-Dade County Public Schools Educator's Certificate for Physical Education and a Professional Educator's Certificate for Guidance and Counseling (Pre-Kindergarten to Grade 12). The subject assignment of Mr. Rivera was determined by his full-time status, his professional educator's certificate in ESOL (including all levels K through 12), and his area of expertise (English: Grades 6-12). In addition, full-time teachers have priority over part-time teachers. Further, teachers are assigned to meet the needs of the students, the community, and the program. Ms. Santalla had no discriminatory intent when she assigned Mr. Rivera to teach ESOL Level 4. The Petitioner has presented no evidence that Ms. Santalla's decision to assign Mr. Rivera to ESOL Level 4 was made with any intent to discriminate against the Petitioner on the basis of his race. Based on his professional certifications in English and in ESOL, Mr. Rivera was better qualified to teach ESOL Level 4 than was the Petitioner. The Petitioner also compares himself to Tomasita Neal, who is a Hispanic part-time teacher. Ms. Neal's ESOL-PRE classes had an enrollment of 78 and 69 students during the first trimester of the 2003-04 school year (term 2003-1). The Petitioner asserts that Ms. Neal was less qualified to teach ESOL than he was because Ms. Neal did not have a bachelor's degree. Notwithstanding her lack of a bachelor's degree, Ms. Neal was well qualified to teach ESOL by reason of her many years of teaching ESOL and her completion of the School Board's certification process, both of which made her eligible to be "grandfathered" as an ESOL teacher when the eligibility requirements were changed. Race was not a factor in closing the Petitioner's classes. The determinative factor in closing those classes was the low student enrollment in the classes. The Adult Center offered the position of substitute teacher to the part-time teachers whose classes were cancelled during the term. Ms. Santalla offered the Petitioner a substitute teaching position after his classes were cancelled. The Petitioner declined the opportunity to work as a substitute teacher at the Adult Center. The Petitioner made no attempt to contact the Adult Center after his classes were cancelled. The Petitioner did not demonstrate any interest in continuing to teach at the Adult Center. At the Adult Center the ESOL class enrollment fluctuates due to the transient and seasonal nature of the ESOL student population. Therefore, when classes are cancelled, the teachers in the cancelled classes are encouraged to continue to teach in subsequent terms. Ms. Hutchins was expecting and hoping that the Petitioner would return to the Adult Center to teach during the second semester of the 2003-04 school year (term 2003-2). The Petitioner's name remained as a part-time teacher on the roster of the Adult Center's second trimester of school year 2003-04 (term 2003-2), which was the term following the trimester in which the Petitioner's classes were cancelled. Teacher Fabian Mayta's ESOL-PRE class was cancelled twice; first in the second trimester of the 2002-03 school year, and again in the third trimester of the 2002-03 school year. Mr. Mayta returned to teach in the first trimester of school year 2003-04, which class was also cancelled, but he again returned to teach in the second trimester of school year 2003- 04. Before the Petitioner's classes were cancelled, the Petitioner was enrolled in teacher training to develop effective strategies in language arts ("CRISS" training). After his classes were cancelled, the Petitioner requested permission to complete the CRISS training, and he was allowed to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order in this case finding that the School Board of Miami-Dade County is not guilty of any of the "unlawful employment practices" alleged by the Petitioner and dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 20th day of February, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2006.
Findings Of Fact At all times pertinent to this hearing, Respondent, Jay S. Markley, was employed as a teacher of mathematics at Osceola High School (OHS) , Kissimmee, Florida, under a continuing contract. A continuing contract conveys tenure status upon the teacher holding it. Mr. Markley had been employed at OHS for approximately nine years. During that period, in addition to being a teacher, he has held the positions of swimming coach, director of athletics, and chairman of the faculty council. Mr. Floyd J. Scott, Jr., was principal of OHS during the 1982-83 school year and had served as such for four years. When he first arrived at OHS, he found a poor environment. Students were scoring low on the achievement tests, a small percentage of graduates was going on to college; discipline was poor, student participation in sports and other extracurricular activities was low, and the teams fielded by the school did poorly. His charter, upon assuming the principal's position, was to bring up the school standards and performance. Among the several things he did to create a favorable change was to, during the 1982-83 school year, place emphasis on the need for teachers to file lesson plans, something that had not been done for quite a while in the past. During the first week of school, he began his programs of emphasis with a low key approach. He would mention the need for them to be filed at faculty meetings, included the requirement that they be filed in the teachers' handbook given to each teacher at the beginning of the school year, and hired a coordinator to work the problem, Ms. Shirley S. Phillips. As time went on throughout the year, more and more emphasis was placed on the subject. Lesson plans are used by teachers to coordinate the information to be passed on to the students. They are a continuity document to be used by substitute teachers to work from in the event the regular teacher is absent. They are used by administrators to insure that required topics are covered, as verification of compliance with the county's scope and sequence plan, as part of the evaluation of teacher performance. Of great importance is the fact that they are considered as an evaluation factor by the Southern Association of Colleges and Universities in its evaluation of high schools for certification. An absence of certification makes it extremely difficult for a graduate of the unaccredited school to gain admission to a college or university outside the State of Florida. The term "scope and sequence" is used to show that curriculum materials are tied together, the order and relationship of topics. The lesson plans are to insure that the daily activities of the teachers fulfill the scope and sequence goals. They are like a road map -- the ways to achieve the tasks set out in the scope and sequence. Rule 5.4.6 of the Osceola County School Board requires teachers to follow a system of unit and lesson planning and specifically provides that the mere citation of text and workbook pages is not considered an adequate lesson plan. Repeated mention is made of lesson plans in the teachers' handbook supplied to each teacher at the beginning of each school year. Respondent recalls receiving his in August or September, 1982, and was also aware of the requirements of Rule 5.4.6. The handbook, at Page 6, requires detailed lesson plans to be in the substitute folder and, at Page 44, states that required "lesson plans will be submitted for review each Friday for the next week" to the curriculum coordinator, at first Ms. Zey, and later Ms. Phillips. Respondent knew of these requirements and knew that, except for two lesson plans submitted at the beginning of the 1982-83 school year, he failed to file any more for the rest of the school year, though he contends he was preparing lesson plans, his style, throughout the school year. Ms. Shirley Phillips became curriculum coordinator at Osceola High School on February 1, 1983. One of the jobs given to her was to collect and coordinate lesson plans which she monitored through a check-off system originally used by her predecessor. Prior to that, however, on November 30, 1982, Assistant Principal Tommy Tate notified Respondent, in an observation report acknowledged by him, that two areas in his performance needed improvement because of no lesson plans. This was followed up by the evaluation report submitted on Respondent by Mr. Scott, the principal, on December 15, 1982, and acknowledged by Respondent on December 17, 1982, that he was to keep lesson plans updated. The time line specified for achieving this improvement was "this marking period," or, in other words, right away. On February 18, 1983, Ms. Phillips, fulfilling her duties pursuant to Mr. Scott's instructions, prepared a letter to a certain 20 faculty members, including Respondent 1/ . This letter, which was approved by Mr. Scott before being sent out, notified the recipients that they were delinquent in filing lesson plans and warned them they would be evaluated "unsatisfactory" unless they turned them in. Respondent received his copy of that letter. Somewhat later, when Ms. Phillips checked on who had still not filed their lesson plans, she found that several, including Respondent, were still delinquent. Most of these, however, except Respondent, did submit their lesson plans within a month and a half; and those who were delinquent, except for one teacher, Mr. Reeder, were not nearly so delinquent as Respondent either in number delinquent or time. Even Reeder, however, ultimately brought his plans up to date. On March 18, 1983, a second letter was sent out, drafted by Ms. Phillips, but signed by the principal, again reminding some nine or ten teachers who had not as yet complied with the previous letter, including Respondent, that he expected each teacher to file the lesson plans and that those who did not would not only be rated unsatisfactory, but would also be considered insubordinate. Respondent and several other teachers who testified in his behalf, and to whom the letter was directed, indicated they did not get it. It is, therefore, quite possible that this particular letter did not get the wide dissemination Mr. Scott thought it did. However, its follow-up, on April 11, 1983, sent to those who did not respond to the March 18 letter, was received by Respondent, as he submitted the letter called for in specific response to this April letter which, it is noted, also advised of the consequences for noncompliance. In his letter of response, dated April 14, 1983, Respondent clearly stated his position in opposition to preparing and submitting lesson plans and, while not specifically stating he would not comply with Mr. Scott's previously expressed requirements, clearly indicated he would not be doing so. No other conclusion can reasonably be drawn from his willingness to accept an evaluation of unsatisfactory and a classification of insubordinate. The principal displayed an inordinate amount of maturity and patience in his response to Respondent of April 19, 1983. Again restating his reasons for requesting lesson plans, he then graciously requested Respondent to reconsider and comply. Though couched in terms far less than directive, under the circumstances, it is clear this was an official request which was the force and effect of a direction. Notwithstanding this latitude he was given, Respondent again failed to comply with the requirement to submit lesson plans and, on April 27, 1983, both the principal and vice principal, Messrs. Scott and Tate, rated him unsatisfactory in the one area on the observation and evaluation forms dealing with lesson plans. All other areas were rated satisfactory. Mr. Tate indicated that at this second observation, Respondent told him he would photocopy lesson plans if they wanted them. From Respondent's words and the tone of voice in which they were said, Mr. Tate inferred that Respondent thought it was stupid to do lesson plans and he did not see why he should have to. Finally, on May 6, 1983, Mr. Scott sent a memo directly to Respondent only, recounting in summary from the prior history of this dispute and the authority for the requirement. Respondent was also ordered and directed, in writing, to turn in all lesson plans for the 1982-83 school year, including those due for the week of May 9 through 13 2/ , to Mr. Scott's office before 8:35 a.m. on Monday, May 9, 1983. He was also warned that his failure to comply would be deemed gross insubordination and willful neglect of duty and would subject him to disciplinary action. At the meeting between the two, in Mr. Scott's office on May 6, when this letter was given to him, Respondent indicates he was told he was the only one in the whole school who had not turned in lesson plans. At this point, he agreed to do them, but told Scott then that he could not get them done by 8:35 a.m. on May 9. By 9 a.m. or so on May 9, when Respondent still had not brought any lesson plans to the office or contacted Mr. Scott for an extension, Mr. Scott sent his secretary, Barbara Rousch, to Respondent's room to pick them up. When she arrived there, Respondent did not offer her any plans. When she asked for the plans, Respondent said he was working on them. Specifically, he said, "I'll have them for you. Maybe not today, but I'm cooking on them." When he said this, Respondent was sitting at his desk working on the lesson plans while the students were in the room. 3/ Ms. Rousch was standing by his desk, and he neither showed her nor offered to show her the plans he had completed, though he contends that he showed her, from his desk book, what he had done. He states that he had completed at that time a complete set of plans for one of three classes of Algebra I and some plans for his class in consumer math. He admits he still had remaining to do two sets for the remaining Algebra I classes and one set for his class in Algebra II. After Ms. Rousch left Respondent's office, there was no further discussion regarding the lesson plans. Respondent finished out the school day and after school went to his place of business off campus. It was then, about 5:30 p.m. on May 9, that Mr. Vogel, Assistant Superintendent of Schools, told him that he had been suspended and was not to come to school the next day. Nonetheless, he completed the lesson plans and himself turned in 31 weeks' worth to Barbara Rousch on May 12, 1983. His daughter turned in three more plans to Ms. Phillips the same day. Respondent has remained suspended without pay since May 9, 1983. Respondent has been employed at OHS under five different principals since January, 1975. During all this time, he does not recall the rules requiring lesson plans to have been enforced prior to the 1982-83 school year. Since the beginning of this year, the enforcement has become stricter as the year went on. After Mr. Scott had been principal for a year, he removed Respondent as athletic director without stating a reason. However, when it appeared that there was thereafter a shortage on the books of the athletic department, Respondent reported the matter to Mr. Scott, who said he would look into it. When Respondent told Scott he wanted to look at the books kept on several sports programs, he was denied access. When he asked Scott about it somewhat later and Scott said he had not done anything about it, Respondent went to the bookkeeper, who told him Scott had the books. There have been other conflicts between the two individuals, as well. When Scott first came to the school, the principal ran the faculty council meetings. When Respondent took over as chairman of the council, he advised Mr. Scott that he, Respondent, would run the meetings, and he dictated to the principal how things would be done. According to Respondent, Scott neither resisted nor made comment about this. Though these conflicts existed, they appear to Respondent to be the result of a lack of communication. Even though there was no outward animosity from Scott to him, he feels it must have been hidden within Scott, who, he now feels, is singling him out for discipline. He has never heard of any action this severe for lesson plans, so he feels there must be another reason. There is a clear pattern of resistance and disobedience demonstrated, however, by the above-cited evidence and Respondent's reaction throughout the year. For example, he states he turned in two weeks of plans in October, 1982, and until the remainder were turned in on May 12, 1983, no more, regardless of how many times he was reminded of the requirement. He got all the notices and memos except that of March 18, 1983, and was aware of the technical requirement to turn the plans in. Still, he did not, nor did he take any of the memos until May 6 as an order to turn them in. When, on that date, he got what he perceives as the first direction to turn the plans in, he did comply, although not on time even then, nor did he evidence any concern about not doing so. He contends that on the weekend of May 7 and 8, 1983, he worked 14 hours on the plans, but also admits he spent a reasonable portion of that weekend pursuing his off-campus swimming pool business. He interpreted the April 11 memo as an either/or proposition, either turn in the lesson plans, or say why you did not. He chose to write the letter and was willing to receive an unsatisfactory rating because he did not consider that had any effect on him -- a tenured teacher. It was not until the May 6 meeting with Scott that the administration was serious and that he had better turn the lesson plans in. Prior to that day, he did not know what gross insubordination meant. Scott told him he might be returned to annual contract status, but did not tell him he would be dismissed. From the beginning to now, he does not know why so much fuss is being made of lesson plans in light of the fact that as late as May 10, 1983, some teachers were delinquent in their lesson plans. Respondent contends that he does lesson plans his way. He writes out what he plans to cover on a yellow sheet and spends his time teaching rather than filling out forms. However, teachers are given at least one period out of each school day for planning. During this planning period, no students are there to be taught. Though some books have lesson plans prepared for the teacher in the instructor's workbook, those being used by Respondent this year did not have those plans included. Even if they had, the mere photocopy of book plans was deemed by this administration to be inadequate. Respondent, having first said he did plan his way, also says he has worked as a teacher for years without lesson plans. Lesson plans, even when submitted, are merely placed in a file and not used. Consequently, he could see no need for lesson plans. Though, by his own testimony, he knew of the requirement in the law and that it had been there for years, he felt it was a choice item, and he did not have the obligation to follow it. He contends that other than the requirements of scope and sequence and what is in the teachers' handbook, there is no direction as to what is a sufficient lesson plan. Numerous teachers who were employed at OHS during the 1982-83 school year confirmed Respondent's testimony as to the prior laxity in enforcing the requirement for lesson plans up until that year. There was also evidence from these teachers of an authoritarian atmosphere at OHS during the 1982-83 school year. Testimony revealed rumors being spread that Mr. Scott had a list of teachers he wanted to get rid of that included Respondent, among others. Yet, not one individual, except Respondent, including several who moved voluntarily to St. Cloud High School this year, testified that any threats were made to them or suggestions that they move by Mr. Scott or anyone in the administration of OHS. Those who moved voluntarily because they were "advised" they were on the "hit list" and should move testified they did so not at the instigation of the administration, but upon the advice of the teachers' union representative. The incidence of rumor and innuendo on the part of one side, attempting to paint the principal and the administration in a bad light, while ignoring the defiance of legitimate authority by Respondent, is clearly shown in the testimony of one teacher that the attitude among the faculty that year was "Hitler was alive and well at OHS." Yet, she admits she had no problem personally with Mr. Scott. He was very supportive of her. Even another teacher who was questioned by Mr. Scott regarding a leak of information to the press during the year and who transferred at the end of the school year, stated she had received no pressure from Mr. Scott, had been thinking of transferring anyway, and was also advised to do so by the teachers' union. One other teacher who was also interviewed by Mr. Scott regarding the press leak was approached afterwards by a union representative and asked if he wanted to meet with other teachers about this. The union representative told them it would be unhealthy for them to remain at OHS, and they should request to transfer out. This particular teacher, however, though he testified on behalf of Respondent, nonetheless desired to remain at OHS. Several teachers testified that Mr. Scott had said that the 1982-83 school year was going to be Mr. Markley's last year at OHS. Scott categorically denied ever having made that threat. The comment in question was made to him by someone else in the context that Respondent was leaving voluntarily to go into another business. Respondent is, in fact, engaged in the conduct of his own swimming pool business, which he started after being relieved as athletic director.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED: That Jay S. Markley be found not guilty of misconduct in office, but guilty of gross insubordination; that his suspension effective May 9, 1983, be sustained; that he be dismissed from employment with the Osceola County School Board; and that he be denied pay from May 9, 1983. RECOMMENDED this 20th day of December, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1983.
The Issue The issues in this case are whether Petitioner should discharge Respondent from her employment because of misconduct, gross insubordination, and willful neglect of duty that impaired Respondent's effectiveness as Petitioner's employee.
Findings Of Fact Petitioner is the School Board of St. Johns County, Florida. Until September 12, 1996, Petitioner employed Respondent as a non-instructional employee. Respondent was a janitorial custodian. Petitioner requested numerous employees, including Respondent and eight other custodians, to work on Saturday, August 24, 1996, at Nease High School. The purpose was to prepare the campus for the upcoming school year. Mr. Jody Hunter, the coordinator of school-based maintenance and custodial services, asked all nine custodians, including Respondent, to stop what they were doing and to immediately remove all of the empty boxes from the classrooms. The boxes needed to be outside the buildings so that they could be collected for disposal and so that furniture could be set up in each classroom. The crews in charge of collecting and disposing of the boxes and those in charge of furniture set-up were on precise schedules. The other maintenance tasks that needed to be performed by the custodians, including Respondent, could be performed at other times. All of the custodians except Respondent complied with the instructions of Mr. Hunter. Mr. Hunter repeated the instructions to Respondent several times. Respondent insisted on working in accordance with her own schedule and priorities. After a reasonable time, Mr. Hunter inspected the area for which Respondent was responsible. He found boxes in the area and saw Respondent walking down the hallway with a bag and supplies in her hand. Mr. Hunter asked Respondent why she had not complied with his instructions. She stated that she did not like to start another job before she finished the first job. Mr. Hunter repeated the need and the urgency of getting the boxes out of the area so that the other crews could stay on schedule. Respondent stated that she did not have to listen to Mr. Hunter because it was a Saturday and because he was not her supervisor. Respondent never removed the boxes in her area. Mr. Hunter had several conversations with Respondent regarding her refusal to follow his instructions. Respondent became very loud and obstreperous during at least one of those conversations. Other employees heard Respondent from different areas of the campus. Mr. Hunter conducted himself professionally during each of these conversations. During one of the conversations, Mr. Hunter requested Ms. Alice Powell, a teacher, to witness a portion of the conversation. Respondent left work before completing her assigned duties. She refused to answer questions from Mr. Hunter as to where she was going or if she would return. Respondent returned to the campus later in the day with her daughter. Respondent's daughter acted as an interpreter. Through her daughter, Respondent asked Mr. Hunter to write down everything he had said to Respondent during the day. When Mr. Hunter refused, Respondent threatened to sue Mr. Hunter for "violating her rights." Mr. Hunter asked Respondent to leave the premises. Respondent refused. Respondent stated that Mr. Hunter had never dealt with Puerto Ricans before and that they take care of their own problems. Mr. Hunter asked Respondent if she was threatening him, and Respondent said, "yes." Mr. Hunter telephoned Mr. Bill Mignon, the principal of the school. Mr. Mignon spoke to Respondent by telephone. Mr. Mignon asked Respondent to leave the campus and to discuss the matter in his office on Monday. Respondent left the campus but did not keep her appointment on Monday. Petitioner suspended Respondent with pay pending an investigation of the matter. Mr. Mignon and Mr. Clayton Wilcox, Petitioner's director of personnel, conducted an investigation into the matter. They interviewed witnesses, including Respondent, and reviewed written statements. On September 12, 1996, the Board voted to suspend Respondent without pay. Respondent now has a full-time position with another employer. Respondent was previously disciplined by Petitioner. In April, 1995, Petitioner verbally reprimanded Respondent for misusing time cards by leaving work and having another employee punch Respondent's time card at a later time. In May, 1996, Petitioner gave Respondent a written reprimand for taking excessive lunch breaks. In May, 1996, Petitioner issued a memorandum to Respondent for failing to comply with requirements for excused absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of gross insubordination and willful neglect of duty and terminating Respondent's employment. RECOMMENDED this 13th day of June, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997. COPIES FURNISHED: Dr. Hugh Balboni, Superintendent St. Johns County School Board 40 Orange Street St. Augustine, Florida 32084 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Michael Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dennis K. Bayer, Esquire Attorney at Law 306 South Oceanshore Boulevard (A1A) Post Office Box 1505 Flagler Beach, Florida 32136 Anna I. Oquendo, pro se 21 Madeore Street St. Augustine, Florida 32084
The Issue The issues in these cases are whether Petitioner, Osceola County School Board (School Board or Petitioner), has just cause to terminate Respondents Mona Sagar and Kristie Gilmore from their employment contracts.
Findings Of Fact The School Board is duly constituted and charged with the responsibility and authority to operate, control, and supervise the public schools within Osceola County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. At all times relevant to this proceeding, Ms. Sagar and Ms. Gilmore were employed by the School District. Ms. Sagar has been in the education field for years. She attended “teachers college” in Trinidad and taught school there for ten years. She was hired as a paraprofessional (para) by the School District in 2011. Ms. Sagar was assigned to an autistic classroom at Discovery Intermediate School (Discovery) and later switched to an “intellectually disabled mild” (InD mild) classroom. She has not been subject to any prior disciplinary action. At the start of the 2013-2014 school year, Ms. Sagar was the para assigned to the “intellectually disabled severe” (InD severe) class. The InD severe class had a teacher and two paras,7/ and was composed of children who were mainly confined to wheelchairs or who needed special assistance to walk. Ms. Sagar completed the crisis prevention intervention (CPI) class, a class that instructs personnel on how to physically and verbally restrain, redirect, and prompt a child who is misbehaving. Ms. Gilmore became a para in exceptional student education (ESE) in 2005. She arrived at Discovery in August 2005. Ms. Gilmore worked with students with varying educational needs including: emotional behavior disorder (EBD); autism; InD mild; intellectually disabled moderate (InD moderate); intellectually disabled profound (InD profound); and regular educational students.8/ Ms. Gilmore had completed the CPI training twice before, but she was not re-certified at the start of the 2013-2014 school year. She has not been subject to any prior disciplinary action. Discovery had six self-contained ESE classrooms for the 2013-2014 school year. There were two autistic classrooms, one InD mild classroom, one InD moderate classroom, one InD severe classroom, and one EBD classroom. All six classrooms are located on the first floor of one of Discovery’s buildings, in close proximity to the office of the dean of students. Student safety is of paramount concern for School District employees. As such, every EBD classroom has a land-line telephone and a walkie-talkie for use to request assistance, to notify the appropriate office of a student’s unscheduled exit from the classroom and to provide other information. The telephone is primarily a school-based phone that has its own five-digit internal extension number.9/ In the event a walkie-talkie is not available, a teacher or para may use the telephone to communicate with other school personnel. The walkie-talkies are limited to the self-contained classrooms, guidance counselors, deans, school resource officer, administrators, principal’s secretary, academic coaches, athletic coaches, and maintenance staff. The walkie-talkies are on one channel or frequency, and when used, everyone who has a walkie- talkie can hear the conversation. Discipline referrals may be written by any adult at Discovery for any infraction in the student code of conduct. The referral form reflects the student’s name, identification number, the classroom, school, grade level, date of birth, race, sex, homeroom teacher, incident date and time, location of the incident, the problem or explanation of the problem, the action taken by the adult prior to the referral, the signature of the referring adult, and the date signed. The bottom of the referral form was for “administrative use only,” and reflects what if any action was taken. Ms. Gilmore, as the para in the EBD self- contained classroom, authored numerous discipline referrals for student J.G. During the 2013 summer, Ms. Chowdhary was notified that she would be re-assigned to Discovery’s EBD self-contained classroom for the 2013-2014 school year. Ms. Chowdhary did not want this assignment; however, Ms. Chowdhary contacted Ms. Gilmore and asked if she (Ms. Gilmore) would consent to be Ms. Chowdhary’s para in her EBD self-contained classroom. This request was based on their positive working relationship during the 2012-2013 school year in an autistic classroom. Ms. Gilmore agreed, the school administration concurred, and Ms. Gilmore was assigned to Ms. Chowdhary’s EBD self-contained classroom. At the beginning of the 2013-2014 school year there were ten male students in Ms. Chowdhary’s EBD self-contained classroom. This classroom had a walkie-talkie and telephone. Each student had an individual educational plan (IEP), a different EBD, and a medical condition. On the first day of school, each student was given a welcome packet that contained an emergency contact sheet and a health care report form. The parents are requested (but not required) to complete as much of the information as they wish, and return it to the classroom. Ms. Gilmore read the responses “thoroughly” regarding the medical conditions of students J.G. and J.C., as provided by their respective parents or guardians. In early December 2013, Ms. Gilmore was re-assigned to an InD moderate classroom as an accommodation for her pregnancy. Ms. Chowdhary requested a male para to replace Ms. Gilmore. Based on the support staff already engaged by Discovery, Ms. Sagar was transferred to work in Ms. Chowdhary’s self- contained classroom. Ms. Sagar observed and worked with Ms. Gilmore on two separate days for several hours prior to the actual transfer in mid-December. Approximately two weeks before the Christmas break, a female student, J.T., arrived in the EBD self-contained classroom. J.T. was taller and heavier than either Ms. Chowdhary or Ms. Sagar. J.T.’s language was loud and predominantly profanity-laced. J.T. did not complete her classroom assignments, and she did not follow the classroom rules regarding the use of her cellphone.10/ On January 9, 2014, Ms. Gilmore learned that Ms. Chowdhary was absent from school. Ms. Gilmore volunteered to be the substitute teacher in Ms. Chowdhary’s classroom.11/ In the early afternoon of January 9, two male students engaged in a physical altercation (Altercation No. 1) in the EBD self-contained classroom. J.T. took out her cellphone and recorded Altercation No. 1 (Petitioner’s Exhibit 6, Respondents’ Exhibit 21). That recording showed one student, J.G., standing over and taunting another student, J.C. J.G. called J.C. a “taco.” J.C. responded that J.G. should call J.C. “Taco Bell,” and added that J.G. was the dark meat in his taco. J.G. took J.C.’s remark to be a racist comment. J.C.12/ was crumpled on the floor behind a desk where J.G. grabbed J.C. by his warm-up jacket collar/shirt. J.G. pulled J.C. up by the collar/shirt and pushed J.C. into a chair at a computer cubby and small space near a wall. J.G. kept one hand on J.C. while pinning J.C. to the small space. J.G. continued to taunt J.C. and is heard to say: Next comment I’m gonna stomp on your [J.C.’s] heart, and I know you got a condition to where I stomp on it, you dead, and I don’t give a f . So you can’t keep making a racist joke. Ms. Gilmore and Ms. Sagar were both present and observed Altercation No. 1. Ms. Gilmore was sitting at the teacher’s desk in the front of the room when Altercation No. 1 started. When J.G. “dumped [J.C.] out of the chair,” [to start the altercation], [Ms. Gilmore] told J.G. to “knock it off,” and when J.G. had J.C. on the floor, she [Ms. Gilmore] “told him to quit.” Ms. Gilmore testified that she didn’t call for help because “It was over.” Her testimony is not credible because the recording shows that J.G. then pulled J.C. up to a standing position, and continued to taunt him. Further, Respondents’ Exhibit 16 is a discipline referral that Ms. Gilmore authored on January 9, the day of the altercations. Ms. Gilmore documented in this discipline referral the following “PROBLEM – EXPLAIN:” During Science class, 5th period, [J.G.] was talking about how he fights and got into an altercation with another student. Words were exchanged and [J.G.] didn’t like what the student [J.C.] said so he [J.G.] flipped him [J.C.] out of his chair, kicked him [J.C.] a couple times and threatened to kill the other student [J.C.] by stomping on his [J.C.’s] heart. Ms. Sagar was seated at a desk assisting another student, J.M., when Altercation No. 1 started. Ms. Sagar did not hear any loud shouting or threats at the beginning of Altercation No. 1, but it escalated to the point where she was “alarmed.” Ms. Sagar admitted that she got up to leave the room, then decided not to do so, telling herself: “I shouldn’t leave the class at this time.” The reason she did not leave the classroom was because the altercation “wasn’t settled like down, down, down. It still had like the talking and everybody, so I turned around and came back to my seat.” Ms. Sagar did not move to intervene or call for help. Neither Ms. Gilmore nor Ms. Sagar moved to intervene in Altercation No. 1, and neither used the walkie-talkie or the telephone to call for assistance or to alert the administration of the volatile situation. A few minutes later another altercation (Altercation No. 2) took place in the EBD self-contained classroom. J.T. also recorded Altercation No. 2 (Petitioner’s Exhibit 8) on her cellphone. J.G. was again taunting J.C. J.G. dared J.C. to “take a swing” at J.G. J.C. did not swing at J.G. J.G. proceeded to talk to the class about J.C. and other classmates. J.C. then expressed his desire to die because his life “sucks,” his father was dead, and his step-father didn’t love him. J.C. violently kicked/pushed a chair several feet away from himself, began to cry, stated that he’d be “happy if you [J.G.] kill me,” violently overturned a desk, and walked out of the EBD self- contained classroom. Again, Ms. Gilmore and Ms. Sagar were present in the EBD self-contained classroom, and observed Altercation No. 2. During Altercation No. 2, Ms. Gilmore was at the front of the class at the teacher’s desk. Ms. Gilmore confirmed that J.C. “flipped a desk and walked out of class.” Ms. Gilmore testified she “opened the door, . . . and put myself at the doorway to get the rest of the kids out of the class if I had to get them out.” Ms. Gilmore is briefly partially seen in the recording, and she is heard asking J.C. to pick up the desk before he left the classroom. J.C. did not pick up the desk. The recording shows Ms. Sagar seated at a work table with J.M. At one point Ms. Sagar rises from her seat, walks to a counter with a microwave, stays at the counter for a short time, returns to her seat, and then eats something while Altercation No. 2 is on-going. Neither Ms. Gilmore nor Ms. Sagar used the walkie- talkie or telephone to obtain assistance or alert the administration of the continuing volatile situation. J.C. went to the dean of students (Ms. Rice’s) office after he walked out of the EBD self-contained classroom. Once there, he screamed at Ms. Rice about the events that had just taken place in his classroom. Ms. Rice observed J.C. to be distraught and angry. Based on J.C.’s comments, Ms. Rice understood that a recording of the classroom events was made. Ms. Rice requested the principal to obtain the recording. Between when J.C. left the EBD self-contained classroom and when the principal arrived at the EBD self-contained classroom to retrieve the recording, yet another altercation, Altercation No. 3, occurred. J.T. started recording Altercation No. 3 (Petitioner’s Exhibit 10) on her cellphone. Student W.F. held a chair over his head and threatened to throw it at another student, D.S. The other students in the classroom can be heard urging W.F. to throw it, but W.F. did not. J.G. can be seen standing behind D.S., and heard to say he’ll “make sure it hit[s] you [D.S.].” When it became apparent that W.F. was not going to throw the chair, J.T. handed her phone to W.F., who continued to record the action, and J.T. threw the chair. J.T. testified that she did not intend to hurt D.S., but she was not “play acting.” Ms. Gilmore testified she did not remember much of Altercation No. 3. She thought she might have been writing a referral at her desk, and did not call for help because the altercation was over so quickly. Again, Ms. Gilmore and Ms. Sagar were present in the classroom, observed Altercation No. 3, and did nothing to radio or call for assistance or alert the administration of the volatile situation. There is no credible evidence that any of the altercations were pretend fights, or that they were staged for the benefit of the other students. Ms. Gilmore’s contention, that the altercations were staged, is not credible. This EBD self-contained classroom is a challenging class, one that should be closely monitored and adequately staffed to ensure learning can occur, and safety maintained. Respondents never attempted to gain control of the classroom or students. They never called for help or removed the other students from the area. Petitioner has proven by a preponderance of evidence that Petitioner has just cause to terminate the employment of Ms. Gilmore and Ms. Sagar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Osceola County School Board, enter a final order finding that just cause exists for terminating the employment of Ms. Sagar and Ms. Gilmore. DONE AND ENTERED this 19th day of June, 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 19th day of June, 2015.
The Issue Petitioner alleges that Respondent discriminated against her on account of her national origin (Finnish) by refusing to renew an annual contract as a teacher, thereby terminating her employment. The issue is whether this alleged violation of Section 760.10, F.S. occurred, and if so what relief is appropriate.
Findings Of Fact Petitioner, Miriam Lehtimaki Pully (Mrs. Pully) was born in Finland in 1941, and emigrated to the United States in 1958. She became a U.S. Citizen in December 1964. She obtained a Bachelors degree in psychology and sociology at the University of Connecticut; and later, in 1987, received a special education teaching certificate in Delaware after taking some extra courses. In October 1989, Mrs. Pully was hired by the Orange County School Board to teach an educable mentally handicapped (EMH) special education class at Rolling Hills Elementary School. She was interviewed and recommended for hiring by Norma Masterson, the Rolling Hills principal. Her employment application is not part of the record, but at the hearing Mrs. Pully agreed that the application reflected her U.S. citizenship and referred to her Finnish origin. She speaks with a slight Northern European accent that she claims most people mistake for German. If Mrs. Pully's origin was mentioned at all in the interview, it was in passing, and it was never discussed again by Ms. Masterson. At the time of the interview Mrs. Pully had the impression that Ms. Masterson was very positive about her and that she would enjoy a long-term employment relationship. Mrs. Pully also understood, however, that she was being hired "out of field" and that she was hired with special permission on a one-year temporary contract. She lacked credit hours in order to be certified in special education or EMH in Florida. During the 1990-91 school year, Miriam Pully was the only EMH teacher at Rolling Hills. She had from three to five students in various levels from kindergarten through fifth grade. She also had a teacher's aide. During that school year, Norma Masterson talked with Mrs. Pully about her children being left unattended, or insufficiently supervised. Mrs. Pully let them play outside sometimes two hours a day, which was considered by Ms. Masterson to be excessive. Ms. Masterson was also concerned about Ms. Pully's careless record keeping and failure to record accurate attendance. On several occasions on visiting her classroom, Ms. Masterson found the children out of control or ignoring their teacher. In spite of the problems perceived by Ms. Masterson, she did not give Mrs. Pully the "black mark" of "needs improvement" on her evaluation because she did not want Mrs. Pully to be hindered in obtaining a teaching position in her appropriate field. Norma Masterson did not recommend that Mrs. Pully be rehired for another year. Her temporary contract expired in June, 1990. It was Ms. Masterson's understanding that even if there had been no performance problems, she could not rehire Mrs. Pully, as she needed at least six more college credit hours to teach in the EMH field. Over the summer months the teachers' union negotiated on Ms. Pully's behalf, and the school board agreed to rehire her for the 1990-91 school year, if she took additional college courses. She obtained 3 credit hours and was given another temporary contract commencing in August 1990. Norma Masterson observed the same problems immediately in the second year. Another EMH teacher was hired to take the older, higher level students, and Mrs. Pully had the younger students, kindergarten through third grade. At times Mrs. Pully had as many as seven or eight students, but ordinarily she had five or six. She had to share the teacher's aide with Ms. Kelly, the other EMH teacher; and in October the school lost the aide due to funding. After the aide left, other teaching assistants were able to assist the EMH teachers. Ms. Masterson personally conducted observations in Mrs. Pully's classroom on several occasions during the 1990-91 school year. This was part of her job and she conducted similar observations of other teachers. Her opinion was that Mrs. Pully was simply not capable of teaching the mentally handicapped children. She found lack of discipline and inadequate planning for instructional time. She found that children were being taught as a group and individual levels were not being addressed. She still found too much play time and too little time "on task". And she still found inadequate record keeping with regard to report cards and attendance records. On several occasions Ms. Masterson counselled Mrs. Pully about her unkempt appearance or inappropriate dress. In March 1991, Ms. Masterson completed her annual assessment report of Miriam Pully and gave her an "unsatisfactory" overall evaluation, with "needs improvement" in six out of eleven categories. She informed Ms. Pully that she would not recommend that she be rehired. The school board accepted the recommendation, and Mrs. Pully did not receive another contract after June 1991. Mrs. Pully asserts that Ms. Masterson did not approve of her teaching style, but that her style was appropriate and effective. She believes that Ms. Masterson "picked on her" and that other teachers spied on her and took tales to the principal. Mrs. Pully contends that Ms. Masterson tried to get rid of her the first year because she really wanted to hire Ms. Kelly for the job. She also contends that in the second year Ms. Masterson picked on her out of pique that the union successfully got her rehired. Finally, Mrs. Pully contends that the harassment about her appearance, record keeping and the like, was all because she was Finnish and was not one of the "good old girls". The appropriate scope and the evidence in this proceeding do not permit a finding as to which teaching style was "right", nor do they permit a finding as to whether Miriam Pully was properly not rehired by the school board. The relevant issue is whether the alleged discrimination occurred. From the evidence presented, I do not find that Ms. Masterson (or the school board in adopting her recommendation) discriminated against this teacher on account of her national origin. In making her observations and evaluations, Norma Masterson relied on her substantial experience in teaching, school administration, and special education. She also considered the appropriate observations and recommendations of peer teachers and specialists. Ms. Masterson routinely visited classrooms, not just Mrs. Pully's class, to get to know the students and to see where improvements could be made. She also counselled other staff about their appearance, and one staff person was sent home to change when she came to school in a long shirt and leggings. When necessary, Ms. Masterson also addressed other teachers' problems with discipline or record keeping. Her concern about Mrs. Pully's discipline related to the perceived lack of control. Even though special education classes may or may not be disorganized, as acknowledged by Ms. Masterson, the children need to work toward the goals of their individual education plans. Working "out of field", Mrs. Pully did not have the skills necessary to effectively meet the children's needs, contrary to Ms. Masterson's sincere positive expectations at the time of hiring.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Miriam L. Pully's petition for relief be dismissed. DONE AND RECOMMENDED this 24th day of May, 1993, in Tallahassee, Leon County, Florida. MARY W. CLARK 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 24th day of May, 1993. COPIES FURNISHED: Miriam L. Pully 57 Lake Drive DeBary, Florida 32713-2873 Frank C. Kruppenbacher, Esquire 390 North Orange Avenue, Suite 1300 Orlando, Florida 32801 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue posed for decision herein is whether or not the Respondent, Alfreda Grady, should be terminated from her employment as an instructional employee with the Broward County school system.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, post-hearing memoranda and the entire record compiled herein, I hereby make the following relevant findings of fact. By its six count Petition for Dismissal, Petitioner, through the person of its Superintendent of Schools, William T. McFatter, seeks to uphold its recommendation that Respondent, Alfreda Grady, be dismissed from employment in the Broward County school system. Respondent, Alfreda Grady, was an instructional employee at the School Board of Broward County until she was suspended with pay from her duties at the close of the workday on January 27, 1983. Respondent holds a continuing contract of employment and holds teaching certificates in both guidance and elementary education. During the course of the 1982-83 school year, Respondent was assigned to the position of guidance counselor at Attucks Middle School. This assignment was made by Mr. Thomas Wilson, Assistant to the south area Superintendent of the Broward County School Board. Ms. Grady was later assigned to teach sixth grade orientation and social studies. On January 27, 1983, Respondent was placed on emergency suspension and a PETITION FOR DISMISSAL from the Broward County school system was filed based on charges of incompetency, misconduct in office, immorality and gross insubordination. A request was made for a formal evidentiary hearing pursuant to Chapter 120.57(1), Florida Statutes. The matter was thereafter assigned to the undersigned hearing officer to conduct the instant hearing. On August 19, 1982, Respondent was assigned the position of guidance counselor at Attucks Middle School. Prior to this assignment, the position of guidance counselor had been assigned to Ms. Ricci Mandell, a teacher previously employed at Attucks. This assignment was made by Taft Green, principal at Attucks Middle School. Both Ms. Grady and Ms. Mandell were retained in the Guidance Department. Approximately two weeks into the school year, Respondent was assigned to teach one sixth grade orientation class. It is not unusual for a teacher to be assigned teaching duties in more than one subject area. (TR Volume 1, p. 193) By letter dated September 1, 1982, Mr. Green informed Respondent that she would begin teaching the orientation class on September 7, 1982. Respondent was also informed by Mr. Green that Ms. Friedman, a reading teacher at Attucks, would supply the necessary material and a course syllabus. Ms. Friedman had previously taught the orientation course during the 1981-82 school year. Respondent was advised that principal Green and the other instructional employees were available to assist her, as needed. Although Respondent never contacted Ms. Friedman for either assistance or to obtain the material, Ms. Friedman supplied the Respondent with a variety of materials to be used in teaching the orientation course including the course guide for middle school orientation and two instructional television books. (TR Volume 1, p. 166) Respondent refused to teach the orientation course. The class was used as either a study hall or the students watched programs such as "The Today Show" and "Good Morning America." On September 15, 1982, Respondent was assigned to teach two sixth grade social studies classes. A memo reflecting this assignment was sent both to Respondent and Ms. Mandell, dividing the guidance position between them and assigning them each three classes. (Petitioner's Exhibit P) Mr. Green divided the counselor duties between Respondent and Ms. Mandell based on budgetary considerations. That is, Attucks could not afford three guidance counselors and instead of terminating one instructional employee, the guidance counselor assignments were divided. (TP Volume 1, pp. 204 - 205) On November 3, 1982, Mr. Green began, via a memo, to change Respondent from a guidance position to a teaching position reciting in the memo that the change was based on a report from Rod Sasse, an educational guidance specialist for the Petitioner. Mr. Sasse conducted a study of the Attucks Guidance Department and determined that the Department needed to be restructured. He determined that two full-time counselors were more effective than one full-time and two part- time guidance counselors. Thus, Respondent was assigned a teaching position without any counseling duties. Respondent has refused to perform her assigned duties by Mr. Taft Green citing, inter alia, that the course materials provided her were inadequate or incomplete; that she was not educationally trained and therefore unqualified to teach the assigned duties; that she received no help or assistance from other instructional employees at Attucks and that she was not interested in taking the needed steps to either become qualified or otherwise competent to teach the assigned social studies and orientation classes. Prior to her November 10, 1982 assignment by principal Taft Green, Respondent was afforded one (1) week to prepare for the assigned classes. Additionally, she was given two TDA's (temporary duty assignments) to prepare for the social studies classes. Additionally, Respondent received a course syllabus and other material from other faculty and staff and offers of help from supervisory employees. (Testimony of Green; Carole Fischer, Social Studies Department Head; Mark Thomas, author of the course guide for middle school orientation and Dr. Benjamin Stephenson, Associate Superintendent for Personnel) Respondent made repeated statements, oral and written, to students, other instructional employees, supervisors, principal Green and the press evidencing her lack of interest in performing the assigned duties of teaching social studies and/or orientation. Respondent also cited as one of the reasons of her inability to teach the assigned classes was due to the fact that her students were not functioning at the same level of achievement and therefore it was impossible for her to teach students who are functioning at different progress levels. It is hereby found that it is indeed normal for students to function at varying progress levels and that teachers who are at all interested in performing the duties of an instructional employee, readily adjust to the varying progress levels of students and welcome the challenge of such an adjustment. As stated, Respondent repeatedly refused to perform her assigned duties as an instructional employee for the orientation and social studies classes. Based on this refusal to teach, Respondent assigned 148 out of 150 students a grade of incomplete or "I." Respondent was repeatedly directed to provide grades for her students by principal Green including written demands on January 19, 20, 21 and 25, 1983. On the last two demands on January 21 and 25, 1983, Respondent was further advised that her failure to assign grades to students would be regarded as gross insubordination. Respondent would not and, in fact, refused to teach her students any of the subject areas to which she was assigned by principal Taft Green. A typical day spent in the Respondent's classroom consisted primarily of the students either performing independent work which usually was in the form of preparing for other classes or doing homework which was assigned by other instructional staff or in the case of the orientation class, students would watch programs such as "Good Morning America" and "The Today Show." Respondent performed some minimal teaching including map and globe assignments. However, in the normal day, Respondent would permit students to perform either independent work or repeatedly view film strips. As a result of such repetition, students became bored. A number of Respondent's students expressed a desire to learn skills in the social studies classes which they were attending. It is also found that the Respondent's effectiveness as a teacher has been severely damaged due to the wide notoriety that this case has received, the public statements and/or admissions by the Respondent denoting her lack of interest in teaching the assigned classes and the expressed concern of other staff and parents concerned about entrusting their children to Respondent's class in view of her admitted lack of care and disregard for the educational and social welfare of the students in her class.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Petitioner, School Board of Broward County, enter a Final Order dismissing the Respondent, Alfreda Grady, from employment with the Broward County school system. RECOMMENDED this 17th day of November, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 17th day of November, 1983.
The Issue Validity of demotion of Respondent by Petitioner from Educational Consultant IV to Educational Consultant III, Department of Education.
Findings Of Fact By a letter dated March 25, 1977, respondent was advised by Woodrow J. Darden, Director, Division of Public Schools, Department of Education, that he was demoted from Educational Consultant IV to Educational Consultant III with reassignment at his current salary due to his failure to achieve a satisfactory performance evaluation for the six months period ending April 1, 1977. He was further advised of his right to appeal the demotion within twenty (20) days. On April 12, 1977, respondent did appeal the demotion and the case was thereafter referred to the Division of Administrative Hearings by the Career Service Commission on May 25, 1977. (Petitioner's Exhibit 1) At the tinge of his demotion, respondent was serving as an Educational Consultant IV in the Division of Public Schools where he had been so assigned since March 1975, having been transferred from the Division of Vocational Education in the position of Educational Consultant III as a result of departmental reorganization. He has been employed continuously by the Department of Education since 1966. (Petitioner's Exhibit 1) Prior to his employment by the petitioner, respondent served as Director of Adult Education in Lake and Duval counties for approximately six years from 1953 to 1959. After a subsequent seven-year period in the real estate business, he joined the Department of Education as a consultant for adult basic education. His various assignments have been directly connected with adult education throughout his entire tenure. From 1968 until March of 1975, he served as the Assistant Section Director of the Adult and Veterans Education Section, Division of Vocational Education, under the supervision of James H. Fling. In this capacity, respondent was responsible for the supervision of some twenty-eight (28) professional and clerical staff employees and his duties primarily consisted of implementing the state adult education program through subordinate state area supervisors and various county and college adult education directors. During absences of Fling, respondent served as Acting Director in a creditable manner. He was considered to be an effective employee by Fling and "in demand" in the field for technical help and assistance. His coworkers, the area supervisors, and local adult educators throughout the state characterized his services as dedicated, cooperative, and enthusiastic. Many are of the view that he is one of the most knowledgeable men in the field of adult education in the state. Until October, 1975, he had never received less than a "satisfactory" performance evaluation in any of his varied positions with the Department of Education. (Testimony of Fling, C. Palmer, Porter, R. Palmer, Holmes, Childress, Talbot, Sanderson, Brumfield, Blue, Meeth, Mills, Jones, Wright, W. Roberts, supplemented by Respondent's Composite Exhibit 7, Petitioner's Exhibit 1.) After the transfer of adult education functions to the Division of Public Schools in early March, 1975, Fling remained in charge until May 19, when he was transferred within the Department. One of the section's major functions was to prepare an annual state plan for adult education to submit to the U.S. Commissioner of Education for approval. The state plan serves as an agreement between the state and federal governments under the Adult Education Act whereby federal funds are provided to assist the states in adult education services to local education agencies for special projects, teacher training programs and the like, to upgrade the literacy level of the state population and to provide opportunities for individuals to secure a high school education. Unless major changes are made in the federal law, the plan from year to year is merely updated with minor changes. It had been necessary in the past to receive detailed information from local education agencies early in the calendar year in order to revise the plan for the upcoming fiscal year, secure necessary approvals from the state Commissioner of Education and the State Board of Education before submission to the federal authorities prior to July 1, when federal funds are authorized for distribution and expenditure within the state. Mr. Fling, as the responsible official for formulating and updating the plan with the assistance of respondent and other members of the section, had commenced preparation of the annual revision in mid-February, 1975. After transfer of the section to the Division of Public Schools in March, work continued on the project and by the time Fling was transferred from adult education duties on May 19, the plan was in draft form. After Fling's transfer, Division Director Darden appointed respondent as acting Supervisor for the Basic and General Education subsections (which were later called Basic Skills subsection and High Schools subsection) with responsibility for completing the processing of the state plan, among other duties. However, no section chief or program director was appointed after reorganization. Another employee, Julian Morse, was made the supervisor of the other two subsections of the Adult Education and Community Service section. They reported to a bureau chief, J. A. Crenshaw, for instructions, but Darden assumed an active supervisory role over section activities until an acting section head or program director was appointed in late February 1976. Although respondent had completed revisions to the draft state plan that had been made by the Deputy Division Director, Carey Ferrell, and submitted a revised draft to him on June 5, 1975, the final plan was not received in the regional office of the U.S. Department of Health, Education and Welfare until June 30. However, it was acceptable and funds were made available in a timely manner. (Testimony of Fling, Respondent, Darden, Ferrell; Petitioner's Exhibits 6, 7, 19; Respondent's Exhibits 1, 2, 3, 4, 8, 10) Although during the period from June 1975 to March 1976, Darden and Ferrell had not been entirely satisfied with the results of several projects assigned to respondent, he was promoted to Consultant IV on September 1, 1975, and achieved permanent status on March 1, 1976. Crenshaw's annual Employee Performance Evaluation for respondent on that date listed all factors for consideration and the overall rating as "Satisfactory." Respondent applied in the summer of 1975 for the vacancy of section chief, but was not selected. The individual selected for the position was unable to accept it and consequently Jack Waters was assigned in late February 1976 as the acting head. (Testimony of Darden, Ferrell, Waters, Petitioner's Exhibits 1, 3, 4, 12) In late February 1976, when Waters arrived to take interim charge of the section, respondent was leaving to attend a conference of state adult educators in Dallas to receive current data concerning the state plan and the impact of a change in the federal fiscal year from July to October. Respondent had been told to hold up action on the plan until after the conference. He briefed Waters on these problems and both attended the conference. There, briefings were held on the imminent procedural changes. In March, Waters felt that insufficient progress had been made in obtaining input from the various state school districts concerning "309 Funds" which required each district to submit a prospectus indicating the projects on which such funds would be applied. Although Mr. Grainger, a Consultant II who had responsibility for the "309 Funds" under respondent, had explained the subject matter to Waters at Dallas, apparently the latter was unsatisfied with Grainger's efforts and therefore assumed direct control of preparing and processing the state plan. The primary reason for the prior delay in formulating the plan was that due to the change of the federal fiscal year, from July 1 to October 1, state educators were of the opinion that funds would be received for expenditure commencing October 1. However, it later developed that since no transitional funds were provided to cover the three-month period from July through September, it was necessary to move the approval date back to July 1. The plan was processed and approved in a timely manner, although minor corrections were required by the federal authorities. (Testimony of Waters, Respondent, Jones, Petitioner's Exhibits 8 - 10, Respondent's Exhibit 9) Due to Waters' unfamiliarity with section matters, he had asked each subsection chief to prepare a "work plan" that would set forth information and procedures concerning each subsection's particular area of responsibility. Only one of the four subsections turned in a satisfactory plan and, accordingly, in the summer of 1976, Waters restricted travel to the field until such plans were produced. He was particularly dissatisfied with the materials submitted by respondent in this respect. (Testimony of Waters, Petitioner's Exhibit 11) On July 1, 1976, all state employees were required to be evaluated because of changes in anniversary dates required by salary adjustments. Waters gave respondent an overall rating of "satisfactory," including "above- satisfactory" ratings on four factors, including work quality, job knowledge, dependability, and judgment. Although Waters did not counsel respondent as to any perceived deficiencies in his work performance during the summer of 1976, he had informed Darden of certain misgivings concerning respondent. On October 1, 1976, Waters rendered a special Employee Performance Evaluation on respondent in which he gave him an overall rating of "conditional." In rating the various factors on the report, respondent was given unsatisfactory ratings in "dealing with people," "judgment," and "initiative," and conditional ratings in "work quantity," "attitude," and "supervising others." A detailed narrative statement of respondent's deficiencies was incorporated in the evaluation document in which Waters observed that his prior "satisfactory" evaluation had been based on an incomplete assessment of respondent's performance of duty. In the report, although acknowledging respondent's above-average job knowledge, Waters criticized him for failing to complete a "subsection work plan" and for not exercising leadership in planning and preparing the state adult education plan. He characterized respondent's attitude as one of "reluctant cooperation, and somewhat antagonistic to bureau and division supervision." He attributed this to a personal feeling of respondent that the staff administration was not competent to deal with the adult program. Further, the report stated that the respondent's poor attitude had been exhibited by derogatory remarks about professional staff to other section personnel and district staff members. No evidence was presented to support Waters' allegations in this respect except that, on several occasions, respondent was heard to question Waters' knowledge in the field of adult education. It was Waters' feeling, as expressed in the report, that respondent's shortcomings were due either to a lack of skill and competency or a "deliberate attempt to discredit the bureau and division administrator of the program. Although Waters indicated in the report that respondent was polite and cooperative on specific assignments, he did not take sufficient charge or exercise the leadership to assist Waters in becoming acquainted with adult education programs and to insure independent initiative in carrying out program operations. The evidence, including the testimony of various members of the section, establishes that there was a lack of rapport between the two individuals and some resistance by respondent to Waters' more formalized requirements and closer supervision than had been exercised in prior years. Respondent protested the evaluation by a memorandum to Darden on October 1, 1976. (Testimony of Waters, Respondent, Gary, Berry, Jones, Petitioner's Exhibit 1) Darden held a conference with Waters and respondent at which the "conditional" performance evaluation was discussed. At this time, Darden informed respondent that he was assigning him to temporary duty for a month or two in another bureau of the division. This action was taken because Darden had appointed Dr. Luther R. Rogers as the new section chief and he felt that it was "impossible" for Rogers to assume his duties while respondent was in the section. Accordingly, respondent was temporarily assigned to the Bureau of Management Systems and Services under Lee Roberts on October 1 for approximately two months. During this period, respondent performed essentially clerical duties unconnected with adult education. Specifically, he assisted in an equipment inventory and secured information concerning department leases. In late November, respondent was returned to the section which was now under the supervision of Dr. Rogers. Department of Administration Rules (Chapter 22A- 9.02(6), F.A.C.) and petitioner's personnel procedures (Appendix 6-G, Policy Reference 6.9) require that an employee who receives an overall evaluation of "conditional" but is retained by the agency, must be reevaluated at least every sixty days after receiving such rating until six months have elapsed without the employee receiving a rating of at least "satisfactory," prior to effecting disciplinary action against the employee. Pursuant to this requirement, Dr. Rogers gave respondent an evaluation report on December 1, 1976, and merely repeated the overall rating of "conditional" and ratings of various factors as they had appeared in the October 1 performance evaluation. He justified this by the fact that he was unfamiliar with respondent's work performance because he had been on temporary assignment during most of the rating period. No attempt was made to include an evaluation of respondent's work during that period. Upon receipt of the evaluation in early January, respondent again protested and maintained that he had worked diligently for Mr. Roberts during the evaluation period. (Testimony of Darden, Waters, Rogers, Petitioner's Exhibit 1, 2, 5) At the time respondent reported for duty with Dr. Rogers, the latter gave him a memorandum which advised that he was being assigned to special duty with Rogers on his return to the section, and it was requested that he propose an outline and plan for the development of a section procedures manual. He also indicated that respondent should discuss a proposed document of historical data on the functions performed by the section. In the memorandum, respondent was advised that he was being assigned to another office and that he would not have supervisory responsibilities over other section staff personnel. Rogers did not go into any detail as to what he expected in the procedure manual as to content, arrangement or format. In due course, respondent produced a draft proposed manual which Rogers found to be unsatisfactory and not what he had in mind. He felt that it was poorly arranged, incomplete and included obsolete material. He was likewise dissatisfied with the historical document prepared by respondent, but made copies of the same and presented it at a staff meeting where favorable comments were received. Rogers stated at the meeting that the document was very beneficial and worthwhile and that he was interested in having it bound and distributed around the state. Although Rogers was dissatisfied with several other projects assigned to respondent concerning a veterans benefit question and the field testing of an audit form, it is found that respondent's actions in both regards were correct and proper. (Testimony of Rogers, Respondent, Lamb, Jones, Barrett, Petitioner's Exhibits 15-18, Respondent's Exhibit 6) At the time Rogers took over the section, Dr. Lamb, the former subordinate of respondent, was given the respondent's former duties as subsection chief. On December 30, 1976, Rogers sent a memorandum to respondent and Lamb to the effect that henceforth Lamb was respondent's day to day supervisor. In fact, from that date until April 1, 1977, respondent performed normal consultant duties primarily in the field under the direct and immediate supervision of Lamb. However, both of the two remaining sixty day periodic evaluation reports on February 1 and April 1, 1977 were rendered by Rogers. In the February report, Rogers again gave respondent an overall "conditional" rating and, in a narrative attachment, pointed out the lack of quality in the papers submitted by respondent and indicated that he had displayed a "pleasant but passive attitude" in his work. In the area of "supervising others," Rogers discussed the shortcomings of the subsection with respect to lack of a coordinated adult education program during a period prior to his (Rogers') arrival in the section. Several recommendations for improvement were listed in the report to the effect that respondent should show enthusiasm and determination for overcoming existing problems, participate in in-service training to give him additional skills, and to specifically rework the procedures manual and historical document with an eye to better quality, and suggest realistic criteria for evaluating the need of local educational agencies for federal funding. At the time Rogers discussed this evaluation with respondent, the latter asked him what type of procedure manual he desired. Rogers informed him he could do it easier himself than to go over his needs with respondent. The special assignment given to respondent that appeared in the evaluation report on obtaining criteria for allocation of federal funds was answered by the respondent several days later, but it was not until the next evaluation report in April that Rogers told him he did not feel that it had the desired definitive criteria. (Testimony of Rogers, Respondent, Petitioner's Exhibit 1) After submission of the February evaluation, Darden was advised by the department's personnel officer that the final report of the six-month period in question should be completed and submitted no later than March 20, 1977, with an effective date of April 1, and that if respondent was not evaluated "satisfactory" on that performance evaluation it would be necessary to remove him from the class that he occupied. The April 1 evaluation was similar to that of the February report. It contained an overall "conditional" rating with several factors marked as "unsatisfactory." Its general tenor was that respondent's attitude toward self-improvement had been poor and that he had taken no initiative to overcome the deficiencies noted in the February report. Although respondent conceded at the hearing that his morale had been less than high during the six-month period due to the manner in which he had been relieved from his regular duties for a period and his change in status to non-supervisory duties, he believed that he had done a creditable job for Rogers. As a result of the April 1 evaluation, Rogers recommended to Darden that respondent be demoted to Consultant III and this was accomplished on April 1, 1977. (Testimony of Darden, Rogers, Respondent, Harrington, Petitioner's Exhibit 1) In May 1977, at a meeting of the Florida Association of Adult Education, an unofficial organization of state adult educators, the committee on awards recommended that respondent be given a special outstanding achievement award for his contributions to adult education in Florida. The meeting was cosponsored by the Department of Education. Rogers informed the president of the association, Paul Joseph, that it would be embarrassing to the Department to make the award because the respondent had been disciplined by the Department. Joseph, then a contract employee of the Department under the supervision of Rogers, vetoed the award nomination at the board meeting and this created a controversy among the members of the association. (Testimony of Rogers, Childers, Brumfield)
Recommendation That the Career Service Commission order the Department of Education to reinstate Floyd R. Jaggears to Educational Consultant IV, retroactive to April 1, 1977. Done and entered this 27th day of September, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Herbert Sikes, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32304 S. Gunter Toney, Esquire 200 East College Avenue Tallahassee, Florida 32301 Rivers Buford, Esquire Post Office Box 647 Tallahassee, Florida Conley M. Kennison Division of Personnel Room 530 Carlton Building Tallahassee, Florida 32304 Attn: Mrs. Dorothy Roberts
