The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was discriminated against on account of his age by being "laid off" and then rehired in a demoted position.
Findings Of Fact The Petitioner is a 64-year-old white male born on April 25, 1932. He began his employment with the Respondent on April 1, 1985, at which time he had 23 years of experience in bus-transit systems as a helper, lead mechanic, master mechanic, and garage foreman. He is currently employed by the Respondent as a bus driver. The Respondent is an employer in the State of Florida for purposes of Chapter 760, Florida Statutes. It is engaged in operating a public transit bus system in Escambia County, Florida, under contract with that county. A necessary part of this operation is the maintenance of buses and the maintenance, by contract, of other government vehicles at the Respondent's maintenance shops. The Petitioner became employed by the Respondent on April 1, 1985. He held the position of foreman in the maintenance department from 1986 to 1989. He was then replaced by a younger employee (under the age of 40) and was allegedly demoted to stock clerk (also called storekeeper). He filed a claim of age discrimination at that time, but the matter was negotiated and settled with a written agreement. Under the terms of the agreement, the Petitioner agreed to dismiss his complaint in exchange for receiving computer training, arranged and paid for by the Respondent. The Petitioner at that time understood that computer training would make him a more valuable employee to the Respondent, help him keep his position in the maintenance department and obtain later promotions. The negotiated settlement was reached on the Petitioner's previous discrimination complaint on March 14, 1990. That agreement provided as follows: Respondent will provide complainant with training on computerized maintenance software; Complainant will not be retaliated against as a result of having filed a comp- laint of alleged employment discrimination. Pursuant to the agreement, the Respondent paid for the Petitioner to enroll in a computer course at Pensacola Junior College. Prior to that course, the Petitioner was admittedly computer illiterate. The Petitioner enrolled in the course but did not complete it. He stated that it was too advanced for him, and he wanted to return to Pensacola Junior College at a later date to take a different course. He never reported that fact to the Respondent, however, and never sought additional formal computer training to be provided for by his employer. The Petitioner never advised his employer that the course was too advanced for his level of knowledge. He found another course at Pensacola Junior College, which he could have taken, but he never enrolled in that course and did not request the company to pay for or accommodate any further education. The Petitioner never complained about a lack of proper computer training. According to the terms of the agreement, he could have filed a complaint with the Florida Commission on Human Relations (Commission) for breach of the agreement but never once complained to the Commission that the Respondent was breaching the agreement by failing to provide him with the required training. The evidence is not clear as to whether the Petitioner registered himself or whether the Respondent registered the Petitioner in the computer course which he attempted. The Respondent, however, denies any knowledge of the level of the course. The Petitioner himself testified that no beginners class was available at the Milton, Florida, campus at that time. It is also noteworthy that Richard Lindsey, the person who holds the position that the Petitioner aspires to, never received any formal computer training at company expense. In 1993, the Petitioner's position as stock clerk was eliminated, and he was laid off. He was laid off by the Respondent as part of a reduction in force ordered by the county government for budgetary reasons. After being laid off from his position as storekeeper, the Petitioner was immediately rehired as a bus driver. This paid approximately $5.00 per hour less than his storekeeper position. The decision to lay off employees was based upon a budget cut imposed by the Escambia County Commission, which is undisputed. There had been no layoffs by the Respondent since 1988, and none had been anticipated, or could have been anticipated, until that budgetary decision was announced. The Fleetmate software computer program, which was used by the Respondent to keep track of maintenance matters, was purchased in 1988. The only extensive formal training given by the vendor was in 1988, soon after purchase. In 1988, the Petitioner was a foreman in the rehabilitation facility and had no need to use or to be trained on the Fleetmate system. There may have been a brief update of formal training, but the date is not certain. However, all training on the Fleetmate software after 1988, which took place after the Petitioner became storekeeper, was given by Richard Lindsey. Mr. Lindsey gave instruction on Fleetmate to Mr. Pete Barnes, who was age 50 or over, and Mr. Barnes learned how to become proficient in using the program on his own. Mr. Lindsey also trained Mr. Hilton Turner, who was about 50 years old, to use the program, in approximately 10 hours. Mr. Lindsey also furnished training to the Petitioner for 15 to 20 hours. Mr. Lindsey was the only person employed by the Respondent who was competent to provide that computer instruction. Mr. Lindsey trained him in the same way that Fleetmate had trained employees by showing screens on the computer and how to enter data. After receiving formal computer training to some degree at Pensacola Junior College and the training from Mr. Lindsey, as well as the opportunity for on-the-job training, including the opportunity for informal self-instruction by asking for help from other employees or supervisors, the Petitioner has the following problems: By his own admission, he has problems turning on the computer after receiving the course at PJC and training from Mr. Lindsey. He made numerous data entry mistakes, by his own admission, after training. Unchallenged, unrefuted testimony of Mr. Barnes establishes that the Petitioner would frequently forget his password or mis- spell it and thus failed to get entry into the computer and frequently made errors in data entry. This was corroborated by testimony of the Respondent's witness, Mr. Lindsey. Mr. Lindsey was relatively competent in the use and understanding of computers. He learned the Fleetmate program rapidly, even before the formal training program was administered. Mr. Westbrook, testifying for the Respondent, characterized Mr. Lindsey as a computer expert. Mr. Barnes, testifying for the Respondent, agreed with that estimation. The Petitioner admits that Mr. Lindsey is more skillful in using the computer, and the Fleetmate program, than is the Petitioner and that Mr. Lindsey had about 15 years of computer-related experience. The storekeeper's position held by the Petitioner from 1989 until his demotion in 1993 was limited in its need for computer usage. The Respondent's witness, Mr. Barnes, established that only five to seven percent of the storekeeper's position was computer related. Mr. Westbrook had a similar estimate of about 10 percent in his unrefuted testimony. During most of his time as storekeeper, the Petitioner was paid as, and functioned as, a night foreman, as well. The Petitioner was never disciplined during this employment and received no complaints from the Respondent about his admittedly limited computer skills in the performance of his position as storekeeper. This is because he could perform his position as storekeeper in competent fashion without computer skills, since they were only a small percentage of the skills and duties involved in that position. The position as maintenance accounting clerk, on the other hand, is highly computer related. Mr. Westbrook, testifying for the Respondent, established that the maintenance accounting clerk position was about 90 percent involved in computer usage, which was corroborated by the testimony of Mr. Lindsey and Mr. Barnes. The Petitioner himself confirmed that Mr. Lindsey had always been the "input guy" in operating the computerized maintenance accounting system, "Fleetmate". The Petitioner contends he was "locked out" of the computer because he would come to work and could not get into the computer. He believes that the employer or its supervisors were preventing him from access to the computer, as an element of his discriminatory claim. This is not true, however. It was established that the Petitioner, with his low level or nonexistent computer skills, even after training, was frequently simply unable to remember how to turn his computer on. He would accuse people of tampering with his computer, but this was not shown to be the case. Mr. Barnes did not have to come "unlock" the computer for him, as the Petitioner maintained in his testimony. Rather, he merely had to repetitively, on different days, show the Petitioner how to turn the computer on, which he could not seem to remember. The Petitioner stated that he was locked out of vital portions of the computer program. Mr. Barnes established, however, that everyone was locked out of some parts of the program, based upon their need to have access to it. Even Mr. Barnes, a supervisor, was locked out of certain portions of it. Mr. Barnes established that the Petitioner was never locked out of any area he needed access to in order to perform his job functions but only areas that he could harm by mistakenly damaging the program. This fact is consistent with the testimony establishing that the Petitioner was never disciplined or received complaints about his performance as a storekeeper, since it involved very little computer usage (and concomitant need for access). Mr. Lindsey confirms this in showing that the Petitioner was locked out of "file maintenance" access since he could have damaged the entire computer program if he had made a mistake while he had entry to the file maintenance portion of the program. This reason for limiting his access is plausible given the other unrefuted testimony establishing the Petitioner's history of extensive, repetitive entry errors in his attempted use of the computer. The Petitioner contends that he was not provided a computer when he should have been. He never complained to the Commission, pursuant to his settlement agreement, however. He states that one was bought for him in mid- 1992 and was not made operational for six months, although Mr. Lindsey believes that he had it as early as 1991. Mr. Barnes opined that he had it as early as 1990. In any event, he did have one for his use at least six months prior to his lay-off; and both Mr. Lindsey and Mr. Barnes tried to train him in its use. The remaining employment position, after the layoff occurred, was that of maintenance accounting clerk. As stated above, it required substantial computer skills. At the time of the layoff, the Petitioner was not capable of performing that job, according to the evaluations of Mr. Westbrook and Mr. Barnes. The Petitioner admitted that he could not have performed the job at the time of his demotion, although he blames the Respondent for his failure to acquire the necessary computer skills. The Petitioner also complains concerning an alleged disparity regarding a "night differential" method of payment. No evidence was presented, however, which could show that the lack of night differential pay for the Petitioner was age related. No evidence was presented that younger people received the night differential pay and older people did not based upon their age classification. The Petitioner admits that he was not in a position covered under the company's labor agreement and that no nonunion employee who worked at night received night differential pay. The Petitioner was a nonunion employee not covered by the labor agreement. Additionally, the Respondent's witness, Mr. Westbrook, established that no management or nonunion personnel had ever received night differential pay. The Petition for Relief also alleges that younger employees were paid more for similar positions than was the Petitioner. No evidence was presented that any younger foreman made more money than the Petitioner as foreman. Unrefuted testimony was presented that while the Petitioner was a storekeeper, he was often paid as a night foreman and received more pay even than Mr. Lindsey. The foreman's pay was about $1.00 per hour more, by the Petitioner's own estimate. There was no evidence presented that Mr. Lindsey made more money than the Petitioner, when the Petitioner was a storekeeper and Mr. Lindsey was the maintenance accounting clerk. Mr. Westbrook's unrefuted testimony establishes that no supervisor, similarly situated to the Petitioner, received more pay than did the Petitioner. Indeed, the only similarly-situated supervisor actually received less pay. There is simply no evidence of any discriminatory practice in pay based upon the Petitioner's age. The Petitioner references, in its evidence, certain purported "age- related comments", which it seeks to show established a pattern of age discrimination. The only statement concerning age that was ever made directly to the Petitioner, according to his own testimony, was made by Mr. Barnes when he stated "Hey, old man, what are you up to now?" The Petitioner alleges that Mr. Barnes also asked him when he was going to retire on a couple of occasions. Mr. Barnes denies this allegation. The Petitioner admits that he was not psychologically affected by these remarks and that Mr. Barnes had never told him, in effect, that he was too old to do his job. The Petitioner's witnesses, Ella McClaren, Kenneth Edgerton, John Trifero, and Laura Nell Cary, although testifying in support of his claim of age discrimination, acknowledged that they had never heard any age-referencing remarks made about the Petitioner from Mr. Barnes or any person they could identify. Matilda Townsend, testifying for the Petitioner, had never heard such age-referencing remarks from Mr. Barnes, either. She states, however, that she did hear such remarks about the Petitioner but was unable to identify the source. The Petitioner only complains of age-related remarks coming from Mr. Barnes, his supervisor. He does not mention any remarks made by Mr. Lindsey, but Mr. Lindsey himself admits to calling the Petitioner "an old fart" and that the Petitioner also insulted Mr. Lindsey on occasion. Mr. Lindsey characterized this as "picking" and admits to calling the Petitioner old and senile, even saying so to Mr. Barnes, the supervisor. That was merely a statement of Mr. Lindsey's frustration at having to constantly help the Petitioner do his job, including looking up parts and other computer-related matters. It had nothing to do with any opinion that the Petitioner should be terminated due to his age. Mr. Lindsey was not his supervisor and did not make the subject employment decision. Even the Petitioner's witness, Mr. Rollin, states that he sometimes called the Petitioner "old" as a joke between friends. The Petitioner's witness, Jerome Allen, testified that he heard Mr. Barnes say "the old bastard, I should have fired him when I had a chance." However, Mr. Allen admits that this was approximately five years ago, long before the layoff or demotion in question. Additionally, the Petitioner's witness, Billy Rollin, states that he heard Mr. Barnes say "I should have fired the old son of a bitch, he doesn't know how to turn a computer on." Even if this were true, and Mr. Barnes referred to the Petitioner as an "old son of a bitch", the subject of, and reason for, his remonstrance about the Petitioner was his lack of computer knowledge. The comment was not shown to evidence an employer-held or condoned adverse perception concerning the Petitioner's age, the use of the word "old" notwithstanding. When the Petitioner was laid off, he was immediately rehired as a bus operator by the Respondent, admittedly for lower salary, but he never missed a paycheck. The Respondent did not simply lay him off and render him unemployed. Further, he had no experience as a bus operator and required considerable training for that position. The company's policies for such a layoff situation contain no requirement that he be retained or placed in another position.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition of the Petitioner, Oscar C. Green. DONE AND ENTERED this 23rd day of February, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, 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 23rd day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-1361 Petitioner's Proposed Findings of Fact The Petitioner failed to number his findings of fact. Accordingly, they will be addressed by complete paragraphs, which are assigned a number in this Appendix, numbered in the order in which the paragraphs appear in the findings of fact portion of the Petitioner's "Proposed Order." 1-3. Accepted. 4-6. Rejected, as contrary to the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Even if parts of this paragraph are accurate, they are not themselves materially dispositive. Accepted, but not itself materially dispositive. Rejected, as contrary, in part, to the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. 10-16. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter after the Hearing Officer's weighing of the candor and credibility of material witnesses. Respondent's Proposed Findings of Fact 1-24. Accepted. COPIES FURNISHED: Donna Gardner, Esquire 209 South Baylen Street Pensacola, FL 32501 Karl Boyles, Esquire 127 Palafox Place Pensacola, FL 32501 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
Findings Of Fact The Appellant Betty Saunders has been employed by the Department of Health and Rehabilitative Services and attained permanent status within the Career Service Commission in two classifications, Computer Systems Analyst I and Computer Systems Analyst II. By memorandum dated June 10, 1976 which was distributed to Appellant and other employees and by letter dated July 1, 1976, Appellant Saunders was advised of her status as an affected employee in the reorganization of Appellee department and that her position was being moved from Jacksonville to Tallahassee. She was told that she could move with the position and if not she would be retained on the payroll for a period of ninety (90) days or until she obtained a new position, whichever first occurred. Employees of the Appellee made extraordinary efforts to place affected employees in other positions if said employees did not choose to move from Jacksonville to Tallahassee. Appellee made many attempts to place the Appellant in positions, including positions of promotion. However, Appellant declined to accept. A written offer was made Appellant Saunders by letter from H.F. Goodwin, Director, Office of Management Systems. Said offer was a ten (10) percent increase in salary and a promotion to a position as Systems Project Analyst, Class Code 0180, Paygrade 22, located in Tallahassee, Florida. The promotion was declined. By letter dated September 24, 1976, Mrs. Saunders was informed by the Department of Health and Rehabilitative Services that her position was abolished and that she was laid off from employment by the department effective September 30, 1976, and that she would receive two (2) weeks pay in lieu of the fourteen (14) calendar day notices provided by rule. This letter also notified the Secretary of the Department of Administration that the Secretary of the Department of Health and Rehabilitative Services had designated Duval County as a competitive area. On October 11, 1976, the Secretary of the Department of Health and Rehabilitative Services received a letter dated October 4, 1976, from the Secretary of the Department of Administration expanding the competitive area. The agency accepted and acted upon the areas recommended by the Department of Administration, but there was no further written communication with the regard to the lay-off or the designation of the competitive area. Further communication was unnecessary. The Appellant Saunders was not notified that she had a right to request a demotion or any time frame for which she could seek a demotion. There is no evidence to show that Appellant Saunders sought a demotion although she is qualified to perform the job of a computer operator which is a demotion from the position she held as a computer systems analyst. No such notice was necessary or required. The Proposed Orders of the parties submitted to the Hearing Officer have been examined and considered in the preparation of this order.
Recommendation Sustain the action of the agency in laying off the Appellant Betty Saunders. DONE and ORDERED this 31st day of May, 1977, in Tallahassee, Florida. COPIES FURNISHED: Ben Patterson, Esquire 1215 Thomasville Road Tallahassee, Florida 32303 Douglas Whitney, Esquire Room 406, Building 1 1323 Winewood Boulevard Tallahassee, Florida 32301 Mrs. Dorothy Roberts Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY REMAND ================================================================= BEFORE THE CAREER SERVICE COMMISSION OF THE STATE OF FLORIDA IN THE APPEAL OF BETTY SAUNDERS against LAYOFF DOCKET NO. 76-303 DOAH CASE NO. 77-274 by the DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES /
Findings Of Fact Jody A. Strain was recruited and hired in 1984 by Reflectone, Inc. as a computer systems engineer. At the time of her dismissal Petitioner was a Level 3 engineer. During the 5 1/2 years Petitioner was employed by Respondent her evaluations were above average (Exhibit 2) and she received several letters recognizing her contributions to the projects to which she was assigned. Respondent has never contended that Petitioner was dismissed because of her work performance. Reflectone, Inc. develops flight simulators which it sells primarily to the U.S. military and to commercial airlines. These contracts are generally awarded following a request for proposal submitted by the purchaser to several companies capable of accomplishing the proposed tasks; and these companies, including Reflectone, submit bid proposals which, when accepted, result in an $8-$10 million contract. Each contract will generally run from 24 months to 30 months before completion. Accordingly, the number of employees needed at any one time is largely reflected by the number and scope of on-going projects. Because of this variation in workload Respondent's project managers prepare an evaluation of staffing needs for the future at two month intervals. These are coordinated and as new contracts are accepted they are staffed by people with the necessary qualifications who are working on expiring contracts. On September 12, 1989, Petitioner was placed on emergency maternity leave with an expected duration of nine weeks (Exhibit 3). On November 13, 1989 Petitioner was called by Janis Batt, Engineering Manager, Computer Systems at Reflectone and told that she was selected for lay- off. At the time Petitioner commenced her maternity leave the project on which she was working had not been completed; however, that part of the project on which Petitioner was working had been completed. Finalizing the project, which had been delayed by non-receipt of data from the purchaser, was completed by John O'Reilly, the team leader on the acoustics portion of the project on which Petitioner had participated. At the time Petitioner was laid off there was no new project starting up which required an engineer of her qualifications. The general policy at Reflectone is not to replace an engineer working on a particular project with another engineer except in cases of emergency. Since a large part of the work done by engineers such as Petitioner is writing computer programs for the project, continuity on the project is deemed by Reflectone to be the most important factor. As a result seniority among engineers is given considerably less weight in this business than in most other businesses where one engineer can generally replace another engineer with equivalent qualifications. Petitioner had earlier been granted maternity leave and returned to work at Reflectone. No evidence was presented that other employees had been terminated at Reflectone involuntary while on maternity leave or as a result of their pregnancy. At the time of Petitioner's dismissal there were some six to eight engineers in the computer systems division headed by Janis Batt. One was a Level 5, three were Level 4, two were Level 3 and one position was filled by a USF student working as a co-op one semester and going to school the next semester. This position was arranged by an agreement between Reflectone and USF. The one other Level 3 engineer in the computer systems division was Chet Kwistowski who had been hired much later than Petitioner. However, in October 1989 Kwistowski was working on an on-going project. Due to the lack of work in late 1989 staffing studies showed not enough work at Reflectone for all systems engineers. In July 1989 another group at Reflectone experienced lay-offs. In total some 50 people out of a work force of 500 were laid off in 1989. By reduction in force recommendation dated November 9, 1989 Janis Batt recommended Petitioner be selected for lay-off by reason of lack of work for an engineer of her qualifications. This was approved by the vice-president of Human Resources for a separation date of November 15, 1989 (Exhibit 8). By request for department transfer dated August 25, 1989, Janis Batt proposed that Petitioner be assigned to computer systems as her work on her then present assignment (SH2/SH3) had been completed. Respondent's policy and procedure manual policy number 29 (Exhibit 7) provides that employees furloughed because of lack of work may have a one (1) year recall period afforded them at the concurrence of the employee's supervisor and the vice-president, Human Resources. Petitioner contends that she was not rehired pursuant to this policy as retaliation for having filed her initial complaint of discrimination. During the Petitioner's recall period no new Level 3 engineers were employed in the computer systems division. However, one Level 4 engineer and two Level 1 engineers were hired. The Level 4 engineer hired, John Pfost, had voluntarily left Reflectone some two years earlier as an Engineer 2. Although Petitioner contends that Pfost was hired as a Level 4 to offuscate the failure to rehire her, Respondent presented credible and unrebutted evidence that Pfost had special skills necessary for the project for which he was hired. Another engineer had been denied promotion from Level 3 to Level 4 because she "did not have enough time in Level 3" yet she had more time as a Level 3 than the interval between Pfost leaving as Level 2 and his rehiring as Level 4. However, she did not have the supervisory experience Pfost had gained during the two years he worked for a competitor of Respondent. Petitioner did not apply for the Level 1 positions that were filled during her one year recall period and she was not offered either of those positions because she was deemed to be overqualified for the position. Although Petitioner indicated at the hearing that she would have accepted a Level 1 position she did not specifically testify that she would have accepted that position if offered. In this regard, from all of the evidence presented it is clear that Reflectone staffs various jobs with personnel holding the skills required for that job. Jobs requiring entrance level skills were staffed with Engineers 1 and jobs requiring Engineering Level 2 skills were staffed with Engineers 2, etc. No Engineer 2 or 3 personnel were assigned to jobs requiring Engineer 1 or Engineer 4 skills. Accordingly, the failure of Respondent to offer Petitioner the position of Engineer 1 was due to this general policy and not because Petitioner had filed her discrimination claim.
Recommendation It is recommended that Jody A. Strain's Petition for Relief from an unlawful employment practice be dismissed. DONE and ENTERED this 5th day of November, 1992, at Tallahassee, Florida. K. N. AYERS 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 5th day of November, 1992. APPENDIX Petitioner's proposed findings are unnumbered. To attempt to rule on these proposed findings I have numbered them 1-23 attempting to keep one fact to each number. Treatment accorded these numbered findings is as follows: Accepted (number of engineers hired). Accepted except that Petitioner would have accepted a level 1 position if offered. No testimony was presented to support this fact. Rejected as argumentative. Accepted (re hiring Kwistowski). 5.-9. Accepted. Accepted as testimony by Petitioner. However, Batt repeated the evidence in Petitioner's finding of fact 9 at the hearing. Accepted. Accepted as the testimony of Batt (performance evaluation). Other sections of this proposed finding are rejected as argumentative. Statement accepted. Questions and balance of this proposed finding are rejected as argumentative. 14.-15. Rejected as argumentative. Accepted. Two questions are rejected as argument. Accepted. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Accepted. Respondent's proposed findings are accepted except as noted below. Those proposed findings not included in the Hearing Officer's findings nor accepted below were deemed unnecessary to the conclusions reached: 2. Date of Petitioner's layoff on November 6, 1989 rejected as inconsistent with Exhibit 8. COPIES FURNISHED: Margaret Jones, Clerk Commission on Human Relations 364 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 364 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Jody A. Strain 12404 Cardiff Drive Tampa, Florida 33625 John E. Phillips, Esquire 400 N. Ashley Tampa, Florida 33602
Findings Of Fact At all times relevant hereto, Respondent has been employed by Petitioner as a classroom teacher serving pursuant to a continuing contract. At the time of the final hearing in this cause, she was 49 years old and had worked continuously as a teacher for the School Board of Dade County, Florida, from 1962 until her suspension on August 23, 1989, except for five maternity leaves. Respondent attended college in Greenville, North Carolina, on a "State Department" scholarship between 1958 and 1962. In 1962, she received a B.A. degree in French and English and passed the National Teachers' Examination. In 1962, she accepted a teaching position with the Dade County Public Schools, teaching a two-course basic education program in her earliest years. Thereafter and until the 1986-87 school year, she taught English. During the 1962-63 academic year Respondent experienced many changes in her life: she began her first teaching job, she married, and she experienced her first pregnancy. These events, taken as a whole, made the 1962-63 academic year an extremely difficult one for the Respondent. Respondent's teaching performance was evaluated during the 1962-63 academic year using the Petitioners evaluation instrument then in use. Under that evaluation instrument, the teacher's performance was evaluated and assigned an averaged score. An averaged rating of 3.5 indicated satisfactory performance. During that academic year, Respondent's annual evaluation averaged score was 3.3. For every year thereafter continuing through the 1985-86 academic year Respondent's annual evaluation rated her performance as a classroom teacher as being acceptable. Throughout that time, Petitioner used three different evaluation systems for rating classroom teachers, including the TADS evaluation system currently in effect. In 1984, the School Board encouraged its teachers to become computer literate. Because Respondent needed additional coursework to renew her State teaching certificate, she enrolled in a computer class and then in a word processing class. She was "intrigued" by computers. She continued taking computer courses at Barry University, eventually entering the master's program at Barry University, majoring in computer education. By June of 1988 she had completed 39 credits with an overall grade point average of 3.846. In 1986, Respondent decided to look for a position teaching computer classes. She learned of a vacancy for a computer teacher at Brownsville Middle School, a Chapter I school in Dade County. She sought a transfer from her then current school where she taught English to Brownsville. She was interviewed by both the outgoing principal and the incoming principal Patricia Grimsley. Grimsley hired her to teach computer courses and to develop and equip the computer lab. Grimsley admitted that the computer lab had "deficiencies" which she expected Respondent to overcome. Respondent began teaching computer courses at Brownsville Middle School during the 1986-87 school year. During the three academic years Respondent taught at Brownsville Middle School, her general ability to perform her duties was seriously impaired by the "deficiencies" in the computer lab and the lack of assistance from her supervisors regarding her problems with adapting the administration of computer classes to traditional requirements. When she began teaching at Brownsville during the 1986-87 school year the computer lab itself was not ready to be occupied. Instead, Respondent was required to use a converted teachers' work room as a classroom. This room contained an inner office which was used by the school security personnel. The passage through her classroom of school security personnel and other law enforcement officers frequently accompanied by disruptive students caused a serious and continuing class distraction. The computers installed at the school were Tandy machines, Style TRS 80, Model 3, commonly known to people who were computer literate as "trash 80 machines." These computers had a non-functioning network which prohibited saving in or retrieving data from the computer memory. Accordingly, a student working on a project would begin each day's class by programming into the computer everything that student had already programmed into the computer on the previous day before the student could move forward. There was not a functioning printer in the classroom so that no hard copies off anything could be printed. The few textbooks available were textbooks commonly used in college, not in a Chapter I junior high school. These were the conditions under which Respondent taught during the 1986-87 school year. By the 1987-88 school year Respondent and her students had moved into the new computer lab. State-of-the-art computers had arrived for use in the computer lab, but there was still no software or books. During the summer of 1988, the software-and books arrived. Respondent had requested permission to be able to use the software to teach it to herself during the summer when She was only teaching half days, but the administrative personnel stored the software instead. During the 1988-89 school year, Respondent and her students began learning the software and the books together. In the interim period, before all of the materials and equipment necessary to daily teaching were supplied, Respondent borrowed software from her friends, and began creating daily projects, lessons, and activity sheets to keep her students busy and learning. These efforts to generate daily classroom activity created a "lot of work" for this teacher. She did not have a bank of lessons and activities from which to draw as would any experienced teacher or even a beginning teacher teaching in an area where others had lessons and activities previously given to draw upon. She was also considered a "vital resource" at Brownsville during those three years, assisting other teachers and other school employees in setting up their computers and learning the programs they needed to use. She even set up the computer in Principal Grimsley's office and assisted Grimsley in learning the program. School year 1986-87, Respondent's first year as a computer teacher and first year at Brownsville, was also Principal Grimsley's first year as a principal and first year at Brownsville. It was also Assistant Principal Senita's first year as an assistant principal. During each of Respondent's three years at Brownsville, she experienced difficulty with Principal Grimsley whom she found to be "unreceptive" and "unsupportive." Grimsley's "mind would wander" during Respondent's discussions with her of the problems that Respondent was having. On October 10, 1986, near the beginning of Respondent's first year at Brownsville, she was formally observed in the classroom by Principal Grimsley and was rated acceptable in all categories. On November 26, 1986, Grimsley held a conference- for-the-record with Respondent. A conference-for-the-record is a formal meeting with the employee to put the employee on notice of problems. The subject matter of this conference-for-the-record was Respondent's failure to continuously submit lesson plans on a weekly basis as required by Grimsley's administrative directives. Respondent had been submitting her lesson plans on some occasions but not on a weekly basis. She was directed to submit her lesson plans on a weekly basis and was put on notice that if she did not do so, further disciplinary action would occur. Respondent wished to discuss at the conference-for- the-record the lack of materials and equipment for the computer lab and the unusual demands on her time occasioned by those deficiencies. However, Respondent had been given prior notice of the purpose of the conference, and the labor contract between the United Teachers of Dade and the School Board does not permit the person holding the conference to go outside the stated subject matter of the notice. Grimsley did not initiate any subsequent discussions with Respondent regarding Respondent's problems during the three years that Respondent taught at Brownsville. On March 9, 1987, Grimsley held another conference for-the-record with Respondent to discuss Respondent's failure to submit weekly lesson plans each week and the fact that Respondent had not called the school until 8:55 a.m. to say she would be late when she was due to begin work at 8:45 a.m. Respondent was again directed to submit her lesson plans every week, and was directed to call the school in a more timely manner to indicate her tardiness or absences. Grimsley further explained that if the problems were not remediated, Respondent would be rated unsatisfactory in Category VII, Professional Responsibilities, and would be put on prescription. A prescription is a formal plan given to the teacher to address deficiencies in the teacher's performance. It is a plan formulated to assist a teacher for whom a deficiency has been documented. However, once a prescription is established, it is obligatory upon the teacher to fulfill it. At the March 9 conference-for-the-record, Respondent explained to Grimsley that she could not keep up with all the demands on her time and requested a transfer to a different teaching assignment. Grimsley explained that she had no other computer teachers at Brownsville and no current vacancy in a different teaching area. Therefore, Respondent could not be transferred to a different teaching assignment. On April 22, 1987, Grimsley held another conference- for-the-record with Respondent to discuss Respondent's unsatisfactory performance in Category VII, Professional Responsibilities. Respondent had been absent on the day that grades were required to be turned in and for several days before that. She had made no provision for bringing her grades to school to turn them in on the days that she was out sick. Respondent was placed on prescription. She was directed to submit her grades within the school's guidelines, and Grimsley had her write a report on proper grading procedures. Respondent completed the prescription and indicated that she understood the directives as to submitting grade sheets. Respondent remediated her deficiencies and received an acceptable yearly evaluation for the 1986-87 school year in all categories. The 1987-88 school year commenced with the Respondent and her students located in the new computer lab using the new state-of-the-art computers and printers. Respondent, however, still did not have software and books for her students to use. On February 8, 1988, Grimsley held a conference-for- the-record with Respondent. The issues discussed were Respondent's leaving work early and not signing out, not completing grade sheets, and not submitting grade sheets by the end of the teacher workday on January 29, 1988. A teacher workday is a professional day when there are no students in school and the teachers generally complete grade sheets for the end of the grading period Respondent had been given the teachers' workday agenda prior to the workday, outlining the schedule of deadlines and the meetings that Grimsley had also scheduled for teachers to attend that day. In fact, Respondent had not left work early that day but had been late returning from lunch because she and other teachers from Brownsville had gone during the lunch period to another school to attend a celebration at that school. Further, teachers are not required to sign out for lunch on a teacher workday. Nevertheless, Respondent had failed to submit her grades at the end of that teacher workday. Under the procedures established in that school, Respondent's failure to submit her grades by the end of the day delayed the report cards for the entire school. Respondent was again placed on prescription for Category VII, Professional Responsibilities. She was directed to submit her grade sheets on time for the next two grading periods. She was also docked a half-day's pay for returning from lunch late on January 29., She was told that if her grades were turned in on time and completed, the prescription would be satisfied On March 7, 1988, Respondent was formally observed in the classroom by Assistant Principal Gail Senita. Respondent was rated unacceptable in preparation and planning and in assessment techniques. She was rated unsatisfactory in preparation and planning because she had no lesson plans. For her prescription, she was directed to develop weekly lesson plans and to include in them objectives, activities, a method of evaluation, add a provision for homework, as required by the labor contract. She was rated unsatisfactory in assessment techniques because there were no graded papers in student folders, and there were no grades in Respondent's gradebook. As a prescription, she was directed to maintain student folders with examples of graded student papers. School Board policy requires teachers to keep folders with samples of student works Respondent explained to Senita that she kept an electronic gradebook on the computer. However, she did not show that electronic gradebook to Senita. Respondent was next formally observed in the classroom by Senita on June 1, 1988. She was rated in assessment techniques because there were still no student folders with graded work and no gradebook with student grades. While Respondent did have computer spreadsheets with students' names, they contained no grades for the students. As a prescription, Respondent was directed to prepare folders for the students and to file samples of the students' classwork, quizzes, homework, and tests in those folders. She was directed that the folders should contain at least one paper per week and should show a progression of difficulty. Respondent explained to Senita that the students' work was on computer disks. Senita suggested that Respondent print out hard copies of the students' work to file in the students' folders On June 14, 1988, Grimsley gave Respondent her 1987- 88 annual evaluation. That evaluation rated Respondent as acceptable in all categories, meaning that Respondent had remediated all deficiencies during that school year. Respondent signed that annual evaluation as having been received by her on June 14, 1988. Three days later, Grimsley came to Respondent's classroom and told her to sign another annual evaluation form. Respondent did so. That second annual evaluation form indicated that Respondent was acceptable in all categories except for Category VI, Assessment Techniques. Respondent was rated unacceptable in that category and was given an overall rating of unacceptable. However, she was recommended for employment That second evaluation contained an end-of-the-year prescription directing Respondent to record at least one formal grade for each student in the gradebook each week, and, if she used a grade sheet, to show a hard copy to the assistant principal on a weekly basis, and to place graded samples of student work, including homework and tests, in the student folders. Grimsley did not tell anyone that she had determined that Respondent had remediated her deficiencies and achieved an acceptable 1987-88 annual evaluation in all categories. Rather, she turned in the second evaluation form to be made part of Respondent's personnel file. At hearing, Grimsley verified that the signature on the evaluation finding Respondent acceptable in all categories was her signature, but failed to tell the truth about the incident, saying only "that's strange." The second evaluation form cannot be declared to be the "official" evaluation form. Grimsley did not offer any explanation for why, or if, she had changed her mind. It, therefore, cannot be found that Respondent received an unacceptable evaluation for the 1987-88 school year. Respondent taught during the summer of 1988, keeping a computerized rollbook which she turned in to the administrators. No criticisms were given to her of her computerized gradebook. During that summer, the software and books for the students arrived although Respondent did not have access to them until the beginning of the 1988-89 school year. That school year began, and Respondent was next formally observed in the classroom by Senita on September 22, 1988. She was rated unacceptable in preparation and planning and in assessment techniques. She was rated unsatisfactory in preparation and planning because she had no lesson plan. Without a lesson plan, an administrator cannot monitor compliance with the School Board's curriculum. As a prescription, she was directed to prepare lesson plans and submit them weekly to the department chairperson. She was directed that these plans were to include objectives, activities, a way of monitoring pupil progress, and an indication of homework. She was further directed to review the school Board's curriculum for computer education and to indicate in her plans which standards and skills were being taught. She was rated unsatisfactory in assessment techniques because she did not have student folders with student work. There was no evidence of quizzes, classwork, homework, or a variety of test formats. As a prescription, she: was directed to develop a folder for each student and to file at least one graded paper per week in the files. The files were to include samples of homework, classwork, and tests. She was directed to submit her gradebook for review every Friday. Respondent was next formally observed in the classroom by Grimsley on November 16, 1988. She was rated unsatisfactory in assessment techniques because there was no evidence in her gradebook or in the student folders that she was administering tests or quizzes. As a prescription, she was directed to construct a sample test and to show it to the principal for discussion. She was directed to administer tests biweekly and to submit copies to the principal prior to administering them. She was directed to construct tests which reflected a variety of test formats and to read certain pages in the TADS Prescription Manual which deals with the construction of tests. She was directed to place grades in a traditional gradebook. Respondent began keeping two sets of gradebooks -- one computerized set which she used, and a traditional rollbook to satisfy Grimsley. A conference-for-the-record was held with Respondent on December 12, 1988. The purpose of the conference was to put Respondent on notice that if her deficiencies were not corrected, there was a possibility that she would be recommended for separation from the school system. Some lesson plans had been submitted by Respondent, but not every week as prescribed, and a traditional gradebook had not been submitted to the administrators. During the conference, Respondent asked permission again to use electronic spreadsheets rather than the standard gradebook, but Respondent was directed to keep a standard gradebook with attendance and grades. Grimsley did indicate that she would determine if an electronic spreadsheet was an substitute. Test formatting and homework were also discussed. Grimsley explained that the School Board requires teachers to give homework that relates to classroom activities and to note same in the gradebook. There was no indication that Respondent was giving homework. Respondent was put on notice that she needed three consecutive acceptable classroom observations in order to be continued in her employment. She was further advised that an external review would take place. An external review is an observation done by a non-school site administrator and a school site administrator simultaneously. Each one prepares an observation report, and these are combined by mathematical formula. Respondent was next formally observed in the classroom on February 2, 1989, by Assistant Principal Orlando Milligan and was rated unacceptable in assessment techniques. Although the School Board requires that students' work be retained throughout the school year and the school year was more than half over, Respondent still failed to maintain student folders with student work. There was no evidence of assessments such as quizzes, classwork, and homework so that administrators could assess whether pupil progress reflected the objectives in the curriculum. As a prescription, Milligan directed Respondent to maintain samples of student work in student folders and to maintain a decipherable traditional gradebook. She was given until March 3, 1989, to complete this prescription. A conference-for-the-record was held with Respondent on April 24, 1989, for not having complied with her prescriptive directives or showing the administration a computerized gradebook or a traditional gradebook. She was advised that an external review was scheduled for April 27, 1989, to be conducted by Milligan and Dr. Mildred Berry, a non-school site science supervisor. Respondent was also told that the external review would occur during her second period class. She was told that even if the first external review were satisfactory, another would be required in order to meet the requirement for two successful summatives. A summative is a combination of two observations. Therefore, it takes at least three acceptable observations to result in two acceptable summatives. Respondent was also advised that her future employment with the school system was in jeopardy At the conference, Respondent was still discussing a computerized method of keeping grades and attendance. She was again directed to maintain a standard gradebook and to keep sampled of students' work. The first external review took place as scheduled on April 27, 1989, by Milligan and Berry. Milligan looked at the folders for the class he was observing and found samples of student work in the folders. He did have difficulty correlating the work in the folders with the gradebook and found the gradebook difficult to understand. He was about to rate Respondent unsatisfactory in assessment techniques but Berry explained to him that the keeping of student folders does not relate to assessment techniques Because of her insistence, the two of them reviewed the TADS Manual and Milligan found that Berry was correct. The concerns that he saw did not come under Category VI, Assessment Techniques, but rather came under Category VII, Professional Responsibilities. Category VII is not reflected on the classroom observation reports and is not part, therefore, of the formal classroom observation Milligan and Berry individually each rated Respondent acceptable in all categories. Berry's observation report contained the remark that "all students were actively involved in class activities." In spite of finding out that he had misunderstood the TADS evaluation system, Milligan did not go back and correct his February 2, 1989, observation report on Respondent where he had erroneously marked Respondent unacceptable in the area of assessment techniques based upon her failure to have student folders. If Milligan had gone back and corrected his February 2, 1989, observation of Respondent once he correctly understood the TADS evaluation system, then Milligan's formal observation of Respondent on February 2, 1989, would have resulted in her being marked acceptable in all categories. A second external review was conducted by Grimsley and Nelson Diaz, Area Director, on May 24, 1989. Respondent was rated unsatisfactory in all categories except teacher-student relationships. She was rated unsatisfactory in preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. Grimsley and Diaz observed students walk into the classroom, walk over to their computers, load their computers, and begin working on their projects. Respondent sent a few of the students to the library to do some research and spent the remainder of the class period walking around the room stopping to talk individually and work individually with each student. At times, some of the students were observed making comments to each other or writing notes, getting out of their seats, or laughing. Neither Grimsley nor Diaz attempted to ascertain if the comments or notes were related to students working with each other on their programs or if the students left their seats simply to go to the printer to retrieve a hard copy of their work. They did observe Respondent work individually with each student throughout the class period. Diaz became confused. The TADS observation form requires that certain teaching behaviors be observed during the lesson in order that the form can be completed. Because of the type of class conducted by Respondent, the observers could not observe the required teaching behaviors in order to complete their forms. Since Diaz believes that teachers usually try to do their very best when they know there will be a outside observer, he became concerned that perhaps Respondent was ill. Diaz requested that a post observation conference be held immediately so that he could determine whether there were extenuating circumstances for what he had observed. Respondent was requested to bring her gradebook to the conference because Diaz was not able to correlate the grades in the gradebook with the work in the folders. When the gradebook was discussed at the conference, Respondent told Diaz that she kept a traditional gradebook to satisfy Grimsley. When asked why she did not give the students tests, Respondent told him that her students could not read. Respondent had previously determined that when she gave students tests, the grades they received from the written materials did not reflect their understanding or progress as was observed by her when they did their actual "hands-on" computer programming and activities. Diaz noted that the students were reading their computer screens and were reading a sheet that they were following. He did not, however, note whether the computer screens; and the sheets the students were following contained words or pictures. Although Respondent had a lesson plan for that day, Diaz and Grimsley determined that she did not follow the plan. They concluded that she gave no instruction to her class on that day. They further concluded that the lesson plan used by Respondent, although a form lesson plan picked up by teachers in curriculum offices at schools, did not comply with the labor contract provisions in that it did not list homework. Further, an administrator could not look at the lesson plan and know what the teacher would be doing in the classroom because the lesson plan contained a listing of potential activities but did not note which specific ones would occur. At the conference with Diaz and Grimsley, the suggestion was made to Respondent, for the first time in the three years that she had been teaching at Brownsville, that she consult with a computer teacher at another school in order to ascertain how other computer teachers had made provision for tests, homework, student folders, and gradebooks. Eights days later, on June 1, 1989, Grimsley finalized Respondent's annual evaluation for the 1988-89 school year by rating Respondent as acceptable in the areas of teacher- student relationships and professional responsibility. She rated Respondent as unacceptable in the areas of preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. The overall summary ratings of acceptable and unacceptable were left blank; however, she checked the box marked "not recommended for employment." A conference-for-the-record was held by Grimsley on June 5, 1989, to discuss Respondent's performance to date, her unacceptable annual evaluations, and her future employment status with the Dade County Public Schools. Grimsley noted that at that time Respondent had still not remediated her deficiencies and was still on prescription. Prior to Respondent's suspension from her employment in August, 1989, there was no state teacher certification in computer education. There were also no other computer teachers at Brownsville to assist Respondent in the problems she was having. Although it was clear to Grimsley for three years that Respondent was having difficulties in conforming her computer class with a traditional academic class, Grimsley never suggested to Respondent that Respondent obtain assistance from other computer teachers to see how they had overcome such difficulties. That suggestion, withheld for three years, came during the conference among Grimsley, Diaz, and Respondent, just eight days before Grimsley recommended that Respondent's employment be terminated. Respondent maintained student grades and attendance on computerized spreadsheets. Further, Respondent maintained samples of student work on their computer disks. On at least one occasion Respondent showed copies of her grading and attendance spreadsheets to Grimsley, but Grimsley rudely brushed her hand across them and stated that she could not read them. Thereafter, Respondent did not show them to Grimsley. Cecelia Dunn, who served as Respondent's department head, saw Respondent's student records consisting of a file box with students' names, grades and attendance marked on cards and also Respondent's computer printouts with grades and attendance on them. She found Respondent'S records to be acceptable and thorough but suggested to Respondent that she also transfer this information to a traditional gradebook. There is no question that Respondent kept students' grades and attendance records; she did not keep them in a traditional gradebook. It is also clear that Respondent kept samples of students' work on computer disks. However, she did not consistently reproduce a hard copy of that work to maintain in the students' folders. Respondent does not know how to adapt the record keeping that is used in a traditional academic class to a computer class. In a traditional class all students work on the same assignments on the same day. In a computer class, students work on projects at their own speed over extended periods of time. She does not know how to give daily grades to a student working on a project over an extended period. Respondent does not know how to give homework in a computer class to students who do not have computers at home. Although Senita once suggested to her that she require her students to read newspaper articles about computers, Respondent's students do not receive newspapers at home and therefore cannot comply with such a requirement. Respondent agrees that Grimsley gave her a number of suggestions on a number of occasions as to how she could correct her deficiencies. However, the suggestions given by Grimsley, a former English teacher herself, would work in an English class but would not work in a computer class. No suggestion given by Grimsley during the three years that Respondent taught at Brownsville was tailored to a computer class. No suggestion was made during the first year as to how Respondent could comply with traditional requirements in a classroom with non-functioning equipment and textbooks written for college students. Similarly, Grimsley's conclusion on her last formal evaluation of Respondent that Respondent did not teach fails to take into consideration the fact that Grimsley observed Respondent giving individual instruction, the kind of instruction which is appropriate for a computer class. Grimsley never suggested to Respondent how Respondent could give lectures during her classes. The only computer teacher to testify in this proceeding also keeps his records of students grades by using electronic spreadsheets. However, he prints out those spreadsheets and places the sheets inside a traditional gradebook and prints out hard copies of the students' work for folders simply because his class does not always meet in the computer room but must meet on frequent occasions in a regular classroom. That teacher is a teacher on special assignment who runs the MAGNET program wherein students use computers for everything. He testified that it takes a lot more time to teach computers than other courses Respondent's colleagues hold her in high esteem as a very knowledgeable, excellent teacher. Her students always appear to be actively involved in their classroom work. They are always "on task." With their adherence to the formal evaluation instrument and traditional classroom techniques, Grimsley and Senita were not able to determine whether Respondent was following the School Board's computer curriculum or whether Respondent was providing her students with the minimal educational experience required by State Board rule. They admitted at final hearing that they could not say that she was not following the curriculum or that she was not providing her students with the minimum educational experience. There is no allegation that Respondent did not in fact assess her students or grade them appropriately although Respondent did not always keep records of those assessments in a traditional format. Similarly, it cannot be said that Respondent failed to prepare, keep, and submit all records and reports required by School Board rules. It can be said that she did not prepare, keep, and submit all records and reports required by administrative directives issued by Grimsley to her. On the other hand, it cannot be said that she knew how to do what Grlmsley instructed her to do, and it is clear that Grimsley referred her to no resources in the computer education field to assist her in learning how to do what Grimsley wanted her to do. It can only be said that Grimsley repeated the same prescriptions; it cannot be said that those things were helpful to Respondent in remediating her deficiencies. It is not suggested that Grimsley, Senita, or Dunn refused to assist Respondent in overcoming her record keeping deficiencies or in solving her problems with giving quizzes and homework assignments. There is no evidence that any of those persons knew how to assist Respondent in adapting a "hands-on" computer course to the standard record keeping requirements or all of the traditional assessment techniques. Respondent neither intentionally nor willfully disobeyed instructions given to her by her administrators. She was, however, unable to consistently comply with their directives due to the demands of day-to-day teaching, in a technical non- traditional subject area, without adequate resources and materials.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered reinstating the Respondent Patsy Moore to a teaching position in English education or computer education on a one-year probationary contract basis and providing that Respondent shall receive no back pay for the period of her suspension. DONE and ENTERED this 10th day of May, 1990, at Tallahassee, Florida. LINDA M. RIGOT 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 10th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-4857 Petitioner's proposed findings of fact numbered 1-6, 8-15, 17-25, 27-40, 42- 46, 48, 51, 53, and 55 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 7 has been rejected as being subordinate to the issues involved in this proceeding. Petitioner's ,proposed findings of fact numbered 16, 26, 47, 49, 50, 52, 56, and 57 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed finding of fact numbered 41 has been rejected as being unnecessary for the determination of the issues involved in this proceeding. Petitioner's proposed finding of fact numbered 54 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. Respondent's proposed findings of fact numbered 1-18 and 20-22 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 19 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. COPIES FURNISHED: Madelyn P. Schere, Esquire Patricia Bass, Esquire School Board of Dade County Board Administration Building Suite 301 1450 Northeast Second Avenue Miami, Florida 33132 Lorraine C. Hoffman, Esquire DuFresne and Bradley 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Dr. Paul W. Bell, Superintendent Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact At all times material hereto, petitioner, Mary L. Kinlaw, was employed by respondent, Department of Labor and Employment Security, Division of Workers' Compensation, Bureau of Claims, as a Word Processing System Operator, and held permanent status in the Career Service System. As a Word Processing System Operator, her duties included typing, filing, and general secretarial work. Petitioner worked a total of seven (7) hours in January 1991, and last reported for work on January 18, 1991. She has not thereafter reported for work, requested a leave of absence, or contacted the respondent. By letter of May 10, 1991, the respondent notified petitioner that: . . . you have been dismissed from your Work Processing System Operator position, effective 5:00 p.m., May 20, 1991. This action is being taken in accordance with Rule 22A-7.010(2), Florida Administrative Code (F.A.C.) and is for the offense of abandonment of position. The predicate for such action was petitioner's failure to report for work since at least February 21, 1991, a period of more than 3 consecutive work days. By letter of June 12, 1991, filed with the Department of Administration on June 17, 1991, petitioner protested the respondent's action. Petitioner did not, however, appear at hearing, and no competent proof was offered for or on her behalf to demonstrate that her failure to report for work was other than a voluntary abandonment of her position. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Administration enter a final order sustaining respondent's determination that petitioner abandoned her Word Processing System Operator position with respondent, and resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of September 1991. WILLIAM J. KENDRICK 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 12th day of September 1991.
The Issue Whether Petitioner was retaliated against due to testifying by deposition in another employee’s employment discrimination lawsuit.
Findings Of Fact Amie Remington, Esquire, an attorney in private practice, was hired as a contract attorney by the State of Florida to represent the Department in an employment discrimination lawsuit brought by Linwood Scott involving computer security violations and lax enforcement of the Department’s computer security policy that resulted in loss of State funds due to employee fraud. As part of the discovery in the Scott case, Ms. Remington deposed Petitioner on January 11, 2005. Prior to the deposition, Ms. Remington spoke with Katie George, Chief Legal Counsel for the Department, and obtained information as to all proposed witnesses, including Petitioner. At this time, Ms. Remington received information that Petitioner was identified for layoff. Mamum Rashied, the Department’s former District Operations Administrator, who retired on February 2, 2006, managed the Department’s operations for the four counties in District One; Escambia, Santa Rosa, Okaloosa, and Walton. As District Operations Administrator, Mr. Rashied was the second person in charge of the district with purview over the Economic Self Sufficiency (ESS) Program. The ESS program was the program in which Petitioner was employed at a salary of $1215.00 bi- weekly. During calendar year 2005, the ESS program underwent a statewide reorganization resulting in the elimination of approximately 42 percent to 43 percent of ESS positions through layoffs in District One. Petitioner, then an Economic Self-Sufficiency Specialist II (ESSSII), was on the list for layoff. Placement on the layoff list was made based on a top-to-bottom ranking of employees. Each employee was to be rated by the unit supervisors and placed on the list in terms of their retainability. The rating list was forwarded to the Operations Manager for the Service Center. Each Service Center compiled a ratings list which was then forwarded to the District Program Office to be combined into one district list. Mr. Rashied received a copy of the district list which contained the Petitioner’s name sometime in December 2004. The layoff listing process took approximately two months and was in existence prior to the Petitioner giving her deposition in the Linwood Scott case on January 11, 2005. Prior to the layoffs, Department personnel conducted general sessions at the Service Center for all interested employees to gain information as to the potential layoff situation. However, Petitioner was unaware of these meetings and apparently did not participate in them. During her deposition in the Scott case, Petitioner testified that she had logged into her computer using her password and P number and then allowed another employee to use her computer to help her with a problem case. Petitioner had permitted the use of her computer in an effort to help the employee process the information her center was required to handle. Such aid and supervision was part of her duties as an ESSSII. Petitioner did not believe that her actions violated the security policy of the Department. However, such action was a violation of the Department’s computer security policy. Petitioner’s testimony related to the fact that such activity occurred often in her Department. After her testimony, Petitioner was terminated on January 27, 2005, effective February 7, 2005, prior to her being laid off. The termination was the result of the Petitioner’s violation of the Department’s computer security policy. Petitioner was subsequently reinstated on April 5, 2005, following a ruling by the Public Employee Relations Commission (PERC) in favor of Petitioner, including payment of back pay and benefits. The ruling did not find that Petitioner had been retaliated against. Immediately following reinstatement, Petitioner was laid off effective April 5, 2005, pursuant to the prior layoff list which was still on-going. Importantly, if Petitioner had not been terminated she would have been laid off. Petitioner was subsequently rehired by the Department as an Economic Self-Sufficiency Specialist I (ESS-I) on September 2, 2005. The Petitioner’s personnel file indicated that she had been laid off and was subject to rehire. Based on a position opening and Petitioner’s qualifications, Petitioner was rehired and continues in the ESS-I position to date. Petitioner testified in her own behalf at the hearing. She asserted that she thought she was retaliated against because of her testimony in the Linwood Scott case. However, she offered no other evidence to show such retaliation and such supposition is insufficient to support a claim of retaliation. Likewise, Petitioner did not offer any evidence that Petitioner’s reasons for her initial termination and later layoff were pretexts to cover unlawful retaliation. Since there was insufficient evidence to support Petitioner’s claim of retaliation, her Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of May, 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 16th day of May, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Brittie Powers 106 Lakewood Road Pensacola, Florida 32507 Eric D. Schurger, Esquire Department of Children and Family Services 160 Governmental Center, Suite 601 Pensacola, Florida 32501-5734
The Issue The issue in this case is whether just cause exists, pursuant to section 1012.33, Florida Statutes (2012), for Petitioner to suspend Respondent from her duties as a teacher, without pay, for three days.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools in the School District of Broward County, Florida, pursuant to Article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. During the 2012-2013 school year, Respondent was employed as a teacher in the Head Start Program ("Head Start") at Quiet Waters Elementary School ("Quiet Waters") in Broward County, Florida, pursuant to a professional services contract. Evidence Adduced at the Hearing Head Start is a federally-funded program that provides comprehensive early childhood education, health, and nutrition services to low-income children. In order for the school system to qualify, or continue to qualify, for Head Start funding, the Head Start Performance Standards must be met. Noncompliance with these standards may cause the school system to lose funding for the program. At the beginning of the 2012-2013 school year, a schedule of deadlines titled "Head Start (HS) Program 2012-2013 Due Dates" ("HS Schedule") for various assessments conducted as part of Head Start was distributed to each Head Start teacher, including Respondent. Additionally, the HS Schedule was covered at an in-service workshop conducted for Head Start teachers. The HS Schedule provided a description of the assessment tasks and information due and the date on which each was due. The HS Schedule established an October 3, 2012, deadline to complete the 45-day screening assessments for students who were enrolled in Head Start as of August 20, 2012. It is undisputed that Respondent failed to meet the October 3, 2012, deadline for completing the 45-day screening assessments for the students in her class. Pursuant to approved leave, Respondent missed approximately eight days of work between September 27, 2012, and October 8, 2012, due to illness of herself and a family member. At the beginning of the school year, Respondent's classroom was not equipped with a functional computer. On or about September 14, 2012, the Head Start program provided a desktop computer to Respondent so that she could enter the information required by the program into the Head Start program computer database. On October 23, 2012, Claudia Dean, the Head Start Coordinator for Broward County Public Schools, notified Respondent by electronic mail ("email") that her Head Start classroom was out of compliance with the Head Start program standards because she had missed the October 3, 2012, deadline for completing the 45-day assessments, in violation of Head Start Performance Standard 1304.20(b)(1). Dean informed Respondent that all of the 45-day assessment information had to be entered into the computer database no later than "Friday, October 23, 2012."1/ It is undisputed that Respondent did not enter this information by Friday, October 26, 2012, so she also failed to meet this deadline. As part of her October 23, 2012, email correspondence with Respondent, Dean reminded Respondent of the Head Start program's impending Fall Checkpoint deadline of October 26, 2012, for completing Teaching Strategies GOLD© ("TSG") Assessment Portfolios for her students. Additionally, on October 25, 2012, the supervisor of the preschool curriculum for Broward County Public Schools sent a reminder email to all Head Start teachers, including Respondent, regarding the October 26, 2012, Fall Checkpoint deadline and the requirement to have all TSG Assessment Portfolios information entered into the computer database by that date. It is undisputed that Respondent did not enter the TSG Assessment Portfolios information for her students by the Friday, October 26, 2012, deadline. On or about October 30, 2012, Respondent received a laptop computer for her use in entering the required information into the Head Start program computer database.2/ As of November 2, 2012, Respondent still had not entered the information for the Head Start program that was due on October 3 and October 26, 2012, into the computer database. On November 2, 2012, McConaughey conducted a meeting with Respondent and other Head Start team members, specifically, Claudia Dean; William Hartner, assistant principal at Quiet Waters; Monica Soifer, teacher specialist for the Head Start program at Quiet Waters; Glendor Williams, social worker for the Head Start program; Ed Peddell, Broward Teachers Union representative for Quiet Waters; and Deputy Debra Bridgman, school resource officer at Quiet Waters. This meeting was prompted by email communication from Respondent to McConaughey, Soifer, Dean, and others, regarding Respondent's inability to work with Soifer, and requesting that another teacher specialist for Head Start be assigned to Quiet Waters.3/ McConaughey conducted the meeting specifically to address these issues so that the Head Start team could more smoothly work together. At the meeting, Respondent claimed that her email was being delayed so that she was not timely receiving it, and that it was being deleted from her computer. She contended that she was deliberately being sabotaged.4/ She further claimed that because she had not timely received a laptop computer, she was unable her to enter the required information. At the meeting, Respondent represented that on November 5, 2012, she could enter all of the information due for the October 3 and October 26, 2012, assessments, and she requested that Head Start pay for a substitute teacher to cover her classes on that day so that she could complete those tasks. With the specific understanding that Respondent would spend the school day on November 5, 2012, completing the entry of the overdue information, Dean approved the use of Head Start funds to pay for a substitute teacher to cover Respondent's classes that day. Thus, Respondent was approved for "TDA" on November 5, 2012——meaning that she received temporary duty authorization for that school day specifically to enable her to enter the overdue information into the Head Start computer database. However, Respondent did not log into the Head Start computer database until approximately 2:00 p.m. the afternoon of November 5, 2012, and then only for a short period of time, even though she had been approved for TDA for that entire school day. It is undisputed that Respondent did not complete the entry of the overdue information into the Head Start computer database on November 5, 2012. To the extent Respondent entered some of the information into the Head Start database that day, the information either was incomplete or substantially inaccurate. On the evening of November 5, 2012, Dean notified Respondent of these deficiencies and the need to expeditiously address them, and again informed Respondent that her classroom remained out of compliance with Head Start program performance standards. As of the morning of November 9, 2012, Respondent still had not correctly entered all of the overdue information, and her classroom remained out of compliance with the Head Start program performance standards. By then, Dean had notified Respondent at least twice that her classroom remained out of compliance with Head Start performance standards. On November 9, 2012, McConaughey issued a written reprimand to Respondent due to her failure to complete entry of the information that was due on October 3 and October 26, 2012. In pertinent part, the written reprimand stated: You have failed to meet the performance standards required of your position as a Headstart [sic] teacher. Specifically, you have consistently failed to adhere to Headstart [sic] Performance Standard 1304.02(b)(1), which requires that all developmental, sensory, and behavioral screenings be completed within 45 days of a child's entry into the program. Your poor performance adversely impacts Quiet Waters Elementary School and is contrary to the efficient and effective operation of the Headstart [sic] program at Quiet Waters Elementary School by failing to support the School Board of Broward County, Florida[,] in its goals of achieving the highest potential level for each of its students and meeting each student's achievement needs. Your failure to adhere to federal guidelines of the Headstart [sic] program is a serious breach of conduct that cannot be tolerated. Therefore, I am issuing you this written reprimand that is consistent with School Board Policy 4.9 and past practices of the School Board of Broward County, Florida. Please be advised that further failure on your part to perform to the standards established for the effective and productive performance of your duties as a Headstart [sic] [t]eacher will result in further disciplinary action, up to and including termination of your employment. As of November 14, 2012, Respondent still had not completely entered all of the required information into the Head Start computer database. At that time, Dean again notified Respondent that her classroom remained out of compliance with the Head Start Performance Standards. On November 20, 2012, Dean notified McConaughey that Respondent still had not completed entry of the overdue information into the Head Start computer database. On December 6, 2012, McConaughey prepared a letter formally notifying Respondent that she was recommending that Respondent be suspended for three days without pay. The stated grounds for the recommendation were as follows: You have failed to meet the performance standards of your position as a Head Start Teacher. Specifically, you have consistently failed to adhere to Head Start Performance Standard 1304.02(b)(1), which requires that all developmental, sensory, and behavioral screenings be completed within 45 days of a child's entry to the program. Your poor performance adversely impacts Quiet Waters Elementary School and is contrary to the efficient and effective operation of the Head Start program at Quiet Waters Elementary School by failing to support the School Board of Broward County, Florida[,] in its goals of achieving the highest potential level for each of its students and meeting each student's achievement needs. On February 5, 2013, Petitioner took action to suspend Respondent from her teaching duties, without pay, for three days. Respondent served her suspension on May 14 through 16, 2013. Respondent acknowledges that she did not meet the October 3, 2012, or October 26, 2012, deadlines for entry of the required information into the Head Start computer database. She also acknowledges that she did not complete entry of the overdue information on November 5, 2012, as she had committed to do. However, she maintains that extenuating circumstances prevented her from meeting these deadlines. Specifically, she claims that she did not have access to a functional computer that would enable her to do her work until mid-September, and that shortly thereafter she had taken medical leave, so she did not have time to complete the required tasks. She asserts that she should have gotten an extension of the October 3 and October 26, 2012, deadlines. She also claims that she did not receive email regarding the Head Start program because someone was "sabotaging" her computer by deleting her email. She further claims that on November 5, 2012, she attempted to access the Head Start computer database from several remote locations in Broward County in order to enter the overdue information, but she had difficulty accessing the database so was unable to complete entry of the information that day. The credible evidence shows that as of mid-September 2012, Respondent had access to a functioning desktop computer in her classroom. Thus, she had ample time to at least make substantial progress toward completing entry of the assessments information due on October 3, 2012; in any event, this does not explain or excuse her failure to meet the October 26, 2012, TSG assessments deadline. Further, even if the desktop computer in Respondent's classroom did not function properly, the credible evidence establishes that she had access to other computers at Quiet Waters on which to perform her work. Respondent did not present credible, persuasive evidence supporting her assertion that her email and work were being sabotaged. The evidence shows that Respondent did, in effect, receive extensions of the October 3 and October 26, 2012, deadlines to complete entry of the information due on those dates. Even after Respondent committed to enter the information on November 5, 2012, and then failed to do so,5/ McConaughey still did not reprimand her until November 9, 2012 (the end of that school week)——and then only after Respondent repeatedly had been reminded that week that she needed to expeditiously complete those tasks. Further, even after she received a written reprimand that fully informed her of the reasons why she was being disciplined and notified her of the consequences of her continued failure to meet the Head Start performance standards, Respondent still had not completed entry of the overdue information as of late November 2012. Findings of Ultimate Fact Based on the foregoing, it is determined that Respondent engaged in misconduct in office, as defined in Florida Administrative Code Rule 6A-5.056(2), and gross insubordination, as defined in rule 6A-5.056(4).6/ Misconduct in Office Respondent's conduct in failing to complete the required Head Start tasks well after the applicable deadlines reduced her ability to effectively perform her duties as a Head Start teacher, and had the potential to disrupt the student learning environment by jeopardizing the continued funding of the Head Start program at Quiet Waters due to noncompliance. Respondent's ongoing failure to complete the required tasks evidence that she did not exercise the best professional judgment and that she did not make the students her primary professional concern, in violation of Florida Administrative Code Rule 6B-1.001. Gross Insubordination Respondent's failure to comply with Dean's and McConaughey's repeated requests and directives regarding entry of the overdue information into the Head Start database constituted gross insubordination. Respondent's ongoing conduct over a period of weeks evidences her intentional refusal to obey direct orders, reasonable in nature, from McConaughey and Dean, both of whom possessed the authority to issue such directives to Respondent. Based on the foregoing, it is determined that just cause exists to suspend Respondent from her teaching duties for three days without pay.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order upholding Respondent's suspension from her teaching duties, without pay, for three days on the basis of just cause under section 1012.33, Florida Statutes. DONE AND ENTERED this 27th day of January, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 27th day of January, 2016.
The Issue The issue in this case is whether just cause exists to impose discipline on Respondent, David Meyer, for violating provisions of statutes, rules, and/or policies, and, if so, what discipline should be imposed.
Findings Of Fact The School Board is responsible for hiring, firing, and overseeing all employees within the Franklin County School system. There is one large public school in Franklin County: Franklin County School (the “School”), which contains grades pre-kindergarten through 12. There were approximately 1,220 students enrolled at the School in the 2014-2015 school year. There are approximately 170 employees working for the School Board. There is also a charter school and one private school in the county. At all times relevant hereto, Mr. Meyer was a teacher at the School. At the time of his termination from employment by the School Board, Mr. Meyer was teaching an alternative education class (referred to as “SOAR”) containing only a few students. His classroom was located in Building 8, Room 807, located just behind the School administrative building. Mr. Meyer has been employed by the School Board since 1990 and has held various teaching positions. He also served as the IT director for the School Board for approximately 10 years, but returned to the classroom in the 2013-2014 school year when Eagle Tree Technologies took over IT responsibilities. Mr. Meyer’s teaching certification is in science. During his entire career with Franklin County schools, he was never disciplined before the events related to the present case. Eagle Tree Technologies has a contract with the School Board to provide IT services to the School. Eagle Tree Technologies will be referred to herein as “the IT department.” In August 2014, i.e., at the start of the 2014-2015 school year during which all events of the present action took place, Mr. Meyer was tasked with teaching students in the SOAR program, a project intended to help children who were struggling with school for one reason or another, mostly behavioral or absentee issues. At the beginning of the school year, there were no students in Mr. Meyer’s classroom. Because he had no students of his own to teach, Mr. Meyer would fill in for teachers who were out sick, in training, or otherwise absent from their classrooms. As the year progressed, a few students were assigned to SOAR. Mr. Meyer basically taught those students in all of the core subjects, i.e., math, science, reading, language arts, civics, and history. When the first SOAR students were assigned, Mr. Meyer had several computers in his classroom: his teacher workstation, two or three student computers, his personal computer, and at least one laptop. At some undisclosed time in August 2014, Mr. Meyer was having trouble getting his teacher workstation to “come on right away.” In order to remedy that problem, Mr. Meyer “wiped” his computer and re-installed Windows 7. He did not check with the IT department before doing so, but admits that he probably should have. As a result of Mr. Meyer’s actions, the IT department could not access Mr. Meyer’s computer by way of its “TeamViewer” remote access program. Herrington left Mr. Meyer a note on his classroom white board, telling Mr. Meyer to reconnect to the School network. In December 2014, just prior to the School’s winter break, the IT department sent out an email to all staff warning against non-School Board-issued computers (including laptops) being connected to the School network. There was at that time a concern at the State Department of Education of potential computer hacking in statewide test sites. Personal laptops were a potential source for hacking. Mr. Meyer had, in fact, issued a warning against the use of personal laptops on the School system when he was the IT director back in 2013. Shortly after the IT department’s email warning went out, Herrington went into Mr. Meyer’s classroom and saw non- School Board computer equipment plugged into the School network portals. The equipment included a personal desktop computer, a laptop, and an external hard drive, among other items. Herrington notified an assistant principal, Ms. Walker, about what he had observed in the classroom. On January 6, 2015, Herrington, Ms. Walker, and Patty Kramer (media specialist at the School) went to Mr. Meyer’s classroom to confirm Herrington’s observations. The equipment was just as Herrington had reported. Per Ms. Walker’s direction, Herrington unplugged all the personal computer equipment from the School network. They stacked that equipment in one corner of the room and placed a sign saying “Personal” on top of the equipment. Before leaving the classroom, Herrington made sure that only School-authorized equipment was plugged into the school network. Meanwhile, Ms. Walker organized the classroom, cleaning up superfluous papers and books. The next day, January 7, Ms. Walker went back to Mr. Meyer’s room to address her findings with him, but he was absent from work that day. She came back on January 8 and talked with Mr. Meyer about what she had done two days earlier in his classroom. Ms. Walker also reminded Mr. Meyer that students were to work only on student computers, not on Mr. Meyer’s teacher workstation or on unauthorized laptops. She told him that the personal computer equipment should not be re- connected to the School system. About three weeks later, Ms. Walker went to see Mr. Meyer and saw a student sitting at the teacher workstation. She called Mr. Meyer outside the classroom and reminded him of their conversation earlier about students using his workstation. In February 2015, Herrington noticed that an inordinate amount of the School’s bandwidth was being used. He was able to track the use to Building 8 and then to Room 807, Mr. Meyer’s classroom. When he went into the room to determine what was causing the bandwidth usage, he saw that the personal computer equipment was again plugged into the School network portals. Conversely, the School Board-issued computers were not plugged into the network and their keyboards were in various states of disrepair. The teacher’s workstation was also plugged into the network. Herrington reported his findings to his supervisor, Ward, but did not address the situation with Mr. Meyer directly. On February 18, Herrington, Ward, and London went to Mr. Meyer’s classroom at approximately 6:00 in the evening to further investigate the personal computer equipment situation. They took pictures of the room and inventoried all the equipment found there. A computer audit was conducted of the computers found in the room. Herrington made copies of the computer internet histories and files. He attempted to copy the external hard drive but its contents were too extensive, so he took the hard drive back to his office where he had better copying capability. He was able to copy much – but not all – of the hard drive. The hard drive was then returned to Mr. Meyer’s classroom. Later, on or about February 24, Ward went back to Mr. Meyer’s room for the purpose of confiscating all of the computer equipment. The hard drive was missing at that time and, as of the date of the final hearing, has not been located. Mr. Meyer did not shed any light on the status of the external hard drive in his final hearing testimony. The computer audit showed that there were unauthorized computers and equipment connected to the School network, there were inappropriate internet sites visited on the computer and/or appearing on the hard drive, and there was some suspicious software on the computer. It also appeared that Mr. Meyer had attempted to circumvent the School network security system by plugging a “switch” into one of the school portals. There were two portals in the classroom, one for the teacher workstation and one for the teacher’s school-issued telephone. The switch gave Mr. Meyer the ability to allow other computers to access the teacher’s portal. This connection would presumably give users the ability to surf the internet with fewer restrictions than a student would normally encounter. Unfettered internet usage would increase the possibility of allowing a virus into the school network. That access could potentially give students the ability to access confidential school information. There was also a “bridge,” which provides some sort of network connection, at Mr. Meyer’s desk. He admits that he bought the bridge and brought it to the classroom. However, he was never able to figure out what it was to be used for and so he never connected it in the classroom. His explanation begs the question of why it was lying out on his desk, but that question was never answered at final hearing. The appearance of the bridge, in conjunction with the other devises, is – at the very least – suspicious. One of the unauthorized items found in Mr. Meyer’s classroom by the IT department was an external hard drive, which was connected to Mr. Meyer’s personal computer, which was, in turn, hooked up to the School District network. Mr. Meyer admitted bringing the hard drive to his classroom. He would transport it in his backpack and, on most days, take it home at the end of the school day. The hard drive contained a large amount of data and materials dating back several years. Ward and Herrington found many unauthorized programs on Mr. Meyer’s external hard drive, his teacher workstation, and/or his personal computers. On Mr. Meyer’s laptop computer, for example, there were programs that should only be used by the school network administrator, i.e., Ward and Herrington. Some of the unauthorized programs and material found on Mr. Meyer’s personal equipment by the IT department include: Windows Password Blocker – which could possibly have been used by Mr. Meyer to gain administrative privileges on his computer. This particular software can also help remove a password from a system so that an unauthorized person could access that system; IP Hider Pro – which is used most frequently to hide a user’s history on the internet, or, as Mr. Meyer maintains, it could be used simply to avoid advertisers who rely on a user’s history; A Hacker’s Life – which included a chapter about how to create a computer virus; Virtual Machine (VM) software – which gave Mr. Meyer’s laptop access to his teacher’s workstation; Inappropriate YouTube videos – including sexually- related videos, various prank videos, and others; A how-to book on oral sex – which included provocative pictures and explicit sexual language; and A list of XXX-rated sex questions – which also included provocative photographs and content. As to the Password Blocker, IP Hider Pro, Hacker’s Life, and VM software, Mr. Meyer said those were things he was curious about and investigated. He said that despite his IT background, he was not able to successfully install the programs and never was able to use them. Mr. Meyer’s explanation for the programs on his computer and hard drive is not persuasive and seems inconsistent with his IT background. There was also one instance when someone using Mr. Meyer’s personal computer made a Google search entitled, “Like a hacker; five steps.” If a student did that, it would be a problem; if Mr. Meyer made the search, it suggests more to the hacking issue than admitted by Mr. Meyer. As to the books on oral sex and sex questions, Mr. Meyer’s explanation seemed to change, depending on who asked him about them. In response to his counsel’s question, Mr. Meyer said he downloaded the books “last year sometime.” When asked again on cross examination, Mr. Meyer said that it might have been someone else who downloaded those things, he just did not remember. Although Mr. Meyer said none of his students saw those books, his failure to adequately supervise students means that he could not be certain of that fact. One concern of the School Board was that Mr. Meyer had a “TOR” browser installed on his computer. A TOR is generally used by people who are pirating movies and software and do not want to be detected. It is another tool, like the IP HiderPro, to help users avoid detection. Mr. Meyer admits using the switch and bridge; he asserts that the only reason for doing so was to have enough portals for his laptop, a personal printer, and sometimes other devises. The fact that it also allowed his students access to the internet while using computers in the classroom seems to be lost on Mr. Meyer. Mr. Meyer says he brought his personal computer and laptop into the classroom as a possible means of convincing his students not to destroy computer equipment. He reasoned that if he let the unruly students use his personal equipment instead of School-issued computers, they would be more likely to treat it properly. There is no credible support for this contention. The students had broken keyboards, mouse(s), and other equipment previously. And when they did so, Mr. Meyer did not contact the IT department to have the equipment repaired or replaced. Instead, he came up with the idea of replacing the equipment with his own personal equipment. The use of his personal equipment, however, violated School policies concerning outside, unauthorized equipment being connected to the School network. It was also a violation of School policy to allow the students to use his teacher workstation (even if, as Mr. Meyer alleged, other teachers allowed that to happen as well). The IT department did not find any actual harm to the school network caused by Mr. Meyer’s actions, nor did they find that a major security breach had occurred. However, it is clear there was a strong potential for harm and for a breach. For example, students were using the teacher workstation and the laptop to access social media sites and surf the internet. Students potentially had access to Mr. Meyer’s programs concerning hacking into a computer system. At one point, it was clear that Mr. Meyer’s teacher workstation and his personal computer were being used simultaneously. During that time, there were questionable and inappropriate internet websites being visited on the computers. For example, at least one person was accessing Facebook on the teacher workstation, a clear violation of School policy. Clearly, Mr. Meyer was not properly supervising students who were using the computers in his classroom. He, in fact, admits his failure to adequately supervise his students. His supposition that perhaps his daughter was using one of the computers while he worked on the other is not very likely when looking at the kind of sites being visited during the simultaneous usage. Mr. Meyer admits violating School policy regarding changing or altering a School computer by creating a second account on his workstation. He admits using the TOR browser on his personal computer when it was plugged into the School system. He admits putting a thumb-drive into his teacher workstation, but denies the IT department’s finding that he did so 10 to 15 times a day. Mr. Meyer admits that plugging additional devises into the School system could increase the potential for risk. Both the superintendent of schools and the principal at the School have serious reservations about allowing Mr. Meyer to hold any position at the School due to the fact that he could not be trusted to properly utilize the School computer system. While there could be ways to limit his access or restrict his usage, neither the Superintendent nor the Principal would be comfortable because Mr. Meyer could possibly find a way to circumvent the limitations or restrictions. There are essentially no teaching positions at the School which do not require some use of computers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Franklin County School Board, upholding the termination of Respondent, David Meyer's, employment for the reasons set forth above. DONE AND ENTERED this 14th day of September, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2015.
The Issue Respondent school teacher is charged by an Amended Administrative Complaint with using a computer assigned to him by the Flagler County School District to access inappropriate Internet sites during the school day. Penalties are sought with regard to the statutory and rule violations charged in the respective six counts, as more specifically set out in the Conclusions of Law.
Findings Of Fact Respondent holds Florida Educator's Certificate 612806, covering the areas of Biology, General Science, and Middle Grades. His license is valid through June 30, 2003. Respondent has a Master of Arts Degree in Secondary Education. At all times material, Respondent taught science classes at the Flagler Palm Coast High School (FPCHS). As of the 1999-2000 School Year, he had taught in the same school and had been an effective, professional educator of the Flagler County School District for more than 12 years. He had received favorable performance evaluations during each of the immediately preceding five years. At all times material, Respondent was employed as a science teacher at FPCHS. Respondent has never, before this case, been subjected to any licensure sanctions. On or about November 24, 1999, Student A.S. received a disciplinary referral from Respondent. Neal McCoppin, FPCHS's Assistant Principal in charge of discipline, noticed that A.S. had received four disciplinary referrals from Respondent over a short period of time and that A.S. had not had any significant disciplinary problems earlier in the year. McCoppin's review of A.S.'s academic record revealed that the disciplinary referrals were a new trend. Upon inquiry from McCoppin, Student A.S. provided information which prompted McCoppin to request that FPCHS's technology coordinator, Barbara Towle, review Respondent's Internet usage. Towle's initial review revealed that Respondent's school-issued computer was being used during classroom time to access inappropriate materials.1/ McCoppin and Towle reported their findings to FPCHS's Principal, Lawrence Hunsinger. Principal Hunsinger told Towle to lock Respondent out of the computer network. Towle did so that day, November 24, 1999. November 24, 1999, was the Wednesday before the Thanksgiving school holiday from November 25, 1999, through November 28, 1999. After returning from the Thanksgiving break on Monday, November 29, 1999, Principal Hunsinger went to Respondent's classroom and asked Respondent to come to his office. In his office, Hunsinger told Respondent that a review of Respondent's Internet usage had turned up access to inappropriate sexually explicit website material. Respondent's only oral response was "could I be fired for this?" On or about November 30, 1999, Hunsinger requested a more thorough investigation by Louise Hurd, the technology coordinator for the Flagler County School District. Hurd was hired by the school district in 1998 to set up its computer network and has been its technology coordinator ever since. She has worked in the field of computers since 1984, as both an instructor and a network administrator. She is certified in Novell, Windows NT, Microsoft Windows, and Exchange 2000, and was accepted, without objection, as an expert in information technology and computer networks. All FPCHS's teachers received computers by the Fall of 1999. According to Hurd's recollection, Respondent's school computer workstation was installed on one of two possible Saturdays in September 1999. Thereafter, it was available in his office. It was capable of interfacing with the school district's whole administration/teacher network and connected to the Internet. It was not capable of being accessed by the student network also established by the district. (See Findings of Fact 65-66.) Respondent's office was located within his classroom. He did not share his office, his classroom, or his computer with any other teacher. He did not travel from classroom to classroom to teach his assigned classes. Respondent's office, where his computer was kept, was walled-off from his classroom. Its door opened into the classroom. It had no windows, so with the door closed, anyone inside could not see out and those outside could not see in. The door usually remained open, but the computer screen faced away from the classroom and could not be seen from the classroom. The office was located behind a long lab table at the front of the classroom, and the long lab table was behind the podium from which Respondent lectured. According to Respondent, he usually sat at the long lab table, stood at the podium, or circulated through the classroom during class time. Students were permitted to enter his office during class time to retrieve lab supplies and books stored on its shelves, unless he were lecturing. There is no competent evidence that any student saw Respondent's computer screen during the time period material to the pending charges. Respondent testified that during all of the time the computer was in his office, he did not lock his office or his classroom, even when he left at the end of a school day or over the weekends. However, he stated that he turned off his computer at the end of each school day, between 2:15 and 2:30 p.m., when he left the campus. Respondent's classroom was Room 107 on the ground floor of Building 220. The classroom had three doors: one to the hall, one to another classroom, and one to the outside. It was the closest first floor room to the teachers' parking lot. This parking lot was used by teachers during the school day but could be used by construction personnel as spaces became available after 2:15 p.m. weekdays. During the whole of the time Respondent had the computer in his office, there was on-going construction involving 26 different subcontractors, who were doing new construction and renovating two buildings. The majority of the classroom renovation work was being completed after school hours, between 3:00 p.m. and 11:00 p.m. Some construction workers began to arrive between 2:30 p.m. and 3:00 p.m. Some of the subcontractors were issued keys to the buildings being renovated, one of which was Respondent's building. Respondent testified, without corroboration, that construction workers sometimes worked in his classroom and office during school days, but he admitted he had never seen a construction worker at his computer. The school custodial crew worked weekdays, 3:00 p.m. to 11:00 p.m. They had keys and assigned work areas throughout the campus, including Respondent's building. The Adult Education Coordinator also had a key to Respondent's building, so that eight to twelve classes of adult education students, each with an adult education teacher, had access to Respondent's building after 4:00 p.m., Mondays through Thursdays. Therefore, Respondent's classroom and office were vulnerable to entry by construction crews, custodians, regular teachers, regular students, adult education teachers, and adult education students, but so was every other classroom in his building. Respondent had no Internet experience before the school district provided him a computer in September 1999. The school district gave him no computer-related training. Respondent's username for the school district network was "McVeighV". Respondent was required to choose his own password the first time he logged on to the school district network. The passwords chosen by teachers were confidential. Hurd did not keep a list and had no way of knowing a teacher's password. If a teacher forgot his or her password, Hurd or one of the school technology coordinators could reset the teacher's computer back to a generic password, and the teacher could then choose another password the next time he or she logged onto the network. All network users were instructed to keep their passwords secret, not to write them down, and not to use a word that was easy to guess, such as their own names or the name of a family member. Hurd threatened users that their machines would be disabled if their password was found posted at their computers. Nonetheless, during a portion of October, and for all of November 1999, Respondent's computer password was his first name, "Vince." When Hurd was asked to investigate Respondent's Internet usage on November 30, 1999, she, in turn, asked the FPCHS technology coordinator to run a report of Internet usage under Respondent's username, "McVeighV", from November 1, 1999 through November 24, 1999, the date Respondent was locked out of the system. The technology coordinator provided Hurd with a spreadsheet entitled "Proxy Server Access Report for McVeighV for 11/1/99 to 11/24/99," hereafter referred to as "the proxy server report." The proxy server report identifies all Internet site addresses, also known as HTML addresses, accessed via the school district network, by network user "McVeighV" and the time and date the site was accessed. (P-3) Each computer on the school district network has a unique local IP address. The proxy server report also identifies each computer address from which "McVeighV" signed in between November 1, 1999, and November 24, 1999, by listing the local IP address number for each entry during that period of time. Hurd and another technology coordinator individually verified that the computer in Respondent's office was assigned local IP address 10.1.2.182. Although local IP addresses can change due to the addition to a network of a new computer workstation, the local IP address for the computer in Respondent's office had not changed between November 1, 1999, and November 30, 1999, because there were no new computers added to the school district network during that time period. Local IP address number 10.1.2.182, Respondent's computer workstation address, is the only local IP address on the proxy server report. This indicates that user "McVeighV" only logged onto the school district network through the computer in Respondent's office. If Respondent or anyone else had logged onto the school network as "McVeighV" from any other computer during the time period examined, a different IP address would have been identified on the proxy server report. Hurd went through all of the HTML addresses on the proxy server report, line by line, and personally accessed any Internet address that appeared to have an inappropriate title. Among these addresses were such suggestive address titles as "sextracker.com," "tour.teeniesex.com," "sexswap.com," "slut- valley.porncity.net," "xxxteenzone.com," "teenteenteen.com" and "pornography4all.com." While other inappropriate addresses on the proxy server report were more subtle and many were innocent, any rational reader could assume that the foregoing sites, and other sites on the proxy server report with similar addresses, would be purveyors or exhibitors of pornography or graphic sexual images. This Finding of Fact explicitly rejects the suggestion of Respondent's expert that sexually explicit addresses may change to an innocent theme and therefore the addresses on the proxy server report may not reflect those sites' content at the time they were viewed. Hurd found that 918 of the approximately 4075 HTML addresses on the proxy server report for "McVeighV" were addresses of Internet sites that were "inappropriate." Some of the sites were repeated more than once. The word "inappropriate" is used herein to indicate sites that contained depictions and/or photographs of nude men or women in sexually suggestive or explicit poses. Some such sites suggested some of the women were minors. At least one site was a live camera feed. Approximately 20 of the 918 sites involved gambling. Hurd printed out selected screens from some of these sites, copies of which were admitted in evidence as Petitioner's Exhibit 6. Hurd also ran a network search of the to determine whether other teachers or administrators had accessed Internet sites with sexually suggestive HTML addresses that included the words "sex," "porn," "sex tracker," and "XXX." She found ten users who had an HTML address history with those search terms. Of those ten users, she found that one of the users had accessed a total of six sites, and the other nine users had hits of four or fewer sexually suggestive addresses. Hurd opined that "Everybody's going to try [to access such sites]." However, in comparison, Respondent's password's and workstation's usage of more than 900 inappropriate hits was enormous. The total usage of the Internet reflected by the proxy server report amounted to much of the whole school network's Internet use for the review period. During the month of November 1999, the school district's Cyber Patrol feature, which was intended to block the majority of sexually explicit sites, had worked some of the time and had not worked some of the time. Hurd also ran a "cookie report" from Respondent's profile. A "cookie" is an HTML text file that is sent back from a website and stored on the receiver's computer. Hurd's cookie report contains several files with sexually suggestive titles, such as "counter.sextracker," "sexhound[1]," and "xxxcounter[3]." Her cookie report, run December 1, 1999, began September 13, 1999 and ended November 5, 1999. (P-2) Respondent was shown the proxy server report on December 1, 1999. He wrote a December 2, 1999, letter, claiming, in part, I did not knowingly enter these [pornographic Internet] sites as demonstrated by the time spent at them. The time spans range from less than one second to seven seconds at any one site as shown on the proxy sheet. As these sites came up on the screen I immediately attempted to exit. I never paid any money to enter these sites and browse. There is no evidence whatsoever that Respondent ever paid any money to browse inappropriate Internet sites. Respondent submitted a letter of resignation on December 14, 1999, effective January 12, 2000. At hearing, Respondent denied ever intentionally accessing inappropriate sites, but admitted that if he had intentionally done so, that would constitute immoral behavior. There is no evidence that the circumstances of Respondent's resignation were printed in the newspaper or otherwise became known to students or parents. At hearing, Respondent claimed that during Period Two, his 1999 planning period, he usually worked at the lab table and that he rarely went into his office during class time. He testified that he rarely used the computer except in spare moments during class or between classes to check e-mail or Internet sites, such as MSN, for news, weather, or stock activity, and that he usually did this checking by way of a "refresh" button. Respondent's testimony suggested the theory that someone got his password and accessed unwholesome sites from his computer because some accesses occurred after the end of the school day or on weekends, when Respondent claimed not to have been in school. The proxy server report does not report any activity for "McVeighV" or Respondent's workstation on weekends in November 1999 or after 4:18 p.m. on weekdays in November 1999. The proxy server report does show that many inappropriate addresses were accessed at 2:15 p.m. or later on school days. However, it also shows that there usually was frequent and intermittent computer use throughout entire school days; that inappropriate addresses were accessed in each class period or breaks between classes on one or more days; and that many inappropriate addresses were accessed during Respondent's planning period, Period Two. The proxy server report shows activity on Respondent's computer for large portions of class periods and breaks between classes during November 1999. Based on the addresses recovered in the proxy server report, some of this activity during the school day was relatively innocent non-school activity; some was pornographic or gambling activity; and some was related to the school district administrator/teacher network. It is not credible or worthy of belief that some unseen stranger entered Respondent's office, through his classroom, while he was in the classroom teaching or working at the lab table, and that stranger then spent variable amounts of time, ranging from a few minutes to more than an hour, accessing non-education-related sites, interspersed with accessing the administrator/teacher network, and then somehow exited the office and classroom without being seen. Students making quick trips into the office to retrieve lab and art supplies during classes would not account for this pattern of use. Construction workers who never sat at the computer during the school day would not account for this pattern of use. Petitioner correctly points out that during November 1999, considerable computer activity also occurred after the end of his last class at 2:15 p.m. However, much of this activity began within two to eight minutes of 2:15 p.m., possibly before one could physically exit the classroom, and ended within an hour. Where it was essentially continuous, it never lasted beyond 4:18 p.m. Even with an early dismissal on November 17, 1999, the after-2:15 p.m. pattern did not materially change. Based on the addresses recovered in the proxy server report, some of this activity was innocent non- educational activity; some was pornographic or gambling activity; and some was related to the school district administrator/teacher network. It strains credulity to believe that someone entered Respondent's classroom and office within minutes of the end of class, while Respondent possibly was still in the classroom, and certainly while other teachers were still in the building, and spent up to an hour and a half on Respondent's computer, accessing non-work-related sites, occasionally interspersed with accessing the administrator/teacher network. Respondent's testimony also suggested the theory that cookies or pop-up ads controlled his machine so that whenever he pressed "refresh", his machine was invaded by successive unwholesome pop-up ads and this is why successive sites were accessed in very short periods of time during the school day. This theory assumes that because many accesses were of extremely short duration (less than a second or for a few seconds each), the proxy server report only recorded pop-ups or "page-jacking," which Petitioner testified he deleted as rapidly as he became aware of them. "Page-jacking" is a computer phenomenon which occurs commonly with sexually explicit websites, whereby access to one such site, intended or not, triggers a series of pop-up screens, usually of a similar nature, which can be difficult or impossible to escape without turning off the computer. Respondent testified that on three occasions inappropriate website materials appeared on his computer screen; that he never intentionally acted to cause such materials to appear; and that in each instance of inadvertent access, he promptly made efforts to remove the offensive material, ultimately turning off the computer to end each of these episodes. Respondent further testified that one icon (or thumbnail), "Orgy Boys," just appeared on his computer screen one day, and that for several days, he could not remove it; he denied that he ever entered the "Orgy Boys" site; and that from a dozen to fifteen objectionable sites appeared on his computer screen during the month of October, but that no objectionable site had ever appeared on his screen during the month of November. He indicated he personally deleted the "Orgy Boys" icon in late October, after trial and error. He attempted to explain his failure to mention the "Orgy Boys" site in his December 2, 1999, letter as being because he did not think it significant. Hurd's cookie report, ending November 5, 1999, shows some weekend activity on Saturdays September 18, 1999, October 2, 1999, and October 16, 1999. Some of its addresses/cookies appear to be inappropriate. It does not show a cookie for "Orgy Boys." Respondent's witness, Stuart Vernon, accepted as an expert in Internet network security, network administration, and Internet programming, suggested that Hurd's cookie report was inconclusive and did not rule out the theory that cookies had accessed the inappropriate sites on the proxy server report which spanned November 1, 1999, through November 24, 1999, because the cookie server report ended November 5, 1999. Mr. Vernon felt it would have been better to continue running the cookie report after Respondent was locked out of the system, to see if the illicit hits under "McVeighV" continued in Respondent's absence. However, this criticism is not valid in light of Hurd's explanation that because cookies were filling up the school computers' hard drives, the school district disabled cookies and temporary Internet files from all its network's profiles in late October 1999. That explanation would seem to at least eliminate the possibility that Respondent's computer started out as a victim of sexually salacious cookies on November 5, 1999, and further suggests that cookies could not have caused the multiple inappropriate accesses from Respondent's machine from November 5, 1999 through November 24, 1999. However, I have carefully considered the testimony of both Hurd and Vernon and analyzed the proxy server report of 4075+/- entries against that testimony. As a result, I accept that in November of 1999, some of the repeated addresses with an "ad" or "doubleclick" prefix were, indeed, pop-up ads, and that a rapid series (within one minute) of addresses with a "www." prefix may have constituted an overlay of several ads. However, this is not persuasive that every such series of addresses or that every inappropriate address on the proxy server report was an ad, constituted "page-jacking," arose from an unintentional initial access, or arose without Respondent being present in his office. Admittedly, Hurd found examples of page-jacking on the proxy server report. However, this does not necessarily demonstrate that Respondent unintentionally accessed the inappropriate Internet sites. Legitimate websites, such as MSN, will not "page-jack" the user to a pornographic Internet site. Both Vernon and Hurd concur that if one inadvertently reaches an undesired site by a typographical or other error, turning off the computer will usually eliminate the problem. According to Vernon, incessant page-jacking could continue all day and night, but Respondent testified that he turned his machine off when he left his classroom at the end of the day and it still might have an inappropriate site when he first turned it on the next morning. The proxy server report identifies after-school use. It does not identify any Internet activity in the evenings or on weekends in November. The proxy server report does not show unacceptable sites appearing with the first use each morning. The proxy server report also shows repeated instances of the user logging off and then back onto the network and then accessing a sexually explicit address. It is noted, in this regard, that according to the proxy server report, "McVeighV" actively surfed the Internet from the computer in Respondent's office on November 23, 1999, from 9:02 a.m. until at least 12:49:04 p.m., with possibly two one hour breaks, depending upon whether these pauses in activity show inactivity or merely show the computer staying at a single site for a long period of time. The proxy server report for that day also shows that surfing was continuous from 2:22 p.m. to 4:18 p.m., although Respondent claimed to have left his office by 2:15 p.m.2/ Many of the HTML addresses for those periods of time match the addresses given above in Finding of Fact 34. Also according to the proxy server report, "McVeighV" actively surfed the Internet from the computer in Respondent's office on November 24, 1999, the day that Respondent sent A.S. to McCoppin's office and before Respondent was locked out of the computer system. This period of surfing was from 9:52 a.m. to 11:43 a.m. Some of these addresses are merely questionable. The foregoing shows frequent, and often lengthy, periods of computer use during class time. The proxy server report demonstrates that Respondent's screen did exhibit inappropriate sites in the month of November 1999. Respondent's suggestion that cookies or page-jacking could have been invisible on his screen was rebutted by Hurd's credible testimony that any open webpage or cookie would show up somewhere on the screen or on the row of icons below the main screen at any time the computer was operating, regardless of whether something else (like Respondent's legitimate work or another ad or pop-up) occupied the main screen. Respondent also testified that in late October 1999, he reported to Assistant Principal Lynn Hartley and School Technology Advisor Barbara Towle the problems he had allegedly encountered earlier that month with unwanted site access, particularly with the "Orgy Boys" icon, and that neither administrator expressed significant concern or took any affirmative steps to remove the information or determine its source. Respondent's testimony on this score was not corroborated by Hartley, who testified, nor by Towle, who did not testify. Hartley's recollection of their conversation was that Respondent had only complained when, on Hunsinger's orders, he had been locked out of the network system in late November 1999. At that time, Hartley did refer Respondent to Towle. Hartley had no recollection of Respondent or any other teacher ever complaining about pornographic sites invading their computers or monitor screens. No school district witness had ever had a problem with unwanted inappropriate sites invading his or her computer and none had received a complaint concerning pornographic sites from any teacher or administrator, including Respondent and others who had accessed inappropriate sites. (See Finding of Fact 36.) Vernon, Respondent's expert, contended that several things could have happened to make Respondent look guilty of accessing inappropriate sites on his school-provided computer: that cookies could have taken over his machine and driven it to those websites; that a virus sent via e-mail or a "bot" infected Respondent's computer so that it looked as though he were deliberately viewing inappropriate sites, when in fact his viewing them had been inadvertent; that his computer workstation was accessed by someone who entered his office and somehow figured out his password; that he was "spoofed," that is, someone on another computer in the network made it look as if the inappropriate activity were coming from Respondent's workstation instead of from the spoofer's workstation; or that Respondent's computer was "page-jacked." However, Respondent offered no affirmative proof that any of these conjectured scenarios had occurred, except to testify that he had sometimes seen contractors in his room or office before 2:15 p.m. (See Finding of Fact 20.) According to Vernon, the proxy server report and other evidence is insufficient to determine whether Respondent was the person intentionally accessing sexually explicit Internet sites. In his view, it would have been better for Hurd to have continued to run the proxy server report after Respondent resigned, to see if the inappropriate Internet activity continued from his computer. The undersigned concurs that such a method would have been better, but not using that method does not render non-probative the method Hurd used. Neither does a MAC search seem necessary, although one might have been helpful. Also, according to Vernon, the only surefire way to determine if Respondent were intentionally accessing sexually explicit Internet sites, without scanning for a remote virus ahead of time, would be to see his computer monitor screen at the precise moment that Respondent accessed an inappropriate site. Vernon's desire for absolute certainty is commendable, but even he concedes that the conjectures of Finding of Fact 60 would not be the most likely causes of the Internet activity verified by the proxy server report. Hurd's explanation is credible that the proxy server report results which point to Respondent cannot be explained away by a computer virus or other "hacking" activity such as a remote device or IP spoofing. At some point in 1999, hacking was discovered to have breached the student network to the extent that some students downloaded a list of student names, but no similar breach of the teacher/administrator network ever occurred. Likewise, this hacking incident involved downloading only, with no ability to install, or successful installation of, a program. Also, sometime during 1999, the Red Code virus affected all the school district computers, but that was a world-wide virus and is immaterial for purposes of this case. Hurd personally scanned Respondent's computer and all network servers for any virus. A remote device virus would require the installation of a program on the school district network. However, at the material time, only local network administrators could install programs on the network, and the school district network had anti-virus software. It is not worthy of belief that Respondent's machine would be the only school computer the existing anti-virus software did not protect against a "porno virus," or that a computer hacker downloaded or purchased software directed only to Respondent's machine among all the others. Likewise, other remote access conjectures do not exculpate Respondent. As described in Findings of Fact 31-33, all the "McVeighV" accesses came from Respondent's IP address in his office, not from any other IP address/workstation. Even if Respondent's testimony at hearing as to how others might have guessed his password could exonerate him from after-school use, that factor is not material because it requires further belief in the absurd scenario that sometimes, while Respondent was actually speaking from the podium or working at the lab table in front of his office door, someone entered his office and surfed the Internet for extended periods of time. An e-mail can contain a link (e-mail address in blue) to a pornographic website. However, typically, that link will require that the user click on the link, which will contain the name of the Internet address to be accessed. This would require affirmative action. However, Respondent denied that he had ever received an e-mail which took him directly or indirectly to a pornographic website. Therefore, the issue of an e-mail link to a pornographic site is irrelevant. Even accepting Respondent's testimony that he had opened e-mail attachments and that attachments can contain a virus, Hurd searched Respondent's computer's hard drive and still found no virus to account for the inappropriate addresses. Giving Respondent the benefit of the doubt, it simply is not logical or reasonable that he would be the innocent victim of 900+ inadvertent or malevolently aimed pornographic sites during a 24-day period. It also is not credible that he alone should have had a problem of this magnitude in comparison to all other users on the system. Therefore, despite Respondent's denial, it has been proven that Respondent was the user who accessed all of the inappropriate material, some inadvertently and some deliberately, and who logged the excessive time on the computer during class time, even though some of that excessive class time was not devoted to inappropriate material. Teachers at FPCHS are expected to remain in the classroom at all times that students are present, to supervise and instruct. Failure to remain in the classroom has liability implications for the school district if a student should be injured. Also, when the teacher is absent from the classroom for extended periods of time, it is clear that he is not providing education to his or her students. It is not a reasonable hypothesis that Respondent's frequent address accesses in the month of November 1999 could possibly be sufficiently job-related so as to render the excessive class time he devoted to his computer valuable to his students' education. The excessive time he spent on the computer during classes detracted from time he should have devoted to lecturing or lab work with his students. His absence from the classroom to this degree could have created liability problems for the school district if a student had been injured, but apparently no student was injured. There was a potential for harm to students if any students had seen inappropriate materials on Respondent's computer screen. However, there is no clear and convincing evidence that any student ever observed any inappropriate website materials. In his deposition (P-12) Respondent testified that he had been successfully employed as a science teacher at a private Catholic School in another county from the effective date of his public school resignation, January 12, 2000, until late 2001, but that he had been "let go" due to calls to that school's principal by the Flagler County School District about this case. Respondent has been married for 25 years and has two sons who live at home with him and his wife. He is active in his church's Knights of Columbus. He is currently active in the local Chamber of Commerce as the owner of his own successful pool service business.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order which: Dismisses Counts I, II, IV, and V of the Amended Administrative Complaint; Finds Respondent guilty of Counts III and VI of the Amended Administrative Complaint; and Suspends Respondent's license for three years, subject to re-application thereafter. DONE AND ENTERED this 11th day of April, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 11th day of April, 2003.
Findings Of Fact THE COMPETITORS Petitioner Elijah Williams and Petitioner Simin Harvin were both employed as systems project analysts (pay grade 24) by Respondent in June of 1993 when Respondent denied both a promotion. Respondent opted instead to hire Christopher Butler, a white male, for the position of systems project administrator (pay grade 25), also vied for by another white male by the name of Jerry Webster. Williams, a black male who holds a bachelor of science degree in business administration, received a masters degree in 1983 for a dual study of systems management and computer science. In the selection process, Williams was the only candidate with a master's degree. Williams' first job as a computer operator was in 1976. Later he worked his way up from operator to supervisor and programmer in the course of employment with a regional medical center and a savings and loan. He worked for contractors with the National Space Administration (NASA) and eventually joined state government. He worked for the Florida Department of Revenue and then as a systems project analyst with Respondent. His employment with Respondent began in May, 1991. Williams admits that no person in Respondent's employment has ever made a racial slur to him. Harvin is female. She was born in Iran. Upon completion of high school, she attended Florida State University, graduating in 1981 with a bachelor's degree in computer science. Following graduation, she began work with the State of Florida Department of Labor and Employment Security as a computer programmer. Later she worked with the Department of Transportation's data center. All of Harvin's past work experience comprising approximately a ten year period was in the area of computers. She was a lead analyst for most of this time period prior to going to work for Respondent in June of 1992. Chris Butler held an associate of arts degree at the time of his selection by Respondent for promotion. In terms of formal education, Butler ranked lower than either Harvin or Williams. Butler was hired initially by Respondent in February of 1990. He was also a systems project analyst at the time of his selection for promotion. PREVIOUS COMPETITION In December of 1992, Valerie Taylor, a black female was selected by Respondent to fill another systems project administrator position. Harvin and Butler also competed for that position. The interview panel for that selection consisted of Greg Giese, a white male; Tony Moten, a black male; and Richard Schmitt, a white male. Moten and Schmitt scored Harvin higher than Butler. Giese alone scored Butler higher than Harvin or Taylor in that selection, ranking Butler first with a total score of 123 to 120 for Taylor and 94 for Harvin. PRESENT SELECTION The June 1993 selection was made by a panel consisting of Giese, Moten and a new interviewer by the name of Jim Jones. Jones, a white male, replaced Schmitt. As established by Schmitt's scoring in the December selection and his testimony at final hearing, Schmitt did not believe Butler was "ready" for the position of systems administrator. Schmitt's testimony establishes that the selection criteria between the December 1992 selection and the repeat of that process in June of 1993 was changed to enhance Butler's chances of selection versus that of other competitors. Although Schmitt allowed at final hearing that the process was an "open competition" he acknowledged his belief that the "ground rules" were changed to "make sure--not make certain, but make it sway the odds" in favor of Butler for selection for the promotion. Schmitt stated that the system was basically color blind, but not personality blind. The selection criteria for the June 1993 process gave greater weight to interview performance and experience with what is known as the FLORIDA computer system. Although the system was not formerly turned over to Respondent until June of 1992, Butler, who had been in house as a Respondent employee since 1990, was permitted to claim additional experience with that computer system. All three candidates were in Respondent's employment in June of 1992 and possessed fairly equal experience with the system at the time of the June 1993 selection. Further, all applicants had been told that FLORIDA experience would be scored equally for in-house applicants employed since formal receipt of the system from the contractor in June of 1992. In reality, the panel scored FLORIDA experience as follows: Butler Williams Harvin Moten 20 12 18 Jones 20 18 12 Giese 10 10 8 Another change in the selection process from the December 1992 selection to the June 1993 selection involved the area of education. Education was reduced from 20 to 16 points. Nine points could be given to an applicant with an associate degree, i.e. Butler. If an applicant were an enrolled student, an additional point could be awarded. Williams, with bachelor and master degrees, could receive only 16 points. In the June 1993 selection, Giese gave Butler 10 points because he assumed Butler was in a degree seeking program and therefore awarded the additional point under the "enrolled" criteria. He gave Williams only 14 points on the assumption that Williams' formal education was not related to computers. Giese's assumption regarding Williams' education was incorrect. Williams' study for his master's degree in systems management was combined with computer science, an appropriate preparation for an administrator. Giese's assumption regarding Butler's enrollment is also not substantiated by direct admissible evidence. Butler, Williams, and Harvin were awarded points for education as follows: Butler Williams Harvin Moten 10 16 12 Jones 9 16 12 Giese 10 14 12 In the subjective "Interview/Presentation" part of the selection process, all three interviewers in June of 1993 rated the three applicants as follows: Interview/Presentation Butler Williams Harvin Moten 35 30 21 Jones 57 37 21 Giese 45 32 21 The raters gave confusingly different scores to the applicants with regard to experience. Williams was asked the number of years of application experience with particular types of computers. Although he gave one figure for each category, the interviewers wrote down different numbers. For large systems, Moten and Giese recorded 13 years, while Jones recorded six years. In the calculation of experience of the competing applicants, Williams' total experience in terms of years totaled a cumulative 73 years, but he received only four points for that from Moten. Yet Moten gave Butler eight points for only 50 cumulative years and Harvin eight points for 59 years. Giese gave Williams only four points for his calculated total of 62 cumulative years. Giese gave Butler seven points for 51 years and Harvin six points for 60 years. Petitioner Harvin was not informed prior to the interview that interview skills were an integral component of the selection. When she received only two hours notice of the impending interview, she was concerned about the amount of time within which she had to dress and prepare for the interview. Her supervisor, Giese, downplayed the matter and assured her that she was not dressed inappropriately. As a result, Harvin felt pressured to proceed with the interview, although she could have exercised her option to have the interview at a later time. At the final hearing, Giese maintained that Harvin was not rated as high as Butler because of her "aggressiveness, her style, how dynamic she was, did she sell herself to this panel as being the right and only person for this job." Essentially, Giese's position was that Harvin did not sell herself well to the panel. As a result, Giese consistently rated Harvin lower than Butler in all categories in the selection process. However, Harvin's annual evaluation received on April 30, 1993, was an "exceeds" standards. There were no significant deficiencies noted. In terms of total points, all three raters in the June 1993 selection rated Butler first in the process as follows: Total Points Butler Williams Harvin Moten 123 117 105 Jones 140 119 108 Giese 117 95 96 At least one coworker, Gregory Lee, did not apply for the position of system project administrator in the June 1993 selection because he believed Butler would get the position. Calvin Smith Jr., another employee, remembers that Butler went to Jim Jones' office on a daily, and sometime hourly, basis for direction. This conduct, coupled with Butler's weekly luncheons with Jones, leads Smith to believe that Butler was preselected for the administrator position. Valerie Taylor recalled at the final hearing witnessing an incident where Butler implied that he had the job prior to selection. Taylor observed Butler and Jones going to lunch. Tony Moten, the one black member of the interviewing panel, did not feel the selection process was slanted in favor of a white candidate over a black candidate or a female of Iranian origin. If he had detected such a bias, Moten maintained that he would have objected to the process. Moten thought Butler was the best candidate for the position. He also thought Williams and Harvin were good candidates. Giese admitted he had difficulty in working with Harvin. That, in his opinion, she did not always take the best concerns for the organization into consideration when getting a job done, and that he had explained his rationale to Harvin for the selection of Butler, including complementing Harvin for her professionalism. Butler was awarded the administrator position following the June 1993 selection with a 25 percent increase in his salary. In January of 1994, Butler quit Respondent's employment. Williams was hired as a interim administrator in May of 1994 and made permanent in the position in June of 1994. Williams, who made the same salary as Butler prior to Butler's promotion, seeks the same 25 percent increase as that awarded to Butler. Williams has received $1,259 biweekly following his promotion to Butler's vacancy as opposed to the $1,389 biweekly afforded to Butler upon promotion. The biweekly salaries paid present incumbents by Respondent for pay grade 25 ranges from $1,866.52 to Gerald Lourcey for 17 years of professional managerial experience to the $1,259 paid Elijah Williams with approximately 10 years of professional managerial experience. Butler, with approximately two years of professional managerial experience, received $1,430.61 upon promotion which is near the median in salary accorded incumbents in this class of positions. Realistically, Williams has suffered a loss in wages compared to the amount which would have been paid to Butler of approximately $8,669.62 plus interest. Similarly, Harvin seeks a 25 percent increase in salary to the amount which Butler was awarded and which Harvin contends she should have received in the event of her selection. While Respondent has admitted the hiring process was flawed, there has been no admission by Respondent that this hiring process discriminated against Harvin or Williams on the basis of gender, national origin, or race. No creditable direct evidence was presented that Respondent through its previous hiring practices or as a result of action by any of the three interviewers possessed or exhibited an inherent prejudice against African-Americans, persons of Iranian origin, or females.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying the Petition For Relief filed by Harvin and Williams, respectively. DONE and ENTERED in Tallahassee, Florida, this 17th day of March, 1995. DON W. DAVIS 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 17th day of March, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner Harvin's Proposed Findings 1.-5 Adopted, but not verbatim. 6.-7. Adopted by reference. 8.-18. Adopted, but not verbatim. Rejected, the only evidence of Butler's enrollment was the submission of an unauthenticated document. Accepted. Rejected, subordinate. 22.-23. Adopted, but not verbatim. Rejected, unnecessary. Rejected, hearsay. Accepted. Rejected, unnecessary. Adopted. Rejected, argumentative and hearsay. Rejected, subordinate. Petitioner Williams' Proposed Findings 1.-16. Adopted, but not verbatim. Rejected, subordinate. Rejected, weight of the evidence. Rejected, relevance. Adopted by reference. 21.-22. Adopted, not verbatim. 23.-24. Rejected, relevance. (There were two #25's) Adopted, not verbatim. Rejected, relevance. Adopted by reference. Respondent's Proposed Findings 1.-15. Adopted, not verbatim. 16.-18. Adopted by reference. 19.-21. Adopted, not verbatim. Rejected, nonsensical. Rejected, weight of the evidence. 24.-44. Adopted, but not verbatim. Rejected, relevance. Rejected, argumentative. 47.-50. Adopted by reference. 51.-55. Rejected, relevance. 56.-57. Adopted. 58.-67. Rejected, subordinate. 68. Adopted by reference. 69.-79. Adopted, not verbatim. 80.-89. Rejected, unnecessary. 90.-99. Adopted, not verbatim. 100.-103. Rejected, unnecessary. 104.-111. Adopted, not verbatim. COPIES FURNISHED: Marie A. Mattox Co-Counsel for Harvin 1333 North Adams St. Tallahassee, FL 32303 Ann Curtis Terry Co-Counsel for Harvin P. O. Box 7024 Tallahassee, FL 32314 Linda G. Miklowitz Attorney for Williams P. O. Box 14922 Tallahassee, FL 32317-4922 Peter Fleitman Assistant Attorney General Department of Legal Affairs PL-01, The Capitol Tallahassee, FL 32399-1050 Dana Baird, General Counsel 325 John Knox Rd., Bldg. F., Ste. 240 Tallahassee, FL 32303-4149 Robert Powell, Clerk H R S 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Sharon Moultry, Clerk Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
