The Issue Whether Respondent Tallahassee Housing Authority is guilty of a failure to reasonably accommodate Petitioner’s disability, thereby violating the Florida Fair Housing Act, by discriminating in the terms, conditions, and privileges of the rental of a dwelling as set out in the Petition for Relief.
Findings Of Fact Petitioner is a disabled person who collects a monthly disability payment. (Prehearing Stipulation 1.) He is 66 years old and suffers multiple disabilities, including cerebral palsy, severe arthritis, a reading disability, a speech impediment, and nerve damage and numbness in his hands. Petitioner’s physicians have informed THA that Petitioner is a disabled person under the definition used in the Fair Housing Act: a person with a physical or mental impairment which substantially limits one or more major life activities. (Prehearing Stipulation 2.) Petitioner’s physicians have informed THA that Petitioner requires a live-in aide to assist him with his daily activities. (Prehearing Stipulation 3.) THA provided Petitioner with a unit to accommodate a live-in aide, in accordance with HUD guidelines. (Prehearing Stipulation 4.) Respondent THA is a quasi-governmental agency which provides housing assistance for low, to very low-moderate income individuals and families. These services are provided through public housing and through the HUD Section 8 Housing Choice Voucher Program. All of THA’s policies and procedures are monitored and audited by HUD and are required to be consistent with HUD policies. At any and all times material, THA has had approximately 1500 people on a waiting list for public housing, and approximately 3,000 people on a waiting list for Section 8 housing. Accordingly, it is necessary for THA to be a “good steward” of its resources, so that it can provide shelter for as many low income families as possible. To this end, THA almost universally apportions bedrooms as follows: one bedroom for the head of a household, to be shared with a spouse if applicable; one bedroom for all female children; and one bedroom for all male children. A family of two adults and five dependents would still, almost certainly, be provided only a three-bedroom house or apartment. However, THA’s Public Housing Occupancy Guidebook, and various other HUD/THA documents recognize that a disabled person’s live-in aide may require a separate bedroom. Chapter 55 of the Guidebook also recognizes that a person with a disability may have a large and bulky apparatus related to the disability which requires an extra bedroom if that is the only location where the apparatus can be stored. THA has two major functions. The first is to implement HUD policy at the local level, owning the buildings in which eligible families live for public housing. The second is a Section 8 Housing Choice Voucher Program, which subsidizes families to rent from private landlords in the community. Part of THA’s Section 8 thrust includes a Section 8 Home Ownership Program, whereby THA provides a qualified person with a voucher which subsidizes that person’s mortgage with a private lender for up to 15 years, unless the qualified person is elderly or handicapped, in which case, the voucher extends up to 30 years. THA administers the Family Self-Sufficiency Program for both public housing and Section 8. Briefly, the way the voucher system for home purchase works is as follows: the low-income applicant must qualify for a mortgage with an independent third-party lender, such as a bank. The lender unilaterally determines whether to grant the applicant a mortgage, understanding that 30 percent of the mortgage will be paid by the applicant’s income and 70 percent of the mortgage will be paid by the Housing Voucher Program, but the independent lender must agree to accept the voucher from the applicant. Once the independent lender agrees to accept the voucher, THA gives the qualified applicant the voucher, which the applicant passes on to the independent lender. THA does not provide first mortgages to finance home purchases. (Prehearing Stipulation 15.) However, sometime prior to 2008, THA’s Board authorized a $25,000, "soft" second mortgage system. THA’s soft second mortgage system only comes into play after a first mortgage is guaranteed by an independent lender. From the institution of this program, THA’s Board of Commissioners has had a firm policy not to sell any of its property below the independent appraisal value. The Petition for Relief alleges only that Respondent failed to accommodate Petitioner’s disability by requiring that he move into a two-bedroom apartment, rather than allowing him to remain in a three-bedroom home he had occupied for six years. Thereby, Petitioner sought a finding of disability discrimination, prohibition of the discriminatory practice, relocation of Petitioner to a specific three-bedroom house on Connector Drive, Tallahassee, Florida, which he had occupied for six years, and reimbursement for all moving expenses, attorney’s fees, and costs. Petitioner’s Proposed Recommended Order additionally asserts that discrimination occurred by Respondent’s failing to provide Petitioner with a requested grievance hearing to which he was entitled. The assertion that Respondent failed to follow its own grievance procedure and the evidence admitted which was directed to the grievance issue was not a surprise to Respondent (See Pre-Hearing Stipulation.) Also, the assertion that Respondent failed to follow its own grievance procedure does not alter the basic category of “disability” discrimination alleged initially. Petitioner has resided in pubic housing through THA since 1971. He has long been an activist with an occupants’ rights group. At some point, he served on THA’s Board. For about 30 years, he lived in a three-bedroom unit that was part of the Orange Avenue Apartments. For several years, his wife and three children (both genders) resided with him, but the last two years he lived alone in that three-bedroom unit. In 2002, THA obtained a letter from Dr. Mark Wheeler dated September 30, 2002, stating: To whom it may concern: Mr. Hill has multiple chronic medical conditions in which he requires the aid of a caregiver for some daily activities (buttoning shirt, etc.) Please give him due consideration and allowances. (Prehearing Stipulation 29.) In 2002, Petitioner applied for, and received, a HUD Section 8 voucher for home ownership for a disabled person to use through the home ownership program administered by THA. (See Finding of Fact 9.) Of the houses shown him by THA, Petitioner selected a three-bedroom house on Connector Drive. Petitioner moved from public housing at Orange Avenue and into the home on Connector Drive in 2002, in anticipation of purchasing the home on Connector Drive. (Prehearing Stipulations 14 and 30 synopsized and merged.) The house at Connector Drive is a scattered-site, single family home owned by THA. (Prehearing Stipulation 12.) The base area of the house at Connector Drive is 1102 square feet, and the area of the garage is 464 square feet. (Prehearing Stipulation 16.) The house at Connector Drive had features in place to accommodate Petitioner’s disability. (Prehearing Stipulation 17.) The house at Connector Drive has three bedrooms and a garage. (Prehearing Stipulation 13.) The house at Connector Drive had one bathroom adjacent to the master bedroom and a second bathroom on the other side of the house with the other two bedrooms. This layout provided some privacy for a live-in aide. For awhile, Petitioner lived alone in the three- bedroom house on Connector Drive. He was assisted by a fiancée who did not live with him. Petitioner participated in workshops put on by THA to qualify to purchase a home, but he was unable to present THA with a lender which would finance his purchase of the Connector Drive property at the required price. In 2002, there were programs available that would have allowed Petitioner to purchase another home through Bethel Community Development Corporation for less than the independently appraised value of the Connector Drive property, or to build a two-bedroom house, but Petitioner wanted to purchase the Connector Drive three-bedroom house. In 2002, at a meeting in connection with purchasing the Connector Drive home, Ms. Cromartie, Executive Director of THA, inquired of Petitioner why he did not just rent the Connector Drive home from THA for the rest of his life and not bother with home ownership. Petitioner optimistically took this inquiry as a guarantee that THA could/would never move him from that location. However, at all times material, Petitioner’s standard lease agreement with THA provided, in pertinent part, as follows: REDETERMINATION OF RENT, DWELLING SIZE AND ELIGIBILITY 11 A. The status of each resident’s family eligibility is to be redetermined at least once a year, but also at interim periods if requested by THA in accordance with any information received by THA which may reasonably affect the determination of rent or household composition for Resident. Resident agrees to furnish to THA at least once a year, or at an interim redetermination upon request by THA, accurate information as to household income, and assets, number of persons residing in the household and employment verification for THA’s use in determining whether Resident’s rent should be adjusted and whether the size of the dwelling is still appropriate for Resident’s needs. . . . * * * 11.G. Should there be a determination by THA that the household composition no longer conforms to THA’s “Admission Policy” in effect at that time, Resident agrees to transfer to an appropriate size dwelling, whether in Resident’s complex or elsewhere on THA’s property. Resident shall be notified of any transfer to another dwelling as a result of the annual redetermination, or interim, [sic] shall state that Resident may ask for an explanation stating the specific grounds of the THA determination and that if Resident does not agree with the determination, Resident may request a grievance hearing concerning the determination in accordance with THA’s grievance procedure. Resident shall have at least six (6) days following the notice to transfer to the new dwelling. Prior to transfer, Resident agrees to pay all outstanding charges due THA. Resident security deposit may be transferred to the new dwelling provided THA does not claim all or part of the security deposit as provided herein. Resident shall pay all or any part of the security deposit for the original dwelling, or any balance remaining after any claims are made by THA. Resident shall be responsible for all expenses incurred in the transfer. Resident agrees to execute a new Dwelling Lease Agreement in advance of the transfer. RESIDENT OBLIGATIONS Resident agrees to be obligated as follows: * * * Z. To transfer to an appropriate size dwelling upon notification from THA. Also, at all times material, Section 5.5 of the Public Housing Occupancy Guidebook also recognized that: A very common failing in the area of Occupancy Standards occurs when PHAs permit long-time residents to remain in units that are significantly too large for their families even though there is demand for the size of unit in which the family is over housed. The only situations in which a family should occupy a unit with more bedrooms than family members would be: * As a reasonable accommodation to a person with a disability (e.g., a resident with a disability has large and bulky apparatus related to the disability in the apartment and an extra bedroom is the only location where it can reasonably be stored); or *Because there is currently no demand for the unit size the family occupies (although in this situation the family must understand that they would be required to transfer if a family with the number of persons requiring the unit size qualifies for housing); or *A resident has a Live-in-Aide who needs an extra bedroom. In 2004, Petitioner had neck surgery and was told he would need a live-in aide. In 2004, Petitioner’s daughter, Angela, moved from Atlanta, Georgia, to assist him. She brought with her a “Total Gym” resistance exercise machine. This is a piece of exercise equipment that testimony shows measures about seven-and-a-half feet long, three feet wide, and 42 inches tall, when opened and laid out on the floor for use, and weighs over 50 pounds. By the photographs in evidence, the undersigned estimates that it occupies at most a two-foot-by-two-foot square of floor space and stands about five feet tall when folded-up and stored vertically. Since 2004, Petitioner’s daughter has resided with Petitioner as his live-in aide and has assisted him with dressing himself, household cleaning, doing his exercises, grocery shopping, reading and writing, and going to doctors’ appointments and other necessary activities. (Amplified Prehearing Stipulation 5.) Petitioner also has computer equipment that assists him with reading. (Prehearing Stipulation 6.) Angela Hill works at a full-time position at FedEx, earning more than $14.00 per hour, but her income is not included in determining Petitioner’s housing subsidy. (Prehearing Stipulation 7.) Under THA/HUD guidelines, her income is not calculated against Petitioner for public housing, but her presence as a live-in aide is calculated in his favor for assigning more space as a larger family unit. (See Finding of Fact 7.) Prior to his 2004 surgery and his daughter’s arrival, Petitioner had exercised at Florida A & M University and then used an incline bench, weights, and springs at home. Petitioner exercised using the “Total Gym” resistance machine, a sit-up bench, free weights and wall mounted springs when he lived on Connector Drive. (Prehearing Stipulation 8.) He also had another incline exercise bench. Petitioner required assistance with these exercises. (Prehearing Stipulation 9.) The area required for Petitioner to store and use his equipment, including the “Total Gym” resistance machine, with assistance from another individual, is about the size of a 12- foot-by-12-foot room, or 144 square feet. (Prehearing Stipulation 11.) On Connector Drive, Petitioner stored his exercise equipment in the third bedroom or the garage. No medical physician prescribed the Total Gym for Petitioner’s use. He and his daughter just tried it one day, and they decided it was easier and less stressful for him to use than free weights because once his daughter places his arms on its bar, Petitioner can use the bar to move his arms via his oppositional body weight on the glider portion below the bar. When Petitioner was in rehabilitation for a 2007 surgery, he received therapy from occupational and rehabilitation therapists, both in their facility and in his home on Connector Drive. His daughter told them that Petitioner used a Total Gym to work out. Apparently, the therapists were enthusiastic about the Total Gym, but did not advise that the Total Gym was necessary to exercise Petitioner’s upper body. They told the daughter to use light weights and assist Petitioner with arm extensions. On Connector Drive, Petitioner also walked for exercise, rode a bicycle on a stand in the garage, and drove a car. Petitioner lived on Connector Drive from 2002 to 2008. From 2004 to 2008, his daughter lived with him, assisting him. His situation has been annually reviewed and recertified for eligibility by THA throughout that period of time. THA has provisions in its leases for right-sizing residents so that families live in a housing property appropriate for their family size. (See Finding of Fact 26.) “Over-housed” means the unit is too large for the family. “Under-housed” means the unit is not large enough for the family. In September 2007, Respondent realized that a number of residents, including Petitioner, were not living in appropriate size units. On September 19, 2007, THA notified all residents that appropriate bedroom size would be determined at annual recertification review. (Prehearing Stipulation 20.) Two scattered-site families were reviewed for being under-housed, and eight scattered-site families, including Petitioner, were reviewed for being over-housed. Of the four families who were moved, including Petitioner, three were described as “disabled” or “disabled and elderly”; one that was moved was apparently neither disabled nor elderly. (R-3 and R-23.) Disabled and non-disabled lessees were relocated from other categories of housing as well. Petitioner attended an annual recertification interview on January 17, 2008. (Prehearing Stipulation 21.) At that time, he was told he needed to get new medical letters documenting his disability and need for a live-in aide. Respondent determined Petitioner should be relocated to a two-bedroom unit at the apartment complex of his choice. (Prehearing Stipulation 22.) Petitioner was offered a two-bedroom apartment and selected one at Brighton Road in the old Orange Avenue location. (Amplified Prehearing Stipulation 23.) Petitioner was notified on March 24, April 10, and May 5, 2008, that he would be moved to the two-bedroom unit at Orange Avenue due to a determination that he was “over-housed.” (Prehearing Stipulation 24.) Petitioner made a request for an accommodation in letters to Ms. Cromartie, dated March 24, April 16, and April 21, 2008, asking that he not be moved from Connector Drive. (Prehearing Stipulation 25.) Ms. Cromartie acknowledged that THA’s and HUD’s rules and regulations allow THA to make an accommodation by waiving or adjusting a rule or qualification for a disabled person. (See Finding of Fact 7.) The Public Housing Occupancy Guidebook provides in pertinent part: . . . A “reasonable accommodation" is a change, exception, or adjustment to a rule, policy, practice or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces. Since rules, policies, practices, and services may have a different effect on persons with disabilities than they have on individuals without disabilities, treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy a dwelling. . . . To show that a requested accommodation may be necessary, there should be an identifiable relationship, or nexus, between the requested accommodation and the individual’s disability. An accommodation will not be considered reasonable if it constitutes a fundamental alteration of the provider’s program, or constitutes an undue financial burden. The Reasonable Accommodation Verification Form THA sends to physicians to verify whether an accommodation proposed by a resident is medically necessary contains the following language: SAHA is required by law to provide reasonable accommodations to disabled applicants/residents that will provide them with equal opportunity to use and enjoy our housing programs, their unit and/or common areas. SAHA does not provide reasonable accommodations when the request is a matter of convenience or preference only. Petitioner asked Ms. Cromartie that he be considered for the home ownership program through THA in letters dated March 24, April 16, and April 21, 2008. (Prehearing Stipulation 31.) Petitioner made requests for a grievance hearing in writing on March 24, and April 21, 2008, and in person on April 16, 2008. (Amplified Prehearing Stipulation 37.) THA has a written grievance policy. (Prehearing Stipulation 35.) Section 11.G. in Petitioner’s lease agreement states, in regards to transfers, that “If Resident does not agree with the determination, Resident may request a grievance hearing concerning the determination in accordance with THA’s grievance procedure. (Prehearing Stipulation 36.) (See Finding of Fact 26.) Petitioner’s lease also specifically provides: 22. GRIEVANCE/APPEAL PROCEDURE All grievances, disputes and appeals arising under this Agreement, including but not limited to the obligation of resident or THA’s as approved or established by HUD, shall be resolved in accordance with THA grievance procedure, as approved or established by HUD, in effect at that time, posted in the Property Management Office or resident’s complex. If there is not a Property Management Office the Central Office of THA shall serve as designated location. Such grievance procedure is incorporated herein, either by attachment or reference. THA reserves the right to exclude the grievance procedure under circumstances outlines [sic.] in this Agreement and applicable provisions of Federal laws and regulations. Section III (B) (1) and (2) of THA’s Grievance Procedure permits management to not apply the grievance procedure only in cases of a termination or eviction involving criminal activity or drugs. Ms. Cromartie testified that she interpreted Petitioner’s complaints and correspondence to be a request to be permitted to purchase the Connector Drive unit via the voucher system or to purchase it at a price which was no higher than the amount THA had paid for the house in 1997. Petitioner’s letters also could legitimately be interpreted to be requests to be allowed to remain in the Connector Drive house under the same terms as before, at least until his grievance was resolved, or until THA increased his voucher for purchase, or until THA sold him the house at a price he could afford. In his April 16, 2008, letter, Petitioner mentioned he needed space to exercise, but one could not glean therefrom that Petitioner was asking for space to use or store specific exercise equipment that could not be stored in a two- bedroom unit. Clearly, the accommodation Petitioner was seeking was not just to be placed in any three-bedroom unit so that he could do his exercises. He wanted to be “accommodated” for his handicap by being permitted to purchase or otherwise remain in the particular three-bedroom house on Connector Drive. Ms. Cromartie replied to Petitioner’s March 24, 2008, letter on March 26, 2008, but did not address his request for a grievance hearing. (Prehearing Stipulation 38.) As of March 26, 2008, Petitioner was told the Brighton Road/Orange Avenue unit would only be held for him for 45 days, which would have been May 10, 2008. On April 1, 2008, Linda Brown, Petitioner’s site manager, sent an e-mail to Ms. Cromartie stating in part, “he [Petitioner] is upset because you have not responded to him concerning his grievance request.” (Prehearing Stipulation 40.) On April 1, 2008, Ms. Cromartie sent an e-mail to Linda Brown, agreeing to provide Petitioner, in Petitioner’s new Brighton Road/Orange Avenue location, with the Americans with Disabilities Act (ADA) toilet he had requested and with other non-disability-related requests he had made and explained the situation regarding Petitioner’s purchase of a home. She also stated: If Mr. Hill refuses to be relocated, Joan will need to provide him with a non- compliance notice, then serve him with eviction papers should it go that far. (Amplified Prehearing Stipulation 41.) On April 13, 2009, Linda Brown sent an e-mail to Ms. Cromartie, explaining Petitioner’s dissatisfaction with the changes made and stating, in part, “His main complaint again was that he has not been granted a grievance hearing.” (Prehearing Stipulation 42.) Ms. Cromartie wrote Petitioner on April 16, 2008, and did not respond to his request for a grievance hearing. (Prehearing Stipulation 39.) On April 16, 2008, Ms. Cromartie advised Petitioner that a lending institution, not THA, would have to determine whether Petitioner could qualify for a mortgage to purchase the home on Connector Drive. (Prehearing Stipulation 32.) She also gave him extensive information about financing to buy through THA’s system. Petitioner has never come to THA or Ms. Cromartie with a qualified lender who would accept a voucher from THA. He did not qualify to buy the home he wanted.1/ Although through the previous years and in 2008, Petitioner was unsuccessful in purchasing the Connector Drive house, his situation concerning buying a public housing home is not necessarily unusual or related to his disability. Of 36 homes made available by THA at the same time as the Connector House initially became available for purchase in 1997, only three low/low-moderate income applicants have been successful in qualifying and purchasing one of those 36 homes. Respondent had received a letter from Dr. Claudia Perdei, dated April 10, 2008, documenting Petitioner’s need for a live-in aide. THA had received correspondence from Dr. Mark Cuffe dated April 16, 2008, stating that Petitioner “requires a facility where he can exercise to keep in shape so that he can avoid falling or a room big enough for him to keep his own exercise equipment.” (Prehearing Stipulation 26.) THA [Ms. Cromartie] sent a letter to Dr. Cuffe, dated April 23, 2008, asking for clarification on Petitioner’s need for a caregiver and “the type of room or facility required for Mr. Hill’s exercise equipment.” (Prehearing Stipulation 27.) THA received correspondence from Dr. Cuffe, dated April 25, 2008, stating that Petitioner’s exercise equipment could be “kept in his room, if necessary.” (Prehearing Stipulation 28.) Therein, Dr. Cuffe specifically opined: Mr. Hill has multiple neurological problems that require assistance indefinitely. He requires an area that he can exercise and keep in shape. He can use a treadmill, a stationary bicycle, walking, 5-10 lb. hand held weights. He needs assistance with these exercises. This equipment can be kept in his room if necessary. At this time, Petitioner had not seen Dr. Cuffe since November 2007. (Prehearing Stipulation 10.) Petitioner signed the lease for the Brighton Road house on May 12, 2008, because he feared being evicted and having no place to live if he did not. (See Findings of Fact 62 and 64.) This is the date Petitioner claims discrimination took place. Ms. Cromartie testified that Petitioner did not get his grievance hearing because she assumed he no longer wanted a hearing when he signed-off on his new unit at Brighton Road. Given the chronology of the parties’ exchanges and the time frame for grievance hearings, as established by the lease, her testimony on this issue is somewhat disingenuous, but it is not clearly linked in any cause and effect or retaliatory sense to Petitioner's disability. After all, Petitioner had not brought her a willing and able lender, and the on-going dialogue with Petitioner about the accommodations he wanted in the Brighton Road unit (ADA toilet seat, payment of moving expenses, etc.) had largely been granted before Petitioner moved in. (See Findings of Fact 60, 62, and 64.) Petitioner never waived his right to a grievance hearing in writing. (Prehearing Stipulation 44.) Petitioner never got a grievance hearing. (Prehearing Stipulation 43.) Petitioner was involuntarily transferred to the Brighton Road unit at Orange Avenue in May 2008, when his lease at Connector Drive terminated, and following a determination that he did not qualify for a three-bedroom unit. (Amplified Prehearing Stipulation 33.) THA paid all Petitioner’s relocation expenses. (Amplified Prehearing Stipulation 34.) The housing unit at Brighton Road is a two-family attached unit that is part of the Orange Avenue Complex owned by THA. (Prehearing Stipulation 18.) The heated area of the apartment at Brighton Road is 671 square feet, with no garage. (Prehearing Stipulation 19.) Approximately two months prior to hearing, but well after any time material to Petitioner’s move from Connector Drive to Brighton Road or the filing of his complaint herein, Petitioner’s daughter discussed Petitioner’s exercises with a physical therapist. The physical therapist recommended exercise for Petitioner’s upper body. The daughter is able to assist Petitioner at the Brighton Road address in performing all the exercises recommended. At the Brighton Road unit, Petitioner can do leg lifts, arm curls, and arm extensions with light weights on a chair in the living room or seated on his bed. In so doing, his daughter lifts his arms over his head. At Brighton Road, Petitioner has no garage in which to put his bicycle up on a stand, but he can ride a bicycle. He is still able to go for walks. He continues to drive a car. When Petitioner moved to Brighton Road, he gave away his two weight benches. He retained his free weights, his bicycle, and his daughter’s Total Gym. His free weights are now in his bedroom in the new unit (P-44), and the Total Gym is folded and stored vertically in the kitchen. At Connector Drive, Petitioner’s master bedroom was 15 feet-two inches by 11 feet-one inch. At Brighton Road, the master bedroom is 12 feet by 11 feet. At Connector Drive, the daughter’s/aide’s room was 13 feet-five inches by 11 feet-two inches. At Brighton Road, it is 12 feet by eight feet. At Connector Drive, the dining room/kitchen was 17 feet-two inches by nine feet-five inches. At Brighton Road, the kitchen/dining area is 12 feet by 12 feet-six inches. At Connector Drive, the living room was 13 feet-three inches by 14 feet-two inches. At Brighton Road, there is a five foot-six inch by four foot-six inch hall, combined with a living room that is 12 feet-six inches by 13 feet. (The 13 feet includes the four feet-six inch hall width.) Throughout the Brighton Road house, Petitioner and his daughter/aide have the same amount of furniture as before. They share the single bathroom. They want a second bathroom for greater privacy. Due to his furniture and the size and configuration of the Brighton Road unit’s rooms, it is unlikely that anyone would want to leave the Total Gym continuously set up for use there. The daughter stated she can open and set up the Total Gym by herself, but she would not want to do it daily. Petitioner wants to have a third bedroom so he can leave the Total Gym set up for ease of use at any time he chooses. Petitioner cannot open the Total Gym by himself, but he cannot use the Total Gym entirely by himself, anyway. (See Finding of Fact 38.) He and his daughter claim the Total Gym is safer for him to use than free weights, because he cannot drop the Total Gym weights like he can free weights, but Petitioner cannot exercise either with the Total Gym or with the free weights without his daughter’s/aide’s help. Petitioner and his daughter claim that Petitioner cannot use the Total Gym anywhere in the new apartment. Dr. Cuffe is a neurosurgeon who has been treating Petitioner since 1993. He has performed surgery on Petitioner many times, most recently in 2004, for cervical fusion to address tingling and numbness in Petitioner’s arms and hands. When deposed the month before final hearing for purposes of this litigation, Dr. Cuffe felt that Petitioner was “as good as he is going to get,” physically. He deferred to any physical therapist, occupational therapist, lifestyle expert, or ergonomic specialist as far as exercise for Petitioner is concerned. He stated he was not the one to consult on that issue, thereby suggesting that his April 16, and April 25, 2008, correspondence concerning Petitioner’s exercise needs was not intended to prescribe exercise. (See Findings of Fact 70, 72, and 73.) No physical therapist, occupational therapist, lifestyle expert, or ergonomic specialist has offered an opinion concerning Petitioner and exercise. No physician has said Petitioner has had a decline of physical condition since moving to the Brighton Road Address but Petitioner and his daughter feel he has. Petitioner and his daughter believe that he has declined, but Petitioner conceded any decline could relate back to the recovery period from surgery in 2007.
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 and Charge of Discrimination. DONE AND ENTERED this 8th day of July, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 8th day of July, 2009.
The Issue Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the relief that should be granted.
Findings Of Fact At all relevant times, Petitioners resided in an apartment in Eastwind Apartments, a HUD multifamily development in Marathon, Florida. MHA manages Eastwind Apartments. Monroe County Housing Corporation has an ownership interest in Eastwind Apartments. Ms. Vogt is the housing manager of Eastwind Apartments. Mr. Castillo is the executive director of MHA. The lease between Petitioners and MHA contains the following provision: "The Tenant agrees to permit the Landlord, his/her agents or other persons, when authorized by the Landlord, to enter the unit for the purposes of making reasonable repairs and authorized inspections." On September 18 and October 14, 2009, Ms. Vogt provided notices to all residents of Eastwind Apartments of upcoming inspections. The notices contained the following: ". . . there is still not a pet policy. If you have a pet, make sure it is confined and not loose anywhere in the apartment. The inspector can walk into any room and look around and your pet cannot be loose or locked in a room." On December 2, 2009, a maintenance man reported to Ms. Vogt that he was hesitant to enter the Petitioners' apartment because of the presence of a pit bull dog in the apartment. On December 2, 2009, Ms. Vogt hand-delivered an NOLV to Petitioner Alberto Pis based on the presence of the dog in the apartment. The NOLV instructed Petitioners to remove the dog from the apartment by December 5, 2009. The NOLV was written in English. There was not a Spanish translation of the NOLV. Ms. Vogt is fluent in English, but she is not fluent in Spanish. Mr. Pis could not read the NOLV in English. Mr. Pis became upset when Ms. Vogt asked him to sign that he had received the NOLV. Petitioners allege that Ms. Vogt's demand that Mr. Pis sign for the receipt of the NOLV constituted an act of discrimination. Petitioners have an adult son and an adult daughter who are fluent in Spanish and English. The adult daughter translated the NOLV to her parents on December 2, 2009, after Ms. Vogt had returned to her office. On December 14, 2009, Ms. Vogt hand-delivered a second NOLV to Petitioner Alberto Pis. This NOLV advised that keeping the dog in the apartment was a lease violation. The second NOLV was written in English. There was not a Spanish translation of the second NOLV. At all times relevant, MHA had an employee in the office at Eastwind Apartments who was fluent in Spanish and English. Elio Pis is a student at a school in Miami, but lives in the apartment leased by his parents from time to time. The dog in the apartment belongs to Elio Pis. Elio Pis, acting on behalf of himself and his parents, complained to Mr. Castillo about the NOLVs. At first, Mr. Castillo refused to discuss the matter with Elio Pis because Mr. Castillo thought that Elio Pis resided in Miami, not in the subject apartment. Mr. Castillo discussed the matter with Elio Pis after he learned that Elio Pis resided in the apartment from time to time. Petitioners allege that Mr. Castillo's refusal to promptly investigate their complaints constituted an act of discrimination. On February 8, 2010, Mr. Castillo wrote the following letter to Petitioner Alberto Pis: Following a phone conversation with your son regarding a Lease Violation issued on December 2, 2009, I conducted a review of the incident and actions taken by the Eastwind staff. The review indicates that on December 2nd, maintenance staff attempted to respond to a request for maintenance in your unit (work order) and was scared off by the presence of a dog in the unit. Based on this information, the Housing Manager issued you a lease violation. Additionally, on December 14, 2009, numerous tenants received what was intended to be a courtesy notice but was titled "Lease Violation", one of which you received. This second notice was rescinded on December 17, 2009. With regard to the initial lease violation issued, the Housing Manager perhaps over- reacted out of concern for the safety and well-being of the employee and others. The employee, while relaying the incident to a fellow employee, was noticeably shaken. I have asked the Housing Manager to also rescind the December 2nd Lease Violation. Staff is currently finalizing a revised Pet Policy that will allow for pets at Eastwind Apartments with restrictions and limitations. Residents will be notified of this change as the process is completed. On behalf of the Housing Authority, I apologize for any inconvenience to you and your family. The two NOLVs were rescinded before Petitioners filed their initial Complaint of Discrimination with HUD on March 19, 2010. Petitioners have been allowed to keep the dog in their apartment. Petitioners complained that certain repairs have not been made to their apartment. There was no evidence that similar repairs had been made to apartments rented by non- Hispanic tenants. There was no evidence that the terms and conditions of Petitioners' tenancy at Eastwind Apartments were different from the terms and conditions of any other tenant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioners' Amended Petition for Relief. DONE AND ENTERED this 14th day of February, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 Februray, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Franklin D. Greenman, Esquire Greenman and Manz 5800 Overseas Highway, Gulfside Village, Suite 40 Marathon, Florida 33050 Alberto Pis and Maria Soto 240 Sombrero Beach Road, Apartment A-4 Marathon, Florida 33050
The Issue The issue in this case is whether just cause exists for the suspension and termination of the employment of Respondent, Curtis Sherrod, for failing to correct teaching deficiencies sufficient to warrant a satisfactory performance evaluation.
Findings Of Fact The Parties. Petitioner, the Palm Beach County School Board (hereinafter referred to as the "School Board"), is responsible for the operation, control, and supervision of all public schools (grades K through 12) and support facilities within the jurisdictional boundaries of the Palm Beach County School District (hereinafter referred to as the "School District"). Respondent, Curtis Sherrod, at all relevant times, was licensed by the State of Florida to teach Social Studies for grades five through 12. Mr. Sherrod's certification authorized him to teach political science, economics, psychology, U.S. history, cultures, world geography, and contemporary history. Mr. Sherrod received a Bachelor of Arts degree, with a major in history and a minor in education, from Winston-Salem State University, formerly known as Winston-Salem State Teacher's College. At all relevant times, Mr. Sherrod was employed as a classroom teacher by the School Board. He was employed initially by the School Board from 1980 to 1983. He returned to employment with the School Board in January 1993 and received a Professional Services contract in August 1996. Mr. Sherrod's Employment at Olympic Heights High School. Beginning with the 1995-1996 school year, Mr. Sherrod was employed by the School Board at Olympic Heights High School (hereinafter referred to as "Olympic Heights"). Francis P. Giblin served as principal of Olympic Heights during the times relevant to this case. Until his last evaluation for the 2001-2002 school year, Mr. Sherrod received overall satisfactory performance evaluations. For the 1999-2000, 1996-1997, and the 1995-1996, school years, Mr. Sherrod, while receiving overall satisfactory ratings, had a few "areas of concern" noted. The deficiencies in those noted areas of concern were, until the 2001-2002 school year, corrected by Mr. Sherrod. During the 2001-2002 school year, Mr. Sherrod taught a world history class. After the school year began, several letters were received by Mr. Giblin from parents expressing concern over the content of the material being taught in Mr. Sherrod's world history class and documents which Mr. Sherrod had sent home to parents.1 Mr. Giblin requested that Dr. Christine Hall, an assistant principal at Olympic Heights look into the parental complaints concerning Mr. Sherrod's class. Dr. Hall was responsible for the Social Studies department, of which Mr. Sherrod was a teacher, at Olympic Heights. Dr. Hall spoke with Mr. Sherrod about the complaints. Dr. Hall met with Mr. Sherrod on September 4, 2001, and summarized their conversation in a memorandum of the same date. See Petitioner's Exhibit 27. The complaints, however, continued, with some parents requesting a class change for their children. Dr. Hall again discussed the matter with Mr. Sherrod, but the complaints continued. In approximately October 2001 Dr. Hall began to make informal observations of Mr. Sherrod's class in a further effort to resolve the problem. Toward that end, on October 10, 2001, Mr. Giblin visited Mr. Sherrod's class.2 Dr. Hall also observed a class during which Mr. Sherrod gave a standardized examination.3 At the conclusion of the test, Dr. Hall collected the "Scantrons" and determined the grade each student should have received. These grades were then compared to the final grades given the students by Mr. Sherrod. Due to a significant number of discrepancies in the grades given by Mr. Sherrod and the grades which they should have received based upon the Scantrons, Mr. Sherrod was asked to produce the Scantrons for his other classes. Mr. Sherrod was unable to produce the requested Scantrons because he had, contrary to School Board policy, disposed of them. As a result of his failure to produce the Scantrons Mr. Giblin became even more concerned about Mr. Sherrod's performance and ordered further observations of his classes.4 On November 27, 2001, Dr. Hall informed Mr. Sherrod in writing that she intended to conduct an observation of his class sometime during the "week of December 3-7." Mr. Sherrod wrote back to Dr. Hall and indicated that any day that week was fine, except for December 3 because "I will be collecting homework that day." Dr. Hall conducted observations on December 3 and 5, 2001. She conducted the observation on December 3rd despite Mr. Sherrod's suggestion because she did not believe it would take the entire class for Mr. Sherrod to collect homework. By memorandum dated December 11, 2001, Dr. Hall provided Mr. Sherrod with a discussion of her observations and suggested improvement strategies. Dr. Hall found deficiencies in the areas of management of student conduct; presentation of subject matter; human development and learning; learning environment; communication; and planning.5 On December 18, 2001, Mr. Giblin, Dr. Hall, Mr. Sherrod, Jerilyn McCall, Jeanne Burdsall, and Diane Curcio- Greaves participated in an "investigative meeting" to "discuss concerns regarding failure to perform professional duties, insubordination and unprofessional behavior." That meeting was summarized in a Meeting Summary provided to Mr. Sherrod. See Petitioner's Exhibit 32. On January 7, 2002, Mr. Giblin, Dr. Hall, Mr. Sherrod, Ms. Burdsall, Ms. Curcio-Greaves, Esther Bulger, Margaret Newton, and Debra Raing met "to provide information on benchmarks, curriculum and to insure [sic] students are prepared with information to take the district exam." A Meeting Summary was provided to Mr. Sherrod. On April 30, 2002, Mr. Giblin again observed Mr. Sherrod's class. Mr. Giblin's written observations are contained in Petitioner's Exhibit 34. Mr. Giblin found concerns in the areas of presentation of subject matter, communication, and learning environment. A summary of his concerns and recommendations for improvement were provided in writing to Mr. Sherrod on or about May 15, 2002.6 On May 16, 2002, Mr. Sherrod was given an overall unsatisfactory performance evaluation. Seven areas of concern were noted. Under Section A, Teaching and Learning, the following areas of concern were noted: presentation of subject matter; communication; learning environment; and planning. Under Section B, Professional Responsibilities, the following areas of concern were noted: record keeping; working relationships with coworkers; and policies/procedure/ethics. Mr. Giblin did not specifically review the grades of students in Mr. Sherrod's classes before giving Mr. Sherrod his final evaluation. On May 29, 2002, Mr. Sherrod was provided with a School Site Assistance Plan (hereinafter referred to as the "SAP"), "to be initiated August 7, 2002." The SAP was scheduled by agreement to begin at the beginning of the next school year (2002-2003), because the 2001-2002 school year was about to end. Mr. Sherrod was also provided at the same time that he was given the SAP with "workbooks" by Dr. Hall which she indicated were "to be used for fulfilling your plan's suggested activities." During the 2001-2002 school year, Mr. Sherrod was adequately advised of his areas of concern and, despite being given sufficient time to do so, failed to remedy them. Olympic Heights administrators complied with all procedural requirements for the issuance of the SAP. Mr. Sherrod's Employment at Suncoast High School. Prior to the end of the 2001-2002 school year, as the result of meeting with School District Assistant Superintendents, Mr. Sherrod was transferred from Olympic Heights to Suncoast High School (hereinafter referred to as "Suncoast"), on September 23, 2002. For the school year 2002-2003, Kay Carnes was the principal of Suncoast. Kathleen Orloff served as an assistant principal. Upon his transfer to Suncoast, Mr. Sherrod was provided with a two-week orientation period before being assigned teaching responsibilities. Following this orientation period, classes, including some honors classes, were assigned to Mr. Sherrod. On September 30, 2002, a meeting was conducted "to discuss the status of Curtis Sherrod's Assistance Plan." The meeting was attended by, among others, Ms. Carnes and Ms. Orloff. While the Conference Notes of the meeting indicate that Ms. Orloff was to "create a school-site assistance plan" the evidence failed to prove that a "new" SAP was developed.7 On October 21, 2002, the SAP developed at Olympic Heights was modified primarily to reflect that the SAP would be administered at Suncoast (hereinafter referred to as the "Suncoast SAP"). The dates of the SAP were modified to reflect that it had been agreed to in October 2002 with the names of relevant individuals modified. Finally, the improvement strategies of videotaping and audio-taping a lesson were eliminated.8 The Suncoast SAP was provided to Mr. Sherrod during a School-Site Assistance Plan Meeting. During the meeting, which was memorialized in Petitioner's Exhibit 1, additional assistance review days (October 31, November 12, and November 22, 2002) were agreed upon. The second School-Site Assistance Plan Meeting was held on October 31, 2002.9 Mr. Sherrod was informed that Ms. Orloff would observe his class on November 5, 2002, at 1:00 p.m., and that Ms. Carnes would observe him on November 13, 2002. That meeting was memorialized in a Meeting Summary, Petitioner's Exhibit 38. Ms. Orloff, who was primarily responsible for implementing the Suncoast SAP, had been conducting informal observations of Mr. Sherrod's class before scheduling formal observations. The next School-Site Assistance Plan Meeting was held on November 12, 2002. The meeting was memorialized. Mr. Sherrod was informed that planning, presentation of subject matter, communication, learning environment, record keeping, and polices/procedures/ethics were still areas of concern. He was also told that working relations with co-workers was no longer an area of concern. Ms. Orloff conducted observations of Mr. Sherrod on November 5, 2002, and on November 7, 2002. Her observations were summarized in a memorandum to Mr. Sherrod dated November 12, 2002. She noted concerns in the areas of presentation of subject matter, communication, planning, and learning environment. Recommended actions to be taken with regard to each area of concern were also suggested. Although the Suncoast SAP was only required to last for a minimum of 30 days, the plan was continued until February 2003. School-Site Assistance Plan Meetings were held on November 22, 2002, January 7, 2003, and January 16, 2003. Observations of Mr. Sherrod's classes were also conducted by Ms. Orloff and summaries of her findings were provided to him along with suggestions on how to improve. Observations were conducted on November 19, 2002, January 15, 2003, January 27, 2003, and February 6, 2003. From the moment the Suncoast SAP was initiated, Suncoast personnel, including Ms. Carnes and Ms. Orloff, evaluated Mr. Sherrod and attempted to assist him to improve in the areas of concern they noted. Mr. Sherrod was allowed to observe other teachers, the chair of his department worked with him on planning, a teacher who also taught American History worked with him, he was allowed to attend workshops, he was provided the assistance of a peer assistance and review, or "PAR," teacher, and he was provided with documentation as to what was expected of teachers at Suncoast. He was also allowed to teach Contemporary History in substitution for American History. The curriculum of the teacher who had previously taught the class was provided to Mr. Sherrod for his use. At no time did Mr. Sherrod complain to anyone involved in the implementation of the Suncoast SAP that the assistance he was being provided was inadequate or that he desired any additional help. Nor did Mr. Sherrod or his union representative suggest at any time that the procedures required to be followed up to that point were not being adhered to. While a SAP is required to last 30 days, the Suncoast SAP began October 21, 2002, and did not end until February 6, 2003. During this time, he was observed on six different occasions. Additionally, after beginning to teach at Suncoast, Mr. Sherrod was informally observed until the Suncoast SAP began. While Mr. Sherrod corrected the concern over his interaction with co-workers which had been noted at Olympic Heights, Ms. Carnes found through her observations that he continued to be deficient in the areas of presentation of subject matter, communication, learning environment, planning, record keeping, and policies/procedures/ethics. Therefore, on February 6, 2003, Ms. Carnes gave Mr. Sherrod an overall unsatisfactory Classroom Teacher Assessment System (CTAS) evaluation noting these areas of concern. Ms. Carnes informed Arthur C. Johnson, Ph.D., the Superintendent of the School District, of the remaining areas of concern and concluded that "a sufficient number of these deficiencies still exist to warrant an unsatisfactory evaluation." She requested, therefore, by letter dated February 6, 2003, that Mr. Sherrod be placed on Performance Probation for 90 calendar days (hereinafter referred to as the "90-Day Plan"). Mr. Sherrod was provided with a copy of the letter. The basis for the unsatisfactory evaluation and the continuing deficiencies in the areas of concern noted are accurately summarized in the various School-Site Plan Meeting Summaries and the memoranda summarizing observations conducted during the 2002-2003 school year. Some of the most significant problems involved Mr. Sherrod's excessive and inappropriate use of R-rated videos, his failure to timely post student grades,10 and his failure to provide instruction in a manner which was consistent with time-lines suggested for teachers to complete instruction on all materials that were supposed to be covered. By letter dated February 10, 2003, Superintendent Johnson notified Mr. Sherrod in writing that he was being placed on a 90-Day Plan and that it would begin February 20, 2003, and conclude on June 4, 2003. Assistance reviews were scheduled to be held on March 31, May 5, and June 4, 2003, the last day of the 90-Day Plan. Dr. Johnson's letter was provided to Mr. Sherrod on February 19, 2003, at a School-Site Assistance Plan Meeting. The first observation to be conducted pursuant to the 90-Day Plan was to be conducted the week of February 24-28, 2003, by Diane Curcio-Greaves, Instructional Specialist, Professional Standards. This observation was made by Ms. Curcio-Greaves on February 27, 2003. A summary of the observation was provided by Ms. Curcio-Greaves to Mr. Sherrod on March 7, 2003. Ms. Curcio- Greaves noted deficiencies and recommended improvement strategies in the areas of presentation of subject matter, communication, learning environment, and planning. The second observation to be conducted pursuant to the 90-Day Plan was to be conducted the week of March 10-14, 2003, by Wanda Hagan, Area 5 Coordinator. This observation was made by Ms. Hagan on March 13, 2003. A summary of the observation, dated March 25, 2003, was provided by Ms. Hagan to Mr. Sherrod on March 28, 2003. Ms. Hagan noted deficiencies and recommended improvement strategies in the areas of presentation of subject matter, communication, planning, policies/procedures/ethics, and record keeping. She commended him in the area of learning environment. Mr. Sherrod did not attend, due to illness, the first Assistance Review meeting which had been scheduled as part of his 90-Day Plan for March 31, 2003. The remaining scheduled observations did not take place either. On April 14, 2003, Mr. Sherrod broke his knee cap. As a consequence, he did not return to Suncoast High for the remainder of the 2002-2003 school year. By memorandum dated April 30, 2003, he informed Ms. Carnes that he would not be returning to Suncoast that school year and requested a transfer to a school closer to his home. Mr. Sherrod, for the first time, also raised a number of concerns he had not previously expressed about his perceived lack of assistance and fair treatment at Suncoast. While the evidence proved that Mr. Sherrod may have had a genuine belief that he was not being provided effective assistance, the evidence failed to support his perception. Mr. Sherrod's Employment at Roosevelt Middle School. Mr. Sherrod was reassigned to Roosevelt Middle School (hereinafter referred to as "Roosevelt") effective October 3, 2003, after Marcia Andrews spoke with Gloria Crutchfield, principal of Roosevelt, about the availability of a position for him.11 Mr. Sherrod was assigned to teach 7th grade social studies classes, a couple of which were honors classes. On November 3, 2003, Ms. Curcio-Greaves, from Professional Standards, reviewed the 90-Day Plan with Ms. Crutchfield. Ms. Crutchfield did not, however, immediately institute the Plan. Rather, because Mr. Sherrod had begun teaching in mid-term and was new to Roosevelt, Ms. Crutchfield gave him additional time to become familiar with the new school before reinstating the remainder of the 90-Day Plan. A District Assistance Plan Meeting, which Mr. Sherrod attended, was held on December 2, 2003, to discuss reinstatement of the 90-Day Plan. It was necessary to revise the Plan to reflect Mr. Sherrod's unavailability to complete the Plan at Suncoast. It was agreed by all in attendance at the meeting, including Mr. Sherrod, that Mr. Sherrod had 44 more days to complete the 90-Day Plan, and that the Plan would be restarted December 3, 2003. The "evaluation from February 6, 2003, the assistance plan, the original calendar of 90 days, the revised calendar, and the 90-day timeline" were distributed during the December 2, 2003, meeting. The 90-Day Plan, as revised (hereinafter referred to as the "Revised Plan), provided that the "1st Assistance Review" would be held on December 2 and 5, 2003,12 the "2nd Assistance Review" would be held on January 6, 2004, and the "3rd Assistance Review" and "Final Evaluation Conference" would be held on the 90th day, February 6, 2004. Having had two formal observations under the 90-Day Plan, additional formal evaluations were scheduled for the week of December 8-12, 2003, and January 12-16, 2004. The first evaluation under the Revised Plan was conducted on December 12, 2003, by Frank Rodriguez, Assistant Principal, Forest Hill Community High School. His observation notes and suggested strategies were provided to Ms. Crutchfield and Mr. Sherrod by Memorandum dated December 15, 2003. Mr. Rodriguez noted deficiencies in the areas of presentation of subject matter, classroom management, planning, and assessment. Mr. Sherrod submitted a written rebuttal to Mr. Rodriguez's Memorandum. The next scheduled formal evaluation was conducted on January 21, 2004, by Dr. Mary Gray. Ms. Gray's written observations were provided to Mr. Sherrod on or about January 29, 2004. Dr. Gray noted deficiencies in the areas of presentation of subject matter, learning environment, and planning. Mr. Sherrod provided a verbal rebuttal to Dr. Gray. The "2nd Assistance Review" meeting, which had been scheduled to be held on January 6, 2004, was held on January 29, 2004. The meeting was held late because Mr. Sherrod had been absent between January 6 and 12, 2004 (four school days), due to the passing of his mother. It was not held until January 29th out of respect for his loss. The meeting was memorialized in a Meeting Summary, Petitioner's Exhibit 56. During the January 29, 2004, meeting, Ms. Crutchfield suggested to Mr. Sherrod and his representative that he agree to an extension of the Revised Plan to February 10, 2004,13 due to Mr. Sherrod's absence. Mr. Sherrod agreed. The evidence failed to prove whether Ms. Crutchfield had the authority to grant this extension. The next and final evaluation conference was scheduled for February 10, 2004. The same day the "2nd Assistance Review" meeting was held, January 29, 2004, Ms. Crutchfield informed Mr. Sherrod verbally and in writing that she would conduct a formal and final evaluation during the week of February 2-6, 2004. This observation had been scheduled originally for the week beginning January 27, 2004, but was moved back due to Mr. Sherrod's absence during January and Ms. Crutchfield's absence. When informed verbally of the observation, Mr. Sherrod indicated that it was likely that he would be going out on leave in the near future and asked if Ms. Crutchfield could specify the exact date of his evaluation. Ms. Crutchfield indicated she could not. Petitioner's Exhibit 56. By letter dated February 20, 2004, Ms. Curcio-Greaves informed Mr. Sherrod by letter that the final evaluation conference scheduled for February 10, 2004, was being rescheduled to February 16, 2004. Although Ms. Crutchfield had indicated that she would wait until February 10, 2004, to complete the Revised Plan, Mr. Sherrod, as he had advised, left Roosevelt on leave before that date and before Ms. Crutchfield was able to conduct a formal evaluation of him. Based upon her informal evaluations of Mr. Sherrod conducted during the 2003-2004 school year and the formal observations conducted by others during the 90-Day Plan and the Revised Plan, she issued a final evaluation of Mr. Sherrod on February 9, 2004. This reduced the amount of time that Mr. Sherrod had been given to improve his noted deficiencies from approximately 94 days to 93 days: 44 under the 90-Day Plan at Suncoast; 46 under the Revised Plan at Roosevelt; and an additional three days from February 6 to February 9, 2004, at Roosevelt. Ms. Crutchfield found in her final evaluation of Mr. Sherrod that he still had the following areas of concern: presentation of subject matter; communication; learning environment; planning; record keeping; and policies/procedures/ethics. Four of the areas of concern were in "Teaching and Learning" and two were in "Professional Responsibilities." Three concerns in Teaching and Learning alone is sufficient for an overall evaluation of unsatisfactory. Mr. Sherrod's overall evaluation was unsatisfactory. Ms. Crutchfield provided her evaluation of Mr. Sherrod to Dr. Johnson and recommended that his employment be terminated. By letter dated February 25, 2004, Dr. Johnson informed Mr. Sherrod that he would be recommending to the School Board that Mr. Sherrod's employment be terminated. A copy of Ms. Crutchfield's letter of recommendation and Mr. Sherrod's final evaluation were provided to Mr. Sherrod with Dr. Johnson's letter. Mr. Sherrod was also informed of his right to request an administrative hearing, which he exercised. Mr. Sherrod's Performance was Unsatisfactory. Beginning with the 2001-2002 school year and ending with his final evaluation on February 9, 2004, Mr. Sherrod was formally evaluated by nine different School District employees, all of whom were professionally trained to conduct evaluations of teaching personnel on behalf of the School Board. All of those evaluators, while finding Mr. Sherrod deficient in a number of areas, attempted to offer assistance to him which, if followed, could have corrected his deficiencies. During the three school years for which Mr. Sherrod was found to be deficient, all required assistance was provided to Mr. Sherrod to assist him in correcting his deficiencies. Indeed, more assistance than was required was provided to Mr. Sherrod. Mr. Giblin concluded that Mr. Sherrod, for his final evaluation, had evidenced four areas of concern under Teaching and Learning: presentation of subject matter; communication; learning environment; and planning. Except for planning, Dr. Hall found the same areas of concern. Mr. Giblin also concluded that Mr. Sherrod evidenced the following areas of concern under Professional Responsibilities: record keeping; working relationships with coworkers; and policies/procedures/ethics. At the conclusion of the SAP, Ms. Carnes concluded that Mr. Sherrod, for his final evaluation, had evidenced the same areas of concern under Teaching and Learning found by Mr. Giblin: presentation of subject matter; communication; learning environment; and planning. Ms. Orloof had found the same areas of concern during two prior evaluations. Ms. Carnes also concluded that Mr. Sherrod evidenced two of the same areas of concern under Professional Responsibilities found by Mr. Giblin: record keeping; and policies/procedures/ethics. At the conclusion of the 90-Day Plan, Ms. Crutchfield concluded that Mr. Sherrod, for his final evaluation, had evidenced the same areas of concern under Teaching and Learning found by Mr. Giblin and Ms. Carnes: presentation of subject matter; communication; learning environment; and planning. Ms. Crutchfield also concluded that Mr. Sherrod had evidenced the same areas of concern under Professional Responsibilities found by Mr. Giblin and Ms. Carnes: record keeping and policies/procedures/ethics. Ms. Crutchfield, while performing informal evaluations of Mr. Sherrod, did not perform a formal final evaluation of Mr. Sherrod. Instead, she relied heavily upon her informal evaluations and the evaluations of Ms. Curcio-Greaves, Ms. Hagan, Mr. Rodriguez, and Ms. Gray. Those evaluators, while all finding that presentation of subject matter and planning were areas of concern, were not consistent in their findings concerning the areas of communication and knowledge of subject matter. Ms. Hagan commended Mr. Sherrod in the area of knowledge of subject matter and Mr. Rodriguez failed to note the area of knowledge of subject matter as an item of concern. Ms. Gray and Mr. Rodriguez, the last two individuals to formally evaluate Mr. Sherrod before Ms. Crutchfield's evaluation failed to conclude that communication was an area of concern. It is, therefore, found that Ms. Crutchfield's conclusion that Mr. Sherrod had not corrected his deficiencies with regard to the areas of communication and knowledge of subject matter was arbitrary and not supported by the weight of the evidence. Despite the foregoing finding, Ms. Crutchfield's overall evaluation that Mr. Sherrod's performance was unsatisfactory was reasonable and supported by the weight of the evidence. Mr. Sherrod continued since the 2001-2002 school year and, more importantly, throughout the 90-Day Plan to evidence concerns in the areas of presentation of subject matter, planning, record keeping and policies/procedures/ethics. Thus, he evidenced two areas of concern in Teaching and Learning and two areas of concern in Professional Responsibilities, which were not corrected during the 90-Day Plan, despite efforts to assist him to improve. Ms. Crutchfield's final evaluation, with the exceptions noted, accurately reflected Mr. Sherrod's areas of concern and his unsatisfactory performance at the end of the Revised Plan despite the reasonable assistance provided to him. Those areas of concern were consistently found by nine evaluators over three school years and at three different schools. No credible evidence was presented to counter the conclusions reached by the individuals who evaluated Mr. Sherrod or to prove that their conclusions were based upon anything other than their professional judgments concerning Mr. Sherrod's performance. Failure to Prove Bias on the Part of the School Board. While at Olympic Heights, Mr. Sherrod wrote to Dr. Johnson once, the chairman of the School Board twice, and filed a "petition" with the School Board. The subject of the correspondence was Mr. Sherrod's perception of his treatment by officials at Olympic Heights. He believed that he was being harassed and discriminated against. It has been suggested that Mr. Sherrod's correspondence accurately reflects why his performance was found unsatisfactory at Olympic Heights and evidences a bias toward him on the part of all those who evaluated him. This suggestion is not supported by the evidence. At best, Mr. Sherrod's correspondence evidences the poor working relationship between Mr. Sherrod and some of his coworkers. This poor working relationship was noted as an area of concern on his final evaluation by Mr. Giblin. It is not necessary to decide who was the cause of the poor relationship between Mr. Sherrod and others at Olympic Heights. First, the area of concern, to the extent it was Mr. Sherrod's fault, was corrected by Mr. Sherrod and formed no basis in the ultimate finding that Mr. Sherrod's performance, uncorrected by the 90-Day Plan and the Revised Plan, was unsatisfactory. Additionally, the evidence failed to prove that anything which occurred while Mr. Sherrod was teaching at Olympic Heights had any influence on the conclusions concerning his performance at the two schools to which he transferred for the two school years after he sent the correspondence to Dr. Johnson and the School Board. Indeed, the fact that he did not send any further correspondence after the 2001-2002 school year further supports this conclusion. Dr. Dunn's Conclusions. Dr. Dunn opined at the final hearing that Mr. Sherrod did not over-infuse African-American history into his course materials. Dr. Dunn's opinions, however, are entitled to little weight. Most importantly, Dr. Dunn, unlike the nine individuals who evaluated Mr. Sherrod, did not actually observe Mr. Sherrod teaching during the times relevant to this case. In fact, Dr. Dunn has never observed Mr. Sherrod. Additionally, the content of Mr. Sherrod's classes, while the catalysts of the greater scrutiny afforded Mr. Sherrod's classes, was not the basis for the conclusion of those who evaluated Mr. Sherrod that his performance was unsatisfactory. The School District's Appraisal System. The School District's Instructional Performance Appraisal System was approved the then-Commissioner of Education in 1999. The Appraisal System has not been further reviewed since 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ratifying Mr. Sherrod's suspension and discharging him from further employment in the Palm Beach County Public Schools. DONE AND ENTERED this 8th day of July, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 8th day of July, 2005.
