The Issue The issues for determination are whether Respondent Thomas Doughty, a former employee of the University of North Florida, violated Section 112.313(8), Florida Statutes, by using information not available to members of the general public and gained advantage by reason of his official position for his personal benefit or the benefit of his company ISOCORP, and, if so, what is the appropriate penalty? Whether Respondent Thomas Doughty, formerly an employee of the University of North Florida, violated Section 112.3185(3), Florida Statutes, by holding an employment or contractual relationship with a business entity in connection with a contract that he participated personally and substantially in while working as a public employee, and, if so, what is the appropriate penalty?
Findings Of Fact In January 2001, Respondent Thomas Doughty was hired by the University of North Florida (UNF) to serve as the Deputy Director of Information Systems for the Florida Partnership for School Readiness.1/ Respondent served in this position from January 10, 2001 until March 20, 2002. Respondent’s employment with UNF was funded through a grant provided to UNF by the Florida Department of Education. In 1999, the Florida Partnership for School Readiness (The Partnership) was established for purposes of administering School Readiness programs in the State of Florida. Chapter 99- 357 Laws of Florida (1999). At its inception the Florida Partnership for School Readiness was assigned to the Executive Office of the Governor for administrative purposes. § 44.01(4)(a), Fla. Stat. (1999). However, in 2001 the Florida Partnership for School Readiness was re-located to the Agency for Workforce Innovation (AWI) for administrative purposes. § 44.01(4)(a), Fla. Stat. (2001). During Respondent’s employment with The Partnership, his primary job responsibility was to move forward a program being developed by and for The Partnership called the Simplified Point of Entry/Uniform Wait List program. This included helping to create the legislative budget request for the project, justifying the project before the State’s technology review work group, getting funds approved for the procurement document and hiring the vendor to actually create the simplified point of entry system. Respondent, on behalf of The Partnership, was responsible for overseeing the development and implementation of the Simplified Point of Entry/Uniform Wait List Program. Respondent’s job duties as Deputy Director of Information Systems also included leading the development and implementation of the information system(s) used by The Partnership including, but not limited to, the web-based simplified point of entry unified waiting list, coordination of existing systems to ensure a seamless delivery of service, contacts database, coordinating all data processing activities, and overseeing the contracts for data management services. Additionally, Respondent was responsible for reviewing the technical work of project teams in systems planning studies, information needs assessments and systems analysis and reviewing approaches and methods to assess effectiveness in meeting management objectives. Respondent also advised and assisted The Partnership’s Executive Director in matters regarding data management, information systems and computer network administration issues. Finally, Respondent was responsible for helping The Partnership to position itself so that the agency could secure funding through the legislative process for the development of the school readiness system. Katherine Kamiya served as the Executive Director of The Partnership from July 2001 through February 2004. The Simplified Point of Entry/Unified Wait List Program was a web-based system that was designed to allow individuals seeking school readiness services to register for all related services using a single application process. From the time he was hired in January 2001 until November of 2001, when Carrie Cole started working with Respondent at The Partnership, Respondent was the only person working in the Partnership’s Information and Technology Department. Carrie Cole only worked with Respondent until May 15, 2002, when she left for maternity leave. On June 14, 2001, approximately five months after commencing work at The Partnership, Respondent and his business partner Walter Ales formed a computer consulting company named ISOCORP. According to the Articles of Incorporation ISOCORP was established to “carry on, conduct, maintain and otherwise operate a business for technology consulting, sales, service and other related activities.” Respondent is a 49 percent shareholder, vice-president and director of ISOCORP. After incorporating in June 2001, ISOCORP, Respondent’s company, submitted an application with the Florida Department of Management Services to become an authorized vendor with the State of Florida. According to Respondent, ISOCORP, over the course of several months, submitted information to the Florida Department of Management Services in an effort to secure a State Term Contract. On November 6, 2001, Respondent’s company ISOCORP was issued a State Term Contract and pursuant to the said contract was authorized to provide to agencies of the State of Florida “IT consulting services as well as hardware and software sales.” Soon after receiving the State Term Contract, but prior to December 2001 when Respondent informed AWI Executive Director Katherine Kamiya that he wanted to terminate his employment, Respondent allegedly met with then Director of the Commission on Ethics, Bonnie Williams. The purpose of the meeting, according to Respondent, was to discuss the conflict of interest provision in ISOCORP’S State Term Contract. Later, when providing a sworn statement to Ronald Moalli, an investigator with the Commission on Ethics, Respondent recalled the following with regard to his purported meeting with Bonnie Williams: Mr. Doughty: So I was elated, this is fantastic, finally we got our State term contract, we are going to be a real company that can do business with the State. So I run up there, she puts the document in front of me and I start initialing it, initialing it, initialing it. I get a copy of it later on. I don’t know if they sent it to me a week later and I started looking through it and went, oh crap, I wonder as a UNF employee I am considered a State employee. I don’t know and I don’t want to do any thing wrong and that is when I came here. Mr. Moalli: Okay. Mr. Doughty: I came here and I told Ms. Williams and I think she has no recollection of this. Mr. Moalli: She doesn’t, she speaks to a lot of people. Mr. Doughty: But it was at the Remington Green office. I was sitting in her office. I think she had two chairs, nice comfortable chairs and I told her the situation. I work for UNF, I am grant funded by DOE, I am at the Partnership, we are housed in EOG [Office of the Governor], we are transitioning over to AWI and she said, well, I agree, I don't know where you belong either, but you should go ahead and file and I am reiterating, but go ahead and file for a rule opinion but in the meantime don't do any business and I think you will be all right. Due to the non-corroboration of Respondent’s testimony regarding Bonnie Williams’ alleged affirmation of his position, that portion of his testimony is not deemed creditable. In December 2001, Respondent informed Katherine Kamiya, then Executive Director of The Partnership, about his desire to terminate his employment with the State so that he could cultivate his company ISOCORP. Respondent advised Kamiya that if The Partnership desired to retain his services, The Partnership would have to contract with Respondent’s company, ISOCORP. In December 2001 following this discussion with Kamiya, Respondent, on behalf of his company ISOCORP, submitted to Kamiya the following: An MIS activities list; A potential statement of work; A rate sheet with an approximate cost for ISOCORP to participate/implement all the tasks on the statement of work, with the exception of the “School Readiness Childcare System”; A sample purchase order for work that was secured by the Governor’s office from another vendor; An ISOCORP company brochure; and, A copy of the ISOCORP State Term Contract. Respondent, when submitting the information to Kamiya, advised that the “information [was] intended as a starting point.” Respondent submitted the above information to Kamiya while Respondent continued to serve as the Director of Information Systems for The Partnership and during the time when The Partnership was attempting to select a vendor for the Simplified Point of Entry/Unified Wait list program after The Partnership received “non-responsive” and “excessively” costly bids for the work from two companies, Vector and Covansys. The Statement of Work submitted by Respondent to Kamiya in December 2001 defines the proposed “scope of services” to be provided by ISOCORP to The Partnership and the cost for ISOCORP to participate in or implement the enumerated tasks. The tasks and corresponding hours are as follows: Task 1 - Simplified Point of Entry – Consulting services for overseeing, mentoring and contributing to the development and implementation of the SPE (240 hours) Task 2 - TAPP Data Entry System/Reporting – Consulting services for design and development of a system for the collection of Teenage Parent Program participant data via the web. (250 hours) Task 3 - Electronic Coalition Plan Submission System – Consulting services for the design and development of an electronic coalition plan submission system utilizing Adobe Acrobat forms (250 hours) Task 4 - School District Expenditure Reporting System – Consulting services for the design and development of a system for the collection of school district expenditure data based on the FA-399 form (250 hours) Task 5 - School Readiness Website – Consulting services (creative design, web programming) for the design, development and implementation of a new School Readiness website. (220 hours) Task 6 - School Readiness System – Consulting services for overseeing and contributing to the documentation, design, development and implementation of the “School Readiness Childcare System.” In February 2002, the company Vector was selected as the vendor for the Simplified Point of Entry/Unified Wait List program. On February 27, 2002, Respondent tendered his resignation to the University of North Florida and The Partnership. Respondent advised in his letter of resignation that he “learned a great deal” while working at The Partnership. March 20, 2002, was the effective date for Respondent’s resignation. On Monday, March 4, 2002, Respondent sent an e-mail to Jeff Ling at MGT of America, Inc., providing therein “information to help put together a proposal for the “School Readiness Data System.” Included with the information submitted by Respondent to Ling was the Statement of Work for the simplified Point of Entry and an explanatory note advising that “the SPE [simplified point of entry] will serve as the front door to School Readiness Services.” On March 13, 2002, exactly seven days before the effective date of Respondent’s resignation, ISOCORP, Respondent’s company, submitted to The Partnership a proposal for Respondent, through ISOCORP, to serve as technical lead on the Simplified Point of Entry/Unified Wait List project and coordinate and assist with The Partnership’s transition from the Executive Office of the Governor to the Agency for Workforce Innovation (first proposal). While working at The Partnership through his employment with the University of North Florida, Respondent’s job duties included serving as technical lead on the Simplified Point of Entry/Unified Wait List project and coordinating and assisting with The Partnership’s transition from the Executive Office of the Governor to the Agency for Workforce Innovation. On March 13, 2002 ISOCORP submitted a proposal (second proposal) to The Partnership “to assist with the design of the requirements and procurement of a new, centralized school readiness system that would be used to administer all school readiness programs.” The second proposal also provides that “ISOCORP is proposing to assist with the creation of the new requirement document for this centralized system and write the advanced planning document to assist the Partnership with this process.” The proposed cost for ISOCORP to perform the proposed services was $187,500. The second proposal included the following subtitled sections: Overview; Current Situation, Understanding of Primary Objectives, Work Tasks, Deliverables, Time Lines, Professional Staff, and Proposed Cost. The second proposal notes further that, The Partnership is moving forward with the development of a “scaled down” version of the original [Simplified Point of Entry] that can be used as a “front door” to the new school readiness system simplifying the process for parents/guardians. The Partnership is now in the process of formulating the “backend” or data warehouse component of the system. Additionally, the second proposal notes that one of the primary objectives for the work to be performed by ISOCORP was to “Draft an advanced planning document and all supporting documentation for a future procurement” related to the school readiness system. In explaining the second proposal, Respondent testified as follows, There is a -- there is a company right now that has a system called, I think it is called EFS. This system was used and still is used, but initially it was used to manage the financial and the case management. Basically to implement the program for, it is not Pre-K, but it is one of the programs that was under the umbrella of School Readiness that came from DCF. So basically it was a program that they tracked, it is what they used to operate that program and they had all, you know, again, contracting, case management, financial information, billing, everything was in that system. Well, when all these programs came into the Partnership, that system, at least it was that at the time, couldn't support all of these other programs because they are so different and they all pretty much had their own systems. The Partnership because they only spent 1.2 I guess on the simplified point of entry had some extra money that they wanted to spend on a study to determine what a dream system would be in order to create a system that could administer all of those programs, including the case management and the financial components and everything, it is a big undertaking. And so that contract was to go statewide and hold stakeholder meetings. We had stakeholder meetings in Tampa, Jacksonville, four or five locations throughout the state. We invited all the stakeholders, the central agency, the School Readiness, any other interested parties could come, give us their input and, of course, we recorded it. We basically had -- and ultimately compiled all of that information along with the interviews that we held with the Governor's Office and the Legislature and all the other stakeholders here, you know, at the different State agencies that were involved. So what that was essentially a study that would come back with different deliverables that ultimately would be this is pretty much what these stakeholders are saying would be encompassed in the dream system. . . Although both of the March 13, 2002, proposals from ISOCORP were signed by Walter Ales, Respondent’s business partner at ISOCORP, Respondent and Ales jointly prepared the proposals. On April 4, 2002, David Slusher, then Deputy Director of Finance and Administration for The Partnership, submitted to AWI two requests for purchase orders. The first request, in the amount of $25,000.00, sought to have a purchase order issued to ISOCORP for the purpose of “continuing [to] have Tom Doughty work as technical lead on the SPE project [that was then] underway with Vector.” The second request, in the amount of $187,500.00, sought to have a purchase order issued to ISOCORP so that the company could assist The Partnership in the design of the requirements and procurement of a new, centralized school readiness system that would be used to administer all school readiness programs in Florida. Slusher submitted non- competitive bid/sole source justifications for both purchase order requests. The requests for purchase orders were submitted by Slusher approximately two weeks after the effective date of Respondent’s resignation, but staff of The Partnership knew several weeks prior to Respondent’s resignation that Respondent, through ISOCORP, would continue providing services to The Partnership. The non-competitive bid/sole source justification for the $25,000.00 purchase order request provides as follows. We desire to contract with ISOCORP for the services of Mr. Thomas Doughty to act as technical lead on the SPE/UWL project and to coordinate and assist with the IT support transition from EOG to AWI. Mr. Thomas Doughty has unique experience in the area of the Simplified Point of Entry/Unified Waiting List (SPE/UWL) development and implementation as he was the Deputy Director of Management Information systems for the Partnership from January, 2001 until March 20, 2002. Mr. Doughty’s experience in the development of the RFP for the SPE/UWL system and his particular knowledge of the requirements of the Partnership’s technology and data systems needs is crucial to enable the completion of this project within the currently established deadline. This project has been developed over several years and the current status of the project requires the ongoing involvement, guidance, and insights of Mr. Doughty at this critical time to ensure the project completes on time and that the delivered system meets the needs of [the] Partnership and the programs it administers. The non-competitive bid/sole source justification for the $187,500.00 purchase order request provides as follows. We desire to contract with ISOCORP to assist the Partnership in the design of the requirements and procurement of a new, centralized school readiness system that would be used to administer all school readiness programs in Florida. ISOCORP is a State Terms Contractor for these services and has a staff member with unique knowledge and experience in the technological and data systems needs of the Partnership and all of the stakeholders in the school readiness programs throughout the state. Mr. Thomas Doughty was the Deputy Director for Management Information Systems for the Partnership from January, 2001 through March 20, 2002. During that time he played a key role in the efforts to bring the Simplified Point of Entry/Unified Waiting List project to a point where it will be implemented by the end of the current fiscal year. During his tenure at the Partnership Mr. Doughty was a primary participant in the numerous discussions and meetings that led to the envisioning of this new school readiness system. Mr. Doughty is reflected as a Co-Project Manager in the ISOCORP proposal related to this procurement action and his ability to incorporate his [sic] firs-hand understanding of the complexities inherent in the diversity of existing technology and data systems and the necessity for having a single, comprehensive system to serve the current, and future, needs of the overall school readiness program cannot be overstated. Given this project has to be completed by June 30, 2002 due to the nature of the funds that are financing this project, there is no other State Terms Contractor that could take on a project of this scope and be able to realistically meet the specified delivery timeline. Upon inquiry about the Simplified Point of Entry Project by the investigator for the Commission on Ethics, Respondent stated the following in response to his personal counsel’s questions. MR. DOUGHTY: Well, this project used to live over at Department of Education. This is the simplified point of entry. MR. DEMPSEY: Right. MR. DOUGHTY: It used to live at the Department of Education and they never got it off the ground. And so, you know, year after year they kept trying to do something and then, you know, finally it came to the Partnership and they had it for a year or so and they needed to get it off the ground. MR. DEMPSEY: But she wanted you to stay because you had a specialized knowledge about this whole process. MR. DOUGHTY: Right, right. MR. DEMPSEY: So I don't think it was a position that you could just switch people in and out because there was not anybody else with that sort of knowledge; is that right? MR. DOUGHTY: That is correct. (A46, pgs. 41, 42) Kamiya, former Executive Director of The Partnership, confirmed that she wanted Respondent to continue to provide services to The Partnership because of Respondent’s unique and specialized knowledge about the Simplified Point of Entry/Uniform Wait List project and the developing school readiness system. On April 5, 2002, AWI issued to ISOCORP a purchase order in the amount of $25,000.00 so that Respondent, through his company ISOCORP, could serve as technical lead on the Simplified Point of Entry/Uniform Wait List project and assist The Partnership in transitioning from the Executive office of the Governor to the Agency for Workforce Innovation. On April 8, 2002, AWI issued to ISOCORP a purchase order in the amount of $187,500.00 so that ISOCORP could assist in the design of the requirements of and procurement of a school readiness system. The $25,000.00 and $187,500.00 purchase orders were ISOCORP’S first contracts as a corporation. Prior to working at The Partnership, Respondent had never worked in a position related to the Simplified Point of Entry/Uniform Wait List project.
The Issue Whether just cause exists to suspend Respondent's employment with the Broward County School Board for three days without compensation.
Findings Of Fact Introduction Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. Respondent began her teaching career with the Broward County School District in or around 2005. Respondent has taught reading and math, and at all times pertinent to this proceeding was employed as a specialized varying exceptionalities ("SVE") teacher at MacArthur High School, a public school in Broward County. Respondent was assigned to a SVE classroom for the 2011-2012 school year. The SVE program is designed to prepare high school students with varying disabilities for the transition to adulthood. The intended goal is to teach skills needed to ensure the most independence for each student. Functional academics, social and communication skills, independent living, and employability skills are contained within the SVE program. At the beginning of the 2011-2012 academic school year, Respondent was provided with a document titled, "Transition Process Implementation Steps & Expectations" (hereinafter "Steps").1/ Sheneka President, a transition teacher assigned to provide support to SVE teachers within the district, described the Steps as a means to "break down" the SVE high school standards into "doable pieces," such that if a teacher follows the Steps, he will also be in compliance with the standards. Alona DiPaulo, Assistant Principal at MacArthur High School, described the purpose of the above-referenced Steps as follows: "There are seven steps. The steps is basically part of the curriculum in which the SVE students are required to go through on a daily basis. The idea and concept behind steps is that this is really the last ditch effort for students in order to become competent human beings out in the real world, whether it's in the world of work, whether it's home for personal living, social skills, this gets them to function independently." The school district did not simply disseminate the document to Respondent and leave her to her own devices to implement the Steps. To facilitate the implementation process, Respondent was required to attend formal PASS training from the school district.2/ The PASS training is conducted over four sessions. Each session provides instruction, examples, and guidance on completing certain steps (for example Steps 1 and 2), as well as visits to classroom settings that have implemented the Steps. After attending each session, the teacher returns to the classroom and implements the steps learned to date. The process repeats until the teacher has been trained on the implementation of all seven steps. Respondent was also provided with significant personnel support throughout the 2011-2012 school year. Ms. President observed Respondent's class approximately once per week. If Respondent, in Ms. President's opinion, was not in compliance with the Steps, Ms. President would give instruction on how to become complaint.3/ Ms. President would then confer with Respondent concerning a reasonable time to implement the suggestions and expectations de jure.4/ Ms. President's suggestions, expectations, and the agreed timeframe for completion were subsequently memorialized in the form of summary emails. Respondent acknowledged receipt of the summary emails. Although Ms. President was not Respondent's supervisor, as early as January 3, 2012, Ms. DiPaolo advised Respondent that Ms. President's suggestions and expectations were to be considered "written directives." Respondent fully acknowledged that the suggestions and expectations of Ms. President were to be construed as directives. Ms. DiPaolo conceded that Respondent was not expected to be able to implement the Steps prior to attending the PASS training; however, once she began the training she was expected to implement the steps learned to date. Unfortunately, Respondent did not begin PASS training until December 2011, despite the availability of a September 2011 class.5/ Respondent completed the PASS training on or about January 30, 2012. The alleged implementation shortcomings specifically set forth in the Administrative Complaint, therefore, coincide with Respondent's completion of the PASS training. The Charges Petitioner alleges that Respondent was insubordinate in failing to complete the requisite Steps, despite clear directives. Specifically, Respondent alleges that: On January 31, 2012, Ms. Clarke agreed that her tasks would be completed by February 2, 2012. However, on February 2, 2012, Steps 1, 2, 4 and 5 were not complete. At that time, Ms. Clarke agreed that the tasks would be completed by February 9, 2012. However, on February 10, 2012, Steps 2, 3, and 4 were not complete (one day after the due date). At that time, Ms. Clarke agreed that her tasks would be complete by February 14, 2012. However, on February 14, 2012, Steps 3 and 6 were not complete. On February 16, 2012, Step 4 was still not complete. On February 23, 2012, Ms. Clarke agreed that her tasks would be complete by February 27, 2012. However, on February 27, 2012, Steps 4, 5, and 6 were not complete. On February 28, 2012, Steps 4 and 6 were still not complete. Petitioner further alleges that on March 1, 2012, Principal Todd LaPace held a pre-disciplinary meeting with Respondent to address her insubordination for failing to complete the above-referenced steps, and upon receiving an unsatisfactory response, recommended Respondent be placed before a three-day suspension without pay. On March 19, 2012, Respondent was placed on notice of the recommendation. The Steps On January 30, 2012, Respondent completed the final installment of PASS training. The following day, Ms. President observed Respondent's classroom. On that date, Ms. President thanked Respondent for presenting tasks with task instructions (Steps 4 and 5); however, she suggested that Respondent revise the instructions to use "less words." She also noted that previously agreed upon zone labels were not available (Step 1), and requested that same be printed for review by the next visit. Respondent agreed to have the master schedule, staff schedules, and individualized student schedules printed and implemented by the next visit (Steps 2 and 3). On February 2, 2012, Ms. President observed that the labels were not posted, as previously requested (Step 1); the schedules were completed, but not posted (Step 2); individualized student schedules were still needed (Step 3); and that Respondent had agreed to revise the tasks and task instructions (Step 4) by February 9, 2012. Ms. President's next observation of Respondent's classroom occurred on February 10, 2012. On that date, there were no discrepancies concerning Steps 1, 5, 6, or 7. Concerning Step 2, Ms. President noted that Respondent's schedule needed to be posted, but she was otherwise in compliance. The individualized student schedules (Step 3) still needed to be completed, posted, and implemented. Additionally, the previously agreed upon modified tasks and instructions were still not available. Again, Respondent agreed to make the requisite modifications. Ms. President then observed Respondent's classroom on February 14 and 16, 2012. By those dates, Respondent had succeeded in implementing Steps 1 and 2. Concerning Step 3, Ms. President opined that Respondent still needed to complete individual student schedules for "a few" of the students. Ms. President acknowledged that, concerning Steps 4 and 5, Respondent had created new tasks and instruction upon the completion of the PASS training; however, she had been instructed to revise some of them because they had "too many words and/or steps." Ms. President noted that if Respondent had indeed revised them, they were not available for her review. Ms. President further instructed Respondent that, "[i]f you are comfortable with what you have, please print so the students will have tasks to complete in the zones." For the first time, Ms. President noted that Respondent was not collecting data for every assigned task in every zone, as required by Step 6. In the follow-up visits of February 21 and 23, 2012, Ms. President documented that Steps 1, 2, and 3 were now in compliance. Respondent had, as directed, revised some of her previously completed tasks for Step 4. At this time, it was merely noted that "suggestions were made to improve the tasks." Ms. President did, however, direct Respondent to place the now acceptable tasks in a binder for utilization by the students. Again, Respondent was admonished to collect data for every assigned task in every zone, every week, for every student. On the final pertinent observation period of February 28, 2012, Respondent was compliant with Steps 1, 2, and Concerning Steps 4 and 5, according to Ms. President, Respondent had yet to place the acceptable task instructions in binders. Additionally, she continued to be deficient in data collection as previously requested. Respondent was most notably unsuccessful in the creation of tasks, as required by Step 4. Step 4, in essence, required Respondent to develop and implement tasks for a minimum of 5 separate zones or areas within the class. Respondent was required to create and implement at least three to five tasks in each zone based on individual needs. If Respondent failed to properly execute Step 4, it logically follows that she would also fail in the execution of Steps 5 and 6, which, respectively, required task binders and assessments of the student's performance of said tasks within a particular zone. To this point, Respondent testified, and there was no evidence to the contrary, that the PASS training did not include a textbook or other standard materials that a teacher may reference for the implementation of the Steps. In regard to the Step 4 creation of tasks, Respondent's unrebutted testimony was that a predetermined or preapproved set of tasks had not been endorsed by the district. As such, Respondent had some discretion in the creation of said tasks. Online resources were at her disposal, to a degree, for sample tasks. Respondent testified, however, that the sample online tasks, primarily composed of stick figures, were inconsistent with competing directives to make the tasks individualized and consistent with the student's environment. Respondent credibly testified that this perceived inconsistency was a recurring cognitive stumbling block to her timely implementation of tasks deemed acceptable by Ms. President. Ultimate Factual Determinations Ms. President's suggestions and/or expectations provided to Respondent after January 3, 2012, for the proper implementation of the Steps, were direct orders that were reasonable in nature and given by and with proper authority. Respondent was provided with a reasonable period of time to implement the Steps and was provided significant training and support to enhance her likelihood of success. On multiple occasions, Respondent was unsuccessful in executing Ms. President's directives, particularly Step 4. As noted above, Step 4 was a condition precedent to the successful implementation of Steps 5 and 6. Respondent's credible testimony that she was continually striving to be in compliance was buttressed by the testimony of Ms. President. Indeed, Ms. President testified that Respondent never refused to comply with her suggestions or time deadlines. As such, the undersigned finds that Respondent did not constantly or continually and intentionally refuse to comply with the directives.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 6th day of May, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 6th day of May, 2013.
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes (2011), by discriminating against Petitioner on the basis of race, color, sex, or national origin, and if so, what remedy should be ordered.
Findings Of Fact St. Johns River Water Management District (District) is a regional agency of the State of Florida responsible for managing water resources. The District employs about 600 employees. Mr. Leu Freycinet is a 46-year-old black African- American male of Haitian descent. He served in the United States Marine Corps for over ten years, where he served as a systems analyst, personnel administration chief, and a legal chief. He was engaged in combat in Somalia. While in the Corps, he received his bachelor’s degree in Management in 1998 and his master’s degree in Education in 2001. Mr. Freycinet separated from the Marine Corps in 2001 with an 80 percent disability due to various injuries. Moving to Florida from California, he became an Adjunct Instructor teaching business administration systems, torts, and database systems at the City College of Casselberry. Mr. Freycinet was hired in January 2002, as a Data Management Supervisor in the Permit Data Services (PDS) Division of the St. Johns River Water Management District. At this time PDS had its main Service Center at the District’s headquarters in Palatka, Florida, and three remote Service Centers located in Altamonte Springs, Jacksonville, and Palm Bay. Mr. Freycinet was placed in charge of the satellite office in Altamonte Springs, at pay grade 22. He directly supervised four or five Data Management Specialists. He was responsible for noticing, permit processing, compliance, and maintaining system integrity. He was responsible for every facet of data management and the permitting process except for individual permits for large entities, which were issued from the District headquarters. In 2006, Mr. Freycinet received a written reprimand for an incident involving his management of his subordinates in Altamonte Springs. Mr. Freycinet never signed the reprimand and did not agree with the reprimand. In his Annual Performance Evaluation for the period of February 3, 2006, to February 2, 2007, Mr. Freycinet’s overall performance was listed as “Rating 2, Generally Meets Performance Standards.” This is the middle of the three possible ratings, between “Rating 3, Exceeds Performance Standards” and “Rating 1, Generally Does Not Meet Performance Standards.” This rating reflected high achievement in some elements such as “Customer Service” and “Quality and Technical Oversight” while showing shortcomings in some elements involving communication and management. The following comments were made under the “Communications” element: “Improvements are still needed in communications with direct reports. There were some communication issues this past period resulting in the distress of PDS staff in Altamonte service center. I look forward to achieving a better line of communication between Leu and direct reports in the upcoming period. I also look forward to Leu’s adherence to instruction provided by Division Director.” Under the “Work Flow Management” element, it was noted, “Leu and his team have done well in meeting load requirements for the group; however, unresolved personality conflicts and leadership issues need to be addressed. His group continues to provide excellent customer service through the use of senior volunteers in the PDS area.” Under the “Personnel Management” element, it was noted, “I look forward to improved communication with direct reports to ensure timely and professional discussions of issues before they are out-of-hand.” Mr. Freycinet’s performance evaluation for the period February 2, 2007, through February 1, 2008, was similar. He again received an overall evaluation of “Rating 2, Generally Meets Performance Standards.” A comment in the “Communications” element stated, “Leu is very articulate and possesses positive communication skills, both written and verbal. As outlined in last year’s review, Leu should continue improvements in using his communications skills and judgment when dealing with other staff and upper management. Additionally, Leu can enhance his performance within the division through better adherence to instructions provided by management.” Under the “Personnel Management” element, it was noted, “Leu generally meets expectations mentoring and developing staff. He has identified and supported training goals for his staff. Leu could improve in this area through a more consistent application of these skills for all staff equally. In the future greater emphasis will be placed on a formalized staff training and development plan.” A comment under the “Exceptional Development Criteria” element stated, “Leu generally meets our expectations. He takes initiative to improve existing processes while fostering an enthusiastic customer service climate in the Altamonte Service Center. His staff consistently performs at a high level and meets established timeframes. While Leu’s initiative is appreciated, his excessive exuberance sometimes causes him to exceed his span of control thus impacting consistent performance within the division.” On September 28, 2007, the name of the Permit Data Services Division was changed to the Regulatory Information Management Division. In January 2008, the District eliminated the Data Management Supervisor position at the Altamonte Springs service center. Mr. Freycinet chose to take a lateral move, into a position that was also pay grade 22, to become a Senior Regulatory Information Management (RIM) Specialist at District headquarters in Palatka rather than leave employment with the District. In this new position he was a team leader of three or four team members, but was no longer in a supervisory position. As a Senior RIM Specialist he primarily worked in electronic mail, processing, and compliance. He worked on both Consumptive Use Permits and Environmental Resource Permits. On February 1, 2008, Mr. Freycinet received a merit increase in his pay in his position as Senior RIM Specialist, remaining a pay grade 22. In 2008, Mr. Freycinet applied for the Processing and Compliance Support Manager’s position. He was not given the job. Ms. Robin Hudson, the Human Resources Director for Respondent, testified that she remembered that a comment had been made that Mr. Freycinet’s past work history as a supervisor was deficient in some respects. In 2010, Mr. Freycinet applied for a position as RIM Manager, but that job was given to Ms. Maggie Daniels. A few months later, Mr. Freycinet also applied for the District Clerk position, which he believed was either pay grade 25 or 27. This was a job similar to the Regulatory Support positions, but at the District level, maintaining data and files. Mr. Freycinet was not chosen for the Clerk position. Mr. Freycinet was a good employee for the District who performed satisfactorily and met expectations. He had good education credentials, long experience at the District, excellent technical knowledge, and supervisory experience, although not all of it positive. Mr. Mike Register is the Director of the Department of Regulatory Services, which is responsible for all of the regulatory programs of the District, including consumptive use permits, environmental resource permits, and the administrative processing of those permits. He is responsible for the Division of Regulatory Information Management,1/ among others. Mr. Register was concerned that the RIM Division was not functioning well. He believed there was a lack of confidence in the Division’s work product both inside and outside of the District. He believed that an “adversarial” attitude had developed between the Division and the regulatory staff of the District. He believed there was a lot of inefficiency, a lack of outreach, and an unhelpful attitude in the Division. He wanted to increase the number of applications for permits that were filed electronically, because electronic processing is much more efficient. Mr. Register decided that organizational changes were necessary to address these concerns, and he tasked Mr. Victor Castro, the new Director of the RIM Division, to come up with a plan to do this. In response, Mr. Castro talked generally with the Division employees to find out what each of them did, and how that work matched up with what the Division needed to be doing. He talked with Ms. Daniels, who by this time had been promoted to Assistant Director of the Division, and with other divisions to understand the needs that they had. He then came up with a new organizational chart that contained positions and descriptions for the work that needed to be done, without consideration of any particular individuals. Mr. Castro next worked with the Human Resources Department, which helped him determine what level the new positions should be and conducted a market analysis for the appropriate pay grade for each position. The pay grades for each position in the new structure were recommendations from Human Resources. The recommended structure was then presented to Mr. Register. Subsequently, Mr. Castro considered which people currently employed in the RIM Division would be best suited for each position within the new structure, beginning with the manager positions, and returned to Mr. Register with that staffing plan. The plan did not include any new people from outside the Division, and did not include the termination of any individuals working at the Division. However, under the reorganization plan, some people would be promoted, and others would be demoted. Some changes involved only pay grade changes, adjusting the applicable pay range and the maximum pay ceiling, while other changes actually increased or reduced the current salaries of those involved. Mr. Castro did not interview the Division employees for specific positions in the new structure before preparing the new staffing plan. He based the staffing plan on his general experience during the short time he had been Division Director and his discussions with Mr. Register, Ms. Daniels, and others who had been there longer and were familiar with the staff. Mr. Castro determined that Ms. Shannon Barican should be placed as the manager for the Electronic Processing Group. Ms. Barican does not have a college degree, and has no formal supervisory experience. She began working for the St. Johns River Water Management District on April 9, 1990. She began as a Records Technician at pay grade 10 in what was then the Records Division, filing and dealing with information requests. She prepared files for microfilm. Ms. Barican later rode with field representatives, issuing citations. Sill later, she moved to permitting prior to the time that it was divided into groups, where she worked with all types of applications. She gained experience with technical staff reports and compliance issues. She later prepared requests for additional information and sent them to applicants, a job now performed by reviewers. In recent years she has worked with noticing. Mr. Register has known Ms. Barican at the District for about 20 years and has had the opportunity to directly observe her performance. Ms. Barican has an outstanding ability to work as a team leader on projects. She is a very good communicator, both with her team and with customers. She is very outgoing with her outreach in trying to find new ways to do the job better. Ms. Barican received an overall assessment of “3, Exceeds Performance Expectations” on her Annual Performance Evaluation for the period February 3, 2006, to February 2, 2007. In February, 2007, Ms. Barican was recommended for a cash bonus award of $1,000.00. On July 6, 2007, Ms. Barican’s pay grade was increased from a pay grade 14 to a pay grade 16. This action did not include any change in her salary, but permitted her to receive pay raises in the future, since she had reached the maximum level of pay allowed for pay grade 14. Ms. Barican received an overall assessment of “3, Exceeds Performance Expectations” on her Annual Performance Evaluation for the period February 2, 2007, to February 1, 2008. Ms. Barican received a merit pay increase in her position of Data Management Specialist II on February 1, 2008. Ms. Barican was recommended for a cash bonus award of $1,500.00 in February 2008. On February 28, 2008, Ms. Barican’s position was reclassified from a Data Management Specialist II to a Regulatory Information Management Specialist II. This was a name change following the Division’s name change a few months before, and involved no change in pay. Ms. Barican received an overall assessment of “3, Exceeds Performance Expectations” on her Annual Performance Evaluation for the period January 31, 2008, to January 30, 2009. It was noted under the “Exceptional Development Criteria” element that, “Shannon has done very well taking initiative and demonstrating leadership within the group. Shannon has great potential. Over the next year I am encouraging Shannon to take a more active role in developing other staff and assisting with the process documentation and improvement efforts.” Ms. Barican received a merit pay increase in her position of Regulatory Information Management Specialist II on January 30, 2009. Ms. Barican received an overall assessment of “3, Exceeds Performance Expectations” on her Annual Performance Evaluation for the period February 1, 2009, to September 30, 2009. Ms. Barican was recommended for a cash bonus award of $1,000.00 in September 2009. Ms. Barican received an overall assessment of “3, Exceeds Performance Expectations” on her Annual Performance Evaluation for the period October 1, 2009, to September 30, 2010. In 2010, Ms. Barican was nominated as Employee of the Year for the District. At the time of the reorganization, Ms. Barican was a Regulatory Information Management Specialist II, with primary responsibility over noticing. She had previously filled in for her lead, Ms. Minor, when Ms. Minor was on vacation and when she was out for surgery for a couple of months. Mr. Castro knew that Ms. Barican had often worked with other departments of the District and was excellent in coordinating work with others and in providing customer service. He believed that Ms. Barican could use those skills to increase electronic filing to improve the efficiency of the Division. He testified that he considered her the best candidate for the job by far. Mr. Castro testified that on one occasion, when there was a meeting discussing better ways to improve the processing of letter modifications (a type of permit application) that Ms. Barican had several immediate suggestions even though that was not her area of expertise. She also volunteered to coordinate a solution with others and come back with a proposal that everyone agreed to. In a couple of weeks she came back with a new process completely ready to implement, with everything well documented. The new procedures were successfully implemented and everyone was happy to follow them. In developing the proposal, Ms. Barican had worked with Mr. Freycinet, who was very helpful to her. Mr. Castro said that Ms. Barican’s success with this project was one of the deciding factors for him in choosing her for the management position. He did not review Ms. Barican’s performance reports before making his decision to promote her. Mr. Castro also considered Mr. Freycinet and Ms. Lynn Minor for manager of the Electronic Processing Group. He testified he did not offer Ms. Minor the position. He did not feel that Mr. Freycinet was a good fit for the job because of concern with Mr. Freycinet’s ability to work with others. He was concerned about how Mr. Freycinet coordinated work. Mr. Castro believed that Mr. Freycinet’s demeanor toward his coworkers was not ideal for a manager. Mr. Castro noted as an illustration that Mr. Freycinet would be talking with Mr. Castro, and if a question came up that needed to be answered, Mr. Freycinet would just scream over the top of the cubicle and tell the person to come immediately, rather than excusing himself to go get the proper person to answer the question. Mr. Castro did not review Mr. Freycinet’s performance reports before deciding Mr. Freycinet would not be a good fit. He did discuss Mr. Freycinet with Ms. Daniels, who was aware of Mr. Freycinet’s performance reports, and with Mr. Register. Mr. Register believed that Ms. Barican possessed the critical skills he deemed necessary for the manager’s role. He believed that she had the ability to work well with others, to outreach and communicate well both internally and with the public, and would have the skills to coordinate work within her group and coordinate with other groups. He also believed that she had a good understanding of both the technology involved and where he wanted to take the Division. In contrast, Mr. Register testified that Mr. Freycinet’s reputation as a worker and employee was that he was abrasive, that he tended to be abrupt and a little rough when talking to people. Mr. Register testified that based upon his personal observation he did not believe Mr. Freycinet was very efficient with his work. Mr. Castro discussed his choice of Ms. Barican to be the manager of the Electronic Processing Group with Ms. Daniels, who, based upon her experience with the people in the Division, agreed that Ms. Barican would be the best choice. Mr. Castro also discussed his choice with other groups such as the Information Technology Department, who also agreed with the selection of Ms. Barican. Mr. Castro testified that every time he asked anyone what they thought about Ms. Barican, that he always received positive remarks. A college education and some supervisory experience were listed among the job qualifications for the management positions. District policy provided a process whereby other skills and experience could be substituted for such qualifications, and this process was followed in the case of Ms. Barican. On May 6, 2011, Mr. Castro requested Mr. David Fisk, Assistant Executive Director of the District, to approve Ms. Barican’s 20 years of experience at the Division as a substitute for the college education and one year of supervisory experience necessary to qualify as a Regulatory Support Manager over the Electronic Processing Group. Ms. Barican was qualified for the manager position. As the new structure was the result of reorganization, the allocation of duties into reclassified positions did not need to be advertised. The reclassified positions would be filled solely from existing employees and no new employees were being recruited. Prior to the reorganization, the Division of Regulatory Information Management consisted of between 30 and 35 people, of whom only Mr. Freycinet and the Division Director, Mr. Castro, were male. Mr. Freycinet was the only black male. The Division had four filled management positions: the Division Director; an Assistant Division Director, Ms. Daniels; a Project Manager, Ms. Mary McKinney, serving at pay grade 26 and reporting to Ms. Daniels; and a RIM Manager, Ellie Miller, serving at pay grade 25 and also reporting to Ms. Daniels. The subunits of the Division were headed by team leaders, which were not supervisory positions. Ms. Minor was the team leader over the “Applications” group and Mr. Freycinet was the team leader over the “Compliance” group. Ms. Minor and Mr. Freycinet were each Senior RIM Specialists, at pay grade 22. There were three other Senior RIM Specialists in the Division, Ms. Joann Fuqua, Ms. Nancy Tatum, and Ms. Linda Oggero, all serving at pay grade 22, but not serving as team leaders. Ms. Barican was a RIM Specialist II, pay grade 16, responsible primarily for permit noticing, and reporting to Ms. Minor in the “Applications” subunit. Under the reorganized structure, three manager positions were to report to Ms. Daniels as Assistant Director of the Division of Regulatory Support. Ms. Barican was made the manager of the Electronic Processing Group, Ms. McKinney was made the manager for the Permits Group, and Ms. Miller was made the manager for the Quality Assurance Group. Ms. Sara Mullis, the Electronic Content Management Coordinator, also was moved to report directly to Ms. Daniels, although she was not a manager. As part of the reorganization plan, Ms. Barican was to be upgraded from pay grade 16 to pay grade 25. She would receive a salary increase of $9,131.20 for a total annual salary of $49,462.40, representing a 22.64% increase. It is uncommon at the District to have a promotion from pay grade 16 directly to pay grade 25. Ms. McKinney’s pay grade would be downgraded from pay grade 26 to pay grade 25, but her annual salary of $69,971.20 would be unchanged. Ms. Miller would remain at pay grade 25, with no change in her $60,340.80 annual salary. The new managers were not the only ones to be subjected to personnel actions. Ms. Mullis was to be upgraded from pay grade 16 to pay grade 20. She would receive a salary increase in the amount of $8,340.80, bringing her salary to $29,099.20 annually, a 28.66% increase. Mr. Freycinet was to be downgraded from pay grade 22 to pay grade 20, but his annual salary of $53,747.20 would remain unchanged. In addition to Mr. Freycinet, Ms. Minor, Ms. Joann Fuqua, Ms. Nancy Tatum, and Ms. Vicki Young were all to be downgraded from pay grade 22 to pay grade 20. The salary of Ms. Minor at $56,014.40 annually, and the salary of Ms. Fuqua at $51,469.20 annually would remain unchanged. The salary of Ms. Tatum was to be reduced by $291.20, bringing her salary to $56,160.00, a 0.52% reduction. The salary of Ms. Young was to be reduced by $4,430.40, bringing her salary to $56,160.00, a 7.31% reduction. Ms. Linda Oggero would be downgraded from pay grade 22 to pay grade 18, with no change in her $42,494.40 annual salary. Three other employees, Ms. Lisette Bonilla, Ms. Marianella Pacheco, and Ms. Carrie Mizell, were to receive salary increases of about 5%, without any change in their pay grade. On the afternoon of Monday, May 9, 2011, a mandatory meeting was held for all Division personnel. The meeting was conducted by Mr. Castro and Ms. Daniels to explain and describe the “redeployment” of the Division of Regulatory Information Management personnel into the reorganized unit to be known as the “Division of Regulatory Support” which was to be effective on May 20, 2011. The meeting was only announced a couple of hours before it took place. Mr. Freycinet felt humiliated, degraded, and embarrassed when he learned that Ms. Barican had been promoted to be his supervisor. He believed the new management position was essentially in charge of exactly the things that his subunit had been doing before the reorganization when he was its team leader, and that he was the best qualified person for the new position. Although his salary had not been cut, the demotion to a lower pay grade could eventually have the effect of limiting his ability to get raises, once he achieved the maximum pay for that grade. Mr. Freycinet was substantially affected by the reorganization and the District’s decisions not to promote him to the new management position and to reduce his pay grade. In his new position Mr. Freycinet was expected to be involved with input and management of complex hydrology data, with which his team had never worked in the past. He believed it required some knowledge of the methodology of hydrology, for which he had not been trained, and that he was not being compensated fairly for performing this new function. On May 13, 20, 2011, Mr. Freycinet filed an affidavit with the Florida Commission on Human Relations alleging discrimination on the basis of race, color, sex, and national origin. The petition was amended on June 23, 2011, through the filing of the FCHR Charge Form. Mr. Freycinet alleged that he had been denied a promotion, demoted, and subjected to different terms and conditions of employment. Mr. Freycinet’s employment with the District ended on July 14, 2011. On December 16, 2011, the Florida Commission on Human Relations determined that there was no reasonable cause to believe an unemployment practice occurred. On January 19, 2012, Mr. Freycinet filed a Petition for Relief against Respondent for an unlawful employment practice, which was referred to the Division of Administrative Hearings on January 26, 2012.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint. DONE AND ENTERED this 22nd day of June, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 22nd day of June, 2012. 1/ The titles of these District subunits have since been changed. The former Department of Regulatory Services is now evidently the Division of Regulatory Services, while the former Division of Regulatory Support is now the Bureau of Regulatory Support. In light of the numerous other name changes which took place during the events relevant to this case, the older names are used throughout to avoid additional confusion. COPIES FURNISHED: Brandon Lamour Freycinet, Esquire 254-10 Northern Boulevard, Suite 204 Little Neck, New York 11362 bfreycinetesq@yahoo.com Michael Harrison Bowling, Esquire Bell and Roper, P.A. 2707 East Jefferson Street Orlando, Florida 32803 ysuedmeyer@bellroperlaw.com Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 violet.crawford@fchr.myflorida.com Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 lawrence.kranert@fchr.myflorida.com
Findings Of Fact At all times relevant hereto, petitioner, Lennie Russell, was a student in the public School system of Dade County, Florida. He is now fifteen years old and is classified as an emotionally handicapped student with a learning disability. At the time of final hearing, he was in Youth Hall, a detention center, where he had been for the last three or four months. Just prior to that, he was assigned to Jann Mann Opportunity School-North, a school having an educational alternative program designed to meet the needs of students who are disruptive, disinterested or unsuccessful in a normal school environment. The latter school is under the jurisdiction of intervenor, School Board of Dade County (SBDC). He has been in the SBDC school system since kindergarten. Pursuant to law, the SBDC maintains two types of teacher files: personnel and investigative. By local school board rule the SBDC has defined the' contents of a personnel file as follows: All records, information, data or material maintained by the School Board, in any form or retrieval system, with respect to any employee or former employee, which is uniquely applicable to the employee, whether maintained or stored in one or more locations. An investigative file contains: investigated cases of alleged employee misconduct and/or violation of School Board regulations, state and federal statutes. The completed investigative file indicates the investigative findings and disposition actions relating to the allegation(s). It includes statements by investigating officer or school official, person(s) filing complaint, victim(s) and witnesses, if any. For retention purposes, school personnel records are considered to be a "record series" containing personnel files in general. They are retained by the SBDC for the career of the teacher plus fifty years. Investigative files are a "subseries" of personnel files but are not included in the general personnel records. While the personnel file contains the disposition of every complaint, founded or otherwise, lodged against a teacher, the file does not contain the investigative materials themselves, since they are included only in the investigative files. Both sets of files are public records, and open for inspection by members of the public, including petitioner. 3/ On March 21, 1984 the SBDC adopted Rule 6Gx13-4-1.03 entitled "Procedures Personnel Files." As is relevant to this controversy, the rule contains a provision governing the minimum period of time that personnel investigative files must be retained. This time period was arrived at after lengthy negotiations between the SBDC and intervenor, United Teachers of Dade (UTD). UTD is the collective bargaining unit for teachers in the Dade County public school system. According to the rule: Investigative reports will be retained in the Division of Personnel Control. Reports of allegations which, are unfounded, exonerated, or not sustained, will be retained for five years provided there are no litigations pending and an infraction-free period of five (5) years precedes each purge, except for those investigative reports that concern sexual abuse of a child or other forms of child abuse. Investigative material relating to records of sustained formal discipline will be retained for ten years from the date of disposition provided an infraction-free period of ten years precedes each purge of formal discipline, except for those investigative reports that concern sexual abuse of a child or other forms of child abuse, and provided there are no litigations pending. Authorization for disposal of records will be enacted in accordance with Florida Statutes and the State Division of Archives, History and Records Management, and School Board Rule 6Gx13-3D-1.08. Put another way, this meant that unfounded complaints (except those relating to child abuse) would be retained in a teacher's investigative file for five years while substantiated complaints would be retained for ten years. Neither could be purged after those time periods unless there were no other substantiated complaints lodged against the teacher during the five and ten year periods preceding the purge. If there were, the complaints would continue to be retained until the requisite infraction free period was attained. By law, respondent, Department of State, Division of Library and Information Services (Division), is charged with the responsibility of reviewing and approving requests for record retention schedules submitted by various agencies. To this end, SBDC forwarded to the Division on March 30, 1984 a request for approval of the schedule pertaining to investigative files. After reviewing the request, and receiving input from all parties, including petitioner (who suggested no specific retention period), the Division issued proposed agency action on June 18, 1984 approving the following recommended retention period: Sustained formal discipline (less than dismissal) - ten (10) years from date of disposition provided an infraction free period of ten (10) years precedes each purge of formal discipline, and providing there are no litigations pending. Unfounded, exonerated, not sustained - Five (5) years providing there are no litigations pending and an infraction free period of five (5) years each purge. The above action was formalized by agency letter dated June 25, 1984 which advised SBDC that Records Retention Schedule Number 146 had been approved. Because petitioner contended such approval affected his substantial interests, he filed a request for hearing which prompted this proceeding. In approving a schedule, the Division often looks to other previously established schedules as precedent. It is also obliged to review a record in light of any "legal, fiscal, administrative and archival value" it might have. These terms are not defined by statute or rule. However, through testimony it was established that the legal value of a record is taken into account by reviewing any applicable statutes or rules that might require a record to be retained for a certain time period. In this case, there were no legal requirements which imposed retention periods beyond the five and ten year periods authorized by the schedule. The Division also considered the records' potential use in litigation, and consulted with in-house counsel, the Attorney General and the Auditor General as to any legal significance the records might have. The results of these inquiries did not suggest a different retention period than was proposed by SBDC. Since the records were not required to track financial transactions, they had no fiscal significance Similarly, they had no value in documenting the history of the state and thus were of no historical consequence. The final factor for consideration was the administrative value of the records. This factor concerns the value the records have for current agency in-house use. The Division felt the records' administrative value was for a lesser time period than five and ten years because such retention periods were in excess of those used by law enforcement agencies and the Department of Health and Rehabilitative Services for similar records. In addition, the records duplicate in part the records of the Department of Education. 4/ Nonetheless, the Division noted that SBDC and UTD had agreed through collective bargaining that longer retention periods were appropriate, and accordingly approved the schedule. Such time periods were not shown to be arbitrary or unreasonable, or that they were inconsistent with relevant statutory criteria. Petitioner did not propose that the records be retained for any Specified period, but simply criticized the Division's action. Through his mother, Lennie complained that Some of his teachers in prior years were "not qualified" because they could not control their respective classrooms. Her primary complaint is that certain teachers are not "trained" to handle emotionally handicapped children, and that she may wish to see the records of certain teachers at a future time to make decisions concerning her child's placement. However, she has never asked to see any teacher's investigative file, has not requested a placement hearing, and has no definite plans to do so. Further, the material contained in an investigative file does not relate to exceptional child placement. Indeed, Lennie's principal concern, as clarified through testimony at final hearing, relates to teacher performance matters, a subject wholly different from complaints concerning misconduct. Even so, if performance related complaints are substantiated, they are retained in the teacher assessment files for fifty years, and are open to petitioner's scrutiny. Therefore, the proposed retention periods for investigative files should have no bearing on Lennie's placement, or deprive him of access to material that would be used in a placement hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered approving the School Board of Dade County's records retention schedule number 146. DONE AND ORDERED this 1st day of July, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1987.
The Issue Whether Respondent, University of West Florida (Respondent or the University), violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Jacqueline R. Pinkard (Petitioner), based upon Petitioner’s race or in retaliation for her participation in protected activity.
Findings Of Fact Respondent is a public university within the Florida State University System. Petitioner was hired by the University in 1998 in the Office of University Budgets (Budget Office) as a Coordinator. In 2004, Petitioner was promoted to the position of Assistant Director of the Budget Office. She received a pay increase simultaneous with the promotion and another pay increase shortly thereafter. She has received several pay increases throughout her employment with the University. From 1998 through June 30, 2014, the Budget Office was a stand-alone department, headed by Valerie Moneyham. In January 2014, Ms. Moneyham was promoted to Assistant Vice President in the Business, Finance, and Facilities Division. Her duties included continued oversight of the Budget Office until June 30, 2014. On July 1, 2014 the Budget Office moved under and became a part of the University’s Financial Services department. There were three employees in the Budget Office: Petitioner, Assistant Director, who is African American/Black; Pam Cadem, Senior Budget Data Analyst, who is Caucasian; and Josie Warren, Coordinator, who is Caucasian (collectively, Budget Office employees). All three Budget Office employees retained their position titles and pay rates upon moving into the Financial Services department. There was another employee in the Budget Office prior to the move named Lourdes Stevens. Ms. Stevens was a Coordinator who began at the University in 2012. Ms. Stevens left the University before the Budget Office became a part of the Financial Services department. The Financial Services department was and is headed by Colleen Asmus, Associate Vice President and University Controller. In her Complaint, Petitioner alleges several bases for alleged race discrimination and retaliation. First, Petitioner alleges that the University discriminated against her based on her race and retaliated against her when Petitioner’s former supervisor, Ms. Valerie Moneyham, issued a “poor” performance evaluation of Petitioner for 2014. Next, Petitioner alleges that her current supervisor, Ms. Colleen Asmus, “accepted Ms. Moneyham’s false and retaliatory evaluation as a means to justifiably deny [Petitioner] an equitable pay increase, position reclassification or promotional opportunity.” And, finally, the Complaint alleges that the University discriminated against Petitioner based on her race when, on December 12, 2014, Ms. Asmus created a position with “very specific ‘preferred’ qualifications . . . as a way to essentially tailor the job to fit a preselected employee or applicant,” who she believed to be “a white male from Financial Services.” The findings of fact pertinent to these allegations are set forth under three separate headings, A. through C., below. Petitioner’s 2014 Performance Evaluation The subject of Petitioner’s first allegation is her performance evaluation covering the period from July 1, 2013, through June 30, 2014 (2014 evaluation). The evaluation cycle for University staff is from July 1 to June 30 each year. Prior to the University’s 2013 evaluations, a different cycle and scoring system was used for performance evaluations. Due to the change in cycling, there were no evaluations for University staff in 2012. The University’s performance evaluation system is electronic-based. The evaluation contains three main parts. The first part is a self-evaluation by the employee. The second part is the supervisor’s evaluation, and the third part is a goal-setting section for the following year. In the second part of the evaluation, supervisors provide numeric ratings on a five-point scale on a series of eight work-related categories, and they also provide narrative feedback on an employee’s strengths and areas for improvement. Since 2013, the numeric scores have been averaged and the resulting number is the employee’s overall evaluation rating. Since 2013, the overall numeric ratings have equated to the following Performance Standards: 1.0 to 1.4 –- “Below” - Not Acceptable 1.5 to 2.4 –- “Below” – Needs Improvement 2.5 to 3.4 –- “Satisfactory” 3.5 to 4.4 -- “Above” 4.5 to 5.0 -- “Superior” It is the University’s standard practice for the supervisor of University staff positions to be the individual who completes those staff position evaluations if he or she was the supervisor for the whole period covered by the evaluation. Ms. Moneyham was the supervisor of record for the Budget Office for the entire period covered by the July 1, 2013, to June 30, 2014, evaluation. Labratta Epting, Human Resources Specialist in the University’s Human Resources department, advised Ms. Moneyham by email dated October 24, 2014, to complete the 2014 performance evaluations for each one of the three Budget Office employees. Ms. Moneyham completed the supervisor’s evaluation portion of the 2014 performance evaluations for all three Budget Office employees because she was their supervisor during the period of time covered by the evaluation. In the electronic performance evaluation system, the evaluations are housed under the name of the current supervisor. In this case, that was Ms. Colleen Asmus, for all three Budget Office employees. For the 2014 evaluation, Ms. Moneyham provided the evaluation information for each of the three Budget Office employees to Ms. Asmus, who cut and pasted the information into the electronic evaluation system. Ms. Asmus completed the future goals section of the evaluation for each of the three Budget Office employees because she was the supervisor beginning on July 1, 2014, and on into the future. In the 2014 evaluation, Ms. Moneyham rated the Budget Office employees as follows: Petitioner received a numeric score of 3.3 and a “Satisfactory” Performance Standard; Ms. Cadem received a numeric score of 3.8 and an “Above” Performance Standard; and Ms. Warren received a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2013 evaluation, Ms. Moneyham rated Petitioner with a numeric score of 3.2 and a “Satisfactory” Performance Standard, Ms. Cadem with a numeric score of 3.8 and an “Above” Performance Standard, and Ms. Warren with a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2011 evaluation, under the old scoring system, Ms. Moneyham rated Petitioner with a numeric score of 42 and a “Satisfactory” Performance Standard, and Ms. Cadem with a numeric score of 46 and an “Above” Performance Rating. As previously noted, the numeric rating system was changed for all staff evaluations after the 2011 evaluation. Ms. Moneyham increased the numeric score of only one employee from the 2013 to the 2014 evaluation, and that employee was Petitioner. She increased Petitioner’s numeric rating from 3.2 in 2013 to 3.3 in 2014. Petitioner’s Performance Rating was at the “satisfactory” Performance Standard level in 2011, 2013, and 2014. Petitioner testified that Ms. Moneyham’s comments on page 7 of Petitioner’s 2014 performance evaluation under the heading of “Supervisor’s Comments” were not discriminatory and were not retaliatory. Ms. Asmus’ Acceptance of Petitioner’s 2014 Evaluation Ms. Asmus received a copy of the October 24, 2014, email sent by Ms. Epting to Ms. Moneyham directing Ms. Moneyham to complete the 2014 evaluations for Petitioner, Ms. Cadem, and Ms. Warren. When Ms. Asmus met with Petitioner to discuss Petitioner’s 2014 evaluation, Ms. Asmus stated that she believed that they (Petitioner and Ms. Asmus) had started with a clean slate, which began when Ms. Asmus became Petitioner’s supervisor on July 1, 2014. Petitioner’s letter dated December 15, 2014, to the EEOC acknowledges this, quoting Ms. Asmus as saying, “I hope we can move forward with a great working relationship.” No evidence was provided by Petitioner showing that Ms. Asmus used the evaluation scores provided by Ms. Moneyham in the 2014 evaluation to deny Petitioner any benefit of any kind. Denial of Position Reclassification and Promotional Opportunities Interim Promotion In the Complaint, Petitioner alleges that Ms. Asmus used the “poor evaluation” as a means to deny her a position reclassification or a promotional opportunity. At the hearing, Petitioner testified that she should have been made Interim Associate Budget Director, or a similar title, starting when Ms. Moneyham was no longer physically in the same building as the Budget Office employees, which she said was during “Spring 2014.” She also testified that the interim position should have lasted either until Ms. Asmus became the supervisor of the Budget Office employees (July 1, 2014) or, alternatively, until February 2, 2015, when Mr. Djerlek became the supervisor of the Budget Office employees. Ms. Moneyham became Assistant Vice President in January 2014. No evidence was offered stating a more specific date of when Ms. Moneyham moved to a different building than the Budget Office employees. Petitioner did not offer any comparators for this allegation. Petitioner did not offer any evidence that any employee was made Interim Associate Budget Director (or similar title) in this situation. Petitioner admitted on cross-examination that Ms. Moneyham was the supervisor of record for the Budget Office employees until Ms. Asmus became the supervisor for the Budget Office employees. Ms. Rentz, the former University Associate Director for Human Resources, testified that there was no Interim Associate Budget Director or other position into which Petitioner could have been placed because Ms. Moneyham was the supervisor of record over the Budget Office employees until Ms. Asmus became the supervisor of record. That testimony is credited. 2. Reclassification In support of her allegation that she was denied a position reclassification, Petitioner submitted into evidence an email that she sent to her supervisor, Ms. Asmus, on December 11, 2014. In the email, Petitioner asked Ms. Asmus to reclassify all three Budget Office employees (Petitioner, Ms. Cadem, and Ms. Warren) and provide each of them with salary increases. On December 11, 2014, the three Budget Office employees had been under the supervision of Ms. Asmus for approximately five and one-half months. Petitioner’s email further stated that all three employees were well trained. Petitioner, however, provided no evidence either in the email or at the hearing that would reasonably provide a basis for reclassification or promotion of any of the three Budget Office employees. Petitioner did not offer any comparators for this allegation. No evidence was provided showing that there has been a position reclassification or promotion for any of the three Budget Office employees since being moved into the Financial Services department on July 1, 2014. The University provided credible testimony that seniority, or length of time in a position, is not, on its own, a basis for a promotion at the University of West Florida. Denial of Equitable Pay Increase Petitioner also alleged in the Complaint that Ms. Asmus used Ms. Moneyham’s “poor evaluation” as a means to deny Petitioner an equitable pay increase. At the hearing, Petitioner stated that she was denied an equitable pay increase when distributions were made to some staff under a 2013 Employee Pay Equity and Compression Program conducted by the University (Salary Study). Petitioner and the two other employees in the Budget Office did not receive a distribution under the 2013 Salary Study. The University provided credible evidence showing that approximately 25 percent of the staff received increases through the Salary Study, and that Petitioner’s salary was the only salary in the Budget Office that was above the benchmark for receiving an increase. On April 7, 2014, Petitioner filed a discrimination charge with the EEOC claiming that she was denied a distribution from the 2013 Salary Study based on race and retaliation. The EEOC found that the University did not violate discrimination statutes and issued Petitioner a “Right to Sue” letter on September 30, 2014. Petitioner did not file suit in connection with that EEOC discrimination charge. The University has not conducted any equity studies since 2013 and Petitioner has not been excluded from any staff pay increases since 2013. In May 2015, Ms. Asmus asked the Human Resources department to determine whether there was a pay inequity as to Ms. Warren’s salary. Ms. Warren’s position in the Budget Office was “Coordinator” and it remained “Coordinator” when she moved into the Financial Services office. Human Resources reviewed Ms. Warren’s salary against the other Coordinators in the Financial Services department. The Human Resources department determined that Ms. Warren was performing services similar to the Accounting Coordinators in the Financial Services department. The starting salary for an Accounting Coordinator in Financial Services is $45,000. Ms. Warren was earning $32,000 at the time. As a result, in May 2015, Ms. Warren’s salary was increased to $45,000, which is the level of the starting salary for Accounting Coordinators in the Financial Services department. No evidence was offered of a similar increase for Ms. Cadem. Petitioner’s current position is Assistant Director. Before she was promoted to Assistant Director, Petitioner’s position title was Coordinator. The position of Assistant Director is higher in rank than the Coordinator/Accounting Coordinator position occupied by Ms. Warren. Petitioner’s salary is approximately $15,000 higher than Ms. Warren’s salary at the increased level. There is no similar pay inequity in Petitioner’s position as there was with Ms. Warren. Petitioner’s salary is right at the midpoint of the five employees in the Financial Services department at the Assistant Controller/Assistant Director level. Petitioner is earning more than two of the Assistant Controllers and less than two of the Assistant Controllers. Petitioner did not allege or provide any evidence showing that her job duties were more complex than the two Assistant Controllers who have a higher salary than she does. Preferred Qualifications for Associate Controller Position During the fall 2014 semester, Ms. Asmus envisioned an improvement in the efficiency and consistency of the reporting functions carried out by the Financial Services department. She had noticed that there were overlaps and redundancies between the financial reporting area and the budget reporting area. She believed greater consistency in reporting could be achieved if these areas were merged. In November-December 2014, the Financial Services department began the recruitment process for an Associate Controller. The Associate Controller was to be over the reporting areas, which would include financial reporting (production of financial statements), budget reporting, and tax reporting. Florida’s State University System’s (SUS) minimum qualifications for an Associate Controller were posted as the minimum qualifications for the position. They are: Master’s degree in an appropriate area of specialization and four years of appropriate experience; or a Bachelor’s degree in an appropriate area of specialization and six years of appropriate experience. Although the SUS system allows additional requirements be added to the minimum qualifications, none were added in the posting of the Associate Controller position. The preferred qualifications for the position as advertised were: Master’s or Bachelor’s degree must be in an accounting related field. CPA License preferred. Experience with production of financial statements in a higher education setting preferred. Experience with tax accounting in a higher educational setting preferred. Familiarity with budget operations in a higher educational setting preferred. The preferred qualifications were all approved by Human Resources as being job-related before the position announcement was posted. After receiving an applicant pool from the first posting for the Associate Controller position, Human Resources for the University did not “certify” the applicant pool because the percentage of minority applicants was low. The position was posted again and was also advertised again in a publication geared to attract minority applicants. Although additional applicants applied, the percentage of minority applicants decreased. Nevertheless, because it determined that a good faith effort was made to recruit qualified female and minority applicants, Human Resources certified the pool after the second posting. Petitioner pointed out at the hearing that the January 2015 advertisement in the publication geared to attract minority applicants contained an application deadline of December 19, 2014, which was prior to the date of the advertisement. The University’s Associate Director of Human Resources provided credible testimony that the published application deadline was a mistake, and that she was unaware of the error when she certified the pool after the second posting. Ms. Asmus provided credible testimony explaining why each of the preferred qualifications for the Associate Controller position was job related. No contrary evidence as to any of the preferred qualifications was offered by Petitioner. Ms. Asmus advised the three Budget Office employees of the job posting and invited them to apply for the position. Petitioner met the minimum criteria for the position but did not apply for the position. All candidates who met the minimum qualifications for a position would have been considered for the position. Petitioner testified that she did not apply for the position because she did not meet the preferred qualifications. Petitioner explained that in 2012 she had applied for a position as an Executive Assistant in the University’s President’s Office, and she was not selected for the position because she did not have all the preferred qualifications. She said that she did not have event-planning experience. She said that based on that experience in 2012, she did not apply for the Associate Controller position posted in December 2014. Petitioner acknowledged on cross-examination that the Executive Assistant position that she applied for in 2012 was in the President’s Office and that the Financial Services department is in a different division of the University than the President’s Office. There were no limitations in the advertisement that would discourage an individual of any particular race from applying for the position. The advertisement stated on the bottom, “The University of West Florida (UWF) is an Equal Opportunity/Access/Affirmative Action Employer.” Mr. Djerlek was ultimately selected for the Associate Controller position. He is Caucasian and is outside of Petitioner’s protected class. Mr. Djerlek’s qualifications for the position were stronger than Petitioner’s. Mr. Djerlek had experience in all three of the areas that would be under the supervision of the Associate Controller: financial statements/reporting, budget reporting and tax reporting. Mr. Djerlek's background included a great deal of experience with financial statements, tax reporting, and budgeting, along with some budget reporting experience. He is licensed as a Certified Public Accountant. At the final hearing, Petitioner admitted that she did not have experience in two of three areas that the Associate Controller would be supervising: financial statements/reporting and tax reporting.
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 Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 3rd day of May, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 3rd day of May, 2016.
The Issue Whether Petitioner had just cause to suspend Respondent without pay pending disposition of felony criminal charges.
Findings Of Fact The stipulations of the parties in the pre-hearing stipulation, the testimony presented, and the evidence received at the final hearing support the following Findings of Fact: Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Escambia County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. The School Board has the statutory responsibility to prescribe qualifications for positions of employment and for the suspension and dismissal of employees subject to the requirements of chapter 1012. At all times relevant to this proceeding, Respondent is a noninstructional support employee, who has been employed as a Custodial Worker I by the School Board since October 13, 2014. Mr. Warren worked 40 hours a week at Pine Forest High School. Mr. Warren’s position with the School Board is annual, rather than based on the academic school year calendar. During the regular school year, students are required to be on campus from 8:30 a.m. to 3:30 p.m. After the school day, there are students who remain at the school for various activities with clubs and organizations. While students are present, custodial workers complete their duties and work assignments throughout the school. On a regular school day students may be present at the school for clubs and organizations until as late as 9:00 p.m. Respondent works the 2:00 p.m. to 10:30 p.m. shift and would be present when students are present. The background regarding Respondent’s arrest arises from a dispute where it was alleged that he forged a quitclaim deed, transferring property from his uncle to himself. On May 9, 2017, Respondent was arrested. Thereafter, an information was filed against Respondent by the State Attorney’s Office alleging that he knowingly obtained or endeavored to obtain certain property of another valued at $20,000.00 or more, but less than $100,000.00, in violation of section 812.014(1)(a) and (1)(b), and (2)(b)1., a second degree felony. At the time of the final hearing, Respondent’s criminal case was pending final disposition. On May 18, 2017, Superintendent of the School Board, Malcolm Thomas, provided written notice to Respondent that he was suspended “with pay effective immediately . . . pending the outcome of an arrest for §812.014.2b1 [sic], F.S., a disqualifying offense.” The Superintendent’s letter did not provide authority for the Superintendent’s action. The Superintendent also cited no authority for his position that the alleged offense was a “disqualifying offense.” Also, on May 18, 2017, the Superintendent notified Respondent of his intent to recommend to the School Board that Mr. Warren be placed on suspension without pay beginning June 21, 2017. In his request to the School Board, the Superintendent stated that his recommendation was “based on conduct as more specifically identified in the notice letter to the employee.” Similar to the notice regarding the intended recommendation, the Superintendent cited no authority for his recommendation, nor his position that the alleged offense was a “disqualifying offense.” By letter dated June 21, 2017, Dr. Scott advised Respondent that the School Board voted to accept the Superintendent’s recommendation placing him on suspension without pay, effective June 21, 2017. As cause for Mr. Warren’s suspension without pay, Dr. Scott’s letter stated that it is “based on conduct as more specifically identified in the [Superintendent’s] notice letter to the employee.” Dr. Scott’s letter did not use the term “disqualifying offense,” nor did it cite any authority for the School Board’s action. Respondent had no history of disciplinary action during his employment by the School Board. In addition, Ms. Touchstone testified that Respondent “has been a good employee for us.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Escambia County School Board, issue a final order affirming suspension without pay of Respondent’s employment, pending disposition of his criminal charges. DONE AND ENTERED this 22nd day of December, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 22nd day of December, 2017. COPIES FURNISHED: Joseph L. Hammons, Esquire The Hammons Law Firm, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 (eServed) Mark S. Levine, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Ronald G. Stowers, Esquire Levine and Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Malcolm Thomas, Superintendent Escambia County School District 75 North Pace Boulevard Pensacola, Florida 32505 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
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.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent repay $216 in grant funds expended in a manner inconsistent with Department regulations. DONE and ENTERED this 22nd day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1982. COPIES FURNISHED: Sonja P. Mathews, Esquire Suite 117-Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Agnes Miramontes 301 North Oklahoma Street Bonifay, Florida 32425
The Issue The issue is whether General Electric Company (GE) engaged in an unlawful employment practice by discriminating against Petitioner, Shahla Evans (Evans), on account of sex or by retaliating against her for filing a complaint of sex discrimination.
Findings Of Fact At all times relevant to this proceeding, Shahla Evans was employed at GE's Simulation & Control Systems department in Daytona Beach, Florida. The Simulation & Control Systems department (SCSD) is part of GE's aerospace business group. Employees at SCSD are primarily engaged in the design, development and assembly of computer generated visual simulation systems and training programs and of automated ship control systems. GE and SCSD are employers within the definition relevant to this case. Evans received her master's degree in computer science from the University of Utah in 1974 and another master's degree in electrical engineering in Iran in 1970. After moving to Florida from California, Evans was hired by GE at a salary level 10 and began work at SCSD on August 16, 1982. In her previous job she had excellent reviews and had in excess of ten years of experience in engineering and two years as an instructor and teaching assistant prior to coming on board at the GE's Daytona Beach facility. Evans' technical abilities and intellect rendered her an extremely talented engineer. Although Evans was initially offered a position at SCSD as a senior engineering programmer analyst, she did not accept the job because she was afraid it was too regimental and required too much programming. Prior to informing GE of her decision, however, she was contacted and interviewed by Dr. Richard Economy, SCSD's manager of advanced engineering. Unaware of the outstanding offer until their interview, Dr. Economy offered Evans a position in research & development, which she accepted. Dr. Economy extended the job offer based on Evans' resume and his belief that she was talented and could be a contributor to the company. The Simulation & Control Systems department is divided into sections, subsections and units. During the relevant time frame, Dr. Economy was the manager of advanced engineering, a subsection of the engineering section. The advanced engineering subsection consisted of four units. Until mid-1986, Evans received good to excellent evaluations, but notations consistently showed a need for improvement in the areas of negotiating, particularly in selling a product, taking a more diplomatic approach to leadership, and integrating her work with related projects. In 1985 she was promoted to level 11 and rated as progressing upwardly in her subsection. Dr. Economy recommended Evans for a promotion to level 12 in early 1986, however that recommendation was never approved. Until mid-1986, Evans' work involved Research and Development in Data Base Generations Systems (DBGS). At times the thrust of the DBGS Research and Development was to unify the Data Base Generation Systems. At that point the Research and Development Project was called Unified Special Modeling Systems (USMS). The thrust of Evan's work always involved Research and Development on Data Base Systems. She was a leader of the Data Base Research and Development effort under Dr. Economy. In May, 1986, Dr. Kenneth Donovan became Evans'unit manager. At the time, Evans and Barry Fishman, a white male, were co-managers of the database research & development project. During the latter part of 1986, Dr. Donovan took over the project manager role for the database area and another project in the advanced engineering architectural area. Although Evans and Fishman were still considered the leaders of the database project, Dr. Donovan became the overall manager of the project and remained the functional manager of the unit to which Evans was assigned. During the 1986-87 time frame, the business needs at SCSD changed from an internal focus on projects and research to applying research to the products SCSD was producing. These changes required significant communication between Evans and Fishman and other engineers outside the database project. In June of 1987, Evans' performance was evaluated by Dr. Donovan. In this performance evaluation, Dr. Donovan addressed certain areas of Evans' performance that needed improvement in order for her and the database project to succeed. The areas noted by Dr. Donovan were Evans' ability to communicate and negotiate with people outside her project in order for them to understand the project's needs and requirements. Sometime in the latter part of 1987, Dr. Donovan proposed that Evans assume the project manager role of the database area in 1988. This proposal was made in conjunction with a career planning discussion between Dr. Donovan and Evans. In the fourth quarter of 1987, Dr. Donovan sought the assistance of Evans and Fishman in drafting the 1988 plan for the database research & development effort. As a result of meetings and discussions between Dr. Donovan, Evans and Fishman, it was apparent to Dr. Donovan that changes he had proposed for the project in 1988 were viewed by Evans and Fishman as unrealistic. Based on Dr. Donovan's perception that Evans had not made sufficient progress in the development needs he identified in the 1987 performance evaluation in terms of communication skills, willingness to negotiate, and a willingness to determine the needs of other projects, and because of Evans' handling of the interchanges with other project leaders, he did not feel she was suited for the project manager role at that time. Several memoranda were generated regarding the work necessary to finalize the 1988 plan. These memoranda, which are Petitioner's exhibits 7, 8 and 10, bear the names of Evans and Fishman and were distributed to Dr. Donovan, Dr. Economy and others. Although Fishman, and not Evans, drafted these memoranda, Evans agreed with their content and allowed them to be distributed with her name on them. Dr. Donovan responded to those memos from Evans and Fishman on February 9, 1988. On March 14, 1988, Dr. Donovan wrote Evans a memo entitled "Unsatisfactory Performance." Prior to this memo, Dr. Donovan had had several discussions with Evans regarding what Dr. Donovan felt were areas Evans needed to improve in order to build the support necessary to get the database project incorporated into GE's products. Dr. Donovan cited several events that concerned him, some of which were the three memoranda from Evans and Fishman. The March 14, 1988, memo addressed certain actions by Evans which were not constructive to the database project and were even derogatory towards the professionalism and views of other engineers. The memo indicated that Evans' behavior must change and that Dr. Donovan desired to meet with her as soon as possible to discuss the situation. Dr. Economy concurred with this memorandum. Dr. Donovan did not send a similar memo to Fishman because he was not Fishman's unit or functional manager. During that time, Fishman was in a unit managed by Randy Abidin. As Fishman's unit manager, Abidin believed the best way to address the derogatory comments and negative tone of the memos was in a direct meeting with Fishman. Although Fishman does not have a clear recollection of the memos being addressed by Abidin, he recalled a meeting with Abidin during this time frame where Abidin referred to problems between Evans and Dr. Donovan. Abidin told Fishman in a face to face meeting that the memos were unprofessional and to cease writing them. Dr. Donovan never took any action with respect to the USMS project that affected Evans only. Any changes in the direction or breadth of the project affected Barry Fishman just as much as Evans. On March 22, 1988, Evans sent a letter to the manager of SCSD's personnel department, Robert Tucker. In that letter, Evans complained about Dr. Donovan's March 14, 1988 memo. Nowhere in that letter did she complain that she believed she was a victim of gender discrimination. Mr. Tucker referred Evans' March 22, 1988, letter to Wayne Norfleet for a reply. Mr. Norfleet has been in employee relations with GE for 25 years. Through Norfleet's assistance, a meeting between Evans and Dr. Donovan was arranged in order to allow both of them the opportunity to air their grievances, concerns and criticisms of each other in a face to face session. Dr. Donovan documented the discussion process with a note and letter to Evans on May 16, 1988. Dr. Donovan was willing to continue the process; however, at Evans' request, she was transferred to a different unit in advanced engineering headed by Stanley Urbanek. This transfer took place in the summer of 1988. In June of 1988, Dr. Donovan became a consultant with the company and no longer had any supervisory responsibilities over Evans. After her transfer to Mr. Urbanek's unit in the summer of 1988, Evans continued to do the same work as before. GE has a policy that allows exempt employees such as Evans to self- nominate for open positions in the department. During 1988 and the early part of 1989, Evans applied for several posted positions. Ms. Evans was not selected for any posted position for which she applied. The persons selected for the positions were all males. The only position for which she applied that was the subject of much evidence was the position of Advanced Course Supervisor. While Evans was equally qualified on paper, Don Rollins was hired for that position because of his outgoing personality, his history of thoroughness and technical achievement, his performance as a student in the advanced courses, and his communication skills. Evans did not have a good interview for the position. No evidence was presented to show any discriminatory motive in GE's personnel selections for these positions. Evans remained in Urbanek's unit and continued to work on the USMS project until October, 1988. After Dr. Donovan's transfer, Dr. Economy selected Bob Ferguson to be project manager in the database area. Ferguson was selected for the project manager role because the USMS activity Evans had been working on was perceived by management not to be broad enough to cover all of GE's image generator business activities. Because Ferguson had image generator experience, he was selected. Because of Ferguson's concern about Evans' focus in research and development, he did not select her to work on the database project. Although Fishman was approached and asked to work part time on the project, he refused this offer. Ms. Evans claims that she was advised on two occasions by her managers to leave GE, once by Dr. Economy and then again by Mr. Urbanek. The managers who are alleged to have told Evans this deny any such statement. They both testified that leaving the company was mentioned in passing with Evans as a career option that any employee could choose if they were dissatisfied with the circumstances of their employment. Evans was openly expressing such dissatisfaction. After Dr. Donovan left the unit manager position in 1988, Dr. Economy acted as unit manager until March of 1989 when he selected Michael Nelson to fill the position. On at least two occasions, Nelson attempted to assign tasks to Evans. On both occasions, Evans told Nelson that she did not want to do the tasks. She told Nelson she was more qualified for other kinds of jobs and that she should be doing managerial type of work. She believed the tasks to be programming and she did not want to do programming. In April, 1989, Evans filed a complaint with the Florida Commission on Human Relations. In the complaint, Evans charged that projects were taken away from her and she was not being given any work, all because she was a female. From January, 1988, through September of 1989, Evans claims that she spent most of her time doing technical and professional studies and received no assignments from any GE managers. GE's aerospace business began a downturn in 1987, and by 1989, SCSD had more employees in advanced engineering than its business could accommodate. In the spring of 1989, GE identified several employees to be laid off. Other employees were transferred to different areas of the department. Evans was considered for layoff in 1989, but considering its affirmative action responsibilities, GE chose not to place Evans on lack of work status. In August, 1989, Dr. Economy told Evans that she should go see Tim Connolly because he had a job for her. Mr. Connolly was the manager of systems engineering, which is another subsection of the engineering section at SCSD. Dr. Economy encouraged Evans to take this job. Because of reductions in his subsection, Dr. Economy did not have a position for her in advanced engineering. Mr. Connolly's subsection was in charge of upgrading the software system from a microcomputer environment to a network environment in order to incorporate the database system into the product for delivery to customers by the end of the year. From discussions with Dr. Economy, Connolly was aware that there had been a relationship problem between Dr. Donovan and Evans. Connolly was not aware until told by Evans, however, that she had filed a discrimination complaint against the company. Ms. Evans claims that she made it clear to Mr. Connolly prior to accepting a position in his subsection that she would not do programming work. Prior to officially accepting a position in Connolly's subsection, Evans spoke with Mr. Urbanek, who was to be her unit manager. Although Evans claims to have informed Urbanek that she would not do any programming, Urbanek recalls that Evans said she did not want to be a programmer. Mr. Urbanek and Evans discussed the fact that essentially all of the positions in his unit involved some aspect of software engineering or programming. A programmer is an employee whose entire job consists of operating a keypunch machine. A programmer takes a design given to them by someone else and puts it into programming language. On the other hand, a software engineer is someone who designs and selects requirements for other aspects of software engineering. Part of a software engineer's tasks includes programming. Evans officially joined Connolly's subsection on September 11, 1989. Prior to her joining Connolly's subsection, Urbanek was transferred. Accordingly, Evans reported directly to Connolly after she joined the advanced database engineering unit. Upon joining the unit, Connolly gave Evans tasks to be accomplished. Ms. Evans' initial reactions was that she did not want to perform many of the tasks because they involved programming. According to Connolly, the tasks were high level systems tasks that required implementation and testing of the computer systems in order to put the systems in the product for sale to the customer. Ms. Evans felt that the tasks assigned to her constituted a demotion. She felt like she was not qualified to do the tasks and she did not understand the system. While she was capable of doing tasks involving some programming, Evans simply believed that she should not have to do any programming. Ms. Evans told Mr. Connolly that she would not and could not do the tasks he assigned her. Upon learning that Evans needed more time to understand how the system worked, Connolly agreed to give her more time, and in fact, gave her more time to understand tasks than any person that had come into his area from another area. Because of Evans' continued refusal to do the work assigned and because in several of the conversations between her and Connolly she made outbursts about the assignments and GE in general, Connolly went to see Norfleet in employee relations. Norfleet recommended that a work package be put together that involved tasks indisputably within Ms. Evans' expertise and skill level. It was decided that if Evans refused to accept the assignment, it would be explained to her that he actions left Connolly no choice but to recommend that she be terminated. After Connolly's meeting with Norfleet, Connolly assigned Evans a detailed design, implementation, validation and documentation task involving DMA manuscript files. Ms. Evans refused to do this task. These tasks were within her expertise, training and experience. Mr. Connolly told Evans that she should go home and consider the consequences of her refusal to perform the work assigned to her. When she returned the next day, she again refused to perform any task involving detailed design, implementation, validation or documentation, because she incorrectly classified the tasks as being programming. After seeking and receiving the approval of his immediate manager, Connolly notified Evans that her employment was terminated on October 6, 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order determining that Shahla Evans has failed to establish that GE discriminated against her on the basis of her sex in the decisions affecting her employment. DONE and ENTERED this 23rd day of October, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NOS. 91-6396 AND 91-6879 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Shahla Evans 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 3(1); 4&5(2); 6&7(3); 8(4); 9(5); 11(5); 12(2); 19&20(7); 24(8); 30(9); 31(10); 107(42); and 127(50). 2. Proposed findings of fact 1, 2, 13-17, 21, 23, 25, 34-36, 40- 50, 52-54, 57-68, 72, 75-89, 95, 98-104, 106, 108, 113, 115- 118, 122-126, 128-131, 136, 137, 139, 140, 142-149, 152-155, 157-160, 164, and 165 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 10, 18, 22, 27, 28, 32, 33, 37-39, 51, 55, 56, 69-71, 73, 74, 90-94, 96-both 97s, 105, 111, 112, 114, 119-121, 132-135, 138, 141, 151, and 156 are unsupported by the credible competent and substantial evidence. Proposed findings of fact 26, 29, 109, 110, 150, and 162 are irrelevant. Proposed findings of fact 161, 163, and 166-168 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, General Electric Company 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3-5(4-6); 6-10(11-14); 11-15(15-18); 16-25(19-27); 26-30(28-31); 31-34(32-34); 35- 49(35-47); and 50-63(48-61). COPIES FURNISHED: Rick Kolodinsky Attorney at Law 1055 N. Dixie Highway, Suite 1 New Smyrna Beach, Florida 32169 Francis M. McDonald, Jr. Attorney at Law Olympia Place, Suite 1800 800 North Magnolia Avenue Post Office Box 2513 Orlando, Florida 32802-2513 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
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.
