Findings Of Fact Based upon my observation of the witnesses-and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: At all times material hereto, the Respondent held teaching certificate number 516212, issued by the Department of Education for the State of Florida. The Respondent's teaching certificate covers the area of substitute teacher. During first period on October 30, 1984, Mr. Mark Fisher, a teacher at Nautilus Junior High School in the Dade County School District, called Dr. Frederick, assistant principal in charge of curriculum, to advise that he was ill and needed to leave school. Mr. Fisher's teaching assignment consisted of five regular classes of industrial arts and one class of crafts with special education students. The special education class was held during the sixth period, from 3:00-4:00 p.m. Ten students were assigned to the sixth period class. The category of special education students in the class included learning disabled, educationally mentally handicapped and emotionally handicapped children. The Respondent was called to substitute for Mr. Fisher at the end of the first period on October 30, 1984. The Respondent reported to the Nautilus Junior High School at approximately 11:00 a.m. and was assigned to Mr. Fisher's class, Room 141. The Respondent had previously substituted at Nautilus Junior High School on October 9, 1984. On that day, Dr. Frederick reviewed the guidelines for emergency substitute teachers with the Respondent. The Respondent signed the guidelines certifying that he had read and understood the school's procedures. The Respondent received a written assignment when he reported to Nautilus Junior High School on October 30, 1984. The assignment specifically noted that the sixth period class was a special education class. Prior to leaving the classroom, Mr. Fisher wrote the lesson plans for his various classes on the black board. After the 5th period class was over and immediately prior to the commencement of the 6th period, anywhere from one to four students who were not regularly assigned to Mr. Fisher's class entered room 141. When the bell rang for the commencement of the 6th period class the Respondent called roll. There were ten students assigned to the class. Eight students responded to the roll call and the Respondent marked two students absent. After roll was called, the Respondent allowed the students to work on their projects. The students went to a closet, retrieved their projects and began working on them. The students were situated at work benches in the class actively working on projects which involved sanding, gluing, nailing and similar processes. The students were not allowed to use any of the electrical equipment or power tools. The students' activity involved a certain amount of movement within the classroom such·as standing up, comparing projects and going to the supply closets for more paste and other materials. At some point during the class period D.W., a female student, went into a closet located in the rear of the classroom. While D.W. was in the closet two male students, at separate times, went into the closet with her. While in the closet, D.W. had oral sex with at least one of the boys. While D. W. and the boys were in the closet, several other students went over to the closet and looked in. One of the students in the class got a stool and stepped up and looked through a hole at the top of the closet door. Two other students also stood on the stool and looked into the closet. (Although D.F. testified that he was on the stool for five to ten minutes, his testimony as to the amount of time that he was standing on the stool was not persuasive. Likewise, his testimony was neither clear nor persuasive enough to determine whether the two other students went back and stood on the stool at the same time or whether they went back separately.) The testimony concerning the amount of time that D. W. and the other students were in the closet was not persuasive and it is impossible to determine the amount of time that D. W. and the other students spent in the closet. Several days following the incident, D.W. informed Ms. Spearman, a special education teacher, about what had happened during the 6th period class on October 30, 1984. Official recognition was taken of the fact that two boys and one girl entered guilty pleas to charges arising from the incident of October 30, 1984. Room 141 is specially designed to be utilized as an industrial arts or "shop" class. Room 141 is larger than typical classrooms at Nautilus Junior High School. According to the diagram introduced as Petitioner's Exhibit 2 and included herein as Appendix B, the entrance is located in the upper northwest corner of the classroom. The teacher's desk is located in the extreme northwest portion of the classroom next to the main entrance. The classroom is approximately 69 feet long (east to west) and 43 feet wide (north to south). There are several cupboards or closets located along the front of the west side of the classroom and a walk-in closet located in the upper northeast corner. The doors of the walk-in closet face to the south. The rear closet is approximately 15 feet deep, 8 feet high and 8 feet wide. The rear closet has double doors and at the top of the right door there is a small cutaway portion in a rectangular shape. Wood supplies are kept in the rear closets and other , types of supplies are kept in the forward closets. The classroom contains two work tables, nine work benches and one bench saw. The teacher's desk faces the work tables and work benches. The Respondent was unable to see the front part of the rear closet from where he was sitting at the teacher's desk. The Respondent first obtained his teaching certificate for substitute teaching from the Department of Education for the State of Florida in December of 1981. The Respondent substituted at over fifty different schools in Dade County and was teaching on the average of four to five days a week prior to the incident on October 30, 1984. The Respondent was employed on numerous occasions as a substitute teacher at Biscayne Elementary School in Dade County, Florida, during the years 1982, 1983, and 1984. According to Ms. Glick, the principal of that school, the Respondent's work was very satisfactory and to her knowledge, there were no incidents in any of his classes involving student misconduct nor were there any complaints about his teaching ability. The Respondent was called to teach frequently at Biscayne Elementary School because his work was satisfactory and he was "pleasant to the children and related well to the rest of the staff." The Respondent served as a substitute teacher at Comstock Elementary School in Dade County several times during the period of 1983-1984. Mr. Levin, the principal at that school, observed the Respondent on several occasions while working at Comstock and each time the Respondent was observed, the students in his classes were involved in a learning process, there were no disciplinary problems and the students seemed to like him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed. DONE and ORDERED this 16th day of December, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1986. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 David Rappaport, Esquire 265 Northeast 26th Terrace Miami, Florida 33137 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301 Karen B. Wilde Executive Director Education Practices Commission 215 Knott Building Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 4. 3. Adopted in Finding of Fact 5. 4. Adopted in Finding of Fact 2. 5. Adopted in Finding of Fact 3. 6. Adopted in Finding of Fact 4. 7. Adopted in Finding of Fact 8. Rejected as subordinate. Partially adopted in Findings of Fact 5 and 6. Matters not contained therein are rejected as recitation of testimony. Rejected as a recitation of testimony. Rejected as argument and/or a recitation of testimony. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as a recitation of testimony. Adopted in Finding of Fact 141. Adopted in substance in Finding of Fact 8. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as not supported by competent substantial evidence and/or a recitation of testimony. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 12. Matters not contained therein are rejected as not supported by competent substantial evidence and/or a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as subordinate and/or a recitation of testimony. Rejected as subordinate. Adopted in Finding of Fact 15. Rejected as a recitation of testimony. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 19. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 6. Rejected as subordinate. Adopted in Finding of Fact 3. Rejected as subordinate and/or unnecessary. Rejected as a recitation of testimony. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in substance in Finding of Fact 10. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17. Rejected as a recitation of testimony. Rejected as subordinate. Rejected as subordinate. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Partially adopted in Finding of Fact 15. Matters not contained therein are rejected as subordinate. Rejected as subordinate and/or unnecessary. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as subordinate and/or unnecessary.
The Issue The issue is whether Respondent discriminated against Petitioner because of his disability by refusing to renew Petitioner’s contract for employment.
Findings Of Fact Respondent is a private university located in Pasco County, Florida (Saint Leo or the university). Respondent employed Petitioner as an assistant professor from sometime in January 2000 until the end of the 2005-2006 school year in May 2006. Petitioner initially taught sports management courses in the Business Department of Saint Leo and, following the university reorganization, taught sports management courses in the Sports Management Department of the School of Business (the Department). The Charge of Discrimination and Petition for Relief allege, in relevant part, that Respondent violated Section 760.10, Florida Statutes (2004), when Respondent allegedly discriminated against Petitioner because of Petitioner's handicap. Neither the Charge of Discrimination nor the Petition for Relief expressly allege that Respondent violated the Americans with Disabilities Act (ADA) of 1990, Pub. L. No. 101-336, 104 Stat. 328, codified as amended at 42 U.S.C. Sections 12101-12213 (2000). However, judicial decisions discussed in the conclusions of law instruct the trier of fact to make findings in a manner that is consistent with the ADA.1 Petitioner is a person with a handicap within the meaning of Subsection 760.10(1)(a), Florida Statutes (2000). Petitioner was paralyzed in an automobile accident on December 19, 2001, and is a disabled person within the meaning of 42 U.S.C. Section 12112 (2004). Petitioner is a qualified person within the meaning of 42 U.S.C. Section 12111(8) (2004). Petitioner is a person with a disability who can perform the essential functions of a tenured employee. Petitioner was qualified for the position for which Respondent employed Petitioner in January 2000. Petitioner received his doctorate of education in sports management from the United States Sports Academy in 1990. Although Petitioner had no prior experience teaching at the college level, Petitioner was the only doctorate teaching sports management courses in the Business Department of the university when Respondent employed Petitioner in January 2000. At the time, Respondent needed a doctorate to teach sports management courses in order to satisfy the accreditation requirements of the Southern Association of Colleges and Schools (SACS). Respondent does not allege that Petitioner is not qualified to perform the requirements of a tenured employee. Respondent argues, and submitted evidence intended to prove, that Petitioner either lacked the motivation to perform the required job duties or simply refused to perform those duties. On November 12, 2004, Respondent notified Petitioner that Respondent would not renew Petitioner’s teaching contract at the end of the 2005/06 school year. The refusal to renew Petitioner's teaching contract was an adverse employment action. There is no direct evidence that the adverse employment action was motivated by discrimination. However, the circumstantial evidence, taken as a whole, supports a reasonable inference by the trier of fact that the adverse employment action was motivated by both legitimate non-discriminatory and discriminatory reasons. Legitimate non-discriminatory reasons, in part, motivated the adverse employment action against Petitioner. When a third-year review of Petitioner's job performance began on August 26, 2004, Petitioner had not prepared sufficient papers for conferences, had not demonstrated consistency in presenting papers at conferences, and had not served on any conference panels. Petitioner had not published a sufficient number of articles or books and had not engaged in sufficient scholarly research. Petitioner did not submit any paper or abstract to present at a conference until June 2004. The first paper was accepted for publication in November 2004. In September 2004, Petitioner had his first test bank accepted for inclusion in a textbook published by another author. Petitioner utilized at least one course syllabus that was below grade level. The syllabus included some grammatical errors and inaccurate information. Petitioner episodically cited incorrect facts during class. Petitioner was occasionally late to class for up to five minutes. Petitioner frequently read from the textbook when lecturing students. Petitioner sometimes did not give prior notice to his supervisor of his unavailability for a class. The supervisor was unable to arrange for a substitute. Petitioner sometimes cancelled classes without providing class notes for the substitute. Petitioner failed to maintain consistent office hours for academic advice of students. One faculty member in an adjacent office provided academic advice to Petitioner's students in Petitioner's absence. Petitioner failed to attend a meeting in Atlanta, Georgia, as a reviewer on a national council chaired by Petitioner's supervisor. Petitioner did not ascertain the correct starting time or location of the meeting. The failure to attend the meeting in Atlanta caused the council to be short a reviewer for one year. The inclusion of Petitioner as a reviewer on the council would have provided Petitioner with an opportunity to improve his national reputation and meet many influential people in his field of employment. Record evidence supports a reasonable inference that discriminatory reasons, in part, motivated the adverse employment action against Petitioner. Two of four evaluators in the third-year review of Petitioner's job performance that began on August 26, 2004, referred to Petitioner's disability in their formal evaluations. The two evaluators testified at the hearing that Petitioner's disability did not influence their evaluations. Their testimony is neither credible nor persuasive to the trier of fact. The testimony of the two evaluators, among other considerations, is not plausible. The testimony does not adequately explain why the evaluations address Petitioner's disability if the evaluators disregarded the disability in evaluating Petitioner.2 The immediate supervisor of Petitioner commented on Petitioner's disability in her third-year evaluation of Petitioner. The supervisor stated she was "extremely disappointed" during the previous academic year when Petitioner declined her request to "be a role model and show our students what individuals with handicaps could achieve." The supervisor further explained in her evaluation that "disability sport has - become a major segment of - our sport business industry - and there are many career opportunities for students in this area." The supervisor further stated in her third-year evaluation of Petitioner that she could not "fully understand what it is like to have [Petitioner's] disability." However, the supervisor stated that she had "worked with physically challenged individuals for approximately 16 years, and they never ceased to amaze [her] at what they could do." One of three outside evaluators also included references to Petitioner's handicap in the third-year evaluation of Petitioner. The evaluator devoted approximately one-third of the evaluation to a discussion of his experience working with one disabled colleague who had been seriously injured in a motorcycle accident and was, like Petitioner, wheelchair bound. After recounting the many laudable accomplishments of the evaluator's disabled colleague after becoming disabled approximately 12 years ago, the evaluator stated that his disabled colleague did not consider himself disabled. The evaluator explained that his disabled colleague "never makes excuses for his special challenge nor does he ask or demand special considerations due to his situation." The evaluator went on to compare Petitioner's paralysis with the evaluator's self-proclaimed "disability" following open heart surgery. The evaluator stated that he had undergone open heart by-pass surgery and did not let his "disability" prevent him from achieving performance standards. After recounting numerous professional accomplishments after his surgery, the evaluator explained: The reason I have provided this information is not to brag but rather to illustrate that if one has a positive attitude about life he/she can do anything he/she wishes whether or not they are disabled. A disability is an extra challenge in life not a sentence to do less. I have not let my disability negatively affect my career. Respondent's Exhibit 44 at 4. When prima facie evidence shows that an adverse employment action is motivated by both non-discriminatory and discriminatory considerations, an employer does not escape liability under the ADA on the ground that the adverse employment action was not motivated "solely" by prohibited discrimination. Rather, judicial decisions discussed in the conclusions of law require the trier of fact to apply a so- called motivating-factor standard, or mixed-motive standard.3 The motivating-factor standard requires the trier of fact to determine whether the prohibited discriminatory motive made the difference in the decision to take the adverse employment action.4 The motivating factor standard has been judicially explained as a "but-for" standard.5 Liability for prohibited discrimination requires the trier of fact to find that Respondent would not have taken the adverse employment action but-for the prohibited discrimination. The but-for standard requires the trier of fact to determine whether the evidence supports a reasonable inference that Petitioner's failure to comply with performance standards for tenure was caused by his handicap.6 If the evidence supports such an inference, the adverse employment action would not have been taken but-for the prohibited discrimination. The record evidence supports a reasonable inference that Petitioner's failure to comply with performance standards for tenure by the beginning of the third-year review on August 26, 2004, was caused by his handicap. The inference is supported, in relevant part, by comparing the record evidence of Petitioner's performance during his employment before his disabling accident on December 19, 2001, with Petitioner's performance from the date of the accident until the beginning of the third-year review on August 26, 2004. Prior to the accident on December 19, 2001, Petitioner taught classes at Saint Leo for four semesters.7 Petitioner received four evaluations by three different evaluators. Even though it was Petitioner's first teaching experience at the college level, all but one of those evaluations rated Petitioner's job performance as "outstanding." The one exception rated Petitioner's job performance in his first year as "satisfactory." In the second year, however, the same evaluator rated Petitioner's job performance as "outstanding." The supervisor for Petitioner during the first and second academic years of employment was the acting chair of the Business Department at Saint Leo. The supervisor rated Petitioner's job performance during the first year as "satisfactory." However, a second-line evaluator who was also a dean at Saint Leo rated Petitioner's job performance during the first year as "outstanding." In the second academic year, the supervisor rated Petitioner's job performance as "outstanding." The supervisor found that Petitioner was "developing into a highly competent and effective classroom teacher." An outside evaluator retained to evaluate Petitioner during the second academic year found that Petitioner had made "positive contributions to [the] sport management program." The evaluator recommended that Respondent retain Petitioner based on Petitioner's academic background, sport management experience, and teaching performance. Prior to the accident, Petitioner was selected to serve on the Panel of Reviewers for the Sport Management Program Review Council (SMPRC) to review institutional portfolios. The selection provided Petitioner with an opportunity for professional development, an improved national reputation, and enhanced professional relationships. However, the opportunity was postponed due to the accident that paralyzed Petitioner. On January 29, 2002, Petitioner received a fifth evaluation by a fourth evaluator. The dean of the School of Business (the Dean) evaluated Petitioner's job performance for the four academic semesters that Petitioner worked before the accident. The Dean found that Petitioner was: cademically competent and very committed to Saint Leo University and the well being of his students. Stewart is relatively new to university level teaching and the expectations associated with this level of performance. His classroom manner is casual yet he holds the students to high performance standards. Stewart will need to identify an area of research interest and begin to prepare papers for the conferences in his discipline. I approached him with an idea and a willingness to co-author a paper. Unfortunately, due to his accident, Stewart will be involved full-time for the next six months in rehabilitation and relearning. Stewart has excellent potential to develop into an effective senior faculty member. Respondent's Exhibit 10. After the accident on December 19, 2001, Petitioner taught three academic semesters before his third-year review that began on August 24, 2004, and led to the adverse employment action on November 12, 2004. During the semester that began in January 2002, Petitioner was on medical leave to undergo surgery and recover. Petitioner worked during the semester that began in August 2002, but returned to medical leave during the semester that began in January 2003 in order to undergo additional surgery. Petitioner worked the two semesters that began in August 2003 and January 2004. On August 24, 2004, at the start of the fourth semester of work after the accident, Respondent began the third-year review that led to the adverse employment action on November 12, 2004. During the three semesters that Petitioner worked between the accident and the start of the third-year review, the Dean, who evaluated Petitioner on January 29, 2002, did not pursue the idea he had described for co-authoring a paper with Petitioner. Petitioner was learning to adjust to life in a wheel chair. Petitioner experienced, and continues to experience, a great deal of pain unless Petitioner takes pain medication. Petitioner has also had to learn new toileting skills and has expressed embarrassment over his condition. Petitioner did not attend the council meeting in Atlanta, Georgia, because he became confused over the correct time and location of the meeting. Petitioner did not make a volitional choice not to attend the meeting. On December 5, 2003, Dr. Michael Moorman was Petitioner's immediate supervisor. Dr. Moorman found that the quality of Petitioner's classroom teaching was "outstanding." After December 5, 2003, Respondent changed the job performance standards for employees teaching sports management courses at Saint Leo.8 While Petitioner was on medical leave, each school at Saint Leo designated a program as a "flagship" program. Each flagship program would be funded and supported in an effort to enable the program to grow into a nationally recognized program that would serve as a paragon for other Saint Leo programs to emulate. The job performance requirements in each flagship program were also intended to establish a standard for emulation by other programs. The School of Business designated the Sport Management Program as its flagship program and reorganized the program into the Sport Management Department. In February 2003, Respondent commissioned an outside study of the Department. The study concluded that the Department lacked academic rigor, failed to challenge students, and was poorly organized for the purpose of becoming a flagship program for Saint Leo. Respondent searched for a nationally known professor to chair the Department. Respondent wanted someone who could make the necessary curriculum changes, improve the Department's national recognition, increase the academic rigor of the Department, and enhance the national reputation of its professors, including Petitioner. In August 2003, Respondent selected a person to chair the Department. After December 5, 2003, the new chair succeeded Dr. Moorman as Petitioner's immediate supervisor. The new chair found, during the academic semester that began in January 2004, Petitioner did not meet the job performance requirements of the new flagship Department of Sport Management. One deficiency the chair described in her third- year evaluation of Petitioner pertained to errors in a syllabus used by Petitioner. For example, the syllabus continued to use the title "Saint Leo College" instead of "Saint Leo University." The new chair confided to an associate in the Department that the vice president of Academic Affairs (Vice President) had told the new chair in so many words that Petitioner would have been fired long ago if Petitioner had not been in a car accident. The associate testified to the statement she attributed to the new chair, and the associate's testimony is found to be credible and persuasive. The Vice President denied making the statement to the new chair during his testimony, and that portion of his testimony is found to be credible and persuasive. The statement attributed to the Vice President that he would have fired Petitioner but-for the accident conflicts with the predominantly "outstanding" job performance of Petitioner prior to his accident. The testimony of the new chair also conflicts with two evaluations of Petitioner's job performance by different deans on January 29, 2002, and December 5, 2003. Both of those evaluations occurred after the accident, but before the new chair became the immediate supervisor of Petitioner sometime after December 5, 2003. It is more likely that the new chair expressed her own view that the university was holding Petitioner to a lower standard of job performance because of his disability. When the third-year review process began on August 26, 2004, Petitioner was no longer the only doctorate employed in the Department. However, he was the only disabled doctorate employed in the Department. The record evidence supports a reasonable inference that Respondent required Petitioner to comply with standards exemplified by unidentified disabled persons described in two of the four third-year evaluations of Petitioner.9 Respondent did not require non-disabled employees to comply with similar standards. The Vice President testified that the references in the evaluations to standards exemplified by other disabled persons did not influence his decision to take the adverse employment action on November 12, 2004. That portion of the testimony of the Vice President is neither credible nor persuasive. The Vice President, in relevant part, relied on the third-year evaluations. His denials of influence conflict with other relevant evidence. Before the Vice President began the third-year review process on August 26, 2004, he conferred with the new chair and reviewed Petitioner's record, including Petitioner's record of "outstanding" performance on or before December 5, 2003. In a letter to Petitioner dated August 26, 2004, the Vice President told Petitioner, in relevant part, that he had "serious concerns regarding your performance." The Vice President instructed the Dean and the new chair to "carefully monitor" Petitioner's "teaching and professional development activities in the fall semester of 2004." However, neither the Dean nor the chair monitored Petitioner's activities, and the Vice President initiated the adverse employment action on November 12, 2004, prior to the conclusion of the fall semester. Respondent applied a different timeline to Petitioner's tenure track than the timeline that Respondent generally applied to the tenure track of other employees. Tenure track employees may apply for tenure after their fifth year of employment, but may apply no later than their seventh year of employment. Most tenure track employees apply for tenure during their sixth year of employment. Employees on tenure track at Saint Leo receive annual contracts for their first, second, and third years of employment. Tenure track employees that receive a favorable third-year review are given a two-year employment contract after the third and fifth years of employment. Petitioner began his tenure track in January 2000. The seventh year of his tenure track would have expired at the end of the academic semester in December 2006.10 The third year of Petitioner's tenure track would have expired at the end of the academic semester in December 2002. Due to the accident on December 19, 2001, however, Respondent extended the time for the third-year review until August 26, 2004. The extension provided Petitioner with seven academic semesters, rather than six, before the third-year review began.11 Although Respondent extended the time for beginning the third-year evaluation, Respondent did not extend the seven- year limit for tenure. Respondent thereby reduced the time after the third-year evaluation in which Petitioner had to correct his deficient job performance to a period less than that enjoyed by non-disabled employees. Other tenure track employees normally have 14 academic semesters in which to complete their seven-year tenure track. Upon the expiration of six academic semesters, Respondent conducts a third-year evaluation. A tenure track employee then has eight more academic semesters, or four academic years, in his or her tenure track. Respondent reduced Petitioner's tenure track by a semester when Respondent terminated Petitioner's employment at the end of the academic semester in May 2006, rather than at the end of the academic semester in December 2006. By extending the third-year evaluation by a semester and reducing the remaining tenure track by an additional semester, Respondent reduced by one year the period that non-disabled tenure track employees have after their third-year review to complete their tenure track requirements. The Vice President has conducted third-year reviews on approximately 20 tenure track employees at Saint Leo since 1997. He has terminated the employment of two of those candidates. Petitioner is one of the two terminated from employment. The Vice President acknowledged in his testimony that he may have given Petitioner more time if the adverse employment decision were based solely on research and acceptable publication levels. Petitioner's teaching performance on and before December 5, 2003, was predominantly "outstanding." Moreover, one of the outside evaluators found that syllabi deficiencies were nothing that could not be easily corrected. Another evaluator found the syllabi "are consistent with guidelines established by NASSM/NASPE." It is unlikely, therefore, that the adverse employment action was motivated by job performance deficiencies in teaching, research, and syllabi. The Vice President relied on findings of evaluators that evaluated Petitioner, in relevant part, on Petitioner's inability to comply with standards exemplified by other disabled persons. The Vice President articulated no intelligible standards he used for discerning whether, or to what degree, the disability of Petitioner influenced the negative opinion of the evaluator. Moreover, the Vice President did not undertake an independent determination of whether Petitioner's handicap prevented Petitioner from complying with applicable job performance requirements by August 26, 2004. The job performance requirements for tenure are prescribed in the Collective Bargaining Agreement (CBA) and a Faculty Handbook (FHB). The CBA provides, in relevant part: Promotion and tenure decisions at Saint Leo University are made on the basis of documented and evaluated performance in three areas: (1) teaching; (2) scholarly growth [sic] (3) institutional and community service. (a) Tenure and Promotion: The primary criteria for decisions regarding reappointment, tenure and promotion are excellence in classroom teaching and in facilitating student learning. Teaching Faculty must demonstrate excellence in teaching, a part of which is academic advising. Teaching faculty must demonstrate excellence in either (1) scholarly growth or (2) institutional and community service. Scholarly growth may be demonstrated through professional development and/or research. The definition of professional development and scholarly research will be determined by the relevant School. The University will recognize both traditional and non- traditional means of demonstrating professional development and/or research. Respondent's Exhibit 1 at 44. The FHB describes guidelines for promotion and tenure applications in terms similar to those in the CBA. The FHB provides, in relevant part: Promotion and tenure decisions at Saint Leo University are made on the basis of documented and evaluated performance in three areas: teaching; professional development, research, and scholarly growth; and institutional and community service. For teaching faculty excellence in teaching and demonstrated student learning are essential to tenure and promotion. Either professional development, research and scholarly growth or institutional and community service must be judged excellent for tenure. Respondent's Exhibit 2 at 73. The School of Business does not provide written job performance requirements that determine the tenure requirements for scholarly research and professional development. Testimony at the hearing suggested tenure requires at least two publications or presentations each year. However, that testimony is belied by predominantly "outstanding" job performance evaluations of Petitioner during his first two academic years in which Petitioner published no articles and made no presentations. In the three complete academic semesters that Petitioner had available to him after the accident to pursue his scholarly research, one article authored by Petitioner was accepted for publication and a test bank authored by Petitioner was included for publication in a text book. Petitioner also attended three conferences.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that a final order be entered granting Petitioner’s Charge of Discrimination and Petition for Relief for the reasons stated herein, and reinstating Petitioner to his position of employment with back pay and benefits. DONE AND ENTERED this 29th day of December, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 29th of December, 2006.
The Issue Whether Petitioner Rayburn should have been re-nominated and reappointed by Respondent as a teacher aide.
Findings Of Fact Petitioner, Doris Faye Rayburn was employed by the School Board of Leon County, Florida from 1973 to 1977: 1973-74 teacher aide, Nims Middle School; 1974-75 teacher aide, Nims Middle School; 1975-76 secretary/bookkeeper, Nims Middle School, later transferred during the school year to a teacher aide position at Nims Middle School; 1976-77 teacher aide, Nims Middle School. She was not reappointed for the 1977-78 term and thereupon filed a grievance procedure and then a petition for this administrative hearing. Petitioner's contract of employment as a teacher aide each year was for 180 days and included the right to participate in the State Personnel Retirement System to accumulate sick leave, and participate in the payroll deduction plan for 12 months insurance coverage. Thirty-six of the 165 teacher aides employed by the School Board in 1976-77 were not reemployed including Petitioner. The procedure for employment of teacher aides is by a recommendation from the Principal to the School superintendent, a nomination by the Superintendent and subsequent approval by the School Board. This procedure takes place each year for each teacher aide. Petitioner was not promised reemployment and was not reemployed. The principal testified that his decision not to recommend Petitioner for reemployment was not based alone on her comments to the Superintendent's wife or for things she had said concerning the operation of the school, although he was aware of her activities. There were some complaints about Petitioner "over- stepping" her job and posing as a counselor. After the expiration of Petitioner's last contract two assistant principals urged the Principal not to recommend Petitioner for future employment. Petitioner satisfied at least two guidance counselors with whom she worked. She is active and interested in school activities. Petitioner feels that she was not reappointed because of things she said concerning the school and its policies. She wanted to be reappointed and had so planned. Petitioner contends: Petitioner was denied employment as a result of exercising her first amendment right of freedom of speech. Mrs. Rayburn voiced her general concerns about the quality of education provided by the school system. These comments were within her right as a public employee, parent and citizen to publicly comment on events of community interests and her speech did not disrupt the efficiency of providing educational services. Section 231.141, Florida Statutes, gave Mrs. Rayburn an objective expectation in her employment as a teacher aide, protected by the fourteenth amendment. That she had "de facto" tenure and should have been reemployed. Respondent contends: Petitioner was a "non-instructional employee" and not entitled to tenure under the statutes. The fact that Mrs. Rayburn had been appointed to four previous years and the fact that 78 percent of the 1976-77 teacher aides were reemployed did not give Petitioner a constitutionally protected interest in continuing employment. That the incident of the comments Petitioner made regarding the school policy to the School Superintendent's wife was not constitutionally protected speech and that there is no showing that the Superintendent's decision not to again nominate her for employment as a teacher aide was related in any way to any speech or communication by Petitioner.
Recommendation Dismiss the petition. DONE AND ENTERED this 9th day of June, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joyce Davis, Esquire Steven Seliger, Esquire Legal Services of North Florida, Inc. 822 North Monroe Street Tallahassee, Florida 32303 C. Graham Carothers, Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, Florida 32302 Michael Dodson, Esquire Post Office Box 391 Tallahassee, Florida 32301
Findings Of Fact The parties. Petitioner, Frank Petruzielo, is the Superintendent of Schools, Broward County, Florida. Petitioner is obligated by law to recommend the placement of school personnel, require compliance and observance by all personnel with all law and rules, and report any violation thereof, with appropriate disciplinary action, against any school personnel failing to comply therewith to the School Board of Broward County, Florida. Respondent, Josue Narvaez, was at all times material hereto an employee of the School Board of Broward County, Florida, holding a professional services contract as a teacher, and was employed as the Foreign Student Advisor at Atlantic Vocational Technical Center. The charges. By administrative complaint dated March 8, 1995, petitioner has charged respondent with "immorality," "misconduct in office," and "gross insubordination or willful neglect of duties," based on his contention that respondent charged students a fee to translate foreign diplomas and certificates which he was required to translate and evaluate as part of his job duties, accepted monies for such services during school hours and on school property, and had such documents notarized by School Board employees during school hours; and, that respondent submitted false claims for medical reimbursement to the administrator of the School Board's medical reimbursement account. Respondent, although admitting that he charged students a fee for translating documents, has denied that such activity was improper, and further denied that he submitted false claims for medical reimbursement. The proof relating to the charge that respondent charged for translation services. Atlantic Vocational Technical Center is an educational unit of the Broward County School Board which provides educational opportunities for residents of Broward County. Among those residents is a large population of foreign speaking students including, inter alia, students of Haitian and South American origin. In the case of Haitian students, their predominate language is Creole, and their previous educational experiences are generally reflected in documentation written in the French language. On the other hand, the students of South American origin are generally speakers of Spanish, and their previous educational experiences are generally reflected in documentation written in the Spanish language. To properly place this population of foreign speaking students in the school's vocational programs, it is necessary to provide a language assessment, as well as an assessment of the documentation reflecting their previous educational experiences, to assure that each student has the basic credentials or prerequisites for any particular vocational program. Respondent, who is fluent in English, French, and Spanish, and conversational in Creole, was initially engaged part-time and ultimately full-time as the school's foreign student advisor and, as such, functioned as the "point person" for any foreign student entering the school. As the foreign student advisor, it was respondent's obligation to counsel and intake such students, provide needed language assessments, and to review or evaluate the documentation they possessed reflecting their previous educational experiences to validate their level of attainment, and to provide the school with a written evaluation or statement of educational credentials certifying the student's level of academic education, i.e., that the student had "attained a level of academic education which is at least equal to that of high school completion in the United States System of education." 1/ Given respondent's fluency in French and Spanish, coupled with his job related responsibility to validate, as necessary, a foreign student's prior level of academic achievement, it was reasonable for the school to expect that respondent would utilize his language skills to provide the needed evaluation without the need to resort to a written translation of the student's documentation reflecting previous educational experience. Indeed, written translations of such documents, where the school had on staff employees fluent in the student's language, was not a requirement for evaluation or entry into the school's programs. Notwithstanding the expectations of his employment, respondent routinely advised students who sought such an evaluation and validation that he would not provide the service absent a written translation of their foreign certificates, diplomas or other documentation into the English language. According to respondent, he advised the students that he could, for a fee, provide the translation service or they could use the services of an outside translator. Where he provided the service, respondent routinely did the translations at his home during his off-duty hours, but had the written translation notarized by one of the registrars at the school during the school day, and delivered the documents to the student at the school during the school day. For such services, respondent generally charged from $20.00 to $50.00, depending on the number of documents that were translated. That respondent was charging for such services was apparently reported by various students to Marie Marseille, a teacher assistant in the SAIL (System of Applied Individualized Learning) program, who in turn reported such statements to Lynne Husted, the department head for the SAIL program at the school. Ms. Husted was apparently of the opinion that she "could do nothing unless a student would come to [her] directly," and took no action until late September 1994 following a conversation with a former student, Baron Pyram. In September 1994, Baron Pyram, a former student, approached Que Nghiem at the school to seek assistance in securing a written translation of a diploma he had received in auto mechanics while a resident in Haiti. According to Baron, he needed the translation by the next day so he could seek employment. Mr. Nghiem, a teacher, referred Baron to the respondent. Ms. Husted, hearing of the referral, told Baron to follow Mr. Nghiem's direction but if respondent requested a fee for the service to return to her and she would see that it was translated for free. Baron did request that respondent translate his diploma, but notwithstanding Ms. Husted's advice, agreed to pay respondent a fee of $25.00 and gave respondent an $8.00 deposit. The following day, Baron picked up the translation from respondent at the school, duly notarized by one of the registrars, and paid respondent the balance owed. Following the transaction, Mr. Crawford, the school principal, met with respondent in respondent's office and asked him about the transaction. Respondent freely admitted he had done the translation for Baron for $25.00, and refused, despite Mr. Crawford's request, to return the $25.00 to Baron. Given the circumstances, it was respondent's opinion that there was no impropriety in his accepting a fee from Baron for such service. With regard to the Baron Pyram transaction, the proof fails to demonstrate any impropriety in respondent's acceptance of a fee for his translation services. Baron was not a student at the time, Baron specifically requested the translation, the translation was unrelated to respondent's job duties as a foreign student advisor, and the translation itself was done at respondent's home and not during school hours. That respondent accepted the fee for the service on school property has not been shown to be improper, and his use of a school registrar to notarize his translation has likewise not been shown to be improper. 2/ Indeed, respondent's testimony that the registrar's notarization of documents for school employees was a routine courtesy is accepted, and the provision of such courtesy was not shown to have been time- consuming or disruptive of the registrar's regular duties. Notwithstanding the lack of impropriety in the Baron Pyram matter, the proof does support the conclusion that respondent's refusal to evaluate and validate the prior level of academic achievement of foreign students, absent a written translation into English, was contrary to his job duties as foreign student advisor. The proof further supports the conclusion that his advice to foreign students that such translations were required for an evaluation was false and deceptive, and that the use of such deception was instrumental in his attracting fees for translation services that were otherwise not required by the school or for an evaluation of their educational status. The proof relating to the charge that respondent submitted forged/fraudulent claims for medical reimbursement. Incident to his employment with the School Board, respondent was accorded the opportunity to participate in the School Board's reimbursement account. Such account is a voluntary program where employees may allocate pretax dollars under the Internal Revenue Service Code for medical expenses, and from which they may seek reimbursement for medical expenses that are not covered by insurance and thereby save tax dollars. For the 1993 tax year, respondent elected to participate in the program at a rate of $100.00 each month for a total of $1,200.00 annually. Notably, under the program, as regulated under the Internal Revenue Service Code, respondent's entire $1,200.00 annual commitment, although sheltered at $100.00 each month, is available on January 1st of the tax year to pay nonreimbursed medical expenses. The School Board, as respondent's employer, essentially funds the account as of January 1st of the tax year, and recovers the monies over the course of the year by monthly salary redirection, provided respondent continues to be employed. On or about January 7, 1993, respondent submitted to First Benefits, Inc., the administrator of the School Board's medical reimbursement account, a claim for $1,165.00 for eye care services respondent claimed were rendered by Dr. Jerry Siegel. Attached to the claim were two statements, one reflecting a date of service of January 4, 1993, for respondent at a total charge of $595.00, and a second reflecting a date of service of January 6, 1993, for respondent's daughter at a total charge of $570.00. Notably, at $1,165.00, the claim respondent submitted in January was only $35.00 short of his annual participation and, if accepted for payment, would have required the School Board to effectively pay respondent the amount of the claim, with the expectation that such sums would be recovered over the course of the year from respondent's monthly salary reduction. On January 25, 1993, First Benefits, Inc., denied respondent's claim for reimbursement predicated on advice from Dr. Siegel that "the services in question were not rendered on the dates enclosed." At hearing, the proof demonstrated that the statements for services to respondent and his daughter for January 4, 1993, and January 6, 1993, were fabrications, and that Dr. Siegel had rendered no such services to respondent or his daughter. Accordingly, the proof supports the conclusion, as alleged by petitioner, that "[r]espondent submitted forged/fraudulent claims for medical reimbursement to the administrator of the School Board's medical reimbursement account."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered sustaining respondent's suspension, and terminating his employment with the School Board of Broward County, Florida. DONE AND ENTERED this 11th day of September 1995 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September 1995.
Findings Of Fact The Respondent caused the experience increments which had been in effect for all adult education teachers to be modified or terminated, and reduced the hourly wage amounts paid to adult education teachers. However, the real question presented is whether adult education teachers were included within the bargaining unit. The position of adult education teachers was not mentioned either in the inclusions or exclusions of the descriptions of the bargaining unit. Whether they would be included therefore turns upon whether adult education teachers are regularly employed certificated personnel." Adult education teachers were not required to be certificated, one primary requirement for inclusion in the unit. In addition, persons employed in the adult education program included both certificated day-time teachers and administrative personnel specifically excluded from the unit. Their employment was not contractual and could be terminated if a particular class was cancelled or dropped based upon lack of student enrollment. In such a case the adult education teacher's employment would be automatically terminated. Adult education classes were presented at night and the maximum number of hours that any adult education teacher would work would be six (6) hours per week. For both groups, employment as an adult education teacher was in addition to their regular employment. From a budgetary standpoint, adult education teachers were compensated from a separate functional breakout within the school budget to which that portion of their compensation earned as an adult education teacher was charged. No deductions were made from the adult education portion of a teacher's salary for retirement or Social Security. Based on the foregoing facts, the Hearing Officer finds that adult education teachers are not "regularly employed certificated personnel" and therefore, are not within the bargaining unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no action be taken on the charges as stated in Paragraphs 10(A)(B)(C)(D)(E)(F)(G)(J)(H) and Paragraphs 11(A) and (B). Based upon the foregoing Findings of Fact and Conclusions of Law relating to Issue XI and Paragraph 10(H) of the complaint, the Hearing Officer would recommend that the Commission enter its order requiring the Respondent to cease and desist its refusal to bargain upon request over mandatory items of collective bargaining. DONE and ORDERED this 29th day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ron Meyer, Esquire Frank & Meyer, P.A. Flagship Bank Building Tampa, Florida Norman J. Smith, Esquire Brinson and Smith, P.A. Post Office Drawer 1549 Kissimmee, Florida 32741 Austin Reed, Esquire Public Employee Relations Commission 2003 Apalachee Parkway Tallahassee, Florida 32301 Mr. Leonard Carson, Chairman Public Employees Relations Commission 2003 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact The Petitioner was first employed by the Liberty County School Board as a classroom teacher for the school terms 1971-72, 1972-73 and 1973-74 as an English classroom teacher. For the school year 1974-75, the Petitioner was employed for a fourth year as a teacher by Respondent. In November of 1974, the Petitioner requested and was granted maternity leave through the end of the school year, i.e., June 6, 1975. It is undisputed that during the first three school years of the Petitioner's employment with Respondent, her employment was pursuant to an annual contract. However, what is in dispute, is Petitioner's claim that during her fourth year of employment with Respondent, such employment was pursuant to a continuing contract. According to Petitioner, the then principal at the school in which she was employed recommended that she be reappointed for her forth year of employment pursuant to a continuing contract as did the then superintendent of schools, Tom Fairchild. Thereafter, on May 4, 1974, the School Board met and voted favorably on the Superintendent' s recommendation. In this regard, the minutes of the May 4, 1974, meeting of the school Board do not disclose the contractual status approved by the Board, i.e., annual or continuing. 1/ During the summer of 1975, Petitioner advised her principal that she would not be returning for the 1975-76 school year. Accordingly, the principal employed another teacher to replace her. Shortly thereafter, Petitioner informed the principal that she had changed her mind and wanted to teach the 1975-76 school year. She was not, however, rehired, as the position had been filled. During the summer months of 1975, Petitioner had several conversations with her then principal, Jerry Johnson. Initially, during her conversations with Principal Johnson, Petitioner related to him that she thought that she would be returning to her position for the 1975-76 school year. During the latter part of July, Principal Johnson explained to Petitioner the necessity for her to make a final decision with respect to her returning to her position, since he needed to hire a replacement if she was not returning. At that point, Petitioner remarked that, "I think I need to take another year's leave." Mr. Johnson remarked, "Well, we hate that you are not coming back, but if you feel that's best for the baby, I'm supportive of you." Within a few days, Petitioner called Mr. Johnson back and advised, "just pretend I didn't talk to you the other day. I want my job back." At that point, Mr. Johnson remarked, "Vicki, I wish you had told me. I have just hired somebody else." To this, Petitioner remarked, "Well, what do you mean you just hired so00body else. I am on a continuing contract, you know." Mr. Johnson remarked, "Well, I know, but you've got me in an awkward position. This boy has got Board connections." Petitioner remarked, "Well, it couldn't have been more than a verbal agreement. He couldn't have signed anything yet because you don't sign a contract this early in the year." 2/ Mr. Johnson remarked, "Well, that's true but everybody is going to be awfully upset. I can't tell him he doesn't have a job now, and I've told him he has one." Later, Mr. Johnson asked Petitioner to submit a letter of resignation to which Petitioner never responded. Prior to the beginning of the school year in either late August or early September of the 1975-76 school year, Petitioner visited the principal's office in Bristol and explained to him that while she did not want to force the issue, via a lawsuit in a small community, she would appreciate it if she was given the first teaching position that cane open in the school system. (TR 23, 24 and 25.) The Petitioner testified that she was ready, willing and able to work during the 1975-76 school year. Petitioner received a call from Mr. Johnson during October of 1975 wherein he inquired if she was ready to return to work. Petitioner responded that she was ready and had been since the summer. Mr. Johnson indicated that he had a teaching position opening up; however, that position never materialized inasmuch as the teacher who was supposed to have resigned, Carolyn Larkins, needed an additional year of employment for retirement purposes. Petitioner was not assigned to a position at any time during the 1975-76 school year. Toward the end of the 1975-76 school year, Petitioner again informed her principal of her continuing request to be assigned. When no assignment was given her at the beginning of the 1975-76 school year, the Petitioner, out of economic necessity, accompanied her husband to Maine where he had obtained employment. Petitioner made it plain to her principal that she still sought employment with the Board and would return to Florida if and when an assignment was offered her. Finally, in November, 1976, approximately two months after the Petitioner left Florida, her principal assigned her to a teaching position and she returned and resumed teaching in the school system. Petitioner was given an annual contract for the 1976-77 school year and inquired why she was being asked to sign an annual contract. Her principal advised her that it was "customary" to do so. The Petitioner remained on the assignment the remainder of the 1976-77 school year. At the end of the 1976-77 school year, the present Superintendent of Schools, Laquita Shuler, recommended and the Respondent School Board approved, the Petitioner's continued employment. The Petitioner taught the entire 1977-78 school year. During the 1977-78 school year, Petitioner was again tendered an annual contract for execution which she refused to sign. Petitioner, before the School Board meeting in December, 1977, contended that she had a continuing contract and the Board took no action on her contention. At the end of the 1977-78 school year, Petitioner was not recommended for continued employment by the Superintendent. This was so, despite the favorable recommendation of her principal. Petitioner, at all times subsequent to the end of the 1977-78 school year, has been refused further employment by the Respondent. The Petitioner has made efforts to obtain employment during the interim; however, her interim earnings have been minimal. Since her separation from the Liberty County School Board, the Petitioner has been ready, willing and able to work.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Respondent, School Board of Liberty County, make the Petitioner whole for wages including her loss of pay during the 1975-76 school year, her pay from the start of the 1976-77 school year through November 16, 1976, when she was reassigned to her teaching position, her pay from the start of the 1978- 79 school year through the date of her reinstatement, as well as the expenses incurred by the Petitioner as a direct and approximate result of the Respondent's actions. RECOMMENDED this 30th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Petitioner alleges that Respondent discriminated against her on account of her national origin (Finnish) by refusing to renew an annual contract as a teacher, thereby terminating her employment. The issue is whether this alleged violation of Section 760.10, F.S. occurred, and if so what relief is appropriate.
Findings Of Fact Petitioner, Miriam Lehtimaki Pully (Mrs. Pully) was born in Finland in 1941, and emigrated to the United States in 1958. She became a U.S. Citizen in December 1964. She obtained a Bachelors degree in psychology and sociology at the University of Connecticut; and later, in 1987, received a special education teaching certificate in Delaware after taking some extra courses. In October 1989, Mrs. Pully was hired by the Orange County School Board to teach an educable mentally handicapped (EMH) special education class at Rolling Hills Elementary School. She was interviewed and recommended for hiring by Norma Masterson, the Rolling Hills principal. Her employment application is not part of the record, but at the hearing Mrs. Pully agreed that the application reflected her U.S. citizenship and referred to her Finnish origin. She speaks with a slight Northern European accent that she claims most people mistake for German. If Mrs. Pully's origin was mentioned at all in the interview, it was in passing, and it was never discussed again by Ms. Masterson. At the time of the interview Mrs. Pully had the impression that Ms. Masterson was very positive about her and that she would enjoy a long-term employment relationship. Mrs. Pully also understood, however, that she was being hired "out of field" and that she was hired with special permission on a one-year temporary contract. She lacked credit hours in order to be certified in special education or EMH in Florida. During the 1990-91 school year, Miriam Pully was the only EMH teacher at Rolling Hills. She had from three to five students in various levels from kindergarten through fifth grade. She also had a teacher's aide. During that school year, Norma Masterson talked with Mrs. Pully about her children being left unattended, or insufficiently supervised. Mrs. Pully let them play outside sometimes two hours a day, which was considered by Ms. Masterson to be excessive. Ms. Masterson was also concerned about Ms. Pully's careless record keeping and failure to record accurate attendance. On several occasions on visiting her classroom, Ms. Masterson found the children out of control or ignoring their teacher. In spite of the problems perceived by Ms. Masterson, she did not give Mrs. Pully the "black mark" of "needs improvement" on her evaluation because she did not want Mrs. Pully to be hindered in obtaining a teaching position in her appropriate field. Norma Masterson did not recommend that Mrs. Pully be rehired for another year. Her temporary contract expired in June, 1990. It was Ms. Masterson's understanding that even if there had been no performance problems, she could not rehire Mrs. Pully, as she needed at least six more college credit hours to teach in the EMH field. Over the summer months the teachers' union negotiated on Ms. Pully's behalf, and the school board agreed to rehire her for the 1990-91 school year, if she took additional college courses. She obtained 3 credit hours and was given another temporary contract commencing in August 1990. Norma Masterson observed the same problems immediately in the second year. Another EMH teacher was hired to take the older, higher level students, and Mrs. Pully had the younger students, kindergarten through third grade. At times Mrs. Pully had as many as seven or eight students, but ordinarily she had five or six. She had to share the teacher's aide with Ms. Kelly, the other EMH teacher; and in October the school lost the aide due to funding. After the aide left, other teaching assistants were able to assist the EMH teachers. Ms. Masterson personally conducted observations in Mrs. Pully's classroom on several occasions during the 1990-91 school year. This was part of her job and she conducted similar observations of other teachers. Her opinion was that Mrs. Pully was simply not capable of teaching the mentally handicapped children. She found lack of discipline and inadequate planning for instructional time. She found that children were being taught as a group and individual levels were not being addressed. She still found too much play time and too little time "on task". And she still found inadequate record keeping with regard to report cards and attendance records. On several occasions Ms. Masterson counselled Mrs. Pully about her unkempt appearance or inappropriate dress. In March 1991, Ms. Masterson completed her annual assessment report of Miriam Pully and gave her an "unsatisfactory" overall evaluation, with "needs improvement" in six out of eleven categories. She informed Ms. Pully that she would not recommend that she be rehired. The school board accepted the recommendation, and Mrs. Pully did not receive another contract after June 1991. Mrs. Pully asserts that Ms. Masterson did not approve of her teaching style, but that her style was appropriate and effective. She believes that Ms. Masterson "picked on her" and that other teachers spied on her and took tales to the principal. Mrs. Pully contends that Ms. Masterson tried to get rid of her the first year because she really wanted to hire Ms. Kelly for the job. She also contends that in the second year Ms. Masterson picked on her out of pique that the union successfully got her rehired. Finally, Mrs. Pully contends that the harassment about her appearance, record keeping and the like, was all because she was Finnish and was not one of the "good old girls". The appropriate scope and the evidence in this proceeding do not permit a finding as to which teaching style was "right", nor do they permit a finding as to whether Miriam Pully was properly not rehired by the school board. The relevant issue is whether the alleged discrimination occurred. From the evidence presented, I do not find that Ms. Masterson (or the school board in adopting her recommendation) discriminated against this teacher on account of her national origin. In making her observations and evaluations, Norma Masterson relied on her substantial experience in teaching, school administration, and special education. She also considered the appropriate observations and recommendations of peer teachers and specialists. Ms. Masterson routinely visited classrooms, not just Mrs. Pully's class, to get to know the students and to see where improvements could be made. She also counselled other staff about their appearance, and one staff person was sent home to change when she came to school in a long shirt and leggings. When necessary, Ms. Masterson also addressed other teachers' problems with discipline or record keeping. Her concern about Mrs. Pully's discipline related to the perceived lack of control. Even though special education classes may or may not be disorganized, as acknowledged by Ms. Masterson, the children need to work toward the goals of their individual education plans. Working "out of field", Mrs. Pully did not have the skills necessary to effectively meet the children's needs, contrary to Ms. Masterson's sincere positive expectations at the time of hiring.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Miriam L. Pully's petition for relief be dismissed. DONE AND RECOMMENDED this 24th day of May, 1993, in Tallahassee, Leon County, Florida. MARY W. CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1993. COPIES FURNISHED: Miriam L. Pully 57 Lake Drive DeBary, Florida 32713-2873 Frank C. Kruppenbacher, Esquire 390 North Orange Avenue, Suite 1300 Orlando, Florida 32801 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact On September 9, 1982 Petitioner filed an application with the Teacher Certification Section of the Florida Department of Education to be re-certified as a teacher in the State of Florida. He was previously certified as a teacher in Florida from September 3, 1974 until 1979 in the field of cooperative distributive education. Mr. Hill is a graduate of the University of South Florida with a bachelor's degree in distributive education and he has 20 to 25 hours of credit towards his master's degree in administration Supervision. From 1974 until 1977 he successfully taught school in the Orlando area. In December of 1979 Petitioner had an argument with his father. During the course of that argument Mr. Hill picked up a 12 gauge shotgun and hit his father in the stomach several times. Petitioner was arrested, charged with aggravated assault, and subsequently adjudicated not guilty by a reason of insanity. The court order adjudicating him not guilty found that "At the time of the alleged offense, defendant's psychological condition caused him to function under paranoid delusions and persecutory relations. He not only had such thoughts and beliefs, but they were held so firmly that he was acting upon them." After the entry of that order on March 24, 1980, Petitioner was found to meet the criteria for involuntary commitment to a state mental hospital pursuant to the provisions of the Baker Act. He was treated at G. Pierce Wood Memorial Hospital until June 1980 and then released to the Peace River Center for Personal Development as a resident there. In either October or November 1981 Mr. Hill ceased taking the psychotropic medication which had been prescribed for him. By March 1982 he was again readmitted as an involuntary patient at G. Pierce Wood Memorial Hospital and after treatment there he was released in August 1982 back to the Peace River Center. Dr. M. Saleem Jeewa has been his treating psychiatrist since June of 1980. At the present time Dr. Jeewa prescribes Mellaril, a major tranquilizer, and Pamelor, an anti-depressant medication for Petitioner. Mr. Hill now visits Dr. Jeewa on a monthly basis unless something unusual happens in the interim. Additionally Petitioner attends group therapy three times a week and lives in one of the satellite apartments at Peace River Center. The satellite apartments are an arrangement where three or four patients live together to share expenses and help each other as a peer group. The satellite apartments are not part of a residential facility but are leased out in the community by the Peace River Center. In April 1983 Petitioner began working at American Building Maintenance, a Tampa janitorial service. His other employment history subsequent to his arrest, but prior to this hearing, includes janitorial work for Goodwill Industries. This employment was terminated when, due to an automobile accident, Mr. Hill was injured and physically unable to perform his job. Prior to that employment he worked for a CETA program where he assisted in locating jobs for handicapped persons. With respect to Mr. Hill's present psychological state he has no evidence of any thought disorder. His speech is logical, coherent and relevant. He has a fair amount of insight into his own condition and his judgment is adequate. No psychosis is apparent. He continues however to display a mild form of mixed anxiety and depression. At the present time it would be difficult however, for Mr. Hill to handle a job where he is fairly independent, must be flexible with considerable responsibilities and handle a variety of tasks. In order for Mr. Hill to be a successful teacher in a classroom situation with responsibility for 15 to 20 children, he would initially need some additional assistance and support over and above that normally required by a new teacher. It is unlikely that due to Mr. Hill's present condition he would cause any harm or be dangerous to students or other people around him. While it is within the realm of possibility that Petitioner, if certified, could successfully handle the responsibilities of a distributive education teacher, that possibility is not probable in view of Petitioner's present fragile psychological state.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED: That the State Board of Education as the head of the Department of Education, enter a Final Order denying Petitioner's application for certification as a teacher in the field of distributive education. DONE and RECOMMENDED this 4th day of November, 1983, in Tallahassee, Florida. MICHAEL P. DODSON 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 4th day of November, 1983.
The Issue Whether Petitioner has cause to terminate Respondent's professional service contract based on his failure to correct his performance deficiencies during his 90-Day Performance Probation. Whether Respondent’s performance was properly evaluated.
Findings Of Fact At all times material hereto, Respondent was a classroom teacher employed by Petitioner pursuant to a professional service contract. At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Petitioner has employed Respondent as a classroom teacher since 1993. He taught at Redland Middle School from 1993 to 1996. He taught at South Miami Senior High School from 1996 to 1999. During the times pertinent to this proceeding (the school years 1999/2000 and 2000/2001) Respondent taught eighth grade math at Palmetto. Between 1984 and the school year 1999/2000 all teachers employed by Petitioner were evaluated under the Teacher Assessment and Development System (TADS). The United Teachers of Dade (UTD) is the collective bargaining unit representing all classroom teachers employed by Petitioner, including Respondent. In 1997, Chapter 231, Florida Statutes, was amended to provide for a 90-day performance probation period for annual and professional service contract teachers who are observed to have unsatisfactory performance. 1/ Petitioner and the UTD collectively bargained a Memorandum of Understanding (MOU) to implement the 90-day performance probation. The new evaluation system is known as PACES, an acronym for the Professional Assessment and Comprehensive Evaluation System. The MOU amended the collective bargaining agreement between the UTD and Petitioner to authorize the replacement of TADS with PACES. During the 1999/2000 school year, the School Board piloted PACES in selected schools. During the 2000/2001 school year, PACES was utilized throughout the school district. Teacher evaluations at Palmetto were performed pursuant to PACES during the 1999/2000 and the 2000/2001 school years. The evaluations at issue in this proceeding were performed pursuant to PACES. PACES has been approved by the Florida Department of Education. PACES observers must be extensively trained to observe and evaluate teaching performance and student learning. School supervisory personnel perform PACES observations and evaluations. The principal and two assistant principals at Palmetto performed the observations and evaluations at issue in this proceeding. Respondent asserted at the final hearing that certain administrators who participated in observing and evaluating Respondent were insufficiently trained. That assertion is rejected as being contrary to the greater weight of the evidence. PACES was a major district initiative, and both teachers and administrators received extensive training in PACES. The greater weight of the credible evidence established that the principal and the assistant principals at Palmetto who observed and evaluated Respondent were appropriately trained in observing and evaluating teachers in accordance with PACES procedures. 2/ Individual schools across the district, including Palmetto, conducted PACES training for teachers. During the 2000/2001 school year each faculty member at Palmetto had a handbook which contained PACES information, including discussion on each domain, the indicators, the PACES website, and training videos on the website. Several faculty meetings were devoted to discussions of PACES. There were mini-workshops within various departments at Palmetto and all-day workshops for teachers were available in the district. The Palmetto assistant principals divided all six domains between themselves and explained and discussed them with the faculty. A projector was used to show the teachers how to get to the PACES website on the computers. There were 300 computers for teacher use at Palmetto by which Petitioner’s website could be accessed. The faculty meetings at Palmetto were mandatory. If a teacher missed any of the meetings, it was the teacher’s responsibility to come to an administrator to find out what was missed. Teachers who missed meetings were given the handouts that had been utilized at the faculty meetings. At the times pertinent to this proceeding, Respondent knew, or should have known, the evaluation criteria of PACES. 3/ Prior to the beginning of the 90-day probation under PACES an appropriately trained administrator must observe the teacher's classroom performance and find that performance to be below articulated standards. This observation is officially referred to as the “initial observation not of record.” Unofficially, this observation is referred to as the “freebie.” The freebie observation triggers the probation process, but it is not used to terminate a teacher’s employment. The same administrator who conducted the freebie observation meets with the teacher, goes over the observation, and notifies the teacher that he or she will be observed in approximately one month. The administrator offers a PGT to the teacher, the use of which by the teacher is voluntary at this point. Next is the “first observation of record,” which is unofficially referred to as the "kickoff observation." If this observation is below performance standards, a Conference-for- the-Record (CFR) is held. Next, a Professional Improvement Plan (PIP) is first given to the teacher, and the 90-day Performance Probation begins the next day. The Performance Probation lasts 90 days, not counting certain specified weekends and school holidays. There must be two official observations within the 90-day period. A PIP is given after any official observation that is below performance standards. If the second official observation is below performance standards, a confirmatory observation takes place after the end of the 90-day period to determine whether the teacher has corrected the deficiencies. The confirmatory observation must be completed within 14 days after the conclusion of the probationary period. The evaluator must thereafter forward to the Superintendent a recommendation whether to terminate the teacher's employment. In PACES, there are six domains. Each domain has components and each component has indicators. It takes only one unacceptable indicator for an observation to be rated below performance standards. If a teacher improves in a particular indicator from one observation to the next, but becomes unacceptable in another indicator, the second observation is rated below performance standards. Mr. Cromer conducted Respondent’s freebie observation on October 24, 2001. The observation did not meet performance standards. Mr. Cromer testified as to his observation of Respondent on October 24, 2001, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Cromer’s testimony. Respondent did not meet performance standards because he was going over 30 homework problems and simply giving out the answers, not making an effort to know whether the students understood. He did not seek input from the students. The students had no opportunity to participate. There was no interaction between Respondent and the students. There was no introduction to the lesson, thereby failing to establish motivation to learn. Respondent did not tell the students what they should learn from the lesson or why it was important that they understand the material. Respondent failed to provide a logical sequence and pace. He was going much too fast for the students. Respondent only demonstrated one math problem, failing to demonstrate any of the others, although there were six different types of problems for review. Respondent failed to utilize higher order cognition, teaching at only one cognitive level. There was no effort to clarify, using different words or examples. The students were not encouraged to make any association or consider examples from their own experience. The students were not asked questions and were not given an opportunity to answer questions. Respondent did not monitor the engagement or involvement of the students in the learning process. He made no effort to gauge whether the students understood the material. He sought no questions from the students and gave no feedback. Then Respondent sat down for approximately fifteen to twenty minutes. He did not walk around to monitor what the students were doing. Most of the students were not doing their work. Respondent failed to meet performance standards in components of Domain III, Teacher- Learner Relationships; Domain IV, Enhancing and Enabling Learning; Domain V, Enabling Thinking; and Domain VI, Classroom- based Assessment of Learning. Mr. Cromer met with Respondent on November 1, 2001, and went over each item on the observation and explained why Respondent did not meet performance standards. Mr. Cromer made suggestions for improvement. He advised Respondent that he would be coming back to do a follow-up observation and that Respondent was entitled to have a PGT. At first Respondent declined the PGT, but the next day, he accepted it. PGTs are for first year teachers and for any teacher on a PIP. PGTs are made up of seasoned teachers who are trained in PACES and give support and assistance to other teachers. Usually the administration chooses one member of the PGT and the teacher chooses the other. In this case, Respondent was permitted to choose both teachers. He chose Vivian Taylor and Maria Mayo. Both teachers gave appropriate assistance to Respondent. Under PACES, the same administrator who conducted the freebie observation must conduct the kickoff observation. On November 26, 2001, Mr. Cromer conducted Respondent’s kickoff observation. Mr. Cromer testified as to his observation of Respondent on November 26, 2001, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Cromer’s testimony. Respondent did not meet performance standards because many of the students in his class were excluded from the first twenty minutes while Respondent focused exclusively on two students at the board. One student finished her problem very quickly. The other student was completely confused. Respondent did the problem for him but did not make sure the student understood. The rest of the class was ignored during that time. The students were not given any explanations as to what the two students had done. The remainder of the class talked among themselves, looked around the class, and one student was sleeping. There was no introduction to the lesson and no transition into the second portion of the lesson. The students were not engaged in critical analysis or problem solving. Respondent did not develop any associations between the pie graph he was working on and its relationship to percentages and fractions. Respondent did not provide sufficient “wait time” after questions to encourage the students to think about the answers. Instead, the same few students called out answers. Respondent did not meet performance standards in components of Domain III, Teacher/Learner Relationships; Domain IV, Enhancing and Enabling Learning; and Domain V, Enabling Thinking. On December 5, 2001, Mr. Merker and Mr. Cromer held a CFR with Respondent and Respondent’s union representative to address Respondent’s substandard performance, his Performance Probation, recommendations to improve the specific areas of his unsatisfactory performance, and Respondent’s future employment status with the School Board. Respondent’s input was sought. Those in attendance at the meeting on December 5, 2001, met again the following day. Respondent’s input was again sought. He was given a copy of the summary of the CFR and a PIP at that time. The PIP required Respondent to read and summarize pertinent sections from the PACES manuals. Respondent’s Performance Probation began on December 7, 2001. The time frame was established with the help of OPS. Respondent was provided assistance through his PGT and his PIP to help him correct his deficiencies within the prescribed timeframe. Respondent's deadline to complete his PIP was January 10, 2002. On January 15, 2002, Mr. Merker conducted an official observation of Respondent in his classroom. Mr. Merker testified as to his observation of Respondent on January 15, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Merker’s testimony. Respondent did not meet performance standards because the students were not actively engaged in learning. Only six students out of 27 were involved in the lesson. Many of the students did not have the materials and were not able to follow through with the lesson. Respondent did not monitor what the students were doing. Many students were off-task, inattentive, and bored. Respondent did not re-engage the students. Respondent did not re-direct the off-task behavior, which persisted for the entire period. Learning routines were not apparent. Respondent did not give directions for the lesson. Respondent’s explanations were unclear. No adjustments were made. Respondent did not assess the learning progress during the lesson. Respondent solicited only basic knowledge in his questioning. He did not utilize a range of questions to assess student understanding. Respondent did not meet performance standards in components of Domain II, Managing the Learning Environment; Domain IV, Enhancing and Enabling Learning; and Domain VI, Classroom-based Assessments of Learning. Mr. Merker conferred with Respondent on January 24, 2002, made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance through a PIP and PGT to help Respondent correct his deficiencies. The PIP required Respondent to observe other teachers and to view PACES vignettes. Respondent's deadline to complete his PIP was February 22, 2002. On February 27, 2002, Mr. Meneses conducted the second official formal observation of Respondent in his classroom. Mr. Meneses testified as to his observation of Respondent on February 27, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Meneses’ testimony. Respondent did not meet performance standards because the students were not engaged in learning. After wasting 27 minutes copying numbers from the board, only three to four minutes were left for the main part of the lesson. Respondent wasted a lot of time during the lesson going over non-essential information, and the students were only presented with basic knowledge-level tasks. Inaccurate information was given by Respondent and accepted by the students. Students were not given "wait time" after a question to think about the answers. The learners were not given any introduction to the learning outcomes of the lesson. Respondent did not meet performance standards in components of Domain IV, Enhancing and Enabling Learning; and Domain V, Enabling Thinking. Mr. Meneses and Mr. Merker conferred with Respondent on March 5, 2002, made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance through a PIP and PGT to help Respondent correct his deficiencies. Respondent’s PIP required him to complete a self- assessment through the PACES website. Respondent's deadline to complete his PIP was March 22, 2002. Respondent’s Performance Probation ended on March 24, 2002. Respondent completed all of the activities required by all of his PIPs. He never indicated that he had any difficulty understanding them. Because Respondent’s second observation within the Performance Probation was below performance standards, a confirmatory observation was required after the expiration of the 90 days to determine whether or not Respondent had corrected his performance deficiencies. On March 26, 2002, Mr. Merker completed Respondent’s confirmatory observation. Mr. Merker testified as to his observation of Respondent on March 26, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Merker’s testimony. Respondent did not meet performance standards in components of Domain IV, Enhancing and Enabling Learning; Domain V, Enabling Thinking; and Domain VI, Classroom-based Assessments of Learning, because the lesson appeared staged. It was a lesson on fractions that had been presented approximately five weeks earlier. Respondent went full steam ahead regardless of what the students were doing. Respondent had not improved his questioning techniques since Mr. Merker’s prior observation. Mr. Merker notified Respondent on March 26, 2002, that Respondent had not satisfactorily corrected his performance deficiencies during his Performance Probation and that Mr. Merker was going to recommend to the Superintendent of Schools that Respondent’s employment be terminated. 4/ Mr. Merker notified the Superintendent of Schools on March 29, 2002, that Respondent had not satisfactorily corrected his performance deficiencies during his Performance Probation and recommended that Respondent's employment be terminated. On April 3, 2002, the Superintendent of Schools notified Respondent that the Superintendent was going to recommend that the School Board terminate Respondent's employment contract because Respondent had failed to satisfactorily correct his performance deficiencies during his Performance Probation. Petitioner established that it met all procedural requirements and time frames set forth by statute, by PACES, and by the MOU. Under the collective bargaining agreement and under PACES, a teacher is entitled to a fair, equitable, and impartial evaluation. Respondent’s evaluations were fair, equitable, and impartial. On April 17, 2002, the School Board acted upon the Superintendent's recommendation and terminated Respondent's employment contract subject to his due process rights.
Recommendation Based on the foregoing, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining the termination of Respondent's professional service contract, effective April 17, 2002. DONE AND ENTERED this 10th day of September, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of September, 2002.
The Issue The issues to be resolved in this proceeding concern whether the Respondent, Lehigh Portland Cement Company/Furniture Division ("Lehigh"), discriminated against the Petitioner on account of her race (white) by discharging her from employment following a verbal altercation with a black co- employee in which the Petitioner allegedly uttered racial slurs directed at or concerning that black co-employee and whether the Petitioner was discriminated against on account of her sex (female) and because of a perceived interracial, personal relationship with another co-employee, who is black.
Findings Of Fact The Petitioner is a former employee of Lehigh. She was discharged by that concern on August 4, 1989 as a disciplinary measure in response to her utterance of racial slurs concerning a black co-worker in the vicinity of the factory floor on Lehigh's premises immediately before the workday began on the date in question. She ultimately filed a charge of discrimination raising the issues and commencing the proceedings referenced in the above Statement of Issues and Preliminary Statement. Lehigh is a furniture manufacturer located in Marianna, Florida. Its plant consists of several large buildings where employees assemble and finish furniture. Lehigh employs somewhat over 400 persons at that factory. On the morning of August 2, 1989, Dorothy Hall and Major Hallmon, both black co-workers of the Petitioner, were having a discussion concerning union business just before the workday commenced on or in the vicinity of the shop floor of Lehigh's factory. Ms. Hall was a shop steward for the union in the paint shop, where the Petitioner was employed. Mr. Hallmon was the chief union steward for Lehigh as a whole. Ms. Hall was expressing concern to Mr. Hallmon about employees in her department or "shop", including the Petitioner, avoiding her, in her capacity as shop steward, and presenting problems directly to Mr. Hallmon when issues or incidents arose which they felt involved the responsibility of their union representatives. Ms. Hall mentioned the Petitioner as one of the employees who had complained about her to Mr. Hallmon. While Ms. Hall was making these comments to Mr. Hallmon, the Petitioner approached them and interrupted their conversation, getting into a verbal altercation with Ms. Hall. Mr. Hallmon attempted to get the Petitioner to cease arguing and yelling. Lehigh's personnel management procedures require that if employees engage in a physical or verbal altercation in their work area, they must cease arguing or fighting and move the disagreement to their supervisor's office for their supervisor to handle with them in an adult manner. Ms. Hall retreated from the confrontation with the Petitioner and walked into the office of George Williams, the supervisor of both of them. The Petitioner then made loud comments which were overheard by a number of co-workers. During their argument, or about the time Ms. Hall walked away in the direction of the supervisor's office, she referred to the Petitioner as a "stupid, white fool" or a "white fool". When the Petitioner walked away from the site of their verbal altercation, a white co-worker, Annette White, told the Petitioner that "Dorothy said she is going to whip your tail" or words to that effect. At this point, the Petitioner responded "I am not afraid of no black ass nigger." The Petitioner's comments were made in a very loud voice and were overheard by a number of co-workers nearby although Ms. Hall, herself, did not hear them nor did Mr. Hallmon. Anne Hamlin, a white woman, who worked in the Petitioner's department, heard the Petitioner say the above-quoted comment. Ms. Hamlin admonished the Petitioner that she should not be calling people by that name. Wilford Pittman, a black man, observed Mr. Hallmon trying to calm the Petitioner during or shortly after her verbal altercation with Ms. Hall. He heard the Petitioner use the word "nigger" and state words to the effect that "I am not scared of that nigger". Odell Harrison, a white man, also heard the Petitioner state "I am not scared of that nigger". Ron Baker, a black man, heard the Petitioner reference Ms. Hall as "a black son of a bitch". The Petitioner, herself, admitted that she stated "I am not afraid of no black ass nigger". The Petitioner immediately joined Ms. Hall in the office of the supervisor after the above incident. Mr. Jack Toole, a crew leader, was also present in the office on that occasion. The argument was renewed once the Petitioner and Ms. Hall were together in the supervisor's office. During the course of their renewed argument, in one of the Petitioner's comments, she used the words "I am white" to which Ms. Hall retorted "No you ain't, your shorts is white". Mr. Toole, who was present during the argument in the supervisor's office, recalls Ms. Hall telling the Petitioner that she was "a white fool for fooling around with Major Hallmon and ruining his life". He also recalls Ms. Hall first coming into the office when he was already present and stating words to the effect that "if we didn't do something about that white woman out there, she would do something with her". Mr. Williams remembers Ms. Hall stating "you make an old fool out of Major". The Petitioner then made a comment to the effect that Ms. Hall should stay home and tend to her "thieving husband" and stay out of other people's business, whereupon Ms. Hall picked up an ashtray as though to strike the Petitioner. Mr. Toole grabbed her arm and took the ashtray from her hand, replacing the ashtray on the desk. The signal to begin work then sounded and Mr. Williams instructed both antagonists to leave his office and begin work. Lehigh has a very specific policy prohibiting racial slurs. That policy provides: Further, it is a stated policy of Lehigh to prevent and prohibit discriminatory conduct in the work environment including statements or actions which could be interpreted as, racially, sexually, religiously or ethnically based, sexual harassment or any other discriminatory harassment or conduct with respect to co-employees, subordinate employees, or supervisors. Any employee who is found to have violated this policy will be subject to discipline, up to and including discharge. This equal employment opportunity policy was posted on all of the company's bulletin boards in the work place in early 1987 and was so maintained and posted forward of that time. Lehigh's management had experienced two disciplinary incidents in the past where two employees, Mr. Cecil Sims and Mr. Coy Jackson, both white, had used the word "nigger", in a conversational context with two black co-employees or in a circumstance where those employees overheard the comment, although it was not uttered in the course of an argument or verbal altercation. Those employees were disciplined by Lehigh for uttering that word, which is found to constitute a "racial slur". Shortly thereafter, during contract negotiations with the union in November of 1988, union representatives informed Lehigh's management that they felt that Lehigh was not enforcing its anti-discrimination policy as vigorously as it should, with the Sims and Jackson incidents used as examples of the union's perception that management's disciplinary practices with regard to the use of this racial slur by employees was too lax. Although Lehigh's management took the view, and still does, that it had taken appropriate disciplinary action in those two prior incidents, Lehigh also agreed with union representatives that such racial slurs constituted a serious offense and agreed that the company would thenceforth enforce its discrimination policy more vigorously. Lehigh's policy, with regard to racial slurs, includes its view that the word "nigger" is one of the most severe or offensive words used to disparage or embarrass a person on account of that person's race. This interpretation of its anti-discrimination policy is a reasonable one because it was established in the record that that word, dating from the time of slavery in America forward to the present time, has been used essentially as a term of disparagement. It is one of the few words in the American vocabulary most likely to demean the person to whom it is directed, to arouse ill will between the person employing the word and the person or persons to whom it is directed, or about whom it is referenced, and even to incite violence between them. It is rational for Lehigh to consider that the use of that racial slur is one of the most severe offenses to which its anti-discrimination policy is directed and designed to prohibit and prevent. In carrying out its disciplinary policy and procedures, Lehigh investigates alleged violations of company rules or policies to find out what occurred and to determine if a rule or policy was, indeed, violated. That customary procedure was performed in the instant case situation. If the management of Lehigh determines that an employee has violated a rule or policy of the company, it evaluates the nature of the offense and views it against the past employment and disciplinary record of the employee to determine what discipline, if any, is appropriate. The management of the company considers the severity of the offense; whether the violation was a willful one; whether it was done with malice; whether the employee under investigation was the aggressor in the incident; the degree of provocation for that employee's behavior; whether the employee expresses or demonstrates any remorse for the occurrence; and the employee's past general work history and disciplinary record. All of these factors are weighed by the company's management in determining what discipline is appropriate. The company customarily has viewed the disciplinary history of an employee as a very significant factor in determining the appropriate discipline to be imposed for a violation of company rules or policies under review as to that employee. In imposing discipline for infractions of company rules or policies, Lehigh employs progressive discipline whenever possible in order to attempt to persuade the employee to change his or her behavior which has resulted in the violation. If an employee exhibits a pattern of rule infractions, especially infractions of the same rule or type of rules, the company imposes a progressively harsher discipline. When considering an employee's past disciplinary record, the company considers only disciplinary violations which have occurred within the past nine months, however. This is because the company's union contract, by which it is bound in terms of its personnel policies and procedures with regard to its union-member employees, contains a provision which requires this restriction. This provision has been applied to all hourly employees of Lehigh for the life of that contract or approximately the past 18 years. It is thus a regular and customary past practice of the company for purposes of the terms of its union contract. The disciplinary measures, which the company imposes for infractions of its rules and policies, range from an oral reprimand (the imposition of which is recorded in the employee's personnel record even if delivered verbally); a written reprimand; suspension from employment for a discreet time period; and permanent discharge from employment. Mr. Albert Berger is the Vice President of Operations for Lehigh. He is responsible for personnel management, among other duties. His personnel management duties include the investigation of alleged infractions of the company's personnel policies and rules, interpreting the company's disciplinary policies and procedures and arriving at decisions about how to discipline employees. Mr. Berger investigated the subject incident involving the Petitioner and Ms. Hall, ultimately determined how to discipline each employee and imposed that discipline. He followed the company's disciplinary policies and procedures in deciding how to discipline the Petitioner and Ms. Hall concerning the incident of August 2, 1989. Upon learning of the incident between those two employees on August 2, 1989, Mr. Berger commenced an investigation of the matter that same day. After making a preliminary inquiry into the matter, he elected to suspend the Petitioner from work sometime on the morning of August 2, 1989, such that she left the company premises under suspension shortly before Noon. He continued his investigation that afternoon, conducting taped interviews with employees and supervisors who had witnessed the altercation. Those witnesses later signed summaries of their statements to Mr. Berger. The Petitioner returned to the factory between 1:00 and 2:00 on the afternoon of August 2, 1989, while Mr. Berger was still concluding his interviews of other employees and supervisors. He gave the Petitioner an opportunity to relate her version of the incident to him. During her taped interview, the Petitioner was very loud and hostile in her demeanor and statements and responses to his questions. She repeatedly employed the term "nigger" with reference to Ms. Hall and her version of the occurrence in question. During the course of the hearing, the Petitioner attempted to explain her behavior during the taped interview with Mr. Berger by insinuating that she was under the influence of alcohol when she exhibited loud and hostile demeanor and comments during the interview, including the use of the term "nigger". She attempted to substantiate this claim by stating that she had consumed several six-packs of beer between the time she left the company premises under suspension shortly before Noon on August 2, 1989 and the time of her interview with Mr. Berger at approximately 2:00 that afternoon. She did not, however, appear drunk or under the influence of alcohol to Mr. Berger when he interviewed her nor did her verbal statements and responses depicted on the tape of that interview justify a finding that she was drunk or under the influence of alcohol at the time of the interview. Moreover, this explanation of her conduct during the interview is self-serving and is thus deemed not credible. Upon concluding his investigation and in the process of determining what, if any, discipline to impose on the two protagonists, Mr. Berger reviewed and considered the employment histories of both the Petitioner and Ms. Hall. Ms. Hall's disciplinary record was a good one. Her most recent disciplinary offense had occurred 13 years before the August 2, 1989 incident. She had been disciplined only one other time, approximately 16 years before the August 2, 1989 incident. Under its union contract, Lehigh was prohibited from considering those two disciplinary incidents in deciding whether and how to impose discipline for the current August 2, 1989 occurrence because those disciplinary infractions occurred more than nine months prior to the August 2, 1989 incident. In addition to the fact that her disciplinary record was a good one with no disciplinary infractions for more than a decade, Ms. Hall readily expressed remorse for her involvement in the incident, apologizing to Mr. Berger and promising to let no such occurrence happen in the future. Because of this and because Lehigh's management, through Mr. Berger, viewed the racial slur "nigger", loudly uttered by the Petitioner, as more egregious than the remark "white fool", "old fool", or "you're not white, your shorts are white", made by Ms. Hall, a lesser discipline was imposed upon Ms. Hall. Mr. Berger imposed a written warning upon Ms. Hall for picking up the ashtray as a threatening gesture directed to the Petitioner and a verbal warning upon her for the above- quoted name calling. This is not a minimal sanction. Written memoranda of both types of discipline are made a part of such an cmployee's personnel record. Concerning the discipline imposed upon the Petitioner, the record establishes that on June 23, 1989, less than two months prior to the incident concerning Ms. Hall, the Petitioner received a three-day suspension for interference with company operations through the use of abusive language directed at another employee. This incident involved the Petitioner painting the words "High Ass" on the door front of a piece of furniture and sending it down the assembly line so that it could be viewed by the co-worker to whom the words were directed. The Petitioner admitted that the words were directed at a black co-worker who was farther down the assembly line. In conjunction with her suspension, Mr. Berger warned her that if she continued to engage in name calling or racial slurs, the consequences for the next such incident would be more severe, including the potential loss of her employment. Mr. Berger concluded and the record establishes that the Petitioner's conduct on August 2, 1989 clearly violated the company's explicit policy against racially-discriminatory conduct in the work place, as that policy is quoted in the above Findings of Fact. The Petitioner's conduct on August 2, 1989, along with the incident leading to her earlier suspension for similar conduct, establishes a pattern of abusive, racially-discriminatory behavior towards her co-workers. Further, the Petitioner was shown to be the aggressor in the incident, interrupting the private conversation between Ms. Hall and Mr. Hallmon, and making statements or comments which incited the ensuing argument and name-calling episode. The Petitioner showed no remorse for her behavior. She was still hostile and inflammatory in her description and reaction to the occurrence concerning Ms. Hall in her interview with Mr. Berger hours later, when she had every reason to believe that her job was at stake with a strong resulting incentive to be conciliatory and remorseful in her reaction and relation of her version of the occurrence to Mr. Berger. Because of these differences in her conduct, her past record, and the severity of her infraction of company policy, as opposed to that of Ms. Hall, and because of Ms. Hall's relative demeanor and reaction to the occurrence and the subsequent summons by Mr. Berger to account for it, Mr. Berger decided, after considering all of the above factors, to convert the Petitioner's suspension to a termination. Discharging the Petitioner for the August 2, 1989 violation in consideration of the above factors related to her conduct, demeanor and past record, as opposed to that of Ms. Hall, was shown to be reasonable, pursuant to Lehigh's customarily-followed "progressive discipline" policy. The differences in severity between the actions of the Petitioner and Ms. Hall, the differences in their personnel histories, the differences in the circumstances of their actions and their demeanor and conduct after the occurrence with regard to it support the differences in the discipline imposed upon them. In attempting to establish a prima facie case of disparate treatment and discrimination related to her termination, the Petitioner employed in her case the examples of Coy Jackson, a white employee and crew leader, being disciplined, but not terminated for using the term "nigger" directed at a black co-employee, Rudolph Townsend, and the similar example of Cecil Sims, a department supervisor, who is also a white man, using the term "nigger" in the presence of a black co-employee. Mr. Sims was also not terminated, but was given a lesser level of discipline. Concerning the Jackson and Sims incidents, the record establishes that in 1988, Coy Jackson spoke of Mr. Townsend, the black employee, who had complained of being cold, as follows: "Get that nigger a coat before he freezes to death." Mr. Sims, a supervisor in that same department, investigated that incident. During Mr. Sims' investigation, he questioned the employees involved about the name calling and the use of the words "black" and "nigger". Mr. Sims stated to Mr. Townsend that there were two names "you all" (meaning black people) could be called-"black" or "nigger"-and he then asked Mr. Townsend which he preferred to be called. Mr. Townsend responded that he simply wished to be called by his own name. Mr. Townsend complained about Mr. Sims' comment to him; and Mr. Berger investigated that incident, as well. He ultimately decided to give Mr. Sims a verbal warning concerning it and admonished him that he was never to use the word "nigger" again in any context and that the next incident, when it occurred, would result in his discharge. The discipline imposed on Mr. Sims was based upon the fact that Mr. Sims readily expressed remorse for the incident, that he had a long, unblemished career with Lehigh, and was then near retirement. He had had no prior history of uttering abusive language, name calling, or the use of racial slurs in the work place. Moreover, the incident occurred in Mr. Sims' office in a normal conversational tone; it was not shouted or uttered loudly on the factory floor in the presence of a number of other employees. Mr. Jackson, the crew leader who made the remark concerning the coat, was also given a verbal warning for use of the word "nigger". The imposition of a verbal warning as discipline for Mr. Jackson was directly related to the fact that Mr. Jackson had personally apologized to Mr. Townsend for making the remark even before the occurrence had been related to Mr. Berger and any investigation of the matter instituted. Moreover, he had made the comment quietly to one other employee and did not shout it in the work place before a number of other employees. Further, these two incidents occurred in February of 1988 before Lehigh elected, at the urging of the employees' union, to more vigorously enforce its policy against racial slurs, which vigorous enforcement policy it has uniformly pursued since that time. These incidents were thus not proven to be similar to the incidents involving the Petitioner and her employment and disciplinary record. Neither involved the disciplining of a black employee differently than a white employee. The Petitioner, Mr. Sims and Mr. Jackson are white. The less severe discipline imposed on Mr. Sims and Mr. Jackson was rationally related to the mitigating circumstances described above, rather than to their status as men or white men. It is also noteworthy that several years before the Petitioner's discharge, a white man employed in Lehigh's loading department, in the course of a conversation with a black employee, held up a piece of rope, apparently tied as a hangman's noose, and told the black employee that he would show him what use was made of rope in the white employee's home town. The black employee, at this juncture, hit the white employee with his fist. Mr. Berger investigated that incident, as well. Although it was alleged to him that the white employee had used the term "nigger", Mr. Berger was not able to identify a disinterested witness who would actually establish that the term had been used. In any event, however, Lehigh's management, through Mr. Berger, determined that this was a serious, malicious violation of the company's anti-discrimination policy. He promptly discharged the white employee for this conduct. The black employee, in turn, was also discharged for engaging in violence, which the company has uniformly considered to be one of the most severe violations of its disciplinary rules. Each of those employees was individually disciplined for their respective violations of company policy, based upon the circumstances peculiar to each. Neither of those incidents is similar to the incident for which Lehigh discharged the Petitioner. The discipline imposed on each of them was shown to be consistent with the company's customary anti-discrimination policy. None of the exemplary incidents described above serve to establish that white employees, male or female,(or, for that matter, black employees) have been subjected to a pattern of discriminatory disciplinary measures, including termination. They, likewise, do not show that any of those employee groups were accorded favored treatment. Rather, the facts regarding these incidents show that the company has pursued a pattern of non-discriminatory employee discipline. The employees who were disciplined in these three incidents were not shown to be similarly situated to the Petitioner, in terms of the infraction she committed, her past record, the circumstances surrounding her infraction and the investigation afterward, versus the underlying reasons for the various disciplinary measures imposed on these other employees, related above. During the hearing, the Petitioner first raised the issue of alleged discriminatory treatment because of a perceived close interracial relationship between her and Mr. Hallmon. Accordingly, she amended the Petition, ore tenus, without objection. Mr. Hallmon and the Petitioner had apparently become close friends at the point when he asked her to be his assistant in his position as chief union steward. She accepted the position. Mr. Hallmon indicated that this was because of his concerns about tensions between black and white employees. He wished a white employee to be his assistant to, as he termed it, "balance things out". That association began approximately three years ago. Mr. Hallmon and the Petitioner customarily would spend their lunch period together on frequent occasions to discuss union business. They sometimes met after work, in the parking lot next to the factory, to discuss union business because, as Mr. Hallmon put it, he maintained his union business office in the trunk of his car. The two also met many mornings prior to work for donuts and coffee. Their apparent friendship is corroborated by the fact that Mr. Hallmon elected to urge one of the witnesses to the Petitioner's behavior on August 2, 1989 to conceal her knowledge of it. He stopped Anne Hamlin in the parking lot on the day of the incident and told her that she should say nothing about it. The Petitioner has been engaged in contesting her discharge through the union grievance procedure or the administrative process before the Commission on Human Relations and the Division of Administrative Hearings for more than a year and one-half as of the time of hearing. However, she never had complained prior to the day of hearing that her friendship with Mr. Hallmon or any perceived close, personal interracial relationship between her and Mr. Hallmon had been involved in the reasons for her discharge or any discriminatory treatment she believed had been imposed upon her. Mr. Hallmon contended at the hearing that 80% of the approximately 400 workers at Lehigh had made comments about their relationship but, upon questioning about this testimony, was only able to relate two specific comments which had been made to him concerning his and the Petitioner's relationship. Neither of these comments were made by management-level personnel of Lehigh. Moreover, both the Petitioner and Mr. Hallmon, as union representatives, were acquainted with procedures for bringing a grievance to the attention of management, concerning discriminatory treatment, or any other basis for a grievance and yet neither had complained concerning any perceived discriminatory treatment to management. The only instance in which management might have gained any knowledge of their alleged relationship, other than personal observation, was from a conversation between Mr. Hallmon and Mr. Berger on one occasion when Mr. Hallmon asked Mr. Berger whether there was any violation of company policy if two people, black and white, or male or female, have lunch together. Mr. Berger responded by stating, in effect, that it was not any of management's business or anyone else's business concerning which employees had lunch together. Mr. Berger, however, upon learning that Mr. Hallmon had an apparent concern about the perception which management or co-employees might have concerning his and the Petitioner's relationship, did advise him to remember that "...this is the deep south...and I wouldn't want any of these rednecks catching up with you". When asked if he could recall any discussions between management personnel concerning the amount of time Mr. Hallmon and the Petitioner spent together, Mr. Berger answered "no, it's none of our business". Although Mr. Berger had observed the Petitioner and Mr. Hallmon together on several occasions, he felt that was none of his business as a manager of the company. Neither body of testimony, appearing at pages 49, 50 and 90 of the transcript nor any other testimony or evidence in this record, establishes that management had any knowledge of any pervasive discriminatory pattern of behavior in the work place by co-workers toward the Petitioner and Mr. Hallmon, if such indeed existed, which was not proven. It was also not established that management had any concern with any real or perceived relationship between the Petitioner and Mr. Hallmon and it was not demonstrated that it had any effect on the decision to discipline the Petitioner nor on the severity of the discipline imposed. After her termination, the Petitioner attempted to secure employment through the services of Job Services of Florida by application of August 28, 1989. Job Services referred her to Russell Corporation on September 8, 1989 and to Wal-Mart on September 21, 1989. She applied for employment unsuccessfully at both places. These were the only attempts the Petitioner made to obtain employment from the time of her August 2, 1989 termination until the hearing. Her listing, as available for employment, with Job Services of Florida became inactive on November 30, 1989. It was not established that she sought to reactivate that listing until just prior to the hearing. During the period of her unemployment, there were opportunities to seek employment which she did not avail herself of. On the date of the hearing, there were 22 jobs with private employers and 15 jobs with public employers listed with Job Services of Florida for which the Petitioner could have qualified to apply. She contended that she had looked in the help-wanted advertisements in a weekly newspaper for jobs, but there were none for which she was qualified. Local papers published in Jackson, Calhoun and Liberty counties, in the immediate vicinity of the Petitioner's residence in Altha, reveal that there were a number of advertisements for jobs during her unemployment period which she could have qualified to apply for and possibly to secure. The Petitioner's payroll records for 1988 reveal seven pay periods out of 52 when her total hours equaled or exceeded 50 hours. There were seven pay periods when she worked fewer than 40 hours per week. The average hours worked weekly during 1988 were 42.2. The highest gross pay received in 1988 was $375.76 per week, and the lowest weekly gross pay was $98.56. Her weekly gross pay on an average basis for 1988 was, thus, $273.24. The Petitioner worked 36 pay periods in 1989. She worked more than 40 hours in only eight of those weekly pay periods. The time in excess of 40 hours in these eight pay periods varied, with 5.5 hours being the largest number of hours in excess of 40 hours worked for a weekly pay period; and .3 hours was the lowest number of hours in excess of 40 hours worked for a weekly pay period. In 15 of these 36 pay periods, the Petitioner worked fewer than 40 hours. The average hours per pay period for 1989 were, thus, 33.98. She received overtime pay in eight pay periods. Her highest gross salary for any pay period in 1989 was $309.28. Her lowest gross salary for a pay period in 1989 was $51.28. Her average gross pay for 1989 was, thus, $220.72 per week. The average weekly gross pay for the entire period of her employment was $246.12. She earned $6.41 per hour at the time of her discharge. Had she remained employed, this would have increased to $6.63 per hour on December 16, 1989 and to $6.83 on December 16, 1990. She was eligible for two weeks of paid vacation per year since she had been employed for three years, and eight paid holidays per year. Federal income tax, social security, and union dues were withheld from her gross weekly pay. In 1988, income tax withholding totaled $1,022.80; social security totaled $1,066.98; and union dues totaled $110.00. In 1989, federal income tax totaled $513.97; social security totaled $596.76; and union dues totaled $96.00 for the 36 pay periods she worked in 1989. Lehigh was self- insured for health insurance and any amounts exceeding the employee contributions were to be paid by Lehigh. The employees, including the Petitioner, contributed $7.50 per week towards health insurance. Her payroll records reveal, however, that she ceased participating in the employer-provided group health insurance after the seventh pay period of 1989. In arriving at the above Findings of Fact, it has been necessary, to some extent, to reject the testimony of the Petitioner and Mr. Hallmon. This is because the Hearing Officer finds the testimony of other witnesses to the argument between the Petitioner and Ms. Hall and the surrounding circumstances and events to be more credible. The testimony of the other witnesses to these events was accepted because of their basic agreement on the significant circumstances concerning the occurrences in question and the fact that these other witnesses were demonstrated to have no reason to shade the truth concerning the occurrences and the underlying circumstances, including the fact that these witnesses, whose testimony has been accepted as more credible, are of both races involved. The Petitioner, however, is interested in the litigation and admits using the words "black ass nigger" and her tape-recorded statements made the same day of the argument in question are corroborative of the statements, behavior and demeanor on the part of the Petitioner reported by the other witnesses who have been found to be more credible and who are named in the above Findings of Fact. It is found that Mr. Hallmon's close relationship with the Petitioner might have influenced his recollection of the events in question. More significantly, his effort to actually prevent Ms. Hamlin from relating her knowledge about the incident is evidence of a bias in favor of the Petitioner. Moreover, the Petitioner's testimony about alleged recent job-search efforts was impeached because in her deposition taken approximately a week prior to hearing, she repeatedly asserted that the potential jobs at Russell and Wal-Mart were the only ones she had sought, although she maintained at hearing that she had also applied for work at Oglesby Nursery and McDonald's two or three weeks prior to hearing. She offered no explanation of why she did not mention job applications allegedly made less than a month prior to her deposition testimony. It is simply not credible that she would have forgotten those applications if, indeed, they had been made, especially since she was repeatedly asked about that subject matter at her deposition. Thus, her testimony about applying for employment with the two additional employers is deemed not credible.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore recommended that a Final Order be entered by the Florida Commission on Human Relations finding that the Petitioner, Donna J. Brown, was not discharged in violation of Section 760.10, Florida Statutes (1989), and was not the victim of a discriminatory employment practice and, therefore, that her Petition be dismissed in its entirety. RECOMMENDED this 7th day of August, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 7th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6596 Petitioner's Proposed Findings of Fact 1-3. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter after determination of the relative credibility of the witnesses. Accepted. 6-9. Accepted. 10-11. Accepted. Accepted, but not material based upon the issues actually pled even by ore tenus amendment at hearing in this proceeding. It has not been established that the employer had knowledge, constructive or otherwise, of any pattern of usage of racial slurs by multiple employees on such a frequent basis, or with any frequency. Thus, it could not have condoned such a pattern of utterance of racial slurs if it was not shown to have known about them, nor was it established that the use of the word "nigger" by fellow employees approximately once or twice a month, as apparently heard by Mr. Hallmon, was made only by white employees. Accepted. Accepted, but not to the extent that this finding establishes a pattern of discrimination against white employees by Mr. Berger or the management of Lehigh. 15-17. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. As delineated in the Hearing Officer's findings of fact, a number of factors were considered in the decision to terminate as opposed to imposing another type or degree of discipline; not consideration of the word "nigger" alone. 20-21. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. This finding of fact is not, in itself, materially dispositive of the issues to be adjudicated. Accepted, but not material to resolution of the relevant issues presented for adjudication. Accepted, but not material in this de novo proceeding. Accepted, but subordinate to the Hearing Officer's more detailed findings of fact concerning this subject matter and issue. 26-30. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, including finding that the Petitioner did not participate in the group health insurance program any longer than the period of time delineated in the Hearing Officer's findings of fact. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. It has not been established that employment available for purposes of mitigation of damages for lost wages and benefits has to be precisely comparable in circumstances, condition, quality, wages or benefits or any other element in order to be a relevantly considered available job. Rejected, as contrary to the Hearing Officer's findings of fact on this subject matter. It has not been established that the Petitioner would work 50 hours, with 10 hours of overtime, for each week which she would have worked since August 2, 1989 had she not been discharged. Such a figure is therefore speculative, rendering the figures contained in this proposed finding, other than the actual wage figures for a 40-hour work week, speculative. The Hearing Officer's findings of fact on this subject matter are adhered to and those in this paragraph are rejected as not supported by the evidence and as subordinate to the Hearing Officer's findings of fact. Rejected, as not supported by the preponderant evidence of record in light of the Hearing Officer's findings of fact concerning the liability issue. Respondent's Proposed Findings of Fact 1-2. Accepted. 3. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the record. 4-6. Accepted. 7. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence of record. 8-10. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, except as modified by the Hearing Officer's findings of fact. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 15-17. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 20-25. Accepted. 26. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-98. Accepted, except as modified by the Hearing Officer's findings of fact and by the Hearing Officer's acceptance of the proposed findings of fact by the Petitioner concerning the hourly wage rates Petitioner would have received with her next scheduled pay raises had she remained employed. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Ben R. Patterson, Esq. PATTERSON & TRAYNHAM 1215 Thomasville Road P.O. Box 4289 Tallahassee, FL 32315-4289 George J. Little, Esq. 134A Constitution Lane P.O. Box 1612 Marianna, FL 32446 John D.C. Newton, III, Esq. AURELL, RADEY, ET AL. Suite 1000, Monroe-Park Tower 101 North Monroe Street P.O. Drawer 11307 Tallahassee, FL 32302
