The Issue This case concerns the propriety of Respondent's abolishment of Petitioner's position of Occupational Specialist within the Gilchrist County School System. In particular, it is to be determined whether Respondent has failed to meet requirements of law in that its action of abolishing the position was arbitrary and capricious and contrary to Petitioner's constitutionally protected rights to free speech and assembly.
Findings Of Fact Petitioner is the holder of a Rank 111 Teaching Certificate, issued by the State of Florida. The certification recognizes her as an Occupational Specialist. On July 8, 1974, she was granted a continuing contract of employment with the Gilchrist County School Board as an Occupational Specialist in the Trenton and Bell schools within the Gilchrist County School District. A copy of that contract may be found as Respondent's Exhibit No. 7, admitted into evidence. The contract by its terms states at Paragraph 9, "This contract shall not operate to prevent discontinuance of a position as provided by law." It is the discontinuance or abolishment of the position of Occupational Specialist held by the petitioner that occasioned the formal hearing in this cause. Since being granted the position of Occupational Specialist in permanent status, Petitioner has performed those duties described in the job description, a copy of which is Petitioner's Exhibit No. 2, admitted into evidence. Those functions include career planning for students, considering their personal problems, preparing them for assessment tests and the execution of job application forms. In the school year 1981-82, Petitioner worked three- fifths of her time in Trenton High School and two-fifths in Bell High School. In her capacity, Respondent considered her to be acting as the equivalent of a guidance counselor. She has never been certified by the State of Florida as a guidance counselor. Around the beginning of April 1982, the superintendent of Schools in Gilchrist County, Ray Thomas, decided that the position of Occupational Specialist held by the petitioner should be abolished. At that time, and at all relevant times, this position of Occupational Specialist was the only position of its type in the Gilchrist County School System. The basis for the abolition or discontinuation of the position concerned anticipated revenue shortfalls or budget inadequacy for the upcoming school year 1982-83, pursuant to information from persons within the State of Florida responsible for educational funding. In arriving at his decision, Thomas sought comment from Robert Ervin, the principal at Hell High School and James Surrency, the principal at Trenton High School. Ervin was asked if the guidance responsibility at Bell High School could best be achieved by the provision of a full-time guidance counselor. Thomas gave the impression to Surrency that the basis for requesting the discontinuation of the position of Occupational Specialist pertained to funding. No particulars were revealed to the two principals on the question of the financial position of the school system facing the advent of the 1982-83 school year. Respondent's Exhibits Nos. 1 and 2, admitted into evidence, are the comments of the Trenton and Bell principals on the subject of the abolition of the position of Occupational Specialist. Ervin accepted the idea of abolishing the Occupational Specialist position based upon his belief that a full-time guidance counselor would be provided to his school, as contrasted to the half- time guidance counselor and two-fifths time work of the Petitioner during the school year 1981-82. In his remarks, Surrency indicates reconciliation to the idea of losing the three-fifths time that the Petitioner was spending at Trenton High; however, he indicates his preference to have the Occupational Specialist position remain if it could be afforded. In the school year 1981-82, Trenton had a full-time guidance counselor in addition to the work being done by the Petitioner. After receiving the comments of the principals and in keeping with his choice, the Superintendent of schools wrote to the petitioner on April 21, 1982, advising her that he would recommend to the School Board, effective the beginning of the school year 1982-83 that the position of Occupational Specialist not be filled and offering Bowdoin a leave of absence without pay for one year. A copy of this correspondence may be found as Respondent's Exhibit No. 3. On April 22, 1982, the recommendation of the Superintendent was presented to the School Board and in the course of that meeting, the Petitioner was represented by counsel. Action on this recommendation by the Superintendent was tabled. On May 3, 1982, the Superintendent wrote the School Board and modified his position on the question of Occupational Specialist from one recommending that the position of Occupational Specialist not be filled in 1982- 83 school year to one of recommending the discontinuance of the position for economic and curriculum reasons, stating that the duties of that position could be assumed or transferred to the guidance counselor at each school in Gilchrist County. A copy of this correspondence may be found as Respondent's Exhibit No. On May 4, 1982, consideration was given to the suggestion of total abolishment of the position of Occupational Specialist and the School Board in a 3 to 2 vote determined to abolish the position of Occupational Specialist. This action was in keeping with Chapter 230, Florida Statutes. Prior to the vote, no specific information was imparted by the Superintendent or other school officials as to the financial benefits to be derived from the action or effect of the abolishment in terms of curriculum changes. The school board simply accepted the Superintendent's word that it was necessary to abolish the position for financial reasons. (The Superintendent, since taking office in 1981, has abolished other positions within the Gilchrist County School System, such as assistant principal at Trenton High School, general supervisor of instruction, food services supervisor, brick and block masonry teacher, librarian at Trenton High School and has left vacant teacher's aide positions.) At the May 4, 1982, meeting, Petitioner asked for and the Board agreed to afford a formal hearing to the Petitioner to challenge the abolishment of the Occupational Specialist position. Again, on June 1, 1982, a request was made in the Petitioner's behalf to have a grievance hearing before the board concerning the board's decision to abolish the job and it was determined that grievance hearing should be held on July 6, 1982. On July 6, 1982, the Board requested the Superintendent to prepare a list of vacancies which Mrs. Bowdoin might be certified for, the salary schedules related to those positions, a list of programs offered other than K-12 and the state certification requirements for those positions and the name of those persons filling the positions at the time. On July 20, 1982, the Board considered the level III grievance of the Petitioner in the presence of the Petitioner's attorney on the topic of an alternative placement of the Petitioner and the salary associated with that placement. On August 3, 1982, the Board entered a written resolution of decision pertaining to the level III grievance pertaining to the Petitioner, a copy of that resolution being found as Respondent's Exhibit No. 5. In this resolution, the School Board properly identified that the Petitioner could not be placed as a guidance counselor in that she did not hold a master's degree required for such position. In lieu of the position of Occupational Specialist which had been abolished by the School Board on May 4, 1982, by its August resolution, the Board offered the position of Teacher's Aide at Trenton Elementary School, with a substantial reduction in salary from approximately $15,000 a year to approximately $6,300 a year. This position of Teacher's Aide was reserved until August 16, 1982. Petitioner did not elect to accept the position of Teacher's Aide and has been unemployed since August 1982. In the course of an August 11, 1982 meeting, the Superintendent reported to the Board that the petitioner had "responded" at a level IV grievance procedure. On August 31, 1982, the Board was asked to consider litigation which had been presented to it by the Superintendent. On September 2, 1982, in an Executive Board session of the School Board of Gilchrist County, discussion was made of certain civil litigation brought by Petitioner against the Board. On October 5, 1982, an update was given to the Board concerning that case of the Petitioner versus the Board. Another update was made on October 5, 1982. On December 7, 1982, the Board was made aware of the fact that the case was to be considered in arbitration. (Various minutes of School Board meetings as described in this paragraph are more completely set forth in Respondent's Exhibit No. 8, admitted into evidence.) The matter was presented before the American Arbitration Association and the Arbitrator in his report absolved the Board of any violation related to the job abolition. The copy of that report may be found as Respondent's Exhibit No. 6, admitted into evidence. The date of the report is July 21, 1983. As stated before, the Bell High School in 1982-83, employed a full-time guidance counselor in substitution for an approximately half-time guidance and two-fifths time from Bowdoin the prior year. The Trenton school went from a 1981-82 school year in which a full-time counselor and three-fifths of Bowdoin's time was devoted to counseling activities to a full-time counselor, an aide working two-thirds time mostly in a clerical capacity and some assistance by a vocational teacher in school year 1982-83. Bad Bowdoin returned as an aide to the Trenton school in 1982-83, she would have been used in the guidance department in the same role as she had been given as Occupational Specialist. There was a revenue surplus left at the end of the 1982-83 school year and it was sufficient to have allowed the funding of the position of Occupational Specialist for the 1982-83 school year; however, that surplus was less than the 1981-82 school year by approximately 65,000. This funding difference in the face of providing essentially the same services in the school system, pointed out the more difficult economic circumstance that Thomas had made mention of in his initial decision to abolish the position of Occupational Specialist. In the 1982-83 School year, employees in the school system received salary increases. At the conclusion of the 1981-82 school year, there were approximately 900 students at the Trenton school which included grades K-12. According to Petitioner's Exhibit No. 11, excerpts from the standards of the Commission on Secondary Schools of the Southern Association of Colleges and Schools, schools of a population of 750-999 need two guidance professionals. Therefore, the reduction of one and three-fifths counselors in 1981-82 to one counselor and something less than three-fifths in 1982-83 was contrary to the statement of standards. This excerpt is at 4.10.0, Figure 1, minimum personnel requirements. Respondent replies to that assertion through its Exhibit No. 9, which are excerpts of the standards for unit schools by the Commission on Secondary Schools and Commission on Elementary Schools of the Southern Association of Colleges and Schools. At Page 9, 9.16.0-9.16.2, Respondent argues that one guidance counselor suffices for any school with a membership of 500 or more students up to 999 students. Without determining which of these guidelines related to accreditation by the Southern Association of Colleges and Schools is correct, it suffices to say that the changes that were made by the School Board in abolishing the position of Occupational Specialist as it might affect accreditation were made in good faith in that it can arguably be said that Trenton school, having 900 students, only needed one guidance counselor to meet conditions of accreditation. There were no curriculum changes made in the 1982-83 school year as a result of abolishing the Occupational Specialist position. There were curriculum changes but they were not the result of any influence provided by the abolishment of the Occupational Specialist job.
The Issue Whether the Respondent discriminated against Petitioner on the basis of age, handicap and retaliation in violation of the Civil Rights Act of 1992, Sections 760.01-760.11, Florida Statutes.
Findings Of Fact Petitioner, who was 52 years of age during the relevant time period, was employed as a guidance counselor at Apollo Elementary School during the 1996-97 school year. Petitioner was one of two guidance counselors employed at the school. The other guidance counselor was Peggy Davis, who was 42 years of age during the relevant time period. Both Petitioner and Davis were licensed teachers and certified guidance counselors. The Brevard County School District has a staffing plan that allocates to each school teaching units according to student population. Based upon the staffing plan, each school is funded to employ a certain number of teachers in each relevant certification and specialty. The principal of each school is permitted to shift allocated teaching units among the different certifications and teaching specialties to meet current program needs. In 1995, Alice Graves was assigned as Principal of Apollo Elementary. When Graves arrived at Apollo, both Petitioner and Davis were employed as full-time guidance counselors. Prior to Graves' assignment to Apollo, the school had earned 1.5 units in guidance based upon student population. In order to fund two full-time guidance counselors, the prior principal had borrowed 0.5 of a teaching unit from the regular program. Graves continued this guidance allocation until the 1997-98 school year. During the 1995-96 school year, the Apollo Elementary School community of parents and teachers decided to implement a computer lab to increase technology instruction in the school. As part of the process a three-year technology plan was developed and submitted to the district and the State Board of Education to fund and staff the computer lab. By the spring of 1997, the school community had raised the necessary funds and purchased 28 computers for the lab. The school was ready to activate the computer lab for the 1997-98 school year. It needed to hire a computer teacher to staff the program. Staffing the computer lab required one full-time teacher. However, Apollo Elementary received no additional staffing from the District because of the computer lab. As a result, the principal was required to staff the lab within the school's existing staffing plan. The principal examined the school's program needs and existing staffing. She determined that the most appropriate way to obtain the full teaching unit needed to staff the computer lab was to take a half unit from the basic program and match it with the half unit that had been allocated to fund one of the two full-time guidance counselor positions. This staffing reallocation would have the least impact on class size, program needs and the student's educational environment. This plan also reduced the existing staffing in guidance by one-half unit, thereby returning it to the 1.5 units actually earned by the school based upon student population. In order to accomplish the staffing reallocation to open the computer lab for the 1997-98 school year, the principal was required to reduce the existing guidance counselor staffing by one-half unit. To do this, the principal had to find another school in Area IV of the School District to share one full-time unit of guidance. In the spring of 1997, the principal began working with the Area IV superintendent's office to find a school to share the guidance unit. In the early summer of 1997, a part-time position in guidance became available in Area IV at Enterprise Elementary. Principal Graves received permission from the Area superintendent to transfer one-half unit of guidance to Enterprise if that school's principal agreed. This would require that one of the two guidance counselors at Apollo be shared between the two schools. The principal contacted the District's Labor Relations office for instructions on how to carry out the transfer of one- half unit of guidance to Enterprise Elementary. She was instructed to follow Article VI F.3.a.(8) of the Collective Bargaining Agreement (CBA) between the School District and the Brevard Federation of Teachers. That provision governs transfers of teachers for reasons other than declining enrollment. In accordance with the CBA, the principal sent certified letters to both guidance counselors assigned to Apollo Elementary, Davis, and Petitioner notifying them that a reduction in guidance staffing was going to take place in the upcoming school year and asking for a volunteer to transfer to the shared position. Davis responded in writing that she did not wish to be transferred. Petitioner did not respond to the letter. The principal then contacted Petitioner by telephone and asked her response to the letter. Petitioner told the principal she was not interested in the transfer. Since neither Petitioner nor Davis volunteered to transfer to the shared position, the principal was required to select one of them to be involuntarily transferred. Principal Graves decided to retain Davis in the full-time guidance position at Apollo Elementary and transfer Petitioner to the shared position effective at the beginning of the 1997-98 school year. The criteria the principal used in deciding which guidance counselor would remain in the full-time position at Apollo and which would transfer to the shared position was based upon the contributions each counselor made to the programs and students in the school. Davis was much more involved than Petitioner in the school community and was active in the School Advisory Committee, the Student Council Program, and other school activities that were essential to promoting community services and self-esteem for students. Davis was selected by her peers as the school's Teacher of the Year three times, was an exemplary teacher and guidance counselor, and was excellent at diffusing concerned and upset parents which was important in a guidance counselor in that position. Graves believed that Davis was a more effective guidance counselor than Petitioner. For all these reasons, Davis was retained as the full-time guidance counselor at Apollo and Petitioner was transferred to the shared position effective at the beginning of the 1997-98 school year. Petitioner was notified of the transfer. Thereafter, Petitioner requested a meeting with the Area IV superintendent to protest the transfer. Petitioner was accompanied at the meeting by Fran Baer, President of the Brevard Federation of Teachers. The Area IV superintendent upheld the transfer. Neither Petitioner nor Brevard Federation of Teachers grieved the transfer under the CBA. Petitioner worked the shared position commencing at the beginning of the 1997-98 school year. Petitioner divided her time between Apollo Elementary and Enterprise Elementary alternating days at each school. Petitioner retired from the Brevard County School District effective the end of the 1997-98 school year. Part-time or shared teaching assignments are commonplace in the Brevard County School District. The CBA between the School District and the Brevard Federation of Teachers recognizes this practice in Article VI of the CBA. Currently, the guidance counselor staffing at Apollo Elementary is still 1.5 units and a guidance position is shared with Enterprise Elementary. Although Petitioner did not desire the transfer, the principal had to transfer either Petitioner or Davis to the shared position to accommodate the staffing of the computer lab for the 1997-98 school year. The decision to staff the computer lab teaching position by reducing the guidance allocation to the 1.5 units earned by student population was based upon the program needs of the school and to avoid increasing class size in the regular program. The reasons articulated by Respondent for the reallocation of teaching units and the transfer of Petitioner to the shared position are credible and constitute legitimate non- discriminatory reasons for the actions taken. The evidence does not support Petitioner's assertion that her age was a factor in the decision, nor was Petitioner's physical condition a factor in the decision. Although Petitioner had some physical problems that occurred from time to time, the school staff was not aware that Petitioner claimed to be disabled or handicapped and the staff did not perceive Petitioner to be handicapped. The evidence does not support the assertion that Petitioner was retaliated against based upon her age, physical condition or for filing the charge of discrimination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the petition. DONE AND ENTERED this 27th day of January, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 27th day of January, 2000. COPIES FURNISHED: Carol A. Gainer 1627 Rice Avenue Titusville, Florida 32796 Harold T. Bistline, Esquire Stromire, Bistline, Miniclier & Griffith 1970 Michigan Avenue, Building E Cocoa, Florida 32922 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact During the 1985-86 school year Respondent Gregory Hunter Stephens was a student in the tenth grade at Miami Sunset Senior High School. On April 18, 1986, during the lunch period Respondent drove into the faculty parking lot in his Corvette with the police following closely behind. It was determined that during his lunch break Respondent had been driving his Corvette in a nearby condominium development threatening residents and throwing beer cans on the lawns. The residents had summoned the police. An Assistant Principal held a conference with Respondent's father whose response was that the police should have better things to do than to bother his son for drinking beer and driving around during his lunch break. Respondent was given a three-day suspension. On May 22, 1986, Respondent got into a fight in class, a Group III violation of the Code of Student Conduct. A conference was held with Respondent's father, and Respondent was given a ten-day suspension. Although other informal discussions were held with Respondent's father during that school year, by the end of the third grading period Respondent's grades were one "C," one "D," and 4 "Fs." His absences from his classes during the third grading period alone ranged between 2 and 13. He received only a "3" for his effort in each and every class. During the 1985-86 school year, Respondent was absent 95 days out of the 180-day school year. On March 3, 1987, an Assistant Principal observed Respondent leaving the campus during Respondent's second-period class. He stopped Respondent and gave him a warning. A few minutes later he caught Respondent again attempting to leave. Respondent's mother was contacted, and Respondent was given a "work detail detention." On April 2, 1987, a fight broke out off campus between a group of Latin students and a group of Anglo students. On the following day Respondent admitted to an Assistant Principal that he was one of the participants. All of the students involved (including Respondent) were suspended for three days for that Group III Code violation. On October 19, 1987, Respondent was nearly involved in a collision in the parking lot. Respondent got out of his car and started pushing the other driver. A fight ensued. Respondent's parents were contacted, and he was given a ten-day suspension. By the time of the October 19th incident, Respondent had already been absent 6 days that school year. Further, although the Assistant Principal had two conferences with Respondent's father during the month of October, Respondent was receiving one "C," one "D," and five "Fs" in his classes. A Child Study Team was convened, and a meeting was held on November 3, 1987. Respondent and his parents refused to attend. The Team recommended that Respondent be transferred to Douglas MacArthur Senior High School-South, based upon the October 19, 1987, incident, his failing grades during the most-recent two years, and Respondent's chronic aggressive behavior which constituted a threat to the welfare of the other students. It was determined that Respondent required assistance a normal school could not provide and that a structured environment would be more appropriate since the educators at Miami Sunset Senior High School had unsuccessfully attempted to modify Respondent's behavior by conferences between Respondent and a counselor, meetings between Respondent's parents and assistant principals, indoor suspensions, outdoor suspensions, and work detail suspensions
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Gregory Hunter Stephens to the opportunity school program at Douglas MacArthur Senior High School-South until such time as his performance reveals that he can be returned to the regular school program. DONE and RECOMMENDED this 29th day of March, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1988. COPIES FURNISHED: JOSEPH A. FERNANDEZ, SUPERINTENDENT SCHOOL BOARD OF DADE COUNTY 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132 FRANK R. HARDER, ESQUIRE 175 FONTAINEBLEAU BOULEVARD SUITE 2A-3 MIAMI, FLORIDA 33172 LANA STEPHENS 15490 S.W. 85TH LANE MIAMI, FLORIDA 33183 MADELYN P. SCHERE, ESQUIRE ASSISTANT BOARD ATTORNEY DADE COUNTY PUBLIC SCHOOLS 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132 PHYLLIS O. DOUGLAS, ESQUIRE ASSISTANT BOARD ATTORNEY DADE COUNTY PUBLIC SCHOOLS 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132
