The Issue The issue is whether Petitioner, Ricky Lynn Sapp (Sapp), was nonrenewed for his annual teaching contract for constitutionally permissible reasons.
Findings Of Fact Petitioner was first employed by the Escambia County School Board for the 1984-85 school year in the compensatory education program at Bellview Middle School and later that school year he took the place of an eighth grade math teacher who was out on maternity leave. Sapp holds a Florida Teaching Certificate in elementary education and is not certified to teach in middle school. He has a bachelors degree. Sapp was asked by the School Board to take the courses necessary to become certified in middle school math, but did not do so because he was working at another job at the time. Petitioner was hired on annual contract by the principal of Bellview Middle School to teach seventh grade math during the 1985-86 school year and to teach sixth grade for the 1986-87 school year. For the most part, Sapp received excellent performance evaluations from the Bellview principal. In September, 1986, a mother of a Bellview Middle School student complained to the principal regarding what she believed to be unacceptable contact between Sapp and her son. The principal told Sapp to stay away from the student, but the parent's complaints continued. The student had been in Sapp's seventh grade math class the prior school year. On November 7, 1986, Sapp was arrested for lewd and lascivious assault on that student. As a result of these charges the Superintendent of the Escambia County School District recommended to the School Board that Sapp be suspended without pay. The School Board voted to disapprove the Superintendent's recommendation. Instead, Sapp was reassigned to administrative duties at the Hall Center. In the fall of 1986, Sapp was also notified by the Department of Education, Professional Practices Services (PPS), that an investigation of the allegations involved in the criminal charge had been instituted. On April 1, 1987, Sapp received the standard memo from the School Board, signed by the Bellview principal, indicating that his annual contract was going to expire at the end of the 1986-87 school year. The memo also indicated that the school district would move as rapidly as possible on the reappointment of the annual contract teachers recommended to the Superintendent for reappointment for the 1987-88 school year, but "personnel assignments resulting from the closing of the Beggs Center and the redistricting of all middle school boundaries greatly obscures the timeline for such reappointments." During the summer of 1987, Sapp talked to Dr. Roger Mott, the Assistant Superintendent for Personnel Services of the school district, and others in his office regarding appointment to an annual contract for the 1987-88 school year. Sapp claims he was told by Mott that he would not be rehired until after his criminal trial. Mott denies telling this to Sapp. Because Sapp's testimony was very confused and contradictory regarding these alleged statements by Mott, Sapp's version is given little weight. Instead, it is found that Mott did not tell Sapp that he would be rehired after the criminal trial. During the discussions between Sapp and Mott in the summer of 1987, Mott did tell Sapp that he was free to interview with any principals in the district for open annual contract positions, however those principals who inquired would be told that there was a Professional Practices Services investigation. Sapp expressed interest only in employment at Bellview. During 1987 the middle schools of Escambia County were redistricted. As a result of redistricting, Bellview Middle School anticipated losing approximately 300 students and 10 teaching positions for the 1987-88 school year. After the jury found him not guilty on August 12, 1987, Sapp again inquired regarding employment. According to Charles McCurley, principal of Bellview Middle School, there were no positions available at Bellview. By letter dated August 21, 1987, Sapp was advised that the Professional Practices Services was investigating two complaints. The first related to the charge of lewd and lascivious assault on a child. The second complaint was that Sapp had received his teaching certificate by fraudulent means because he failed to disclose two criminal convictions on his applications. Mott became aware of the PPS investigation and he discovered that Sapp had apparently falsified the applications for his teaching certificate and the applications for employment with the Escambia County School District. Mott then informed Sapp that the chances of reemployment were not good and that he could not be considered for employment until the PPS investigation was complete. Mott also testified that Sapp was not reemployed because of the information that formed the basis of the second PPS investigation. While this is not the place to determine whether or not Sapp falsified these applications, it is necessary to determine what facts the Respondent acted on in not renewing Sapp's annual contract. Sapp's applications to both the school district and the state showed that he answered "no" when asked if he had ever been convicted of a felony or first degree misdemeanor or other criminal offense other than a minor traffic violation. Sapp has, in fact, been convicted of at least two such violations which were not disclosed. Sapp approached Robert Husbands, Executive Director of the Escambia Education Association, for assistance in getting employment. Husbands talked to Mott. Mott informed him that Sapp could not be rehired until the PPS investigation was resolved. Husbands found that there were seven teaching positions in the whole county which were vacant at the beginning of the 1987-88 school year. Two of those positions were located some distance from Pensacola. Only one of those positions was known to have been filled by an annual contract teacher. There were 37 annual contract teachers in the school district who were not renewed for the 1987-88 school year. Eight others who were not renewed at the beginning of the school year were rehired during the year. Because of redistricting, Bellview had only one opening for an annual contract teacher after it placed its continuing contract teachers. That one opening was for reading and was filled by a reading teacher with a masters degree. Sapp was not qualified for that position. After the 1987-88 school year had begun, Bellview experienced increased enrollment and a resulting increase in teaching positions. Those positions were filled by teachers who were teaching in their field of certification and who were at least as qualified as Sapp. It was very important that Bellview have teachers working in their area of certification because the school was to be audited for accreditation in the 1987-88 school year. Sapp's former position at Bellview was filled by a continuing contract teacher who had previously taught seventh grade and who was certified to teach in both middle and elementary school. The teacher who took over Sapp's class in the 1986-87 school year was not rehired. During the first week of the 1987-88 school year, Sapp sought employment at Bellview and the principal correctly told him there were no jobs. Later, in October, 1987, a position opened up at Bellview and a continuing contract teacher with a masters degree in reading and 18 years of experience was transferred in at her request. Sapp believes he was not renewed as retaliation for the School Board's rejection of the Superintendent's recommendation for suspension on January 27, 1987. This allegation is based only on Sapp's personal feeling and no evidence was presented to substantiate his belief. Sapp also believes he was not renewed because of the arrest itself. Again, no evidence was presented to substantiate his belief. By letter of September 18, 1987, the School District, through counsel, advised Sapp's attorney that Sapp would not be considered for reemployment until the PPS investigation was concluded and the District was advised of the results. The PPS has not filed any complaint against Sapp based on either of its investigations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Ricky Lynn Sapp, be DENIED relief from the nonrenewal of his annual contract and that his request for relief be DISMISSED. DONE and ENTERED this 8th day of March, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 8th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5059 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Finding's of Fact Submitted by Petitioner, Ricky Lynn Sapp Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(10); 3(12); 4(14); 5(2); 6(2); 8(3); 9(3); 11(4); 12(5); 13(8); 15(6); 16(7); 18(23); 20(20); 21(24); 22(26); 23(26); and 25(27). Proposed findings of fact 7, 17, 28 and 29 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 10 is rejected as irrelevant. Propose findings of fact 14, 19, 24, 26, 27, and 30 are rejected as being unsupported by the competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, School Board of Escambia County Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(9); 2(1 and 10); 3(11); 4(25); 5(25); 6(13); 7(14 and 16); 8(15 and 22); 9(18); 10(22 and 23); 11(6); 12(19); 13(29); 14(30 and 31); 15(32); 16(33); 18(19); 19(27); 20(28); 21(33); 22(34); and 23(35). Proposed finding of fact 17 is rejected as being unnecessary. Proposed finding of fact 24 is subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: G. James Roark, III, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Mike Holloway Superintendent of School Board Escambia County 215 West Garden Street Post Office Box 1470 Pensacola, Florida 32597-1470 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
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 issue for determination is whether Respondent's teaching certificate should be disciplined for alleged violation of various provisions of Section 231.28, Florida Statutes, and Rule 6B
Findings Of Fact Respondent Clayton McWilliams holds Florida teaching certificate number 653517, covering the area of substitute teaching, which is valid through June 30, 1994. He is 27 years of 1989, from Valdosta State College in Valdosta, Georgia. After a few brief months employment in retail sales in Tallahassee, Florida, Respondent returned to Madison, Florida, where he was born and lived prior to attending college. Respondent returned to Madison in August of 1989, after being contacted by the high school coach there regarding the possible employment of Respondent as an assistant coach at the high school from which Respondent graduated. He was employed in the 1989 County School Board. Subsequently, he was employed by the Board during the 1990 high school. Respondent served as an assistant coach during this period. While serving as a substitute teacher during the 1989 Respondent was responsible for a ninth grade science class. Female students M.B., R.B., J.D., and R.C., were in a group surrounding Respondent's desk, talking with Respondent. All the students in the group were curious about Respondent and asked him such questions as what are you going to coach, are you married, do you have a girl friend, and why did you come back to Madison? Respondent knew many of the students on a first name basis and, in the course of bantering with the group, responded at one point to the students' questions about his private life by asking the students about their social lives, if they kissed their boy friends with their mouths open, and if they used their tongues. There was general laughter from the students, although R.B. didn't think the question was "any of [Respondent's] business." This was the only question or comment that Respondent ever made that bothered R.B. R.B. regarded Respondent's conduct in the ensuing two years as "flirting" and "didn't ever think anything bad about it." The next year when R.B. was in the tenth grade (1990 photograph. Respondent later told R.B. that he stared at the photograph every night. When R.B. was in the eleventh grade and not a student in a class taught by Respondent, Respondent jokingly asked R.B. in the presence of D.C., her boyfriend at the time and an athlete with whom Respondent enjoyed a rapport, why she wanted to date such a "big, old dummy." There were other times that Respondent would see R.B., tell her that she looked nice, wink at her and blow her kisses. During the 1990 M.B., by asking her if she kissed with her mouth open, and would she teach Respondent how to do this. Respondent also told M.B. that she looked beautiful. M.B. was not a student in a class taught by Respondent. During the 1991-1992 school year, M.B. was a high school junior and a varsity cheerleader. Respondent continued to speak to M.B., although she was not his student, when he saw her on the school campus or at sporting events. He continued to ask M.B. about kissing with her mouth open, whether she would teach Respondent how to do this, and when could she teach him. M.B. declined to specify any time or place to meet with Respondent. M.B. did not disclose Respondent's behavior to anyone at this time. On one occasion, M.B. and other eleventh grade students, including her boyfriend, were in the high school library, ordering their class rings. Respondent became involved in conversation with the students and asked M.B. again about teaching him to kiss open would lose his job for M.B. Although he heard these comments, M.B.'s boyfriend considered Respondent to be joking. In the fall of the 1991 Wakulla County for a game which would determine whether the team could compete in the district championship playoff. Upon boarding the bus after the game for the trip home, Respondent was asked by M.B. if he was going to sit with her on the bus. He replied that he would if she saved him a seat. Respondent stored the athletic equipment which he was carrying, returned to the forward section of the bus and assumed the vacant seat beside M.B. Since the team had lost the game, most passengers on the bus were despondent. In the course of the trip, M.B. and Respondent leaned their heads against the back of the seat in front of them and Respondent talked about college and how being from a small high school had been difficult when he had attended the University of Florida before transferring to Valdosta State. Respondent had his hands between his knees as he talked and at one point placed it on M.B.'s knee or patted her knee. She, feeling discomfited by the gesture, brushed his hand away. This was the only time that Respondent touched a student where such touching was interpreted by a student to have sexual significance. Respondent testified that he patted M.B. because she acted as though "something had been bothering her" and characterized the pat as something he would give "football players or baseball players at school." Eventually, M.B. became sleepy and rested her head against the bus window. Respondent in a normal tone of voice offered to let her place her head on his shoulder, but M.B. declined. During the 1991 photographs. On the back of his photograph, Respondent wrote: M., I remember when I first saw you, you struck me as beautiful. I really think you are. You are truly special to me. Please know that I love you. Stay sweet and pretty. Love, Clayton. P.S., Please teach me sometime. Mary Rice, a teacher at the high school, began teaching there at approximately the same time as Respondent. Rice, like Respondent, was single. Rice, like Respondent, enjoyed informal relationships with some students, such as the cheerleaders for whom she served as staff sponsor. The cheerleaders, similar to many students who called Respondent by his first name, referred to Rice as "Mary". She became engaged in October of 1991 to Scott Alley, another teacher who occasionally substituted at the school. Rice and Respondent had a normal collegial relationship. Prior to Christmas of 1991, Rice and Respondent were in the school office discussing what they were getting their significant others for Christmas. Respondent told Rice that he would tell her what he was getting his girl friend for Christmas if Rice would have sex with him. Later in the day, Respondent got down on his knees in the hallway outside of Rice's classroom in the presence of students and asked Rice to "go with me before you get married". While Respondent meant that he wanted to have sex with Rice, he did not explicitly state such in the hallway. Later, Respondent sent Rice a note containing four blanks for letters. According to Rice, the note stated that Respondent would tell Rice what he was getting for his girlfriend for Christmas if Rice would " ". Rice assumed the four blanks to represent a sexually suggestive word. Rice stored the note in her desk drawer. She determined not to tell anyone about the note. In February of 1992, her fiancee, Scott Alley, discovered the note in the desk while he was substituting for Rice. He showed the note to Debra Wetherington, a school secretary, and later asked Rice about the note. Rice was startled that Alley had found the note and became upset. Later, in a telephone conversation initiated by Respondent, he discussed the note with Alley. Respondent apologized to Alley for any misunderstanding about the note, stating that he had written it merely to get a laugh from Rice. Respondent told Alley that he, Respondent, just flirted with everyone and that was "how I broke the ice with everyone." After Respondent's apology, the two men agreed to remain friends. Subsequently, the note was destroyed by Alley. Debra Wetherington, the secretary at the high school, frequently interacts with the teaching staff. Initially, Respondent and Wetherington enjoyed a good working relationship no different than those she shared with other teachers. She had known Respondent all of his life. Over a period of time, Respondent began to flirt with Wetherington, asking her about open mouth kissing. At these times, Wetherington ignored his remarks or laughed them off as a joke. When his behavior persisted, she told him that his conduct bothered her and that he should stop. She never told her husband or any one else about Respondent's attentions, hoping to resolve the matter without confrontation and embarrassment. On or about February 25, 1992, Respondent came into the school office and physically put his arms around Wetherington in a "bear" hug and, according to Wetherington, tried to put his tongue in her ear. Also present in the room were the school resource officer and another office worker. No eyewitness corroboration of Wetherington's allegation that Respondent attempted to put his tongue in her ear was offered at the final hearing and she had not reported this detail in an earlier affidavit regarding the incident. Respondent denies he attempted to put his tongue in her ear. Respondent's testimony is more credible on this point and it is not established that he attempted to put his tongue in Whetherington's ear. Wetherington later complained about Respondent's conduct to Lou Miller, the school principal. Miller called Respondent into her office, discussed the incident with him, and directed him to have no such contact with Wetherington in the future. Respondent apologized for his conduct, both to Miller and Wetherington. While Respondent and Wetherington had no further contact, Wetherington later asked another teacher, Tony Stukes, if Respondent was angry with her since she had not seen or heard from him lately. On or about March 24, 1992, Respondent saw M.B. in the hallway outside the door of his classroom while classes were changing. Respondent spoke to M.B. and told her that he had a dream about her. M.B. went to see Mary Rice, the cheerleading sponsor, who had earlier asked M.B. if she was having any problems with a teacher. Rice had taken this action following the discovery of Respondent's note in Rice's desk by Rice's fiancee. M.B. had confided in Rice about Respondent's previous flirtatious behavior toward her. Rice told her to write down future incidents. After relating to Rice the comment of Respondent about having a dream, M.B. was asked by Rice to go back to Respondent and find out more about the dream. M.B. went into Respondent's class where the students were working on a geography project. An overhead projector displayed the continent of South America on a board. Some students were tracing the projection on the board, preparatory to cutting the shape out of the board. Other groups were cutting out other continents. The lights in the room were turned on. Respondent was sitting at his desk, cutting out the Asian continent. M.B. went to a chair by Respondent's desk and sat down. M.B. was on her lunch break and was not a student in the class. However, in the context of the situation, her entry into the classroom was not that unusual. Respondent had on previous occasions entered an art class where M.B. was a student and had spoken with her or, on some of these occasions, had also spoken with the teacher in the class. After seating herself by his desk, M.B. asked Respondent to tell her about his dream. Respondent replied that he couldn't, but M.B. persisted. Finally, Respondent wrote on a piece of paper, "I had a dream about you and me." M.B. then wrote on the paper, "Well, what happened?" The rest of the written exchange is as follows: Respondent: "Well, all I remember is you were teaching me." M.B.: "Teaching you what?" Respondent: "Guess." M.B. "I don't know. Why don't you tell me what I was supposedly teaching you." Respondent: "How to kiss with my mouth open. I liked it, too. I woke up sweating and holding my pillow to my mouth." M.B. then took possession of the piece of paper on which she and Respondent had been writing, left the class and went back to see Mary Rice. M.B. discussed the matter with Rice. After this discussion, M.B.'s feelings about Respondent solidified and she determined that she detested Respondent. At Rice's suggestion, she then went to see Principal Miller. Miller and School Superintendent Eugene Stokes confronted Respondent with the note. Respondent stated he meant no harm by his conduct, recognized that he had a problem and needed help for his aberrant behavior. After a discussion of options, including suspension or resignation, Respondent thought about the matter overnight and submitted his resignation to Stokes on March 27, 1992. Respondent was told that the matter must be reported to the Professional Practices Commission. Respondent was, however, under the impression that his resignation would conclude the necessity for any further proceedings of a disciplinary nature. Until the time of his resignation, Respondent had received good evaluations. His contract was renewed annually. However, as expressed at final hearing by Miller and Stokes, they would not rehire Respondent in view of his past behaviors which now, in their opinion, would reduce his effectiveness as a teacher at Madison High School. Subsequently, Respondent was informed on May 28, 1992, that an investigation regarding alleged misconduct been instituted by the Professional Practices Commission. In August of 1992, Respondent sought and was appointed to a teaching position in Hawthorne, Florida, at the combined junior/senior high school in that city for the 1992 completion of course work for issuance of a five year teaching certificate from the State of Florida which he received in October of 1992. Dr. Lamar Simmons, the supervising principal at the school in Hawthorne, Florida, where Respondent is presently employed is acquainted with Miller. Simmons contacted Miller at the Madison High School, prior to employing Respondent. Miller informed Simmons that Respondent had been a satisfactory employee. Miller did not disclose Respondent's alleged misconduct to Simmons because she assumed Respondent was receiving professional help for his problem and that the issuance of Respondent's five year certificate indicated that further disciplinary proceedings by the Professional Practices Commission had been abandoned. Respondent later disclosed the instant disciplinary proceeding to Simmons. To date of the final hearing, Respondent continues to teach at the school in Hawthorne without apparent incident.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the third, fourth, and fifth count of the Administrative Complaint, and placing Respondent's teaching certificate on probation for a period not to exceed three years upon reasonable terms and conditions to be established by Petitioner, including the following requirements: That Respondent present himself for psychological evaluation by a qualified professional selected by Petitioner. That Respondent complete such course of psychotherapy as may be prescribed as a result of that evaluation. That Respondent assume the cost of such evaluation and subsequent therapy, if any. That Respondent enroll and complete a minimum of six hours of continuing education courses in the area of professional conduct for educators. That in the event that Respondent fails to comply with any of the terms and conditions of probation, Respondent's teaching certificate shall be subjected to a period of suspension not to exceed two years, and that compliance with these conditions of probation serve as the prerequisite for any reinstatement of Respondent's teaching certificate in the event that suspension for noncompliance with these conditions occurs. DONE AND ENTERED this 1st day of June 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1993. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following constitutes my specific rulings on proposed findings of fact submitted by the parties: Petitioner's proposed findings 1.-12. Accepted. Rejected as to D.C.'s feelings, hearsay. Accepted. (Note: this is the second finding numbered 13.) Rejected as to "two or three times", accepted as to touching on the knee one time, on the basis of resolution of credibility on this point. (Note: this is the second finding numbered 14.) Accepted. Accepted in substance, not verbatim. 16.-18. Accepted. Rejected as to tickling reference since no sexual significance was ascribed by M.B. to this action, she did not supply a point in time when this occurred and inclusion would imply a significance not proven at the final hearing. Rejected, unnecessary. 21.-23. Rejected, subordinate to Hearing Officer findings on this point. 24.-42. Accepted, but not verbatim. 43. Accepted as to bear hug, remainder rejected on basis of creditibility. 44.-57. Accepted, but not verbatim. Respondent's proposed findings 1.-20. Accepted, but not verbatim. 21. Rejected, unnecessary. 22.-23. Accepted, but not verbatim. Rejected, unnecessary. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Thomas E. Stone, Esquire Post Office Box 292 Madison, Florida 32340 Karen Barr Wilde Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practice Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Sidney H. McKenzie, Esquire General Counsel Department of Education The Capitol PL-08 Tallahassee, Florida 32399-0400
The Issue Whether just cause exists to terminate Respondent's employment with the Lake County School Board.
Findings Of Fact The Parties Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Lake County, Florida. At all times relevant hereto, Respondent was employed as a teacher in the School Board's online learning program. Events of March 26, April 11, and April 14, 2014 The first incident giving rise to this proceeding occurred on March 26, 2014, in Mount Dora, Florida. On that occasion, Brandy Herron, a former School Board employee, was shopping with an acquaintance (Kelly Richter) at an Office Depot store. Respondent, accompanied by his 15-year-old daughter, was also present in the establishment. The record reflects that Mrs. Herron and Respondent were no strangers, having worked together——acrimoniously——at the same elementary school from 2007 to 2008. As such, it is not surprising that, upon seeing Respondent in the store, Mrs. Herron noted his presence to Ms. Richter. Regrettably for all involved, Respondent misinterpreted Mrs. Herron's innocent remark to Ms. Richter as a personal affront. Eschewing self-restraint, Respondent approached Mrs. Herron and demanded to know if she was talking about him. Moments later, while gazing at Mrs. Herron's breasts, Respondent uttered, "fakey, fakey, fakey." Predictably, Mrs. Herron asked Respondent to back away. Respondent eventually did so, but not before he told Mrs. Herron that, because he was unwilling to fight a woman, he would instead "beat [her] husband's ass." For good measure, and to the dismay of Mrs. Herron, Respondent repeated his "fakey, fakey, fakey" refrain. On the heels of his encounter with Mrs. Herron, Respondent drove (with his daughter in tow) to Mr. Herron's place of business. Upon his arrival, however, Respondent was informed by a member of Mr. Herron's staff that Mr. Herron was out of the office.1/ The second encounter at issue occurred on the evening of April 11, 2014, on the campus of Lake Tech College ("Lake Tech"), a vocational charter school located in Lake County. At approximately 9:00 p.m., Respondent accompanied two of his minor children to Lake Tech, where Respondent's father-in-law, Jack Miller, is employed as the school's assistant director. It is undisputed that the presence of Respondent and his children at Lake Tech was at the invitation of Mr. Miller, who had arranged for his secretary to notarize certain test registration documents. (Respondent's children were scheduled to take the ACT examination early the next morning.) Per Mr. Miller's instructions, Respondent accompanied his children to an office adjacent to Lake Tech's welding classroom, where a school secretary proceeded to notarize the documents. At that time, a welding class was wrapping up, one of whose students, 21-year-old Ozzie Villafranca, nodded a greeting to Respondent. From this innocent nod, Respondent erroneously concluded that Mr. Villafranca had ogled his 15-year-old daughter. By all accounts, Respondent overlooked this perceived slight (temporarily at least), completed the business at hand, and accompanied his two children to the parking lot. At that point, and without provocation, Respondent returned to the entrance to the welding classroom, where Mr. Villafranca was getting some fresh air. Respondent approached Mr. Villafranca and demanded to know if he had a "problem." Taken aback by Respondent's peculiar conduct, Mr. Villafranca replied that there was no problem. Moments later, Mr. Villafranca's cousin, Eddie Villafranca (also an adult vocational student), joined the encounter, at which time Respondent asked if he, too, had a problem. When Eddie did not respond, Respondent inquired of the cousins, "do you little boys want to get your asses beat?" Fortunately, much of the foregoing incident was witnessed by Mr. Miller, who repeatedly implored Respondent to go home. After three explicit warnings, Respondent returned to the parking lot and drove away. The next incident, which occurred on April 14, 2014, was comparatively less serious. On that occasion, Stephanie Burnett, a School Board employee, was shopping in a Target store when she was approached by Respondent's wife, Sue-Ellen Anselmo. During the brief conversation that ensued, Mrs. Anselmo identified herself to Ms. Burnett, accused Ms. Burnett of trying to destroy her family (by supposedly providing, some years earlier, misinformation to the School Board during an investigation of Respondent), and called Ms. Burnett a "bitch." Mrs. Anselmo then proceeded to walk away, at which point Ms. Burnett, who was rattled by the exchange, began to wheel her shopping cart elsewhere. Moments later, Ms. Burnett encountered Respondent, who, upon seeing her, exclaimed, "I read your statement and you're a liar." Needless to say, the foregoing incidents were reported to and investigated by the School Board. Although one or more of the episodes——particularly the first two——likely would have warranted Respondent's termination, the School Board instead issued a "Level II Written Reprimand." The reprimand, whose relevant content is quoted below, was issued on June 3, 2014, by Dominick Pedata, the School Board's supervisor of employee relations: This Level II reprimand is to put you on notice of your three separate incidents involving your behavior outside of the office. An investigation proceeded regarding these allegations. On March 26, 2014, it was documented by a police report that you harassed one former employee and her husband regarding a prior Lake County Schools investigation that you were involved in. On April 11, 2014, it was reported that you threatened two students at Lake Tech Education Center in the parking lot with physical harm and were asked to leave on several occasions or the police would be called to escort you off the campus. On April 14, 2014, it was documented by a police report that you and your wife threatened a Lake County Schools employee regarding a prior Lake County Schools investigation. These are clear violations [of] Florida Administrative Code [Rule] 6A-10.081 Principles of Professional conduct for the Education Profession in Florida . . . . Moving forward you are not to approach any employee regarding a prior investigation, and/or enter a Lake county School campus and act in an aggressive or harassing manner toward a student. Any similar issues will lead to further disciplinary action up to and including termination. Please let me know if you have any questions. (emphasis added). The foregoing language makes plain that the School Board had completed its investigation regarding the incidents of March 26, April 11, and April 14, 2014, and that Respondent's "Level II Reprimand" constituted formal disciplinary action in connection with those events.2/ Thus, as discussed later in this Order, the School Board is now precluded from terminating Respondent for the same misconduct. Psychological Evaluation As noted previously, the School Board advances an alternative basis for termination, namely, that Respondent is guilty of "incompetency." On this issue, the record reflects that on June 3, 2014, Mr. Pedata directed Respondent to report for a "Medical Fit for Duty Examination" with Dr. Wally Austin, a licensed psychologist. At or around that time, Mr. Pedata furnished Dr. Austin with police reports and other investigative documents relating to the incidents of March 26, April 11, and April 14, 2014. Consistent with Mr. Pedata's directive, Respondent thereafter reported to Dr. Austin's office and submitted to a psychological evaluation. The evaluation, which Dr. Austin conducted on June 24, 2014, comprised three elements: a one- hour interview; the Minnesota Multiphasic Personality Inventory- 2 ("MMPI-2"); and a follow-up interview of approximately 5 to 10 minutes. Dr. Austin concedes that, during the interview, Respondent's speech was "clear, logical, and coherent," and that there was "no evidence of a thought disorder, perceptual disturbance, or psychosis." Nevertheless, Dr. Austin was troubled by the fact that, when pressed about the episodes of March 26, April 11, and April 14, Respondent provided descriptions of the events that varied significantly from the accounts of the other involved parties (as documented in the police reports and other materials provided to Dr. Austin by the School Board). For example, Respondent insisted that he was not present at the Target store on April 14, 2014, and, thus, did not interact with Ms. Burnett on that date. Operating under the premise that Respondent had engaged in "grossly inappropriate behavior" during the episodes of March 26, April 11, and April 14,3/ Dr. Austin thought it prudent to "get objective information." To that end, Dr. Austin administered the MMPI-2, a widely-used, standardized test of adult personality. Unfortunately, Respondent's answers to the MMPI-2 resulted in a high "lie" (or "L") scale (one of the test's three "validity" scales) that rendered the entire evaluation invalid. As Dr. Austin explained, a high L scale typically occurs when test takers attempt to depict themselves as unrealistically virtuous. Notably, however, Dr. Austin equivocated whether the high "L scale" resulted from conscious behavior on Respondent's part. At one point, for example, Dr. Austin testified that Respondent "had the ability to answer [] in a more forthright manner."4/ Later, though, Dr. Austin credibly opined that Respondent believed in the truthfulness of his test responses: Well, that's the part we didn't get into. He faked it – when I say "faked it good," there is [sic] other scales that indicate that John believes what he is saying. So for him, he is not faking it. * * * [B]ecause by [the L scale] being so high, it invalidates the report because it lowered all of the other scores. And the psychopathology would come up, but you don't know what it is because he denies everything. But it is not a conscious denial, he believes what he believes. Pet'r Ex. 10, p. 68:5-9; 68:23-69:3 (emphasis added). Upon the completion of the MMPI-2, Dr. Austin conducted a brief follow-up interview with Respondent, at which point the evaluation concluded. The following day, on June 25, 2014, Dr. Austin notified the School Board that, in his view, Respondent was "not fit to return to work in the school system." A charging document soon followed, wherein the School Board alleged that Respondent is guilty of incompetency: Based on the results of the medical fit for duty you are also charged with "Incompetency." Under F.A.C. 6A-5.056(3), Incompetency is the "inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity." Inefficiency under 6A- 5.056(3)(a)2 is "Failure to communicate appropriately with and relate to students[,]" and 6A-5.056(3)(a) is "Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents." Incapacity under 6A- 5.056(3)(b)1 is "Lack of emotional stability." Your actions clearly reflect incompetency in this regard. Pet'r Ex. 17. In its Proposed Recommended Order, the School Board reiterates its position that Dr. Austin's findings and/or the incidents of March 26, April 11, and April 14, 2014, demonstrate Respondent's incompetency. For the reasons explicated below, the undersigned is not so persuaded. First, the School Board is precluded from basing the incompetency charge upon the episodes for which Respondent was previously reprimanded. The psychological evaluation likewise cannot support the incompetency charge, as it is evident that Dr. Austin's opinion was informed almost exclusively by Respondent's previously-punished misconduct. Consider the following exchanges between Dr. Austin and School Board counsel: Q. Okay. And what are those duties, just in your own words, that you would expect for a teacher who is, in fact, fit for duty to perform? A. I think the question is very broad. Because I would like to answer it by ruling out what I don't expect. Q. Okay. A. I don't expect there to be threats of violence to hit other students – to hit students where the teachers now are starting to get violent with the kids, or young men, students of the county. Or I don't expect teachers or adults to conduct themselves inappropriately in the school setting or in public to the point that you were going down the street to fair it out with someone's husband. You know, those kinds of things, I don't think that is becoming of a school teacher. * * * A. All right. I am not assessing his ability to teach. I am assessing: Is he fit to be in the room. Q. Correct. A. I am looking at an individual who has had five episodes of grossly inappropriate behavior: The Triangle School thing one, the Home [sic] Depot lady, the flirting, the technical school, the Target. He has had inappropriate behavior in multiple settings; in the school setting, in the public with the school teachers; he is going over to people's work environments. His inappropriate behavior has involved teachers, it has involved students, it has involved administrators. He has been called on the carpet and had consequences of police reports filed on him, changes in school, three-days [sic] suspension. And it keeps going on and on . . . . If a person has done something twice, three times, four times they are very likely to do that behavior again. What faith do I have that [Respondent] is not going to threaten violence to teachers or to students when he leaves my office . . . ? Pet'r Ex. 10, p. 35:7-22; p. 36:3-8. The only reasonable interpretation of the foregoing testimony is that Respondent's earlier misdeeds were a necessary component of Dr. Austin's opinion. At bottom, then, the School Board is attempting to accomplish indirectly (i.e., terminate Respondent by channeling his previously-punished misconduct through an expert, who opines that the misconduct demonstrates unfitness) what it cannot do directly (i.e., terminate Respondent for the previously-punished misconduct). As noted shortly, basic due process precludes such an outcome. Moreover, and in any event, Dr. Austin's evaluation, which comprised a single office visit, was insufficiently comprehensive to evaluate properly Respondent's fitness to carry out his required duties. On this point, the undersigned credits the testimony of Respondent's expert witness, Dr. DeLeon, who opined that an appropriate evaluation would necessarily include multiple office visits over a period of time.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order: dismissing the charges brought against Respondent in this proceeding; and awarding Respondent any lost pay and benefits. DONE AND ENTERED this 26th day of March, 2015, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2015.
Findings Of Fact On or about January 30, 1979, Respondent, State of Florida, Department of Education (hereinafter "Department") issued an Announcement of Position Vacancy for Position number 00533 for an Educational Data Analyst I (hereinafter "EDA-I"). The deadline for filing applications was February 20, 1979. The minimum qualifications were: Graduation from an accredited four-year college or university and two years of experience in school administration, teaching or experience directly related to the specific school service program. Professional or technical experience in one of the above areas may be substituted for the required college training on a year-for-year basis. These qualifications, known as class specifications, are issued by the Department of Administration. The advertised position was in the Teacher Certification Section. John Stables was the Administrator for the Teacher Certification Section during all times material hereto. The first step in the selection process begins with the request for announcement of position vacancy. When this is approved, the Department issues an Announcement of Position Vacancy. The Announcement contains a closing date by which all those interested in the position must file their applications. The applications are received in the Department's Personnel Office and are screened to determine whether or not the applicant meets the minimum qualifications as set forth in the Announcement. As the applications are received, they are forwarded to the section where the vacant position is available. After the applications are received by the section that has the vacant position, the applications are reviewed, interviews are conducted, and the top candidates are designated. A specific recommendation is made by the section head, approved by the Division Director, and then reviewed by the Personnel Office for compliance with appropriate rules and to verify that all paperwork has been properly completed. The recommendation is then forwarded to Francis N. Millett, Jr., the Deputy Commissioner of Education, who is also the Department's Equal Employment Opportunity Officer, who reviews it. The recommendation then goes to Commissioner Turlington, who makes the final decision and signs the appointment letter. In the Teacher Certification Section, Patricia Wortham had the duty of receiving all applications and compiling a list of the applicants. It was also her duty to make arrangements for interviews of any applicants that requested an interview. In addition, when the Section had made its recommendation, she typed the Department's form containing statistical information and returned the form with the applications of those who had not been selected to the Personnel Office. In the Teacher Certification Section, Myra Burkhalter, an Educational Consultant III, had the duty of conducting interviews with the applicants in the first instance. Burkhalter had been employed in the Section for approximately ten years and had served as an Educational Consultant III for the last three or four of those years. The Educational Data Analysts I and II were under her general supervision. She was the highest ranking employee in the Section, outranked only by Staples, and was specifically given the task of interviewing applicants. After Burkhalter completed her interview with a particular applicant, she would introduce the applicant to Staples if he were available. The EDA-I position is a meticulous job that requires from one to one and a half years of training before the individual is capable of performing the job. There is contact between the EDA-I and persons in educational institutions outside the Department. The analysts review transcripts of persons applying for a teaching certificate in the State of Florida. The duties require counseling and interviewing with teacher-applicants and further require an almost instant recall of all the statutes and State Board of Education teacher certification rules. The analyst reviews the courses and experience of the teacher-applicant and applies the course work and credits against the rules to determine whether the person applying for a certificate meets the minimum qualifications. Some 1,600 to 1,700 institutions from which the certification applicants obtained schooling have to have their accreditation status verified by the analyst in order to determine whether or not that institution meets the standards set by the State of Florida. Additionally, many applicants have degrees from institutions in countries other than the United States, and the analyst must either know or be able to find information regarding the schools in those foreign countries. Staples and Burkhalter considered the interview process of an applicant for an EDA-I position to be imperative. Burkhalter explained to the applicant in some detail the preciseness required in performing the job and the pressures of the job, since there were always teacher certification requests to be analyzed. The year's training procedure, the amount of knowledge that must be acquired by the analyst in order to perform the required functions, and the importance of the screening process of the certification applicants in order to assure that only qualified teachers are certified were explained to the interviewee. Additionally, Burkhalter talked with the EDA-I applicant to determine how that person's reaction would be (as near as possible in an interview) to the type of work and duties of the position. The communicative skills of the job applicant were discussed. It is absolutely essential that the EDA-I have the ability to communicate both orally and in writing. The reason for the high degree of communication ability is that an EDA-I, after the training period, writes letters to educational institutions concerning transcripts and talks to and corresponds with persons requesting certification. Part of the duties involve contact with the public. An analyst spends one week out every six or eight weeks at the front desk working with office visitors. Good communicative skills are required in order that the EDA can answer questions posed by applicants for teacher certification. The interviewing process is thus required in order to ascertain the applicant's communicative skills. Another purpose of the interview is to determine as nearly as possible the applicant's attitude in interpersonal relationships, since there are approximately eighteen analysts doing the same thing, and it is essential that they work as a team. The job places the EDA-I under considerable pressure in working closely with other people, especially during the training period. The training period, by necessity, requires close supervision of the EDA-I and involves frequent correction of the trainee's work. Since the Department invests over a year in the training of an EDA-I, it is essential that an applicant's future plans be discussed, particularly the applicant's intentions concerning how long the applicant intends to remain in Tallahassee, the job location, and how long the applicant intends to remain in the position. Inasmuch as the information to be given to and received from the interviewee can only be communicated and evaluated in a face-to-face meeting, it is essential that those applying for the position be interviewed. The Department has no established policy regarding the conducting of employment interviews. The method utilized is left up to the particular section doing the interviewing. Furthermore, the Department of Administration has promulgated no rules or guidelines requiring that interviews be conducted in a certain manner, that an agency interview a certain number of applicants, or that an agency interview any applicants. Since there were no state or department rules for conducting interviews, it was the practice of the Section to interview those applicants requesting an interview. Since there were many applicants for each EDA-I position, and since most of the applicants met the minimum qualifications, experience had shown that there would be a sufficient number of applicants that requested an interview from which the top four or five names would be submitted to Staples for his recommendation. Staples believed that the fact that a person would call and ask for an interview was indicative of the person's enthusiasm and interest in the job itself. He believed it was a further indication of the person's self-confidence and desire to obtain employment. Burkhalter and Staples endeavored to evaluate whether the applicant would fit into the EDA-I job during the interview process. Staples and Burkhalter never refused to interview anyone who requested an interview. Additionally, no one was hired who had not been interviewed. On or about February 16, 1979, Petitioner filed an application with the Personnel Office for the EDA-I Position number 00533. She was born in Puerto Rico, where the main language is Spanish. Her family spoke French and Spanish while she was growing up, and Petitioner speaks English with an accent and Spanish. Petitioner's application was forwarded to the Teacher Certification Section. Twenty-five applications were received for Position number 00533. Eight persons were interviewed by Burkhalter for Position number 00533--five were interviewed in February and March, 1979, and three had been interviewed on previous occasions. Approximately two weeks after Petitioner filed her application at the Personnel Office, she called the Teacher Certification Section inquiring as to what action had been taken with her application. Since the person answering the telephone had no information regarding the applications for the position, Petitioner requested that Staples return her phone call. When she did not receive a return call from Staples, she again called the Teacher Certification Section, again spoke to someone with no information regarding the pending applications, and again requested that Staples return her call. When she did not receive a return phone call from Staples, Petitioner called the Teacher Certification Section a third time. Patricia Wortham, the person in charge of scheduling interviews of applicants, took the third phone call and distinctly remembers her conversation with Petitioner. Petitioner asked if the position had been filled and why she had not been called for an interview. Wortham explained that the Section did not call applicants to schedule interviews, but rather waited until an applicant requested an interview. Wortham asked Petitioner if she would like to come in for an interview, and Petitioner replied that she did not want an interview. Wortham was surprised by Petitioner's refusal to come in for an interview since in the seven years that Northam had worked in that position, she had never had an applicant decline to come in for an interview. Petitioner's telephone conversation with Wortham concerning an interview occurred before anyone had been selected to fill the position. Petitioner was informed that the position had not been filled, and that an interview was available. Although Petitioner denies that she was offered an interview, she does admit that during her third phone call to the Teacher Certification Section an interview was discussed. By the time Petitioner called the Section for the fourth time, the position had been filled, and she was so advised by Burkhalter. Shortly thereafter, she received a letter officially notifying her that a selection had been made. Margaret Goforth filled an application and met the minimum qualifications for the position. She requested and was granted an interview. Since she was believed to be the best applicant of those interviewed, she was selected. Staples signed the recommendation to hire Goforth on March 16, 1979, and she began work on April 24, 1979. After Ralph Turlington became Commissioner of Education in 1974, he determined that the Department needed to have an Equal Employment Opportunity (hereinafter "EEO") policy committee and EEO officer. The Department subsequently instituted an EEO policy. The purpose of the policy is to provide people of all racial and ethnic backgrounds a greater opportunity to apply for and be selected for positions in the Department. To implement the policy, the Department began to advertise widely positions that became open so that people meeting the qualifications would have an opportunity to apply. An EDA-I is considered a professional position. The Department sends position vacancy announcements for professional positions to approximately six hundred locations, including universities, community colleges, school districts, minority groups, affirmative action groups, and also distributes the announcement within the Department. The purpose of the EEO policy is to ensure that all applications for positions are given equal treatment. The policy sets forth target areas such as minorities, handicapped persons, and affirmative action groups in order for these persons to be notified and have the opportunity to apply for positions. The EEO policy does not specify how job applicants are to be interviewed or selected for interviews. The procedure for conducting the interviews and making the final selection is left up to the individual section, provided the procedure used does not discriminate against an applicant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered by the Florida Commission on Human Relations finding that Esther C. Reedy was not discriminated against on the basis of her age or national origin and dismissing her Petition for Relief with prejudice. RECOMMENDED this 31st day of August, 1982, in Tallahassee, Florida. LINDA M. RIGOT, 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 31st day of August, 1982. COPIES FURNISHED: Robert I. Scanlan, Esquire Post Office Box 10311 Tallahassee, Florida 32302 Gene T. Sellers, Esquire State Board of Education Knott Building Tallahassee, Florida 32301 Aurelio Durana, Esquire Assistant General Counsel Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Mr. Richard Williams Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building 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 Whether Respondent discriminated in its hiring practices against Petitioner because of his race, and whether Respondent retaliated against Petitioner because he filed a charge of discrimination, and a complaint.
Findings Of Fact On or about October 2000, Petitioner filed a Charge of Discrimination with the FCHR. (The Charge of Discrimination was FCHR No. 2101775). Thereafter, on or about May 3, 2001, Petitioner filed an Amended Charge of Discrimination (attached to Petition for Relief filed on July 17, 2002). The essence of the Amended Charge was that he had been discriminated against on the basis of race because whites were employed in positions for which he had applied. Petitioner also alleged retaliation and claimed that after he filed his initial Charge of Discrimination, he was not rehired by Respondent as an adjunct instructor and he was denied compensation. The Commission conducted an investigation and on June 4, 2002, issued a Determination: No Cause. The Commission found that there was "no reasonable cause to believe that an unlawful employment practice has occurred." On the same date, the Commission also issued a Notice of Determination: No Cause, in which it advised Petitioner of his right to request an administrative hearing by filing a Petition for Relief within 35 days of the Notice. Petitioner was also advised that if he failed to request an administrative hearing within 35 days "the administrative claim under the Florida Civil Rights Act of 1997, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992)." Petitioner did not file his petition for relief until July 17, 2002, 43 days after the date of the Notice of Determination. In his Petition for Relief, Petitioner claimed that he had been denied full-time employment by Respondent since 1998, and when complaints were filed, Respondent retaliated against him by not rehiring him as an adjunct instructor and denying him unemployment compensation. Petitioner is an African-American male. He received a bachelor of science in mathematics education from Tuskegee University in 1967; a master's degree in business management from Rollins College in 1976; and, a Doctor of Education degree from the University of Central Florida in 2000. Petitioner worked in private industry in Central Florida during the period 1972-1992. During portions of that time, he also worked as an adjunct instructor at Valencia Community College, Florida Southern, and Phillips College. He was employed full-time as an instructor at Brevard Community College from 1992-1996. From 1996 to 1998 he taught at Evans High School in Orlando where he also served as the assistant football coach. Petitioner also taught mathematics and science classes to fifth to eighth grade students at Madison Middle School for part of the 1998/1999 school year. In 1998, Petitioner began teaching as an adjunct instructor at North Florida Community College (College). The College is located in Madison, Florida. It serves the six counties of Hamilton, Madison, Jefferson, Suwannee, Lafayette, and Taylor. The College's district is, geographically, the largest community college district in Florida. Respondent offers a variety of programs ranging from its college transfer program with an associate of arts (AA) or associate of science (AS) degree to two vocational certificate programs. Total enrollment varies from 3,000 to 4,000, depending on vocational enrollments which are demand-based. The current FTE (full-time equivalency) is just under 800. Classes are taught at the campus in Madison and at public high schools in each of the six counties in the service district. Approximately 72 percent of the population of the district is white and 28 percent is non-white. Enrollment at the College mirrors to a large extent the population of the district, except in the college transfer program, where the African-American enrollment is approximately 20 percent, white enrollment is 75 percent, and other groups, including Hispanics, comprise five percent of the students. The Hispanic population of Respondent's six-county district has increased from 1,699 or 1.92 percent of the population in 1990, to 5,019 or 4.73 percent of the population in 2000. This represents a 195 percent increase. Statewide, Florida's Hispanic population grew by 70 percent during the same period. Search committees are appointed by the president of the College and efforts are made to ensure that a member of Respondent's equity committee and a minority, if at all possible, are assigned to each committee. A search committee was appointed by Respondent for each of the applications at issue in this case. Each search committee was charged with reviewing the applications which met the minimum qualifications for each position and then determining the most qualified individuals to be interviewed. After the interviews, the search committee was to recommend the best qualified individual to be offered the position. Search committees are not told to interview individuals of a particular race or gender, but they are encouraged to give special consideration to minorities. If the top two applicants are equal in terms of qualifications and one is a minority candidate and the other is not, they are told to recommend the hiring of the minority applicant over the non-minority. There are 23 full-time instructors in the AA and AS degree programs at the College. Four of those are math instructors. In 1998, Petitioner applied for a position as a full-time mathematics instructor. There were no vacancies in the mathematics department at that time, nor has there been a vacancy for a full-time mathematics instructor at the College at any time since 1991. In 1998, Respondent advertised for an instructor to teach computer science courses in the Business Department. The courses were designed to develop basic computer operation skills, and focused primarily on Microsoft Office Suite software. At the hearing, Petitioner introduced a copy of a letter which was sent to Mr. Doug Brown, a college administrator, in July 1998. In the letter, Petitioner stated that he was "applying for a position in the business or education disciplines." Petitioner discussed his private sector employment experience and his college-level teaching experience, but did not state whether he had any computer science teaching or work experience. The computer science vacancy was filled by a white female who had a master's degree in business and 18 graduate hours in computer science. She had been an adjunct computer science instructor at the College for two years prior to being hired as a full-time instructor. She also taught computer science courses at Madison High School, and she had her own computer business. In 1999, Respondent advertised for the position of program administrator for the North Florida Workforce Development Board. At the time, Respondent was the administrative entity and fiscal agent for the Workforce Development Board. Petitioner applied for the position. None of the applicants were interviewed and the position was never filled because it appeared that Respondent was going to be replaced as administrative entity and fiscal agent, which, in fact, occurred. In December 1999, Respondent advertised to fill the position of project coordinator for the College Reach Out Program (CROP). The program targets economically and educationally disadvantaged youth enrolled in grades 6-12 in the schools in Respondent's service district, who have the potential to finish college but who are likely, without intervention, to drop out of high school. The goal of the program is to keep the students in high school, get them to graduate, and enroll in college. Requirements for the position of project coordinator included a bachelor of arts degree from a four-year college or university and three years of experience working with alternative education programs, at risk youth, or teaching in a youth program department. Approximately 30 persons, including Petitioner, applied for the position of CROP coordinator. A five-member search committee was appointed to review the applications and select individuals to be interviewed. The members of the search committee included Amelia Mulkey, who at the time was Respondent's Director o f Financial Aid, Purchasing and Reports; Mary Anne Wheeler, Director of Student Support Services; and Clyde Alexander, an African-American who is Respondent's athletic director and equity coordinator. After reviewing the applications, the search committee selected five individuals, including Petitioner and Nancy McClellan, to be interviewed. When the interviews were completed, the search committee chose not to rank the applicants. Instead the members unanimously recommended Nancy McClellan for the position. Nancy McClellan was a white female with a bachelor's degree in psychology and a master's degree in social work. A major factor in the selection committee's decision was her ten years of experience working with at-risk adolescents at DISC Village in Leon County, Florida, where she coordinated a comprehensive vocational services program. Her work at DISC Village included assessment, case management, community networking, career exploration, providing employability skills classes, coordinating with education and training providers, grant work, supervising staff, and counseling with parents. In September 2001, Respondent advertised for a case manager for the College Reach Out Program (CROP) in Lafayette and Suwannee Counties. The qualifications for the position were identified as a bachelor's degree in secondary education, social work, or the social services field, with the provision that working with at-risk youth could substitute for education on a month-by-month basis. Case managers are responsible for implementing the CROP programs in the counties to which they are assigned. They market, recruit, and provide services to students in the counties. They work closely with teachers, guidance counselors, students, and parents to enroll the students in the program and to ensure that the students remain in school and graduate. The case managers work with the students on a one-to-one basis. Experience has shown that a social work case management background is an important asset in a CROP case manager in Respondent's district. Students recruited for CROP have a multitude of family issues in their family lives which impact on their ability to remain in school. These include poverty, abuse, neglect, divorce, mental health, and disability issues, all of which social workers are taught to identify, assess, and address. Case managers also educate parents of students regarding available financial aid and college preparation courses which their children should be taking. Eight people, including Petitioner, applied for the position. Two individuals, Lynn Waller and Cheryl Chandler, were interviewed. Lynn Waller was selected for the position. She has a bachelor's degree in social psychology. At the time she was selected, she had been employed as a children's case manager at Apalachee Center for Human Services, working with students in the Madison County School System. She was responsible for recruiting students, working with them, their parents, teachers, and guidance counselors to assess needs, perform psychological assessments, and coordinate same. In his application, Petitioner stated that he had been employed as the CROP Coordinator by Respondent and by Brevard Community College. In fact, Petitioner had never been employed as the CROP Coordinator by Respondent or by Brevard Community College. Petitioner had been employed as one of four part- time facilitators by Respondent from January through June 2000. His duties were to recruit students, organize them into groups, meet with the groups two days per week and schedule one Saturday field trip per month. Nancy McClellan elected not to interview Petitioner for the case manager position, based upon her experience with Dr. Brown as a CROP field facilitator in 2000. When Nancy McClellan assumed her role as CROP Coordinator, Petitioner had not recruited any students from Suwannee County. Eventually, he recruited a total of eight students for CROP. By contrast, in April 2000, Lafayette County had 23 students, Taylor County had 15, and Madison County had 35 students. While Petitioner was case facilitator for Suwannee County, Nancy McClellan received complaints from Suwannee County regarding Petitioner's failure to bring application forms to the County's schools, to pick them up when they had been filled out, and to attend scheduled meetings with students. Petitioner also failed to take the eight students who enrolled in the program on any field trips. By contrast, the other field facilitators were taking the students on regular field trips which was an important part of motivating students to stay in school. In June 2001, Respondent advertised for two positions: learning resource coordinator and transfer advisor. Both were grant-funded positions. The learning resource coordinator is the manager of the tutoring lab for developmental students. These are students who do not have the placement test scores to begin college level work. In the lab they receive assistance in developing their skills in mathematics and English. The learning resource coordinator supervises the transfer advisor, who works with students in developing skills in English, and the retention advisor, who works in developing students' mathematics skills. The learning resource coordinator also supervises and trains tutors, peer mentors, and does some individual tutoring. In addition to the requirement for a four-year degree, the advertisement for the position stated that language proficiency in Spanish was preferred. The preference for Spanish proficiency was based upon the growing Hispanic population on Respondent's campus and the need for a staff person who could tutor the students in their own language, as well as to speak with the families who often accompany them to campus. Experience had shown that Hispanic students were better able to grasp concepts, as in mathematics, when they received tutoring in their native language. There were 18 applicants for the position of learning resource coordinator, among them Petitioner. Petitioner was not selected to be interviewed by the search committee because he did not have proficiency in Spanish. The three individuals who were chosen to be interviewed were proficient in Spanish: two were native Spanish speakers and one had a degree in Spanish. Maria Elizabeth Gonzalez was selected to fill the position. She was a native of Colombia and a native Spanish speaker. She identified herself on her application as Hispanic. At the time she was selected, she had been working for the previous three years as a tutor and as a lab assistant. The transfer advisor position is a grant-funded advisor position in the tutoring lab for developmental students. The transfer advisor works with developmental students in English; the retention advisor works with those students in mathematics. The advertisement for the transfer advisor listed as one of the qualifications a bachelor's degree with an emphasis in English. There were 20 applicants for the Transfer Advisor position. Petitioner was one of the applicants. Four individuals were chosen by the selection committee to be interviewed; all had an undergraduate degree with an emphasis in English. Petitioner was not chosen to be interviewed because his degree did not have an emphasis in English. Carmen Renee Perez was selected to fill the position. She had a bachelor's degree in English and two years of graduate work in English. She had also taught English as a second language. On her application she identified herself as Hispanic/Cuban/Caucasian. In March 2000, Respondent advertised to fill the position of instructor of business and economics. The advertisement stated that the duties of the position would include teaching courses in business, management, accounting, finance, business law, and economics. The minimum requirements included an MBA from an accredited institution or a master's degree with a minimum of 18 semester hours of subject specific graduate course work. There were between 20 and 30 applicants for the position. The search committee chose to interview five of the applicants. Among them were Petitioner; Ellen Stevens, a white female; and Scott Tori, a white male. Following the interviews, the search committee concluded that Dr. Brown had "great math credentials," but his business and economics credentials "were considerably less" than some of the other applicants. The committee concluded that both Ellen Stevens and Scott Tori were better qualified than Petitioner for the position. Ellen Stevens had a masters in business administration, and Scott Tori had a doctorate in economics. Scott Tori was offered the position and he accepted. In addition to his Ph.D., he had a master's degree in economics, and a bachelor's degree in business administration, with an emphasis in finance. At the time he was hired, Tori was an assistant professor of economics and finance at Thomas University. In the late winter of 2002, Respondent advertised to fill a vacancy caused by the retirement of the chemistry and physics instructor. The advertisement stated that the successful candidate would teach chemistry courses through the sophomore level, a year-long organic chemistry sequence, an algebra and calculus-based physics course sequence, and physical science courses, as needed. Petitioner submitted a letter application to Respondent dated March 2, 2002, for a "mathematics/physics/science instructor" position. This was not the title of the open position. In his letter, Petitioner identified himself as a "professor of mathematics." Petitioner was considered for the position but not selected. Terrence M. Zimmerman was determined by the search committee to be the best qualified to fill the position. He had a bachelor's degree in chemistry cum laude, a master's degree in science education, and all but a dissertation for a doctorate in chemistry. He had been an adjunct instructor in chemistry at Tallahassee Community College, an adjunct in chemistry and environmental science at Santa Fe Community College and, at the time he was hired, he was teaching chemistry and environmental science for Respondent as an adjunct. From 1988 until the time he was hired, he also taught chemistry, environmental science, and general science at Taylor County High School in Perry, Florida. Respondent presented credible evidence for each of the positions for which Petitioner applied establishing a non- discriminatory reason for Respondent's decision to hire someone other than Petitioner. In 1998, Petitioner began teaching mathematics courses for Respondent as an adjunct instructor (Adjunct). Adjunct instructors (Adjuncts) are part-time faculty members who are hired by Respondent on a semester-by-semester basis to teach specific classes in subjects in which they are qualified to teach. Adjuncts teach classes at various locations throughout Respondent's six-county district. They are employed on an as-needed basis and execute a new contract for each semester they are hired. Each semester, Respondent publishes a class schedule for the following semester. If Respondent has confirmed that a particular adjunct is going to be teaching a particular class, the adjunct's name will appear on the schedule. If an adjunct has not been confirmed to teach a particular class, the designation of the instructor for that class will appear as "staff." Petitioner was identified by name on the class schedule for one class each in the Spring and Fall of 1999, two classes in the Spring of 2000, and one class in the Fall of 2000. He taught classes in which the name of the instructor appeared on the class schedules as "staff" as follows: one class in the Fall of 1998, two classes in the Summer of 2000, and two classes in the Fall of 2000. The department chair has the discretion to determine which individuals will be hired to teach as adjuncts. Generally, if there is an adjunct who is local, competent, and willing, he or she will be rehired. There is no prescribed procedure for contacting adjuncts. Sometimes the adjuncts contact the department chair; sometimes the department chair contacts the adjuncts. In the Fall semester of 2000, David Proctor, a history professor, was department chair for Respondent's entire AA program. In addition to teaching three classes, one of which was in Hamilton County, he was responsible for scheduling full-time faculty instructors and 34 adjuncts to teach courses in the AA program. He was also responsible for preparing budgets for each department, evaluating faculty, and preparing class schedules. David Proctor intended that Petitioner would teach some of the introductory and intermediate algebra and developmental arithmetic classes during the 2001 Spring Semester. He did not hear from Petitioner in the Fall of 2000 regarding Petitioner's interest in teaching for the 2001 Spring Semester while he was preparing the schedule for the semester; therefore, he used the term "staff" in place of the instructor's name for four classes, intending that Petitioner would teach some of them. In October 2000, after the schedule for the Spring 2001 semester was published, Petitioner approached Proctor on the sidewalk outside the general classroom building on Respondent's campus and asked why his name was not in the schedule. Proctor assured Petitioner that he had every intention of having Petitioner teach during the Spring semester and suggested that they meet and decide what classes Petitioner would teach. Proctor was subsequently unable to meet with Petitioner as scheduled, so he left a note for Petitioner in which he highlighted classes on the schedule and asked Petitioner to tell him which two classes he would like to teach. This occurred in late October or early November. In December 2000, Proctor saw Petitioner outside Proctor's office in the adjunct mailbox area on campus and remembered that he had not heard from Petitioner regarding Petitioner's choice of classes to teach during the Spring semester. Proctor approached Petitioner and suggested they look at the schedule together and identify the classes Petitioner wanted to teach. Petitioner informed Proctor that he was looking elsewhere for employment and he would not be teaching for Respondent. Proctor was surprised, but wished Petitioner well and offered to write letters of recommendation for him. When Petitioner informed Proctor that he did not intend to teach for Respondent, Proctor asked a Hispanic adjunct instructor, Ephraim Bonilla, to pick up these additional courses. The only subsequent contact Petitioner made with Respondent regarding teaching again as an adjunct was a single telephone call at an unspecified date to the new mathematics department chairman, Mr. Harris, during which Petitioner inquired if there were any courses available. Harris told him there were none. Petitioner asked another individual to call with the same question. The individual Petitioner asked to call reported to Petitioner that he had met with the same response. When he prepared the schedule for the Summer of 2001, Proctor assumed that Petitioner was no longer interested in teaching for Respondent, and when he did not hear from him, he did not put his name in the schedule. When Proctor prepared the schedule for the 2001 Spring semester he was unaware that Petitioner had filed a charge of discrimination with the Commission. He was aware of it by the time he prepared the schedule for the Summer of 2001, but that knowledge played no role in his decision not to list Petitioner by name as an adjunct instructor when he prepared the class schedule for the Summer of 2001. Petitioner filed a claim for unemployment compensation benefits effective December 17, 2001, because he was not employed by the College as an adjunct instructor during the 2001 Spring semester. When Respondent received a copy of Petitioner's claim for unemployment compensation, Respondent's Director of Human Resources, Bill Hunter, spoke with David Proctor and learned from him that Petitioner had rejected the opportunity to teach during the 2001 Spring Semester. Bill Hunter provided this information on Respondent's copy of the claim and returned it to the Agency for Workforce Innovation. Petitioner's claim for unemployment compensation was subsequently rejected by state officials and he appealed. Following a telephone hearing during which David Proctor and Petitioner testified, the appeals referee concluded that Petitioner had refused Respondent's offer of an adjunct teaching position for the 2001 Spring Semester and, therefore, was properly barred from receiving unemployment compensation benefits. Petitioner subsequently sought review by the Unemployment Appeals Commission, which affirmed the decision of the appeals referee. In August 2000, Petitioner, and several other college employees, filed a complaint against Respondent with the U.S. Department of Education, Office for Civil Rights (OCR), alleging that Respondent was discriminating against students on the basis of race with regard to recruitment and financial aid. The complaint also alleged that Respondent was discriminating on the basis of race in its hiring practices. In a letter dated September 13, 2000, OCR notified Respondent's former president, Dr. Beverly Grissom, of the Complaint. In an attachment to the letter, OCR advised Dr. Grissom that "OCR does not reveal the name or other identifying information about an individual unless it is necessary for the completion of an investigation or for enforcement activities against an institution that violates the laws, or unless such information is required to be disclosed under the FOIA or the Privacy Act." OCR subsequently determined that there was insufficient evidence to support the student financial aid and recruitment allegations. OCR also determined that there was no statistically significant difference between the number of African-American administrators and faculty members actually employed and the expected employment rate based on the relevant labor market. OCR, therefore, concluded that it lacked jurisdiction to further investigate the matter. Finally, OCR referred the individual employment allegations in the complaint to the U. S. Equal Employment Opportunity Commission because it did not have jurisdiction over such claims. Consistent with its September 13, 2000, letter to Dr. Grissom, OCR did not identify the individual complainants, and Respondent was not otherwise aware of this until the hearing in this case that Petitioner had been one of the complainants. Respondent's decisions with regard to filling the vacancies for which Petitioner applied were not based on race, nor were they based on any retaliatory motive. Respondent's decision regarding the absence of Dr. Brown's name from the Spring 2001 class schedule was not based upon a retaliatory motive, nor was there a retaliatory motive involved in informing the unemployment compensation office that Petitioner had refused the offer of a position as an adjunct instructor for the 2001 Spring Semester.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter its final order dismissing the case. DONE AND ENTERED this 12th day of December, 2002, in Tallahassee, Leon County, Florida. __________________________________ STEPHEN F. DEAN 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 12th day of December, 2002.
Findings Of Fact James D. Alford, III, was initially employed by the Board of Education in the Public Schools of Duval County, Florida during January of 1973. Respondent holds teacher's certificate no. 333009, graduate, rank 3 and is a graduate of Tuskegee Institute where he received a B.S. Degree in Industrial Arts. For approximately two and one-half years subsequent to January, 1973, he was assigned to southside Junior High School as an Industrial Arts Special Education Teacher in a pilot program. It appears that there is no difference in the qualification required for teachers of industrial arts in special education programs as opposed to other industrial arts teachers that are certified in industrial arts. In addition to his employment with the Duval County School Board, Respondent served in a student teacher training program for nine weeks in Montgomery, Alabama. Respondent, during his assigned duties for the Duval County School Board, taught a special education industrial arts class consisting of seventh, eighth and ninth grade students. He trained students how to safely use tools and to perform projects requiring the use of industrial arts tools. He assigned students projects based on their manipulative skills. He noted that "special ed" students had to be trained to use even the simplest tools such as hand saws. Respondent testified that discipline was a major problem in teaching "special ed" students and that for the first and/or minor offense, he attempted to discipline students by verbal commands and that when that failed he sent students to the Dean's Office. He denied ever using physical force to punish students for unruly conduct. His testimony is that his only physical contact with students was to restrain them from physical acts and it suffices to say that he denied all of the allegations filed by the Council in its petition to revoke his teaching certificate. Respondent was aware of the Board's policy respecting discipline and testified that he never administered corporal punishment to students. Following altercations with two students during late 1974, Respondent was offered transfers on at least two occasions which he declined because he "had recently received approximately $5,000.00 of new shop equipment" and further that he wanted to remain at Southside for a sufficient period in order to administer in a smooth and efficient manner the special ed industrial arts program at Southside. The first significant incident involving the Respondent occurred during December of 1974 during an altercation with one of his students i.e., Gary Roary. According to Respondent, Roary initially hit him whereupon he retaliated by striking him back. Roary then left the room, picked up a two by four and returned to the classroom where Roary attempted to hit Respondent. Respondent, in an effort to snatch the two by four from Roary, shoved him causing him to fall on a saw. Roary sustained an injury which required three sutures at the emergency room at a local hospital. Respondent states that he did not know that Roary had injured himself until he was later called to the office where he was told to meet with Mr. Buford Galloway. The Principal, J. R. McDaniel, investigated the incident involving Gary Roary and concluded that Respondent was "rather rough with Gary". See Petitioner's Exhibit #1. Respondent testified that the incident occurred during a demonstration of a "boomerang" that he had constructed to motivate students to make one. He first threw the boomerang and then a student threw it. When the student threw the boomerang, it struck a teacher's car which resulted in a scratch. One of the students relayed this information to the teacher involved, Ms. Williams, whose car was parked near the shop area. A brief uproar resulted when the boomerang struck Ms. William's car and Respondent grabbed Willie Critton, another student by the front of his shirt. Roary yelled for Critton to hit Respondent and evidence revealed that Respondent retorted by saying "hit me, hit me," when Roary said "hit him". Respondent released Critton and grabbed Roary and this brought about the above incident in which Roary sustained the cut. Respondent admits to pushing Roary and striking him on the right shoulder stating that this was done in self- defense. He acknowledged that it was probably a mistake for him to hit Roary. Following this incident, Respondent was transferred to another school for the remainder of the school term. Marilyn Bagby, a program coordinator for mentally retarded for the Duval County School Board testified that she has known Respondent since 1972, and that during a visit to one of his classes, she saw a student roaming the hallway in front of his class. She testified generally that she was able to determine that students had been left out in the hall for periods up to approximately three weeks. However Mrs. Bagby was not specific in her testimony respecting these incidents and for these reasons, little weight can be attached to her testimony. Lowell T. Hudson, Industrial Arts Superintendent for the Duval County School Board, testified that the Respondent's class was properly equipped and that during his visits to Respondent's class, he noticed discipline problems. Mr. Hudson was involved in one conference concerning the disciplinary procedures utilized by Respondent and during a subsequent incident, Respondent was transferred. Joseph R. McDaniels, the Prinicpal at Southside High for approximately four years and an employee for approximately 19 years testified respecting approximately five conferences concerning Respondent and his disciplinary techniques. On three of these conferences, he wrote memos respecting the details of such conferences. He explained the City wide disciplinary policy to Respondent and cautioned him against using corporal punishment to discipline students. He recalled that two conferences occurred during May of 1974 and a third conference occurred during December of 1974. Ms. Eleanor Williams, the instructor whose car was struck by the boomerang which was thrown by one of Respondent's students, testified that Respondent assisted her on one occasion in a dispute with a student who was fighting another student. Respondent requested that Ms. Williams go to his office to obtain his stick which she refused and thereafter he asked the students to go get his stick. She testified that one student who was involved in the altercation had a paring knife. Respondent, in an effort to break up the students, swung at one student and missed striking a refrigerator and a bread box resulting in a dent in the refrigerator of approximately eight inches. Respondent, according to Ms. Williams, never requested that the students stop fighting. Instead Respondent kicked one of the students, Tim Walden, and Don Jones, the other student who was involved was struck in his face. At that time, several instructors were summoned who restrained Respondent from further hitting the students. 1/ Willie J. Critton, a 16 year old eleventh grade student attended shop classes with Respondent during his eighth grade school year. He testified that on numerous occasions, Respondent bent his fingers back and twisted his fingers. He further testified that it was common practice for Respondent to expel students from his class room and force them to stand outside in the hallway. Gary Roary was called and testified substantially as other witnesses who gave testimony on the boomerang incident during December of 1974. Specifically, he testified that Respondent hit Willie Critton and thereafter grabbed him. During the above incident, he was shook by Respondent and struck in the mouth. When he broke away from Respondent, he left the classroom, obtained a stick and entered the room. Upon his return, he swung at Respondent and fell when Respondent shoved him and his head struck a saw. This resulted in the cut referred to above which required three stitches. Betty Allison, a qualified expert in mental retardation, testified that while discipline is a problem in teaching EMR students (Educable Mentally Retarded), she objected to the disciplinary procedures utilized by Respondent calling them inappropriate in EMR situations. She testified that to be effective, EMR instructors must devise well organized lesson plans and that classroom instruction must be motivating in order to secure and retain the students' attention. Other witnesses testified that EMR students cause more discipline problems than others and generally testified that Respondent was effective as most instructors in teaching EMR students. Section 231.28, Florida Statutes, 1975, empowers the Department of Education to suspend or revoke a valid Florida Teaching Certificate held by an individual who is committing or has committed certain acts or omissions which justify revocation or suspension on grounds enumerated in the statute. One of the grounds as provided in the statute exist when the teacher, upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board. Here the Petitioner seeks revocation of the Respondent's teacher's certificate based on the fact that he has allegedly engaged in numerous offensive activities, which has seriously impaired and reduced his effectiveness as an employee. After careful consideration of all the evidence adduced herein, the testimony of witnesses and the arguments of counsel, I conclude that the disciplinary measures used by the Respondent departed from the county's established procedure for disciplining students and despite repeated warnings that he refrain from corporally punishing students, he continued to do so. His conduct in the Gary Roary and Willie J. Critton incident on December 3, 1974, is exemplary of his disciplinary methods. Based thereon and the entire record herein, I find that Respondent's usefulness as a teacher-employee has been reduced within the meaning of Section 231.28, Florida Statutes.
Recommendation Based on the foregoing finding of facts and conclusions, I hereby RECOMMEND: 1. That the Respondent's teaching certificate be suspended for a period of one year. DONE AND ENTERED this 10th day of May, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issues to be resolved in this proceeding concern whether the Petitioner school board has good cause to reject the Walton County School superintendent's recommendation of Ann Farrior (Respondent) for renewal of an annual contract to serve in the position of school psychologist.
Findings Of Fact Ann Farrior was employed as a school psychologist by the Walton County School District for the 1998-1999 school year. She was employed on the recommendation of the superintendent and under an annual contract for that school year. Title 20, United States Code, Chapter 33, is known as the Individuals with Disabilities Education Act (IDEA). The intelligence testing and questions regarding assessment and placement of exceptional education students is governed by that federal statute and rules pendent thereto. The federal regulations implementing the IDEA provide certain federal funds to assist in their implementation by local school districts. The Walton County School District receives federal funding to implement the IDEA. The failure to comply with appropriate federal regulations governing testing, assessment and placement of exceptional education students can result in a loss of such federal funding for the District. The Superintendent, Mr. Bludworth, nominated Ms. Farrior for the school psychologist position at issue for the 1998-1999 school year with the understanding that although she was not certified as a school psychologist, she was eligible to be certified as such. During the course of her employment as a school psychologist that school year, state audit personnel determined that she was not properly credentialed to administer intelligence testing as part of the assessment process for exceptional education students, which is necessary to the formulation of Individualized Educational Plans (IEPs) which is in turn a necessary element of the ultimate decision of proper placement of such students in the educational system in a school district. In view of this situation, Mr. Sam Goff of the Bureau of Instructional Support and Community Services of the Department of Education wrote the superintendent on January 20, 1999, outlining specific requirements that the District would have to meet in order to bring itself into compliance with the IDEA as a result of Ms. Farrior's ineligibility to administer intelligence testing as part of the assessment and evaluation process for exceptional students. The superintendent also received notice by memorandum of January 28, 1999, and by letter of January 29, 1999, from the Auditor General's staff and the Auditor General (in evidence as Petitioner Exhibits 4 and 5), that audit findings had determined that the District employed a person as a school psychologist (the Respondent) concerning whom school district records did not indicate a basis for that person being qualified for the school psychologist's position. The Auditor General's findings noted that the position description for school psychologist employed by the school district included responsibilities for administering testing and assessing placement for all exceptional education students. The preliminary findings noted that the employee, the Respondent, then serving as a school psychologist possessed only a temporary Florida teaching certificate in "psychology" which had expired on June 30, 1998, and which did not constitute certification as a "school psychologist." District records did not show that the Respondent had renewed her teaching certificate or had otherwise met the minimum job requirements for the school psychologist position. The Auditor General recommended that the school district document its records with a basis upon which the individual, the Respondent, was determined to be qualified for the school psychologist position or to take appropriate action to provide for a licensed or certified school psychologist for administering testing and for assessing placement for exceptional students. As a result of receiving these communications and preliminary findings, the superintendent met with the Respondent and felt compelled to request her resignation. Nancy Holder had been the school psychologist in the position that Ann Farrior assumed. Early in the 1998-1999 school year, Ms. Holder, who is a certified school psychologist, had been transferred to the position of "Staffing Specialist" upon which occurrence Ann Farrior then occupied the position of school psychologist. Ms. Holder, in her testimony, described the duties of school psychologist as including, in addition to performing intelligence testing of students, testing for academic achievement, and personality testing as well as counseling duties involving students, their parent, and teachers. The school psychologist must also participate in staffing meetings and in the IEP formulation process and resulting decisions regarding placement of exceptional students; she must assist classroom teachers and parents with the particular problems involving both exceptional students as well as students who do not have exceptionalities or diagnoses. Because of the above-referenced preliminary audit findings by the Department of Education, Ms. Holder was required to assume the additional responsibility of supervising Ms. Farrior's activities for the remainder of her annual contract year as well as undertaking to re-test those students whom Ms. Farrior had previously tested. The school district alternatively obtained a consultant to perform the educational testing that otherwise would have been done by Ms. Farrior as school psychologist had she been qualified under the pertinent regulations to do so. The school district received a statement from the Department of Education's Bureau of Teacher Certification, dated March 22, 1999, concerning the Respondent's eligibility to apply for or to receive certification as a school psychologist. That statement of eligibility noted that the Respondent lacked 27- semester hours of graduate school credit in school psychology which would necessarily have to include six-semester hours of graduate credit in a supervised school psychology internship. Additionally, Ms. Farrior would have to submit a passing score on the state-required teacher certification examination. Ms. Farrior enrolled in an appropriate school psychology internship program for the 1999-2000 school year, but as of the date of the hearing in this case, she still lacked 24 of the required semester hours of graduate credit in school psychology and had not yet submitted a passing score on the Florida State Teacher Certification examination. The Walton County School Board has a written policy adopted August 13, 1996, and in force at times pertinent hereto which authorizes the superintendent "to select and recommended non-certificated instructional personnel for appointment pursuant to Section 321.1725, Florida Statutes, and State Board of Education Rule 6A-1.0502, when special services are needed to deliver instruction." Section 228.041(9), Florida Statutes defines the term "instructional personnel" as including "school psychologists." There is no showing in the evidence of record, however, that "special services" are needed to deliver instruction. That is, although the school psychologist position is statutorily deemed to be in the category of "instructional personnel" it does not involve the teaching of students. Rather the school psychologist position, which is the subject of this case, involves testing, evaluation, assessment, and assistance in the placement of exceptional students in appropriate courses of instruction. There was no showing that special services were needed to actually deliver instruction, as envisioned by the above-referenced written policy of the School Board concerning the appointment of non-certificated instructional personnel, such as Ms. Farrior. Given the above-referenced audit findings in relation to the controlling federal regulations referenced above and the Board's policy allowing employment of certificated personnel "out-of-field" only in cases where special services are needed to deliver instruction, it has not been demonstrated that the School Board realistically had an option, in the proper exercise of its discretionary authority, to hire Ms. Farrior "out-of-field" as a "school psychologist" based merely on her only certification, which was a temporary certificate authorizing the teaching of psychology (not certification as a school psychologist which is really a pupil support position). Moreover, the School Board's policy authorizes the employment of teachers for instruction in areas other than that for which they are certificated only in the absence of available qualified, certified instructors. Although the school psychologist position at issue remains unfilled, there is no evidence to demonstrate why it is unfilled and no evidence of record to demonstrate that there are not qualified, certified personnel available to be hired as a school psychologist to fill that position. When the superintendent recommended the Respondent for a second annual contract in April of 1999, he was already aware that she was not qualified to perform the duties of a school psychologist and that the District would have to contract with outside consultants or other qualified persons to at least secure the administration of intelligence and other psychological testing, which testing is a part of the job description and duties of a school psychologist. The then exceptional education director for the District, Ms. Rushing, had suggested to the superintendent that he recommend the Respondent in April of 1999 for the position of "evaluation specialist." This would more represent the actual duties Ms. Farrior had been performing after the Department of Education audit finding that she was not qualified to serve as a school psychologist. Unfortunately, however, there was no authorized position of "evaluation specialist" and the superintendent has no authority to set the qualifications for a particular position or a recommend a person for a position that had not otherwise been approved nor its qualifications approved of by the School Board. In summary, as of the date of the hearing, the Respondent was not yet eligible to receive either a regular or temporary certificate from the Department of Education as a school psychologist and still lacked 24 semester hours of graduate credit necessary for such certification; she had not yet passed the Florida State Teacher Certification Examination for school psychologist although she had secured and enrolled in an appropriate internship to satisfy the above-referenced six-hour internship requirement.
Recommendation Having considered the foregoing Findings of Fact, 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 School Board of Walton County rejecting the nomination of Ann Farrior to serve in the position of school psychologist for the school year 1999-2000, because good cause for such action has been demonstrated by a preponderance of the evidence in the manner found and concluded above. DONE AND ENTERED this 16th day of June, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2000. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 George R. Mead, II, Esquire Clark, Pennington, Hart, Larry, Bond, Stackhouse & Stone 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 John F. Bludworth Superintendent of Schools Walton County School District 145 Park Street, Suite 3 DeFuniak Springs, Florida 32433
The Issue Did Respondent engage in unlawful employment practices against Petitioner in violation of Section 760.10(1) and (7), Florida Statutes, in effect at the time of the alleged acts, contrary to the Florida Civil Rights Act of 1992 (the Act)?
Findings Of Fact Petitioner as an "aggrieved person" filed a complaint with FCHR. § 760.02(10), Fla. Stat. (2005). Given the posture of this case, Respondent is an "employer" employing 15 or more employees in each of 20 or more calendar weeks within the period contemplated by Petitioner's complaint. It is so inferred. § 760.02(7), Fla. Stat. (2005) Petitioner's race as he describes it, and it is found, is Black. In October 2003 Petitioner began employment with Respondent in its Bureau of Laboratory Services, Jacksonville, Florida, as a Medical Laboratory Scientist III (Scientist III). His status was as a probationary employee. He remained in that status throughout his employment with Respondent. Before beginning employment with Respondent, Petitioner had earned a bachelor of science in microbiology in 1982 from the University of Alabama. In 1989 he earned a master's of science in microbiology from that same institution. In 1996 he was awarded a Ph.D. in microbiology from the University of Alabama. Upon achieving his master's degree, Petitioner served as a research assistant for the University of Alabama at Birmingham from September 1, 1989 through December 31, 1992. Part of that employment overlapped his employment as a graduate researcher from September 1, 1992 through May 29, 1996, at the University of Alabama in Tuscaloosa, Alabama. There was overlapping service at the University of Alabama at Tuscaloosa in the period of September 2, 1992 through April 29, 1996, when Petitioner had a position as a teaching assistant. Between September 5, 1996 and February 25, 2000, Petitioner worked as a research fellow for the National Institute of Health at the University of Florida in Gainesville, Florida, where, as he indicated in an employment application, "Petitioner was responsible for developing new recombinant Interferon Gamma ligands and receptors for the treatment of viral disease and cancer (accomplished). Responsible for supervision [sic] (two) graduate students in molecular techniques." Following the work with the National Institute of Health, Petitioner took a position with ELISA Technologies, Inc., in Gainesville, Florida, as a laboratory director for the period March 1, 2000 through February 5, 2003, in which his application for a job position indicated that Petitioner was: "Responsible for directing laboratory testing of customer samples and supervising a five-member staff. Responsible for developing, performing, and directing new test development for the CDC and WHO (accomplished). All other research and development projects (accomplished)." Petitioner next worked at Jacksonville University in Jacksonville, Florida, as a adjunct assistant professor from what is perceived the date of January 6, 2003 through his employment with Respondent in its Bureau of Laboratory Services. While serving as an adjunct assistant professor Petitioner in his job application recounts that he was: "Responsible for teaching nursing and biology majors microbiology courses. Responsible for teaching general-clinical laboratory techniques." In his role as Scientist III with Respondent, Petitioner was expected to meet the following expectations: Will learn DNA fingerprinting methods for salmonella and tuberculosis as well as 16S sequencing. Will learn techniques sufficiently to act as a back-up as needed. Timeframe: November - January Will oversee development of universal procedural manual for all testing in molecular section. Will produce master copy by end of February. Timeframe: November - February Will oversee the development and documentation of quality control, quality assurance and proficiency testing procedures in the molecular section. Will incorporate all into a single document by the end of March. Timeframe: November - March Will eventually be responsible for the ordering of all equipment and reagents for the molecular section. Duties to include monthly reconciliation reports. Timeframe: November - April Will represent the molecular section in the development of BOLIMS. Will become familiar with reporting and date management of all reports generated in the molecular section. Timeframe: November - Ongoing Will act as back-up for BT testing. Will learn all procedures once security clearance has been granted. Timeframe: January - Ongoing Will assist in implementation of VNTR-MIRU and PCR testing for malaria. Timeframe: January - Ongoing The months reflected in this statement of expectations began in November 2003 and extended into 2004. In his role as a Scientist III Petitioner had no supervisory duties. He was given projects to do. He was provided an appraisal task form in relation to his responsibilities. Petitioner also worked on a QA/QC manual (quality assurance and quality control). Initially Petitioner was supervised by Dennis Nolan. Mr. Nolan left his employment with Respondent to take another position. Dr. Dean Willis, who has a doctorate in public health, became Petitioner's supervisor with Mr. Nolan's departure. The interaction between Petitioner and other members of the laboratory at Jacksonville is reflected in the Petitioner's Exhibits numbered 4, 5, 6, 11, 19, 25, 26, 27, 28, 29, 31 and 45. This series of e-mails are an indication of Petitioner's participation in the organization and inclusion in the efforts of that organization in carrying forward its duties. Petitioner during his employment in the Scientist III position worked on a malaria project. In addition he worked on a whooping cough test. Earlier in his employment Petitioner underwent a performance appraisal or review of his work. In February 2004 when Mr. Nolan resigned from the laboratory in Jacksonville, his position as BA II, an SES- classified position in the personnel system in Florida government, came open. In that month Respondent advertised to fill the position. In that solicitation Petitioner was the only applicant to replace Mr. Nolan. As a consequence the position was re- advertised. The initial advertisement for BA II position closed on February 16, 2004. The second advertisement for that position closed on March 15, 2004. The information concerning the position was the same in both instances. Dr. Willis as the responsible person at the Jacksonville laboratory, decided to re-advertise the position to try and attract additional applicants. The position was re-advertised and more candidates expressed an interest by applying for the position. Petitioner was among the applicants applying during the re- advertisement. Unlike the circumstance in the first advertisement, on this occasion there was the expectation that someone would be hired for the BA II position. Ultimately Dr. Ming S. Chan, Chief of Laboratory Services, also referred to as a Bureau Chief for Respondent at its Jacksonville office, condoned the re- advertisement. Dr. Chan holds a Ph.D. in chemistry. Among the candidates for the BA II position, four had their applications considered and were interviewed for the position. Petitioner was among the candidates whose applications were reviewed and who underwent an interview. The applications were considered and interviews conducted by Dr. Willis and by Susanne Crowe, another BA II at the Jacksonville laboratory. She holds a master's in health and an undergraduate degree in biology. Ms. Crowe was chosen to interview candidates for the available BA II position as a person who was in a similar position within the organization. The result of the process for ranking the candidates whose applications were considered and who underwent an interview for the job placement was that Dr. David Stuart Beall, a non- Hispanic white male, was selected to fill the BA II position as the top ranked candidate, with Petitioner placing second among the four finalist. The other two persons interviewed for the BA II were interviewed by phone. It is not perceived that any advantage was created for those persons interviewed by phone compared to the live interviews afforded Petitioner and Dr. Beall, given the ranking of the candidates. When Dr. Beall applied for the BA II position he was working for the Center for Disease Control and Prevention (CDC) and was housed in the offices of the Bureau of Laboratory Services in Jacksonville, Florida. Dr. Beall decided to apply for the BA II position without prompting from anyone employed by Respondent. He was not given any special training to allow him to gain the BA II position nor allowed any other form of preference that could be considered discriminatory when compared to the opportunities made available to Petitioner. The office that Dr. Beall was placed in before he became an employee with Respondent in the BA II position, was based upon space available and not in furtherance of a preference that aided Dr. Beall in gaining the BA II position. By comparison to Petitioner in the application process, the details within the Petitioner's application, which have already been described as to education and work history, the following information was provided by Dr. Beall in his application for the BA II position. He graduated from the University of Florida in 1986 with a bachelor of science in microbiology and cell science. He received a masters in microbiology and cell science from that institution in 1992. He earned a Ph.D. in microbiology and cell science in 1995 from the University of Florida. Dr. Beall served as a graduate assistant at the University of Florida from June 1, 1989, through August 1, 1995. During that time, as he indicated in his application he: Executed several lab projects including the study of ethanol fermentation by recombinant Escherichia coli expressing Zymomonas mobilis pdc and adhb genes for the conversion of xylose and other biomass carbohydrates to fuel ethanol. Also isolated and genetically engineered several novel strengths of Erwinia for the production of fuel ethanol from waste plant biomass. From November 1, 1996, through March 31, 1999, Dr. Beall worked as a post-doctorial research associate with the CDC. During that time as the application described he: Designed and executed experiments that resulted in the identification of several differentially expressed gene products that are associated with the induction of latency in Mycobacterium . Incorporated design improvements to the shift-down model for MTB growth. Part of this with TB lead to the issuance of a U.S. for an assay to detect antigens associated with latent tuberculosis infections. Attempted to identify Mycobacterium tuberculosis virulence factors using RNA subtractive hybridization. Trained new laboratory technicians how to work safely inside a BSL-3 containment facility. From April 5, 1999, through April 30, 2000, Dr. Beall worked as a guest researcher for the CDC, during which time he as the application described: Helped organize and contributed work to several lab projects including the development of novel assays for bacterial meningitis detection in clinical samples using TaqMan and Light Cycler technologies and the sequencing of the variable loop regions of the porA gene from several hundred clinical isolates of Neisseria meningitidis. From August 4, 2000, until March 12, 2004, Dr. Beall acted as a visiting professor of biology at the University of North Florida in Jacksonville, Florida, during which time as his application relates: My duties involve instruction of approximately three to four hundred students in lecture and laboratory sections per semester along with organizing and coordinating the presentation of each courseA, A's materials and tests. Additionally, I provide recommendations for students entering professional programs and mentor students for their senior presentations. Beyond my teaching responsibilities I help administer and the development of the Masters degree program as well as participate search committees to fill vacancies. This past summer semester I developed and instructed the Pathogenic Bacteriology course. The applications for the BA II position executed by Petitioner and Dr. Beall had a section which called upon the applicants to set forth in their own words the knowledge/skills/abilities that they believed they would bring to the position. In that context Petitioner said about himself: Knowledge and skills needed to isolation [sic] and identification [sic] (biochemical and Molecular procedures) pathogenic and medically important bacteria and some viruses. Knowledge and skills needed to identify Mycobacterium tuberculosis complex (biochemical and Molecular procedures). Experience in supervising testing staff and directing basic and applied research projects. Working and written knowledge of CLIA, CAP, GMP, and ISO 2000 requirements for QA/QC. Ability to generate, analyze, present and publish (independently and collaboratively) data in referred scientific Journals. Ability to implement, direct, and complete simple and complex projects. In contrast, Dr. Beall related his knowledge/skills/ abilities as being: My formal training has afforded me a wide range of technical skills. My graduate school projects focused on the genetic engineering and development of novel, environmental benign methods of producing fuel ethanol from waste plant material. These studies relied heavily on knowledge of molecular biology, bacterial genetics, and cellular physiology. My postdoctoral training as an ASM/NCID fellow at the Centers for Disease Control and Prevention in Atlanta provided me invaluable experience in fields of Public Health and bacterial pathogenesis. This work involved the development of model growth systems and nucleic acid based assays for detecting pathogenic bacteria such as N. meningitides, H. influenzae, and M. tuberculosis. There I adapted traditional assays for use with the latest generation PCR machines TaqmanA, A and Light CyclerA, A. I have also trained and supervised numerous laboratory personnel in the techniques of molecular biology and advanced laboratory safety practices. I managed and supervised the projects of a variety of associates including visiting researchers, lab technicians, and student interns. The occupation profile related to the BA II position, for which the candidates contended, indicated in the way of Examples of Work: Plans laboratory services according to statewide program needs. Consults with county health officers and staff regarding laboratory procedures and program planning related to laboratory testing. Coordinates state and federal laboratory services in outbreaks or situations when testing by specialized laboratory units is required. Consult to physicians and private hospital laboratories. Plans and participates in special research projects. Performs comparative evaluation of new and existing laboratory procedures. Prepares reports and provides information to the director, assistant director and program office. Further, the occupation profile set out examples of job characteristics when it stated: Provide Consultation and Providing consultation and expert Advice to Others advice to management or other groups on technical, systems- related, or process related topics. Communicating With Providing information to Other Workers fellow workers, and subordinates. This information can be exchanged face-to-face, in writing, or via telephone/electronic transfer. Documenting/Recording Entering, transcribing, recording, Information storing, or maintaining information in either written form or by electronic/magnetic recording. Getting Information Needed Observing, receiving, and otherwise To Do The Job obtaining information from all relevant sources. Developing and Encouraging and building mutual Building Teams trust, respect, and cooperation among team members. Analyzing Data Identifying underlying principles, or Information reasons, or facts by breaking down information or data into separate parts. Updating and Using Keeping up-to-date and knowing Job-Relevant Knowledge one's own jobs' and related jobs' and related jobs' functions. Communicating With Persons Communicating with persons outside Outside Organization the organization, representing the organization to customers, the public, government, and other external sources. This information can be exchanged face-to-face, in writing, or via telephone/electronic transfer. Establishing and Developing constructive and Maintaining Relationships cooperative working relationships with others. Developing Objectives Establishing long range objectives and Strategies and specifying the strategies and actions to achieve these objectives. Within BA II position examples of knowledge, skills, and abilities were to the following effect: Coordination Adjusting actions in relation to others' actions Reading Comprehension Understanding written sentences and paragraphs in work related documents Critical Thinking Using logic and analysis to identify the strengths and weaknesses of different approaches Speaking Talking to others to effectively convey information Judgment and Decision Weighing the relative costs and Making benefits of a potential action Time Management Managing one's own time and the time of others Implementation Planning Developing approaches for implementing an idea Management of Personnel Motivating, developing, and directing Resources people as they work, identifying the best people for the job Identification of Identifying the things that must be Key Causes changed to achieve a goal Visioning Developing an image of how a system Should work under ideal conditions Administration Knowledge of principles and processes and Management involved in business and organizational planning, coordination, and execution. This may include strategic planning, resource allocation, manpower modeling, leadership techniques, and production methods. English Language Knowledge of the structure and content of the English language including the meaning and spelling of words, rules of composition, and grammar Mathematics Knowledge of numbers, their operations, and interrelations including one or more of the following: arithmetic, algebra, geometry, calculus, statistics, and their applications Chemistry Knowledge of the composition, structure, and properties of sub- stances and of the chemical processes and transformations that they undergo. This includes uses of chemicals and their inter- actions, danger signs, production techniques, and disposal methods Economics and Accounting Knowledge of economic and accounting principles and practices, the financial markets, banking, and the analysis and reporting of financial data Law, Government Knowledge of laws, legal codes, court and Jurisprudence procedures, precedents, government regulations, executive orders, agency rules, and the democratic political process The job description for BA II stated that the employee "must be licensed or eligible for a clinical/public health laboratory license at the supervisor level." Petitioner held a clinical laboratory technician's license issued by the State of Florida, Department of Health, Division of Medical Quality Assurance. He did not, and neither did Dr. Beall, hold a license as a clinical/public health laboratory licensee at the supervisory level. Both Petitioner and Dr. Beall met the education requirements for BA II that called upon the candidate to have a masters or equivalent work experience. Both candidates had Ph.D.s. The candidates for the BA II position were scored in relation to their applications through a matrix. Within the matrix was the consideration of education, experience, to include years of experience, supervisory experience, and management experience. There was a potential score for veterans' preference. Neither candidate, Petitioner nor Dr. Beall was entitled to veterans' points. There was a score for licensure in a supervisors or directors capacity, as to eligibility as well as licensure. There was a score for writing ability and a score for public health lab experience. The matrix scores for Dr. Beall and Petitioner respectively are found within Respondent's Exhibits numbered 5 and 6 admitted as evidence. In the last analysis, Dr. Beall received a 68 on his application. Petitioner received a 61. The differences in the scores pertain to a two point difference for ability to communicate in writing, in which Dr. Beall received a score of 8 out of 10 and Petitioner received a score of 6 out of 10 possible points. Dr. Beall received 10 points maximum for having worked at least three years in a public health lab, where as Petitioner did not receive points in that category. Apparently the basis for assigning the points for public health lab experience was in relation to Dr. Beall's experience with the CDC referred to in his application. Petitioner scored 15 points for work experience and Dr. Beall received 10 points. Petitioner and Dr. Beall were interviewed by Dr. Willis and Ms. Crowe, with each interviewer assigning scores for the interview to the respective candidates. Dr. Willis assigned Dr. Beall a score of 73.5 and Petitioner a score of 65 for the interview. Ms. Crowe assigned Dr. Beall a score of 72 and Petitioner a score of 64 for the interview. The scores in relation to the interviews were averaged. That average was added to the score received for the application review, the result being that Dr. Beall received an overall score of 138.25 and Petitioner a score of 125.50 when finally concluded. In fact, the chart reflecting these scores and averages is such that the actual score for Dr. Beall by that process could have been somewhat higher than is reflected in the chart. The chart is Respondent's Exhibit numbered 7 admitted as evidence. Ms. Crowe in her testimony established that Petitioner was disorganized during his interview session to obtain the BA II job. The ranking of the candidates for the BA II position was first assigned on April 13, 2004. Petitioner was not satisfied with the outcome in which he was not offered the job. He refers to an April 14, 2004 discussion pertaining to the interview score he received aside from the assignment of points during the application evaluation. Petitioner's Exhibit numbered 14 admitted as evidence is constituted of an e-mail sent from Petitioner to Dr. Willis, the subject being the April 14, 2004 discussion of the interview score. It also refers to a meeting on the morning May 4, 2004, between Petitioner and Dr. Willis on the decision that had been reached to hire Dr. Beall. The emphasis in this communication related to Petitioner's background and his complaints about the score received in the interview. At the end of this communication Petitioner described how he stood on professional principle and was seeking reciprocation of those principles in what he refers to as "this grievance process and in the future." In the e-mail to Dr. Willis Petitioner referred to, "elimination of a candidate based on race is especially frightening when the minority candidate is more qualified than the individual offered the position." The e-mail was sent from Petitioner to Dr. Willis on May 18, 2004, as amended on that same date by a separate E-mail. On May 24, 2004, Dr. Willis acknowledged receipt of the E-mail. The effect of Petitioner's complaints about the scoring directed to Dr. Willis led to further review by Dr. Willis. The outcome was that 5 points Dr. Beall received for management experience in relation to his application were deducted, while 15 points were added for eligibility for licensure as a director. This adjustment is reflected in the scoring matrix previously described. Petitioner was not assigned any points for management experience and received the same 15 points for eligibility to be licensed as laboratory director that were assigned to Dr. Beall in his application. This outcome is also reflected in the scoring matrix previously described. The decision to hire Dr. Beall for the BA II position was not based upon race or a decision contrary to Petitioner's race. Sometime in the latter part of May 2004, Dr. Beall assumed the BA II position and became Petitioner's supervisor by virtue of being hired in the position. At about the same time Petitioner made an internal complaint, a complaint within the Respondent Agency claiming discrimination on the basis of race, pertaining to the manner in which Dr. Beall was selected for the BA II position to the exclusion of Petitioner. The internal complaint which Petitioner filed was with Respondent's EEOC Office. Petitioner was not satisfied with the internal process for resolving his complaint of discrimination through the Respondent and decided to file a complaint with FCHR, which forms the basis for the present case. After Dr. Beall became Petitioner's supervisor he reviewed Petitioner's work. He observed that Petitioner was aloof, difficult, recalcitrant, obstructive, and had a questionable demeanor. He found Petitioner's work to be unorganized. He met several times with Petitioner to address the question of organization. Responses required from Petitioner to Dr. Beall were not prompt or clear when made. There was a problem about failure to contact Dr. Beall as supervisor when Petitioner decided to take leave. Petitioner claimed to have been at work when he was not at work, as Dr. Beall perceived the situation. Dr. Willis, who supervised Dr. Beall at that time, was aware of Dr. Beall's concerns about Petitioner's performance, in particular, his lack of cooperation and the inability to find Petitioner at the office, in that Petitioner would leave the premises without advising Dr. Beall. By comparison, during the time that Dr. Willis supervised Petitioner there was a situation concerning a county health department and tests for rabies. Petitioner became involved and gave a response to the inquiry by the county health agency that Dr. Willis considered to be inaccurate or misleading. This lead to a situation in which the person within the Bureau of Laboratory Services who properly should have responded to the county agency inquiry, being addressed by Petitioner in a manner that Dr. Willis found troubling, as to Petitioner's ability to work with other persons within Respondent agency. Eventually Dr. Beall recommended that Petitioner be dismissed from his position before completing his probationary period. The reason for this recommendation related to Petitioner's demeanor, to include his willingness to cooperate while undergoing the review of his work. There were issues with reports rendered by Petitioner, considered to be lacking in professionalism, problems with attendance and leave and a lack of progress in the list of expectations that have been referred to earlier. Dr. Willis concurred with the recommendation that Petitioner be dismissed. Linda Boutwell, who was personnel officer within the Bureau of Laboratory Services in Jacksonville, was also consulted concerning the dismissal. Concerning the disposition of Petitioner's employment, Caroll David Fulgher was consulted as an employee of Respondent's Office of Human Resources in Tallahassee. It was explained to Mr. Fulgher that Petitioner tended to ignore his supervisor Dr. Beall and to do what Petitioner preferred, contrary to the wishes of his supervisor. It was explained to Mr. Fulgher that the quality of Petitioner's work was not satisfactory and that difficulties were experienced in relation to Petitioner's attendance and leave. Following discussion with Mr. Fulgher, it was suggested that the matter be considered by the Bureau Chief, Dr. Chan. Mr. Fulgher prepared a letter dismissing Petitioner from his employment. This letter was dated October 13, 2004. It was signed by Dr. Chan indicating his agreement with the choice to dismiss Petitioner. Respondent's Exhibit numbered 10 is a copy of that letter. It was presented to Petitioner, thus terminating his employment with Respondent. The supervision of Petitioner, to include supervision by Dr. Beall, evidenced no discriminatory intent based upon race, nor was the choice to dismiss Petitioner one motivated by any desire to retaliate against Petitioner for his complaint concerning the decision to hire Dr. Beall in preference to Petitioner for the BA II position.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's claims of discrimination and retaliation based upon race. DONE AND ENTERED this 28th day of March, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 28th day of March, 2006.
