Findings Of Fact The business of the Respondent. Respondent is, and has been at all times material herein, created directly by the Constitution of the State of Florida and constitutes a Department or administrative arm of the government that is administered by individuals who are responsible to public officials or to the general electorate. At all times material herein, the Respondent is engaged in and has been engaged in the business of operating a county school system in Pasco County, Florida. The labor organization involved. Pasco Classroom Teachers Association is now, and has been at all time material herein, an employee organization within the meaning of Section 447.203(10) of the Act. The issues. Whether the Respondent unlawfully refused to employ Ronald Eckstein on a continuing contract status; whether it unlawfully refused to reappoint him as department chairman and whether it unlawfully refused to grieve the above acts in violation of Florida Statutes. Whether the Respondent unlawfully terminated Sharyn Disabato and also, whether the Respondent unlawfully failed to grieve the termination of Sharyn Disabato pursuant to Article 12 of the parties collective bargaining agreement. Whether the Respondent unlawfully terminated Fred Rydzik and whether it unlawfully refused to grieve the termination of alleged discriminatee, Fred Rydzik. Whether the Respondent unlawfully adopted a salary schedule which amounted to a 5 percent wage reduction for employees in the certified bargaining unit; whether it unlawfully froze every employee's increment steps and three; whether it unlawfully reduced all supplements paid to bargaining unit employees and also whether it unlawfully postponed previously scheduled preschool planning days. Whether the Respondent unlawfully refused to process dues authorizations card executed by bargaining unit employees in violation of Section 447.303 of the Act. Alleged unfair labor practices. (a) The Facts The Pasco Classroom Teachers Association, hereinafter sometimes referred to as PCTA, was certified by the Public Employees Relations Commission, hereinafter sometimes referred to as PERC, on April 17, 1975, as the exclusive representative of the certified personnel employed by the School Board, except those who hold supervisory authority specifically excluding the Superintendent, Assistant Superintendents, District Level Supervisors, Directors, Principals, Assistant Principals, and Curriculum Assistants from functioning as a second-in- command in the building. The PCTA and employer were as stated parties to a collective bargaining agreement which by its terms was effective August 6, 1974, through June 30, 1975. Larry Smith is PCTA's designated bargaining agent and Ronald Forguson is the Employer's designated bargaining agent. The Respondent employs approximately 2500 instructional employees throughout the county at 25 or more locations or school districts. The employer operates in a manner which is somewhat unique to most school districts in that a school year begins in approximately July of each year and the instructional personnel work a 45 day schedule and they are off approximately 15 days. This system is referred to as the Track system and there are 4 tracks described as A, B, C and D. Alleged discriminatee, Sharyn Disabato, was employed by the employer from the school year 1973 through June of 1975. Ms. Disabato testified that her duties consisted of providing an atmosphere for students to learn science, math, social studies, art, music and physical education at Schrader Elementary School, where she was employed. Schrader is an open school, which means that there are no classroom areas partitioned off and all student's and teachers are somewhat visible at all times. Disabato's students consisted of fourth, fifth and sixth graders. Her most recent employment contract was for a 196-day period beginning July 24, 1974 through June 30. She testified that she was very active in curricular activities as well as extracurricular activities. For an example, she testified that she served on the construction committee, which was a committee formulated to provide input for an addition to the facility. Ms. Disabato testified that she sponsored the bus patrol group and assisted several teachers on science projects and assisted new teachers in locating resource materials, filing cabinets, new books and to generally review the overall physical plant. During her last year of employment, she received the "Teacher of the Year" award for her school. Her principal at Schrader Elementary School gas Larry Robison. She also served as the building presentative, which meant that she handled grievances filed by the other teachers. She assisted Mr. Larry Smith in contacting her fellow employees to execute payroll deduction authorization forms. She was approached by her principal sometime in October of 1974 and was asked by him to form a committee of volunteers to make up the association's building committee. That committee was designed to present and resolve grievances that the other teachers were experiencing at the school. She also asked employees to serve on the committee to "maintain the collective bargaining agreement". She was the assistant committee chairperson and during committee meetings, Mr. Robison attended. Mr. Robison also asked her to schedule all building committee meetings. She joined the union at the inception of her employment with the employer. Beginning in January of 1974, she researched the contract and proposed and formulated several provisions which are now presently contained in the contract. She also served on the bargaining team during January of 1974; she conducted surveys and spent approximately 3 hours, 3 times each week for a total of more than 100 hours preparing contract proposals. According to her testimony, in addition to the above activities in which Mr. Robison would know of her union activities, she also indicated that her name appeared on several union flyers which were distributed throughout the facility and also, on one occasion, she was approached by Mr. Robison, who at that time told her that "bargaining wasn't what she thought it to be." At Schrader, during the school year 1974-75, there were approximately 580 students and approximately 26 instructional personnel. She testified that the building representative association meetings were conducted on a monthly basis and that she presented and resolved grievances which were filed by both union as well as non-union members and that she acted as a conduit for resolution of all employee grievances. Sometime prior to November, Disabato testified that she mentioned to Mr. Robison that all vacancies had to be advertised, whereupon Mr. Robison approached Mr. Smith and asked him if that was in fact the case. According to Disabato, Smith informed Mr. Robison that vacancies were to be advertised. During January 1975, Disabato began formulating new contract proposals and a flyer was distributed around the school building, which somewhat depicted her activities in this regard. She testified that Mr. Robison may have seen the flyer. The alleged discriminatee testified and the record reflects that she often criticized school and administration policies and in those instances in which she felt that the contract was being violated by the administration, she would immediately call such to their attention. She testified further that Mr. Robison did not take kindly to such criticism. She testified that during the school year 73-74, she received an outstanding rating and at no place on her evaluation form did there appear any teaching deficiencies. During school year 74-75, she indicates that she was evaluated by Mr. Robison sometime in February 1974. On that evaluation, she testifies that Mr. Robison informed her and noted on her evaluation form that she needed improvement as to her rapport with fellow employees. Also, that as to her personal qualities, she was uncooperative. Specifically, he mentioned an incident wherein she had interceded on behalf of another fellow teacher, Mayna Radacky, and that her interjection upset Mrs. Radacky. When she was presented with the evaluation form, the alleged discriminatee felt that she needed a witness present and at that meeting she took Mrs. Radacky along with her. On voicing her objections to the alleged deficiencies noted on the evaluation form Mr. Robison merely indicated to her that she lacked rapport with her fellow employees and aside there from, he was very unspecific. Upon receipt of this evaluation, Ms. Disabato wrote a letter to Mr. Robison indicating her dissatisfaction with the evaluation and she relayed this to him by giving a letter to his secretary. According to M. Disabato, Mr. Robison told her that her letter would be attached to her evaluation. By letter dated March 14, Ms. Disabato was informed that she would not be rehired. When asked the reason, Mr. Robison informed her that "he would hire someone to do a better all-around job." Ms. Disabato testified that she did not request a written list of reasons for Mr. Robison's refusal to rehire her. She testified that her attitude with Mr. Robison was very good prior to her participation in negotiations for the collective bargaining agreement, but thereafter Mr. Robison's attitude, in her opinion, changed. She testified that after her participation in negotiations, problems occurred on a daily basis for her to resolve. She testified that during a faculty meeting held sometime in November December 1974, Mr. Robison announced to the faculty members that "you do not have a guardian angel" and their problems should be addressed to him. During the beginning of the 1974-75 school year when all of the faculty personnel were introduced, Ms. Disabato indicated that Mr. Robison omitted introducing her to the other faculty members and that such omission was purposeful on his part inasmuch as he was reading from a printed list and further that the same situation occurred on another occasion. She indicates that after all the other instructors were introduced, Mr. Robison tried to pretend that the omission was inadvertent and he thereupon introduced her. Sometime in September or October of that year, Disabato testified that she was called in to a conference with Mr. Robison whereupon he indicated that she was insubordinate to him; that she did not respect him, and that he "should be respected." He also told her at that time that she was a "gutsy lady and that if this had occurred three years earlier, she'd be walking the streets. Upon learning of Ms. Disabato's discharge or nonrenewal of her contract, a petition was circulated by other teachers supportive of Ms. Disabato and approximately one-half of the instructional personnel signed such petition. In an effort to resolve her non-renewal grievance, Ms. Disabato first talked to Larry Smith and they completed a grievance form. On various occasions, Smith and Ms. Disabato attempted to meet with Mr. Robison in an effort to resolve the grievance to their satisfaction, and on each occasion, Mr. Robison refused to meet with them. Ms. Disabato, when asked, knew of no other contract teachers who were not rehired during the school year 1975-1976. On cross-examination, Ms. Disabato related two instances wherein grievances advanced by her to Mr. Robison were resolved. Specifically, she raised an objection to a janitor vacuuming the halls during school hours and this procedure was stopped. Also, with regard to posting vacancy announcements, Mr. Robison, subsequent to her protest, advertised all vacant positions. She also worked with and mutually resolved the problem or a problem regarding long distance phone calls and the utilization of subs during the school year. She also reiterated on cross-examination the fact that her name was deliberately omitted from other lists, but she was not specific in indicating other lists which her name was omitted from as she previously testified to on direct examination. Larry Smith, PCTA's Executive Director, testified that he attempted to grieve the non-renewal of Sharyn Disabato's contract by initially attempting to contact Mr. Robison by telephone sometime in mid-March, 1975. Thereafter he called Dr. Ferguson with no success. The next day he contacted Mr. Robison and Mr. Robison informed him that he would contact him the following Friday. On or about March 21, Smith called Dr. Forguson by telephone and he would not accept the grievance indicating the the grievance was invalid and the non-renewal of an annual contract teacher was not a grievable item. He was also, at that time, instructed by Mr. Robison to deal a with Dr. Forguson. Smith made several attempts to send a written grievance to Mr. Robison and Dr. Forguson and on each occasion the grievance was returned. The procedure of sending a grievance by certified mail was also futile. Finally, the association's president, David Suttle, was able to get the grievance served by the sheriff's department, but the Respondent, and/or its agents, would not hear the grievance. Smith testified that they failed to accept the grievance in order to "prevent binding arbitration." Smith states that Superintendent Thomas Wateman and their counsel, Mr. Joe McClain, gave this opinion. Smith testified that not only M. Disabato's grievance would be handled in a similar manner, but that Ronald Eckstein and Fred Rydzik's or any other grievance of a similar nature would not be a matter subject to the grievance provision of the collective bargaining agreement. Smith stated that they (the Respondent) made it clear to him that grievances dealing with renewal of a contract was not a grievable item under the contract. Thereafter, Smith indicated his opinion that the grievance was not appealed to level 3 because it would be futile to do so based on his prior attempts. Smith testified that employees voiced extreme concern about their job security after Ms. Disabato's contract was not renewed and that several employees, specifically the annual contract teachers who are non-tenured, asked to withdraw their authorizations for payroll deductions of their dues check-off. Larry Robison has served as the principal at Schrader Elementary School for approximately 3 years and he is in charge of the overall operation of the school. He testified that in the employment process, he makes what is essentially the final recommendation in that an employee cannot be hired, that is, an instructional employee, cannot be hired without recommendation by him to obtain a teaching position at the school. Robison testified that he evaluates new teachers approximately 3 times annually and that both annual contract teachers and continuing contract teachers are evaluated only once per year. Robison testified that the evaluation process consists of conferences, both informal and formal visits, and that in making his evaluation, he relies on mental notes primarily. He testified that in instances wherein he notes deficiencies in an instructor's teaching skills, he advises them of such deficiencies and provides ample time for them to correct any deficiencies that, in his opinion, are warranted. He testified that the amount allotted a deficient teacher varies according to the teacher's ability to correct the problem that he notes. Robison testified that he was aware of Ms. Disabato's position as the building representative in 1973 and that this fact was a matter of common knowledge throughout the school. He was also aware of her participation on the union's bargaining committee during school year 1973. He also admitted asking either Ms. Disabato or Richard Culp to formulate the building committee, which was in his opinion, a forum to resolve grievances. David Suttle, PCTA's vice president and an elementary teacher at Elfers School for approximately five years was called and testified that he was a "building rep" for the school year 1973-1974 and served on the negotiating team for 1974 and 1975. Suttle testified that the binding arbitration provisions included in the contract was based on passage of Florida Statute 74, Chapter 100 and Chapter 447, Florida Statutes. Suttle testified that PCTA attempted to grieve the matter of Ms. Disabato's separation, but that the Respondent refused to accept the grievance and that based on the fact that this grievance was not accepted and the employer failed to grieve it, the union felt that it would be futile and fruitless to attempt to grieve the discharges of the other two discriminatees contained in the consolidated Complaint. 2/ Suttle testified that the union received the letter from the sheriff's department indicating that they would no longer serve grievances filed by the union. Suttle testified that during a union meeting with management in mid-May, 1975, the employer indicated that they had the right to determine "what was or was not a grievable matter." Suttle testified that the subject charges were filed when it became clear that issues regarding the renewal or non-renewal of annual contract teachers would not be accepted. Suttle testified also that during this meeting in mid-May the employer was informed that unfair labor practices would be charged with PERC based on their failure to accept the grievance regarding the non-renewal of annual contract teachers. Suttle testified that various employees indicated to him that they felt reprisal would be taken if their union activities were known by the employer. Suttle testified that union deduction authorizations were cancelled and that salaries were unilaterally cut. Suttle testified that the fear of reprisals was not only confined to union members but also to non-union members as well. After Suttle was examined and excused, the general counsel and the charging party rested their case with regard to the allegations contained in Case No. 1040. At the outset of the defense to the charge in this case, the Respondent made a Motion to Dismiss which the undersigned denied, based on his opinion that the general counsel and charging party had presented a "prima facie" case. Respondent's Defense to CA-1040 3/ Minnie Kownach, secretary to Mr. Robison for approximately three years, testified that on March 24, 1975, Larry Smith visited the office at approximately 2:30 p.m. She advised Mr. Robison of Mr. Smith's presence. Mr. Robison was in the office interviewing another teacher; she buzzed Mr. Robison and he asked her to tell Mr. Smith that he would be glad to see him at another time. She testified that Mr. Smith stayed in the office and at approximately 2:45 on that day, Ms. Disabato came down and she and Mr. Smith stayed until approximately 3:00. She testified that Mr. Smith did not make an appointment to see Mr. Robison on that date, i.e., March 24. Marsetta Haspelhorn, assistant principal at Schrader since January, 1974, testified that she was on the team with Ms. Disabato and Sharyn Watson for a period of time and that she observed Ms. Disabato's teaching. She testified that she had a conversation with Ms. Disabato about the non-renewal of her contract when she learned about it, and during a break during April, 1975, in the teachers' lounge, she asked Ms. Disabato not to file unfair labor practice charges inasmuch as it would "ruin her reputation." She testified that Ms. Disabato informed her the "the union would take care of her." She testified that she and Ms. Disabato are friends. She testified that Ms. Disabato is an effective teacher; however, her discipline leaves something to be desired. She testified that Ms. Disabato sometimes stops a pupil and tells him that he should not be doing something and that she is "harsh with the students." She testified that Ms. Disabato is vocal if another employee or person expresses views contrary to her own. She testified that she was aware that Ms. Disabato had problems with some teachers; however, she "got along with others", She testified that she and Ms. Disabato were not on good terms and that she did not try to help new teachers, whereas other teachers helped. She testified that Ms. Disabato was antagonistic towards Mr. Robison and that this attitude was pervasive and increased as the year progressed. She noted no change in the attitude or demeanor of employees since Mrs. Disabato's separation and that employees of Schrader are "always open." She testified that the employees never expressed any fear or reprisal for voicing complaints. She acknowledged that Mrs. Disabato was the building committee representative. She testified that Mrs. Disabato always questioned school practices during faculty meetings and that she did so more frequently than other employees. She testified that she was not a union member because she felt that she did not "need the union's backing." She testified that although no teachers other than Mrs. Disabato complained to Mr. Robison, they were not afraid of him. She testified that she never observed Mr. Robison refusing to speak to Mrs. Disabato or to introduce her. She testified that Mr. Robison omitted her name in an open house meeting and that she did not take it as an insult. She testified that Mrs. Disabato and Mrs. Radacky had a good relationship and that Mrs. Disabato approached Mrs. Radacky about the problem regarding the students missing the bus. However, she testified that she did not overhear Mrs. Disabato tell Mrs. Radacky not to take the students home. She testified that the separation of Mrs. Disabato has had no effect on the employees' freedom of expression at the school and that Culp was a building "rep" during the time that Mrs. Disabato was a building representative and is still employed and continues to serve as a building representative. She testified that Mrs. Disabato has an "explosive personality" and that if she cannot get things her way, she would walk away with a "sarcastic" look. The charging party introduced a telegram into evidence which purports to be a message to Mrs. Disabato signed by Carolyn White, Mary Garrison, Sue Walsh, Jane Foteys, Karen Johnson, Russ Willie, James Baretti, Tom Barnard, Gene Turner, over the Respondent's objection. The hearing officer received the exhibit into evidence. On cross examination Mrs. Haspelhorn testified that she did not know whether Mrs. Disabato was well thought of by her peers. She testified that she purchased a home from Mr. Robison. She testified that the problems of Mrs. Disabato and Mr. Robison related to school policies, and that the problems were not union related. She testified that she was unaware of Mrs. Disabato's union activities. She testified that Mrs. Disabato complained of school practices and often disagreed with school policy and that her disagreement was aired in a "loud tone." She testified that Mrs. Disabato told her that she would be employed by the union. She also testified that the other employees have not talked to her about Mrs. Disabato's separation. Leona Supurka, an elementary teacher at Schrader for the past two years, was called and testified that she has been employed in Maryland and in Pennsylvania as a teacher for approximately 16 years. She testified that she did not work in close proximity to the alleged discriminatee, and that she (Mrs. Disabato) did not offer any assistance to her. She testified that Mrs. Disabato's attitude toward the principal was rude and it was the type of rudeness in which she had never experienced a teacher voice to a principal. She testified that she was presented with a petition supportive of Mrs. Disabato on two separate occasions; that she refused to sign it and also that she resented being approached on two occasions by employees who felt that she should sign the petition. She also testified that Mrs. Disabato was disruptive and not always with, and in fact, frequently questioned school policies. She testified on cross examination that Mrs. Disabato offered no assistance to her. However, she also testified that no occasion arose wherein the alleged discriminatee would have needed to assist her. She testified that Mrs. Disabato expressed rude manners in faculty meeting on two occasions that she could recall In late September or early October, 1974. She testified that on one occasion Mrs. Disabato disagreed with the arrangement or timing of the lunch schedule and that Mrs. Disabato was insubordinate at faculty meetings. She testified that in her opinion, the employer is the boss and the employee should go along; that if there is disagreement, it should be voiced in a private conference. She testified that she was of the opinion that Mrs. Disabato was a disruptive influence on the faculty at Schrader and that she probably discussed this fact with Mr. Robison during the school year. Catherine O'Conner, an employee of approximately ten months in Pasco County, testified that she does not know Mrs. Disabato as a teacher, but that she was approached on two occasions to sign a petition supportive of Mrs. Disabato. She also testified that she felt intimidated by being approached on two separate occasions, inasmuch as she had voiced her opposition to signing the petition. Mrs. O'Conner testified that she did not know whether or not Mrs. Disabato was irrational or not and she was very vague about meetings regarding the presentation of contract to teachers within the "required" 30-day period. She testified that the contracts were presented later and that she was upset that the contracts were not presented timely. She could not recall if Mrs. Disabato assisted her when she became a teacher at Schrader. Larry Robison, the principal at Schrader, was called and testified that he received an evaluation by PCTA in mid-May, 1975. He testified that he was unaware that Mrs. Disabato was a union officer. He testified that his decision to non-renew Mrs. Disabato's contract had nothing to do with union activities. He testified and the record evidence shows (see Respondent's exhibit no. 4, which is received in evidence) that his overall rating was 3.4 out of a possible 5. He testified that he received his lowest evaluation in the areas of (1) reacting positively to constructive criticism; (2) seeks to lessen the non-teaching burden by avoiding excessive paper work and supervises without favoritism by equalizing teaching loads and administrative assignments. He testified that he was aware that Mrs. Disabato was a building rep and that she was a union member. He testified that in early 1974, Mrs. Disabato was very active in the union. He testified that he could have discussed Mrs. Disabato with other faculty members. He testified that he discharged Mrs. Disabato based on her behavior, her rudeness to students, her poor rapport with peers and uncooperativeness. He also testified that he also discharged her based on her difficulty with regard to "getting along with the administration." He testified that the Radacky incident played a small part of his decision to non-renew Mrs. Disabato's contract. Mr. Robison testified that he was the party who upset Mrs. Radacky during the incident. He testified that he left a note to Mrs. Radacky indicating that he was sorry that he caused her to be upset and that he was sorry that he had created discord with one of her peer groups. However, in an affidavit given to the Public Employees Relations Commission dated on or about May 29, he testified that the reason he discharged Mrs. Disabato was based on her harshness, her lack of cooperation, and interference with other affairs of the building that's none of her business. He later testified on redirect that she was not rehired because she was a building representative, nor did he observe any increase in her union activity during the prior year. On re-cross examination, he testified that he made the decision independently not to rehire Mrs. Disabato. Gary B. Potts, teacher-coach and department chairman, social studies, Hudson High School, testified that he knew Ron Eckstein and that he did not tell Ron Eckstein or anyone how he got to be department chairman. He testified that he received more votes than anyone in the recommendation to the principal for the social studies department chairmanship. He testified that he did not vote in the election and that there were perhaps five or six employees in the social studies department who would have been eligible to vote for the recommendation. He testified that prior to the election, there was a lot of conversation regarding the vote and as to how the department was being run under Mr. Eckstein's chairmanship. He testified that he talked to approximately two of the four or five employees in the social studies department regarding their vote and the chairmanship election and that on one occasion Mr. Coy Pigman, the principal, called him in to ask him if he would assume the chairmanship if offered. He also testified that he spoke to a Mr. Ronald Clayback, an employee in the math department. He testified that he was a union member, however, there was some mix up in his dues authorization and the authorization had not been either executed on time or the Respondent was not deducting the dues pursuant to his dues check off authorization. Margaret Rose De Jong, a teacher at Hudson Senior High School from July 1974 through November 1974, testified that she resigned her duties at Hudson due to Ronald Eckstein; however the reasons cited in her resignation indicated that she resigned due to health reasons. She testified that she disagreed with Ronald Eckstein and Mr. Sinholtz, also an employee instructor in the social studies department and when she attempted to interject new ideas in the classroom, they were met with extreme criticism from Eckstein and Sinholtz. She testified that Mr. Eckstein attempted to utilize the inquiry method in a classroom setting of approximately 40 to 50 students and that that procedure was not a proper one in a class of that size. On cross examination she testified that she never spoke to Mr. Pigman regarding the stated reasons in her resignation letter. She also testified that she suffered a miscarriage approximately one month after leaving her duties at the school. She testified that health reasons played no part in her decision to resign. Case No. 1037 Jerry Morriss, an employee of Gulf High School since 1970 and the current PCTA vice president testified that he served on the negotiating team and he was the chief negotiator for the parties current collective bargaining agreement. Morriss testified that the contract contains specific language pursuant to Florida Statutes 74.100 regarding sick leave, grievance procedure, etc. He testified that he had filed grievances and that he has known Ronald Eckstein since the 1973-74 school year. He testified that Eckstein became a union member in the summer of 1973, and that Coy Pigman, Principal, knew of Eckstein's union activities based on the fact that Eckstein was a building representative. In March 1975, he testified that Pigman told him that his attitude towards him had changed. He testified that Eckstein was Instrumental in filing a grievance protesting the overlap in the teachers work schedule i.e., the 5 period vs. the 6 period day. He testified that during March, 1975, Eckstein showed him a copy of what in actuality is a renewal of his employment status only on an annual contract basis as opposed to a continuing contract. He testified that Eckstein accepted the annual contract status inasmuch as he felt that it was his only employment opportunity as Mr. Pigman was not recommending him for employment on a continuing contract basis. He testified that Eckstein asked for but was not given a list of deficiencies. Sometime in April of 1975, he testified that the issue regarding Ronald Eckstein's renewal on an annual contract basis was brought up and he was of the opinion that Eckstein was entitled to a list of reasons as to what area(s) he was deficient in. He testified that he discussed procedural due process requirements and to that Pigman did not respond. He testified that Pigman sought his advice regarding Eckstein and Pigman indicated to him that Mr. Eckstein was "riling up". According to Morriss, Pigman told him that teachers should come to him individually and not collectively. He testified that the principal told him that Mr. Weightman, the superintendent, attempted to abort his contract. On cross examination he testified that he had no direct knowledge that Eckstein applied to the county for a continuing contract but that he was present when Eckstein accepted the 4th year annual contract employment. He reiterated the fact that the principal sought his advice on many matters. He testified that Eckstein was a good teacher and his performance was better than some teachers that Pigman gave continuing contract status. He testified that he informed Mr. Pigman that he was as good as Don Roland (apparently an employee whom Mr. Pigman had given a continuing contract) and that Pigman nodded in approval. On redirect Morriss testified that as a result of Mr. Eckstein's separation, the union was experiencing a more difficult time signing members, that employees are concerned about their union activities and the union is concerned about its loss in membership. Morriss testified that he did not feel inhibited. Ronald Eckstein, the alleged discriminatee herein, was a teacher at Pasco County for approximately 3 years and testified that he was County Social Studies Chairman during the school year 1973-74 and he was a member of the skills committee during the school year 1974-75. During the school year 1973- 74, he received the "Teacher of the Year" award at Hudson Senior High, he was a member of the chess club, the faculty scholarship fund, co-sponsor of the student government association, a union member since 1973, an executive board member, a county parliamentarian, building representative during the school year 1973- 74, an FEA member during school year 1973, chairman of the constitutional revision committee and during school year 1974-75, senior building representative which required him to coordinate all building representatives. In addition, he presented grievances to the principal and organized the teachers to support the principal, Coy Pigman, to the school board. He also testified that he informed the principal of the elected members of the PCTA. He testified that on one occasion, Pigman asked him how the collective bargaining agreement negotiations were going. Be also distributed union materials in the school and his picture is on the inside cover page of the collective bargaining agreement which is Petitioner's Exhibit no. 3 received in evidence. During January 1974, Mr. Pigman, the principal, asked Eckstein why were problems relayed through him. He testified that he handled complaints for both union as well as non-union members. His testimony is that during the late part of the 1974-75 school year, the principal told him that PCTA was drawing lines and that the principal associated him with the "Uniter", which is a union publication. Eckstein was evaluated by Mr. Pigman on approximately March 21, and at that time Mr. Pigman informed him that he was "having difficulty filling out his evaluation. He testified that Mr. Pigman questioned him regarding Pigman's receipt of an anonymous letter written by a parent which was critical of some teaching practices allegedly attributed to Mr. Eckstein. He testified that Mr. Pigman failed to be specific regarding any deficiencies that he might have in his teaching abilities. He testified that overall he was graded either excellent, outstanding or not applicable, but he was rated needed improvement in the areas of not accepting comments favorably and that Pigman indicated to him that his teaching methods were good and he was knowledgeable, active and reliable. He testified that Pigman informed him that he did not like to rate teachers exceptional or outstanding. Eckstein asked Pigman if he would receive continuing contract and he replied that he was having a "difficult time". Specifically, that he had a "feeling" which he (Pigman) could not put in words. Eckstein testified that he was told by Pigman that he was more effective than others whom he had given continuing contract status. Eckstein testified that he accepted the annual contract offer because he had no alternative and that when he asked Mr. Pigman for the reasons, he replied that he "was not obligated to state reasons for denial of continuing contract status". Eckstein asked Pigman for a letter indicating the reasons for the denial of continuing contract status and also that he was extremely concerned about Pigman's "feelings". Pigman replied that he thought it would be a good idea for him to serve a 4th year on annual contract status. He testified that during a meeting during the early part of the school year he was given a letter noting that he "failed to meet the educational requirements of the community". (See Charging Party's Exhibit No. 19 received in evidence.) During that same year Eckstein was not awarded the social studies department chairmanship. Eckstein testified that he did not attempt to grieve the non-renewal of the continuing contract or of his failure to be awarded the chairmanship. He testified that he was told (apparently by Pigman) that he was "too enthusiastic". Eckstein testified that the "too enthusiastic" remark related directly to his union activities; that he has been ostracized since the non-renewal of his continuing contract; that this event inhibited other employees from freely associating with him especially the annual contract teachers and that based on this action he was declined to serve as building representative. Eckstein testified that he was asked by Pigman whether or not he wrote various articles of the "Uniter". Coy Pigman, Principal, Hudson Senior High School for the past 2 years and prior thereto served as guidance counselor for approximately 3 years, was examined as an adverse witness based on his position as principal. Pigman testified that in making the recommendation for a continuing contract teacher he consults with his curriculum advisor and evaluates classroom performance as well as other responsibilities. He testified that he also consults with his assistant principal as to whether or not a particular employee he has in mind should receive a continuing contract. He testified that if an instructor is not given verbal or written deficiencies, he would expect that that teacher would expect to be renominated on a continuing contract basis. He testified that he prefers dealing with teachers on a professional basis rather than a written basis or via written communications. He testified that in evaluating instructors he utilized day to day staff contacts. He testified that he made the recommendation regarding the departmental chairmanships during the first two weeks in April testified that he rated Eckstein strongly but that after the evaluation he told him to be "more tactful". Pigman testified that it was not uncommon for instructional personnel to have personality differences but that several employees were forced to resign due to differences that they had with Eckstein. Pigman testified that the problems with regard to personality differences were personal in some instances, for example, a Mr. Corvalis, but that as the differences related to other staff instructional personnel, the problem was significant. He related an incident regarding Ms. De Jong, who testified that she was harassed and that Mr. Eckstein made her appear immature in the presence of fellow teachers, and that the curriculum assistant and the assistant principal made similar remarks to him. He testified that according to the resignations records, Ms. De Jong resigned based on ill health, however, in actuality, she resigned due to her differences with Eckstein. Pigman also related an incident regarding a student who had been sent to see the dean by Mr. Eckstein and when the dean, Gus Manticus, was informed that the student had filled out her own discipline slip, Mr. Manticus sent the student back to Mr. Eckstein's class. There-after, Mr. Eckstein approached Mr. Manticus and shouted, "Why did you send her back to my class" Pigman testified that he asked Mr. Eckstein to refrain from yelling at his dean, Mr. Manticus. Pigman testified that he granted Eckstein leave to attend the FEA convention and the he told Mr. Eckstein to keep politics out of the school. He said he did this on a precautionary measure and that to his knowledge the witness did not engage in any politics during school hours. He testified that during Mr. Eckstein's evaluation he noted the resignations that had allegedly been occasioned by difficulties regarding personality clashes and the anonymous letter received from a parent. He testified that he thought that Eckstein was in fact the teacher whom the letter was directed to because Virginia Collins (also an instructor at the school) indicated that she was having a difficult time with students following her lesson plans and that when he visited Mrs. Collins' class, one of the students stated Mr. Eckstein and gasped and closed his mouth in a surprised manner, which in Mr. Pigman's opinion concluded that Mr. Eckstein had in fact made a statement that students should be able to choose their lesson plans; that the students outnumbered the faculty and that in a democratic society they should be able to voice their opinions. Pigman testified that he used the evaluation form as a motivational item and that he gave Eckstein a 4th year annual contract due to differing philosophies and actions. He acknowledged the fact that Eckstein was not the only teacher whom he had differing philosophies with. Be noted that Eckstein was above average and that he possessed outstanding teaching abilities and techniques, that he was not irrational or militant. He testified that he denied Eckstein the chairmanship for the social studies department based on his non-recommendation to him by his fellow instructors. He testified that he rated Eckstein as needing improvement regarding students making their own decisions with regard to what they do in class. He also acknowledged the fact that he told Eckstein that he was "over zealous". He testified that he was aware that PCTA opposed the superintendent, Mr. Weightman's, nomination. Be also testified that he knew that Mr. Eckstein was actively involved in union activities. He further recalled meetings he had with Mr. Eckstein regarding the resolution of grievances. Pigman testified that he and Eckstein had a good relationship until school year 1974-75. He testified specifically that Eckstein was not given the chairmanship due to personnel problems and recommendations in the social studies department. He also emphasized that Eckstein possessed good abilities and techniques. Pigman testified that he was unaware that the professional practices code required him to give any instructor who requests such a list of written deficiencies. On cross examination, Pigman testified that he made the decision independently regarding appointing Eckstein as a annual contract teacher rather than a continuing contract teacher. Kenneth B. Sennholtz, Jr., an employee in the social studies department was called and testified that he has known Mr. Eckstein for approximately three years. He testified that he was present during the meeting with Mr. Pigman and Mr. Eckstein in which Eckstein received his evaluation. He also testified that during that same time he received his evaluation he and Eckstein reversed roles as witnesses for receipt of their evaluations. He testified that he was impressed that the principal liked the teaching techniques, the professional preparation of developing the social studies curriculum but that the principal stated that he had "this feeling" about Eckstein. He testified that he did not quite understand what Mr. Pigman's "feelings" were but that he knew that as a teacher, Mr. Eckstein was "more effective than other teachers". He testified that Mr. Pigman informed him that employees had left and that he knew they left but it's not Mr. Eckstein's fault; that Mr. Eckstein was not to blame and that Mrs. De Jong had personal illness. He testified that Mr. Pigman later learned that it was due to the difficulties that Mrs. De Jong and Mr. Eckstein were experiencing. Sennholtz testified that he asked Mr. Pigman why he wasn't advised that other members on the social studies staff were having difficulties with him whereupon Mr. Pigman indicated that he felt that they were not that important. Sennholtz testified that Eckstein was rated outstanding or one below in most categories and that he was not aware of or knew exactly how to incorporate Pigman's "feelings" into the evaluation form. He testified that Pigman indicated reservations about filling in needs improvement on the evaluation but that he did not know where else to put it. He testified that Eckstein was not given his evaluation but he was permitted to look through his personnel file. He testified that Pigman informed him that form A was strictly an "inhouse" form and that it would not be placed in Eckstein's personnel file. On form B Eckstein was rated outstanding or exceptional in all ranges. Sennholtz testified that Eckstein asked Pigman if he would be considered for continuing contract and he replied that it was "a difficult question". Sennholtz testified that Mr. Pigman informed him that he intended to align himself with Mr. Weightman during the coming school board election and that he was aware that he, Eckstein and the union actively supported the incumbent superintendent Ray Stuart. Pigman advised Mr. Sennholtz that he would not hold his or Eckstein's political differences against them. He testified that Pigman's philosophy was one of "fitting students into the society" whereas Eckstein's philosophy was one of "developing students to their maximum potential; that society is dynamic and students should be so prepared". Sennholtz also testified that Eckstein and he had done an excellent job in dealing with controversial issues which Pigman noted and that he would handle such issues in a similar manner if he was in a classroom. Sometime during October, 1974, Pigman and Sennholtz had a conference regarding the anonymous letter which is charging party's exhibit no. 20 received in evidence. According to Sennholtz, Pigman called a conference to rebut or to be prepared for any charges that might arise as a result of the "anonymous" letter, and that he paid little credence to the letter inasmuch as the party failed to identify themselves and further that the comments would not be used against them in any manner. Sennholtz related an incident regarding a problem with the stage door during a play in which Mr. Eckstein was involved. He testified that Manticus slammed the door and the door fell down and Eckstein indicated to Manticus that the door was important whereas Manticus jokingly said that "he would fix it; it's simple to fix." Eckstein disagreed but remained calm according to Sennholtz. Sennholtz testified and the evidence is clear that the Pasco County Teachers Association supported the incumbent superintendent Steward whereas Corvalis, according to Sennholtz, stated that the union should not endorse a candidate but that if one was in fact endorsed, it should be Mr. Weightman. Sennholtz testified that Eckstein and De Jong had little or no contact but that he and De Jong worked together as a team. He testified that De Jong wasn't happy because there was a lack of independence with regard to the track program and that Eckstein modified the program to satisfy Mrs. De Jong. He testified as to problems, small problems, with Lucinda South but that they were basically political and philosophical differences and that as to the alleged difficulty with Virginia Collins, Eckstein and she are good friends. Sennholtz related his opinion that Eckstein's demotion inhibited the employee association; that they fear reprisals and that its difficult to recruit building representatives because they are fearful of criticizing board policies. He testified that he is more cautious in his dealing with school rules and regulations because he does not want to inadvertently violate a rule or regulation which could be regarded as "just cause" for his dismissal. On cross examination he testified that he had no knowledge of any family problems that existed between Eckstein and his wife and that they are mutual friends; that he (Eckstein) according to his information, was experiencing no financial difficulties, that he recently purchased a home and was thinking of purchasing a pool etc. He also testified that he attached little credence to the 'anonymous' letter and also the principal asked them to "forget about it." He testified also that Potts asked Eckstein why wasn't he selected chairperson inasmuch as Potts was only at the school approximately 1 year whereas Eckstein was a better teacher and that the opposition (to Mr. Weightman) resulted in discrimination, i.e., quasielective (appointive) positions were given to those who supported Mr. Weightman, i.e., the dean, the assistant principal, etc. He testified that no union member was given a higher position than they previously held after January, 1975. He testified that after Eckstein's nonrenewal of continuing contract, it is difficult to solicit union members. He also testified that Weightman advised employees to cancel their dues authorization forms. He testified that he noticed that Eckstein had gone through an entire school year receiving commendations and was suddenly "framed." He testified that Pigman asked Eckstein for a copy of the collective bargaining law in January and Eckstein gave a copy to Pigman. He testified that Pigman forced his respect and acknowledged the right of employees to have philosophical differences and that he (Pigman) advised that he noted "an appreciable increase in his union activities." He testified that he and Eckstein supported Mr. Pigman in obtaining the principalship at his school. He testified that Pigman felt that he was being put up to do things by Mr. Eckstein. He also testified that Pigman was given a copy of all union materials and that Mr. Eckstein was told to report directly to him. Respondent's defense to CA 1037 Richard Coot, Assistant Principal, Hudson Senior High School testified that he tallied the votes in the social studies department. The evidence surrounding the tally is reflected in Respondent's Exhibit no. 5 admitted into evidence over the objection of the Charging Party based on the fact that copies were not the "best evidence." Coot testified that he tallied the ballots on or about April 15. Coy Pigman was recalled and testified that he was aware that both De Jong and Kratovill resigned due to difficulties with Eckstein. He denied telling anyone that he placed instructor Rodey on continuing contract status although he was a better teacher than Eckstein. Pigman testified that he received an overall evaluation of 2.6 by PCTA. Pigman testified that Eckstein's union activities played no part in his decision to not renew his continuing contract. He testified on cross examination that Eckstein cooperated with him on filling out discipline slips and he also indicated he asked Rose De Jong to write a list of difficulties that she had with Ronald Eckstein. He testified that he was unaware of any health problems of Mrs. De Jong however in later testimony, he acknowledged that he was aware that health problems existed at the time of her resignation. He was unclear as to whether he was testifying that the health problem played a part but that the health reason would be the easiest way out rather than to cite the health reason which then would just be a pretext for the real reason i.e. the difficulty with Ronald Eckstein. He testified that in March, 1975, the determination was made that based on projections that at least two new teachers would be needed in the social studies department, however, the two individuals who allegedly would be permitted to vote (recommend) were not told that they would be in the social studies department. Specifically, the record tends to indicate that they were Mr. Carvealis and Mr. Manticus. He testified that he made an error in his affidavit and that there was no rating of the social studies department chairmanship recommendations. He states that he appointed Potts as chairmen of the social studies department because in his opinion "he was a better teacher than Eckstein." Case No. 1041 Fred Rydzik was employed by the county in September of 1973, as a substitute teacher and approximately 10 days later he was appointed a full time substitute teacher. Thereafter in January of 1973, he was appointed to a full time position and he was employed through June 30, 1975. His lest employment was at Gulf Jr. High School where his principal was James Campbell. Rydzik served as co-sponsor for the conservation club during the school year 74-75, he sponsored several field trips, managed the publication of the yearbook for the school year 74-75 end in order to do this, he gave up his planning period. He was also on the guidance committee, coach for the "powder puff" football team, chairman of the tutorial committee based on the selection by the guidance counselor, director of the energy management center and he taught power and industrial arts as a substitute teacher. As a full time instructor, Rydzik taught English and Personal Development. He testified that during his evaluation by Mr. Campbell, he was asked to sign blank evaluation forms in Spring 1974. He was evaluated as being effective. Rydzik refused to sign blank forms because in his mind it was not a proper thing to do based on his prior military experience. During the spring of 1974, he became involved with employees who were trying to form an affiliate of the American Federation of Teachers (a labor organization). He testified that several co-workers approached him about forming an affiliate and during the summer of 1974, in a conversation with Campbell, Campbell spoke to him about the union not being viable. Campbell, according to Rydzik concurred and suggested some building association (i.e. an in-house employee group) rather than a union. During the fall of 1974, he testified that Monique Lefebre, his department chairman, told him that he would have to wear a tie. Thereafter he was called into the office and was asked by Campbell "why wasn't he wearing a tie?" Campbell told him that "he would wear a tie." Rydzik testified that he was unaware of any rule or regulation which prohibited an instructor from coming to school without wearing a tie however he complied with Campbell's directive. The effort to form an affiliate of AFT was unsuccessful although Rydzik testified that he successfully solicited and obtained signed authorization cards for approximately 160 employees. He testified that the AFT president denied a charter to Pasco County, due to political infights. In late September, 1974, Rydzik spoke to PCTA's president Larry Smith about merging the solicited employees with PCTA and that conversation resulted in the solicited employees merging and joining PCTA as a joint group. Rydzik testified that Campbell was aware of his union activities based on conversations he had with him and because his name appeared on various flier's which were distributed throughout the school. Rydzik testified that during early spring 1975, he spoke at a faculty meeting regarding a union meeting and the principal told the faculty that they didn't have to remain whereas they had been asked to remain for other activities such as pitches for the sale of life insurance and cookware sales and other utensils on the school's proper. Rydzik testified that he was rated effective in most areas in his evaluation but that he was rated as needing improvement in the area of turning in his plan book. Rydzik testified that he asked Campbell what he meant about needing improvement and Campbell replied that "he heard that his plan book was on most occasions, turned in late." He testified that his plan book would be one or two days late. Rydzik testified that in order to rectify his problems regarding his plan book, he talked to various experienced teachers who shared ideas and that each teacher who observed his plan book indicated that his plan books were better than most. He testified that two week units, a planning period, was a requirement whereas he was required to submit three week units and that his percentages were always rejected whereas other teachers were not. Rydzik testified that he did not grieve his problems regarding his plan book because of his annual contract status and also because various teachers warned against grieving that matter. Rydzik testified that criticisms regarding his plan book grew worse as the year proceeded and although he tried to correct whatever problems he experienced, he was never able to do so. He testified that to his knowledge, he was never personally observed by Mr. Campbell or Mrs. Lefebre in the classroom. However, he testified that during his evaluation he was told that "he had a good class." During the evaluation he was criticized about not patrolling bathroom duties as scheduled, however, he testified that he in fact followed the schedule. Rydzik testified that he was tardy approximately six times during the school year (school started at 6:30 am.). He states that on two occasions he was late approximately 15 minutes, and four or five times he was late less then 10 minutes. He also testified that on two occasions he was late as much or more than an hour. 4/ On April 2, 1975, Rydzik returned to work after having been on a 15 day off duty track and was at the time told by Campbell that he would not be recommended for employment. Rydzik asked Campbell why he was not being recommended for employment for the coming school year and Campbell replied "he could get someone better all around." Rydzik testified that he and other union members including Larry Smith, had discussed this problem and Smith informed him that he would not file a grievance inasmuch as similar grievances had been rejected by Respondent. He testified that Campbell informed him that he would reply to his request for a written list of deficiencies but Campbell never replied. He testified that he was a member of the bargaining team, that proposals were formulated sometime in January, 1975, and the bargaining sessions commenced during the spring of that year. In addition to serving on the bargaining team, Rydzik ran for the union vice president but lost that election. Rydzik testified that he received his second evaluation which is Charging Parties no. 25 received in evidence on the date therein noted although the date of the writing is different from the date that he actually received it. That is, the observation period as reflected on the exhibit covers a period from June 1974 thru June 1975 whereas Rydzik received it on April 22, 1975. Rydzik testified that he was regarded as the information source regarding any contract problem and fellow employees constantly inquired of him the status of the contract. He testified that the Math Department Head, Mr. Gibson, inquired of him regarding suggestions during January thru March of 1975, and he was viewed by him as a leader regarding contractual knowledge. Charging Parties no. 26 is a petition supportive of Rydzik and is signed by approximately 35 of the 60 instructors. Rydzik testified that employees were fearful to associate with him especially the annual contract teachers due to their financial obligations. He testified that several employees indicated that "if the union could not protect its own certainly it could not protect them." Rydzik testified that Mike Thomas of PCTA cautioned against his taking an active role in the union inasmuch as he was on annual contract rather than other employees who had tenure and could provide the leadership. James Campbell, the principal since February, 1972, was called and examined as an adverse witness. Campbell testified that there are approximately 75 instructional personnel including the support personnel. He testified that he evaluates on the basis of his daily observation of employees end that he hired Rydzik based on a recommendation of a Mr. Tucker. He testified that he evaluated Rydzik at least once although according to regulations he was required to do so at least three times per year. Charging Parties no. 27 received into evidence is the evaluation of Fred Rydzik. Campbell testified that he rated Rydzik in the low to strong areas in most categories and that he was "satisfied with his work." He denied ever asking Rydzik to sign a blank evaluation form. He recalled calling Rydzik in to discuss the incident regarding his not wearing a tie during school hours. He testified that Rydzik informed him that he could grieve the matter but that he would wear a tie until the grievance was resolved favorably on his behalf. He recalled the faculty meeting wherein Rydzik was introduced as a union representative. He testified that he called Rydzik in to inform him of his tardiness and his failure to fulfill his bathroom duties. He testified that Rydzik was late as much as 5 minutes on two occasions and 30 minutes on several occasions; he also recalled the problem with regard to Rydzik's planbook. He testified that his rapport was somewhat weak in that he failed to speak with and listen to his department head. The only deficiency notes on his evaluation was lateness in turning in his planbook. He was aware of no other instructional personnel that Rydzik had problems with. Campbell testified that Rydzik inquired why he was not being recommended for employment for the coming school year whereupon he informed him that it was a personnel cutback. He testified that he lost a total of six employees and he filled three of those positions which included a Spanish instructor and an industrial arts instructor. He testified that Rydzik was not appointed or recruited for the industrial arts position inasmuch as he lacked state certification in industrial arts. Campbell testified that he did not respond to Rydzik's request for a written list of deficiencies because he felt that that was "within his discretion." Campbell testified that he did not personally observe Rydzik. He testified that he would see Rydzik in the hall and around the campus but he relied on the evaluations of his curriculum assistant and the assistant principal and it was his own decision not to rehire Rydzik based on his discretionary authority. Campbell testified that he retained teachers normally with effective evaluations. Campbell testified that from the period of March 21, which was the date of his first evaluation of Rydzik thru April 2, 1975, which was the period that he made the decision not to renew or rehire him, he witnessed no improvement in Rydzik's tardiness, his bathroom duties or his plan book difficulties. Campbell also denied that he told Rydzik that he preferred a local building representative rather than a union. With regard to Rydzik's protest of the failure to provide english books to each student, Campbell testified that he referred the letter to the language arts department wherein they advised that books would not be a worthwhile expenditure for the current year but the parties did agree to provide books for the coming school year. Campbell indicated however that he did not respond to the union's letter concerning this problem. He testified that he is of the opinion that he is an administrator and the department head can best determine the needs of students due to their daily contact. Campbell testified that he was never told by Dr. Forguson that the discharge of Rydzik was not a grievable matter. Campbell admits having knowledge of Rydzik's union activities and also of knowing that Rydzik and others were interested in breaking away from PCTA and forming an affiliate of FTA. Campbell testified that he was unaware of Rydzik's relationship with his peers or what they thought of him personally. Campbell testified that he did not personally observe Rydzik's plan book prior to his determination to not renew his contract. Campbell testified that he was rated by PCTA in June and that his overall rating was 3.6. Linda Elkins, an art teacher of approximately 5 years and who is on continuing contract has known Rydzik for approximately 1 year. Elkins testified that she approached Rydzik regarding forcing a union and that he attended several meetings with officials of AFT. She testified that Rydzik was very active in the union's organizational drive. Elkins testified that she had a son who was one of Rydzik's students end he rated Rydzik as the "top teacher" of the school. She testified that she taught some of the same students as Rydzik and she heard favorable comments from several students regarding his teaching ability. She testified that she observed Rydzik's plan book and it was more thorough then many others whose plan books were approved and she was accordingly led to believe that Rydzik was about to be "axed." She also testified that it was probably true that Rydzik should not have played an active role in the union drive. She testified that since the discharge of Rydzik, most employees without continuing contracts status are afraid to participate in collective activities. On cross examination, she testified that several employees informed her that inasmuch as they were on annual contracts they would not sign the petition supportive of Rydzik. She testified that over 100 students commended Rydzik on his teaching abilities. Elkins testified that she was late and she received a note cautioning her to not be late again. She reiterated the fact that morale seemed to drop after Rydzik's separation. Donald W. Livesey, an employee for approximately 5 years was called and examined as follows: Livesey testified that Rydzik assisted him in trying to bring an affiliate of AFT into the school. He testified that Rydzik solicited him to join the union and that Rydzik got along with most employees. He testified that Rydzik "could have had a problem with his department head, Monique Lefebre." He testified that Rydzik asked to borrow his plan book which he loaned to him. He testified that Rydzik took his plan book home and based on his observation of Rydzik's plan book, it was better than most teachers. He testified that Rydzik was one of the "better dressed teachers in the school," end the parents often expressed a desire to have him teach school there based on his good rapport with kids. He testified that Rydzik was very active in all the plans and extra curricular activities end that his plan beak was very good. He expressed the opinion that Rydzik was a "superior teacher" and does not remember Rydzik not being on bathroom duty. He testified that during early 1975, the tension mounted after the commencement of collective bargaining negotiations. He also testified that a co-employee, a Mrs. Snell, did not sign a petition supportive of Rydzik until she was informed that she would be recommended for employment for the coming school year. He stated that it is common knowledge throughout the school that employees fear reprisals for testifying and they are expressing tenseness due to Rydzik's separation. He expressed his opinion that Rydzik was terminated due to his union activities. On cross examination he reiterated basically the same testimony that he testified to on direct. Barbara Snell, an employee at Hudson High School for approximately 3 years was called next and examined as follows: Snell testified that she had been tardy approximately 6 times during the period from July 1, 1974 thru April 1, 1975. She testified that she arrived earlier on numerous occasions, approximately 10 minutes and she on occasions remained late. She testified that she shared bathroom duty with Rydzik and that because she knew that they were being watched, she made a special effort to avoid being remiss in her bathroom duties. She testified that she could overhear Mr. Rydzik's class lectures because their planning periods were staggered and in her opinion Mr. Rydzik was "one of the best teachers she had seen". She testified that she feared reprisals from her employer due to the fact that she is an annual contract teacher. She voiced her opinion that the atmosphere around the campus has been somewhat tense and the employees fear being critical of the principal, Mr. Campbell. She testified that she signed the petition supportive of Mr. Rydzik after she had been rehired for the current school year. Bruce Bluebaum, a math teacher of approximately 4 years was called and testified that he knew Mr. Rydzik and that their homerooms were on opposite sides of the hall facing each other. He testified that on numerous occasions he observed Mr. Rydzik on bathroom duty and he was always in and around the bathroom during the class period changes. He testified that students liked Rydzik very much and always "flocked around him". Bluebaum testified that Rydzik worked diligently about his planbook and in his opinion, his plan book was excellent. He testified that Rydzik's planbook would always be turned down based on the dislike that existed between Mrs. Lefebre, his department head, and he. He opined that Mrs. Lefebre would search to find a way of "axing him". He testified that Rydzik was regarded as the "leader in the school". As to Rydzik's teaching abilities, he related an incident wherein he put on a mock trial and he also generally stated that Rydzik was "very innovative and a very good teacher". He gave the opinion that Rydzik was dismissed because he was "too vocal" in union activities and due to the dislike of him by his department head. On cross examination, he also opined that the teachers around the campus felt that the principal, Mr. Campbell, was led astray and made the wrong decision with regard to discharging or, that is, not rehiring Rydzik. He testified that when a union meeting was announced, Mr. Campbell would make the announcement in a manner which tended to show that he somewhat disliked having union meetings held on the campus facility whereas employees were asked or "forced" to sit through meetings regarding sales of "pot and pans". He indicated this same procedure with regard to insurance sales. Bluebaum testified that grievances were not well accepted around Gulf High School. Ruth J. Morris, a community school manager and employed at Gulf Junior High for approximately 9 years testified that she has known Fred Rydzik for approximately 2 years. Morris is presently the school's building representative. She testified that she had dealt with the principal, Mr. Campbell, on numerous occasions and she has assisted in the development of evaluation forms. She testified that evaluations tend to lose their worth because "different standards are used" nor do principals place much reliance on evaluations but that a new teacher will tend to feel that if they are not evaluated highly, it will play some important role in whether or not they will be rehired the next year. She testified that she evaluated Mr. Rydzik's planbook and told him that it was excellent. She testified that the employees in her opinion were afraid of criticizing Mr. Campbell but in cross examination she also testified that complaints were received satisfactorily by him. Campbell, she noted, was rated very good in an evaluation conducted by PCTA. Respondent's Defense to CA-1041 Monique Lefebre, Department Chairman, Social Science at Crawford Junior High School, has served in that capacity for approximately 5 years. She was the alleged discriminatee, Fred Rydzik's department chairman. Lafebre testified that Rydzik turned in his planbook only once or twice and that she did not talk to him about not timely turning in his planbook. She testified that initially Rydzik failed to perform his bathroom duty but that after warning him, he fulfilled his duties in that regard. This was noticed by her particularly after Rydzik received his mid-term evaluation. Lefebre also testified that she noted certain deficiencies in Rydzik's planbook percentages and that based or the manner in which she criticized them, there was no way that he could correct the deficiencies inasmuch as the time period had passed wherein such deficiencies could have been corrected. She testified that during a faculty meeting at the early part of the school year, male instructional personnel were told to wear a tie during school hours and to refrain from walking out of the faculty lounge with coffee. She testified that she observed Rydzik not wearing a tie for a period of approximately 15 days after this rule was announced and when she spoke to him about not wearing a tie and he failed to heed her advice, she then spoke to the principal. She testified she was aware that other teachers violated the coffee rule also although she did not personally see them. She testified that this was an unwritten rule and to the best of her recollection Rydzik was not present when the principal announced the rules regarding males wearing a tie or that they were not to walk out of the faculty lounge with coffee. She testified that the problem with regard to Rydzik not performing his bathroom patrolling occurred during the early part of the year, perhaps in late August or early September but that after he was evaluated during the early part of the year she did not notice him failing to perform his bathroom duty. James Campbell, the principal at Gulf, indicates that the sign in sign out sheets have been in effect for quite some time at the school. Respondent's exhibit no. 9 reflects inter alia, the sign in - sign out records of Rydzik and other instructional personnel at the school. He testified that he noted on a few occasions Rydzik would write in or drawn in a "smiling face" in the spot where he was to sign in. Campbell testified that based on his calculation Rydzik was late on approximately 51 occasions during the school year and that 3 occasions his secretary called him and he was late for as much as one hour. Campbell was rated by PCTA and on that evaluation form he was rated 3.6 of a possible 5. (See Respondent's exhibit no. 10, received in evidence). Campbell testified that union activities played no part in his decision to not rehire Rydzik nor did he have any knowledge as to Rydzik's serving as a building representative or running for any union office. On cross examination, Campbell testified he evaluated Rydzik on or about September 22 and his final evaluation came approximately 3 weeks later. He testified that in his opinion, 3 weeks was sufficient for Rydzik to correct any deficiencies noted on his evaluation. Campbell testified that school officially starts at 6:30 and homeroom begins approximately 6:45 a.m. He also testified that during the early part of the school year the time clock was not working and a small clock was used to apprise the employees of the correct time. A casual or cursory look at the time sheets indicates that there were a number of instructors who were late and that the correct time was not always adhered to nor was there any rigid policing of the time sheets. That is to say that instructors would often record that they would come in at say 6:30 a.m. whereas they might in fact arrive at 5:30 a.m. or on the other hand they might arrive at 6:45 a.m. and the same is true for signing out. Specifically employees may sign out at 2:00 and leave the building at say 1:30 or they may leave as late as 4:00. Campbell testified that he did net regard the fact that employees signed in when in fact they arrived earlier than that period as being violative of the "sign-in" rule and that the only objection he had to such procedure was a situation where for example a faculty member would leave the school say at 1:40 and sign out at 2:00. The records reflect that other employees were late a number of times. One case in point is Lucia Adkinson. Her time sheet reflects that she was late as much as 27 times during the past school year for a total of 665 minutes. The record also reflects that there was no method whereby one could determine whether employees were late or whether they were out on school business. Campbell's testimony regarding the sign-in, or time sheets reflect that a number of employees were late and this can be established by looking at the time sheets for Gene Lydman, Debbie Snyder, Mrs. Fisk, William Lynch, and a number of other employees, too numerous to recite herein. It was also noted that the time sheets are recorded in pencil and are easily distorted and difficult to determine if in fact an alteration has been made. Testimony was also heard by Campbell that on the PCTA evaluation form his lowest rating was in the area of "evaluating objectively after sufficient observation". Dr. Ferguson was called and testified that based on an examination after the hearing in the subject case commenced, he was able to determine that 5 employees were promoted to managerial or non-unit positions after Mr. Weightman was nominated. He testified that one employee was put on 4th year continuing contract and served as a building representative rather than on annual contract. He testified that throughout the county, approximately 19 annual contract teachers were not rehired and that 7 teachers were put on 4th year annual contracts. He testified that an examination of the school boards records indicate that on June, 1975, there were approximately 590 employees on dues check off and that on July 28th the number was 429 employees and the 429 figure does not reflect those employees who were serving on D track. Ferguson testified that the only alleged discriminatee that he knew was Ron Eckstein and this knowledge came from observing his picture in the collective bargaining agreement which is charging parties exhibit no. 3 received in evidence. At the conclusion of case numbers 1037; 1040 and 1041, counsel for Respondent asked the hearing officer to take official notice of the official regulations of the Department of Education and official notice of Florida Statutes 447. Thereafter Respondent rested as to cases 1037; 1040 end 1041. General Counsel end Charging Party's rebuttal in cases 1037, 1040 and 1041 Ronald Claybeck, an unemployed male teacher who served the previous school year at Hudson Senior High testified that his prior experience included serving as a teacher in New York State's school system for approximately 12 years. Claybeck testified as to conversations preceding the election and subsequent to the election of the social studies chairmen at Ronald Eckstein's school. Claybeck testified that there were conversations regarding the number of possible ballots to be cast regarding the recommendation to the principal for the social studies chairmanship and there was some discussion as to whether two deans who were working in the social studies or other departments would be permitted to vote. Those individuals are a Mr. Carvealis and a Mr. Menticus. He said the conversation was generally that the two deans would be permitted to vote in the election. He testified that Carvealis indicated that he would vote for Potts who in fact received the chairmanship due to a personality clash that Carvealis had with Eckstein. Clayback expressed a reluctance to testify end in fact testified under subpoena because he "feared his wife's job (an elementary teacher at Hudson Elementary School)." Claybeck testified that he and Potts are neighbors and that Potts told him that Eckstein was "a competent teacher end that he (Potts) indicated as much to the principal, Coy Pigman". He testified that Potts indicated to him that he was called in by Pigman and asked if he wanted the chairmanship. Clayback testified that Potts remained neutral as to the chairmanship because Eckstein was a good teacher although he differed with him regarding his teaching methods. Clayback testified that it was obvious that Carvealis and Eckstein did not agree with each other. Clayback testified that another factor leading to his reluctance to testify was occasioned by the fact that he was called approximately two days before his appearance and he had an unlisted phone number. He testified that he was told that if he testified, "his wife's job would be in jeopardy". On redirect examination Clayback testified that he attended the union hall and was given a subpoena by Mr. Matthew, charging parties' attorney and he also gave his phone number to Larry Smith, union president. Fred Rydzik was also recalled and testified that he was not given a new school book by his department head, Mrs. Lefebre. Rydzik also testified he was not evaluated by Lefebre, nor did she assist or advise him of his duties nor did she tell him that he was deficient. Rydzik testified that he turned his planbook in approximately 12 times at 3 week intervals as per the schedule and that to the best of his recollection he failed to turn the planbook in only on two occasions meaning that he in fact turned the planbook in approximately 10 times. He testified that his planbook was never approved by Mrs. Lefebre. He testified that he was unaware of any dress code relating to males wearing a tie. He also denied that he failed to wear a tie on 15 occasions as testified to by Mrs. Lefebre. Mr. Rydzik also denied taking coffee to areas other than the yearbook planning and production area and that he served his bathroom duty daily. Rydzik testified that the schedule relating to patrolling the bathroom and the hall was "a loose schedule". Rydzik testified that on 3 occasions the office secretary called and informed him that he forgot to sign in and in those instances, his entry for signing in remained blank. He testified that he was late on no more than seven occasions and this was for a period of 5 minutes or so. He testified that there were approximately 3 times that he was late as much as 1 hour and that his examination of the time sheets indicate that there were approximately 12 alterations. On redirect examination, Rydzik testified that sometime in January, 1975, Campbell told the employees that they would not sign others out and that he obeyed this mandate. Josephine Lofland was also called to testify and testified that it was common practice to sign in at the proper time even though employees did not always arrive at the time recorded. She testified that on example of this was Art Engle, a curriculum coordinator who was late on several occasions according to a Mrs. Williams. This concluded the evidence taken in cases 1037, 1040 and 1041. Case Number Ca-1062 and Case Number CA-1082 Larry Smith, the union president was called and testified that he assisted in the negotiations for end ratification of the current collective bargaining agreement. (Charging Parties' exhibit no. 3). Smith testified that both parties were pleased to ratify the contract and they discussed the amiable relationship that existed based on the contract. Smith testified that good faith bargaining existed through November, 1974, end that the union supported the incumbent superintendent, Ray Stewart, actively. Smith testified that he started working with the newly elected superintendent Weightman, late in November, 1974. Smith testified that in late January or early February, 1975, the negotiations and the atmosphere appeared to, in his opinion, "breakdown." He testified that he requested voluntary recognition and that he presented to Dr. Ferguson, the Respondent's designated collective bargaining agent, approximately 90 percent of the employees who had executed authorization forms. He testified that Dr. Ferguson recommended recognition be granted on a voluntary basis. Accordingly, PCTA was certified by PERC on April 17, 1975. Negotiations for a collective bargaining agreement began on or about April 24, 1975, and a mediator was assigned approximately 60 days thereafter, after the parties had reached an impasse. Smith testified that he contacted a mediator and the mediator indicated that he would be pleased to assist the parties at arriving at a settlement but based on his experience in the mediation field, it would be fruitless to do so unless he was requested jointly by both parties. Smith testified that a special master was assigned sometime in early July, 1975. Smith testified that he received a written authorization from Mr. Weightman designating Ferguson as the school board's agent for collective bargaining. Smith testified that he was present at all the negotiations and acted as the union's chief spokesman. The proposal submitted by the union included salary and increment proposals, planning days etc. Smith testified that at a school board meeting on or about May 6, 1975, the school board, over his objection, adopted the proposed schedule as provided in the old collective bargaining agreement i.e., (Charging Parties' exhibit no. 3). Smith indicated that this objection came through oral objection and by a letter sent to Mr. Ferguson prior to May 6. Smith testified that Ferguson was not prepared to and did not present salary proposals, based on a claim that the parties or the school board did not know its true financial condition. Smith testified that at no time did the union waive its right on salaries, planning days or salary increments. He testified that increments were cut by approximately 5 percent and instructional personnel salaries were frozen at the old rate. Smith recalls making an objection after he was shown charging parties' exhibit no. 33 which was received in evidence. Smith testified that he had no indication that check off authorizations would be revoked prior to the cut off by the school board. Charging parties' exhibit no. 33 received in evidence is a reflection of the evidence regarding dues check off. Smith testified that he advised Ferguson that the dues authorizations were continuous in nature and that article 2, section 2, page 3 of charging parties' exhibit no. 3 in fact provides for continuous check off. Smith testified that he was afforded a short period i.e., from July 28th thru August 5th to sign the D Track teachers and this is evidenced by charging parties' exhibit no. 34 received in evidence. He testified that he expressed concern about the short period of time to Dr. Ferguson. The testimony indicated that D Track teachers were off duty during the period In question and therefore they had to be contacted either at their homes or through other means. Smith testified that he thereafter contacted PERC regarding the dues check off problem and PERC indicated its opinion which in essence is an advisory opinion indicating that in its opinion the dues check off authorizations were not in violation of Florida Statutes, 74, Chapter 100. On cross examination Smith reiterated the fact that after Mr. Weightman took office the bargaining relation ship appeared to "breakdown." Smith testified that on July 2, Dr. Ferguson advised him that if employees were not signed by the date indicated in his letter i.e., August 5, they would not be deducted.
Recommendation Based on the foregoing findings and conclusions I hereby recommend that the Public Employees Relations Commission enter an order finding that the actions by Respondent, as set forth above and more specifically in the subject administrative complaints, constitute unfair labor practices within the meaning of Section 447.501(1)(a) and (b), Florida Statutes, as alleged. RECOMMENDED this 28th day of April, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Based upon my observation of the witnesses-and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: At all times material hereto, the Respondent held teaching certificate number 516212, issued by the Department of Education for the State of Florida. The Respondent's teaching certificate covers the area of substitute teacher. During first period on October 30, 1984, Mr. Mark Fisher, a teacher at Nautilus Junior High School in the Dade County School District, called Dr. Frederick, assistant principal in charge of curriculum, to advise that he was ill and needed to leave school. Mr. Fisher's teaching assignment consisted of five regular classes of industrial arts and one class of crafts with special education students. The special education class was held during the sixth period, from 3:00-4:00 p.m. Ten students were assigned to the sixth period class. The category of special education students in the class included learning disabled, educationally mentally handicapped and emotionally handicapped children. The Respondent was called to substitute for Mr. Fisher at the end of the first period on October 30, 1984. The Respondent reported to the Nautilus Junior High School at approximately 11:00 a.m. and was assigned to Mr. Fisher's class, Room 141. The Respondent had previously substituted at Nautilus Junior High School on October 9, 1984. On that day, Dr. Frederick reviewed the guidelines for emergency substitute teachers with the Respondent. The Respondent signed the guidelines certifying that he had read and understood the school's procedures. The Respondent received a written assignment when he reported to Nautilus Junior High School on October 30, 1984. The assignment specifically noted that the sixth period class was a special education class. Prior to leaving the classroom, Mr. Fisher wrote the lesson plans for his various classes on the black board. After the 5th period class was over and immediately prior to the commencement of the 6th period, anywhere from one to four students who were not regularly assigned to Mr. Fisher's class entered room 141. When the bell rang for the commencement of the 6th period class the Respondent called roll. There were ten students assigned to the class. Eight students responded to the roll call and the Respondent marked two students absent. After roll was called, the Respondent allowed the students to work on their projects. The students went to a closet, retrieved their projects and began working on them. The students were situated at work benches in the class actively working on projects which involved sanding, gluing, nailing and similar processes. The students were not allowed to use any of the electrical equipment or power tools. The students' activity involved a certain amount of movement within the classroom such·as standing up, comparing projects and going to the supply closets for more paste and other materials. At some point during the class period D.W., a female student, went into a closet located in the rear of the classroom. While D.W. was in the closet two male students, at separate times, went into the closet with her. While in the closet, D.W. had oral sex with at least one of the boys. While D. W. and the boys were in the closet, several other students went over to the closet and looked in. One of the students in the class got a stool and stepped up and looked through a hole at the top of the closet door. Two other students also stood on the stool and looked into the closet. (Although D.F. testified that he was on the stool for five to ten minutes, his testimony as to the amount of time that he was standing on the stool was not persuasive. Likewise, his testimony was neither clear nor persuasive enough to determine whether the two other students went back and stood on the stool at the same time or whether they went back separately.) The testimony concerning the amount of time that D. W. and the other students were in the closet was not persuasive and it is impossible to determine the amount of time that D. W. and the other students spent in the closet. Several days following the incident, D.W. informed Ms. Spearman, a special education teacher, about what had happened during the 6th period class on October 30, 1984. Official recognition was taken of the fact that two boys and one girl entered guilty pleas to charges arising from the incident of October 30, 1984. Room 141 is specially designed to be utilized as an industrial arts or "shop" class. Room 141 is larger than typical classrooms at Nautilus Junior High School. According to the diagram introduced as Petitioner's Exhibit 2 and included herein as Appendix B, the entrance is located in the upper northwest corner of the classroom. The teacher's desk is located in the extreme northwest portion of the classroom next to the main entrance. The classroom is approximately 69 feet long (east to west) and 43 feet wide (north to south). There are several cupboards or closets located along the front of the west side of the classroom and a walk-in closet located in the upper northeast corner. The doors of the walk-in closet face to the south. The rear closet is approximately 15 feet deep, 8 feet high and 8 feet wide. The rear closet has double doors and at the top of the right door there is a small cutaway portion in a rectangular shape. Wood supplies are kept in the rear closets and other , types of supplies are kept in the forward closets. The classroom contains two work tables, nine work benches and one bench saw. The teacher's desk faces the work tables and work benches. The Respondent was unable to see the front part of the rear closet from where he was sitting at the teacher's desk. The Respondent first obtained his teaching certificate for substitute teaching from the Department of Education for the State of Florida in December of 1981. The Respondent substituted at over fifty different schools in Dade County and was teaching on the average of four to five days a week prior to the incident on October 30, 1984. The Respondent was employed on numerous occasions as a substitute teacher at Biscayne Elementary School in Dade County, Florida, during the years 1982, 1983, and 1984. According to Ms. Glick, the principal of that school, the Respondent's work was very satisfactory and to her knowledge, there were no incidents in any of his classes involving student misconduct nor were there any complaints about his teaching ability. The Respondent was called to teach frequently at Biscayne Elementary School because his work was satisfactory and he was "pleasant to the children and related well to the rest of the staff." The Respondent served as a substitute teacher at Comstock Elementary School in Dade County several times during the period of 1983-1984. Mr. Levin, the principal at that school, observed the Respondent on several occasions while working at Comstock and each time the Respondent was observed, the students in his classes were involved in a learning process, there were no disciplinary problems and the students seemed to like him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed. DONE and ORDERED this 16th day of December, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1986. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 David Rappaport, Esquire 265 Northeast 26th Terrace Miami, Florida 33137 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301 Karen B. Wilde Executive Director Education Practices Commission 215 Knott Building Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 4. 3. Adopted in Finding of Fact 5. 4. Adopted in Finding of Fact 2. 5. Adopted in Finding of Fact 3. 6. Adopted in Finding of Fact 4. 7. Adopted in Finding of Fact 8. Rejected as subordinate. Partially adopted in Findings of Fact 5 and 6. Matters not contained therein are rejected as recitation of testimony. Rejected as a recitation of testimony. Rejected as argument and/or a recitation of testimony. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as a recitation of testimony. Adopted in Finding of Fact 141. Adopted in substance in Finding of Fact 8. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as not supported by competent substantial evidence and/or a recitation of testimony. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 12. Matters not contained therein are rejected as not supported by competent substantial evidence and/or a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as subordinate and/or a recitation of testimony. Rejected as subordinate. Adopted in Finding of Fact 15. Rejected as a recitation of testimony. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 19. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 6. Rejected as subordinate. Adopted in Finding of Fact 3. Rejected as subordinate and/or unnecessary. Rejected as a recitation of testimony. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in substance in Finding of Fact 10. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17. Rejected as a recitation of testimony. Rejected as subordinate. Rejected as subordinate. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Partially adopted in Finding of Fact 15. Matters not contained therein are rejected as subordinate. Rejected as subordinate and/or unnecessary. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as subordinate and/or unnecessary.
The Issue 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 in this case is whether Respondent committed an unlawful employment practice in violation of section 70-53 of the Pinellas County Code, by terminating Petitioner's employment allegedly because of her race. If so, an appropriate remedy will be determined.
Findings Of Fact SEP is a non-profit corporation that was formed by Regina Anderson in 2005, for the purpose of providing employment assistance to clients referred by the State of Florida Division of Vocational Rehabilitation (VR). Pursuant to two contracts with VR, SEP provides services to adult VR clients with mental and/or physical disabilities who need assistance searching for jobs, preparing for interviews, securing employment, and retaining the jobs in which they are placed. At all material times, SEP was a small business with between five and approximately 12 employees. These employees included: Ms. Anderson, who was SEP's president in charge of its day-to-day business; a varying number of employment consultants or "job coaches," to whom individual VR clients were assigned; a few part-time clerical and administrative support staff persons; and at times, a janitor. During the time period pertinent to this case, SEP operated out of two Tampa Bay area offices, one in Tampa and the other in Largo. Some employees worked exclusively from one office (such as Petitioner, who was based in the Largo office), while other employees split their time between the Tampa and Largo offices (such as witnesses Kathryn Reed, a job coach, and Kim Robinson, a part-time administrative assistant). Petitioner, a black female, was interviewed and hired by Ms. Anderson on May 1, 2010, as a job coach. Petitioner met the qualifications for the position, in that she had a college degree (in Criminal Justice), a vehicle with the requisite insurance, and experience in a similar position. Petitioner had worked for Goodwill Suncoast as a case manager for about 15 months prior to being hired by Ms. Anderson. Petitioner said that she left Goodwill because it was "a very negative environment." SEP has in place written policies and procedures that prohibit, among other things, discrimination on the basis of race, color, religion, sex, national origin, age, or disability. At the time of her hiring, Petitioner received a copy of Respondent's employee manual setting forth SEP's anti- discrimination policies. The racial and national origin composition of SEP's employees is, and during the time pertinent to this case was, diverse, with members of minority racial and national origin categories well-represented. Indeed, at times, more of SEP's employees were members of minority racial or national origin categories than not. Similarly, the VR clientele served by SEP is, and always has been, diverse in racial and national origin make-up. A majority of VR clients belong to a minority racial or national origin category. The duties of SEP job coaches are to provide appropriate individualized services to the VR clients assigned to them. These services might include helping the client prepare an individualized career plan (ICP), working with the client to develop a resume, conducting mock interviews to prepare the client for actual interviews, and helping the client look for and apply for jobs. Then, if a client secures employment, the job coach would follow up with the client, check with the employer regarding the client's performance, and help address any issues that might increase the chance that the client would be retained in the job. SEP is directly reliant on the success of its job coaches to generate revenue. Simply put, if VR clients do not get and keep jobs, SEP does not get paid under its VR contracts. These contracts provide for payment to SEP for job placement and thereafter at certain job retention benchmarks, such as at 45 days, 90 days, and 150 days. SEP's employee manual specifies, and all job coaches understand, that they are expected to place one client in a job in their first month of employment as a job coach; two placements are expected in the job coach's second month; and three placements or more are expected by the third month and every month thereafter. Petitioner understood these requirements. SEP's job coaches all worked on a full-time basis (40 hours per week). The job coaches all earned the same base pay: $15.00 per hour for 40 hours per week. All job coaches also received a monthly stipend of $150.00 to cover gas and other expenses incurred in using their own cars to perform their duties. In addition, all job coaches were eligible to earn a bonus in any month in which they were credited with more than five VR notices of approval (NOAs) for billings for any combination of placements and post-placement benchmarks. The bonus amount was 20 percent of the revenue brought in for each NOA over five. For example, if a job coach placed four VR clients and met post-placement benchmarks for two more VR clients in the same month, a total of six NOAs, that job coach would receive a bonus of 20 percent of the revenue for the sixth NOA. It was expected that approximately half of an SEP job coach's time would be spent "in the field," meeting prospective or actual employers of VR clients, setting up interviews, and carrying out other duties that could not be performed in the office. The other half of the job coach's time was spent on tasks that could be performed in the office: doing paperwork, including keeping up with VR reporting requirements for the job coach's assigned clients; searching for job leads in advertisements and following up with phone calls; scheduling appointments with VR clients, prospective employers, and employers of hired VR clients; and meeting with VR clients to develop career plans and resumes, or to conduct mock interviews. A great deal of autonomy and flexibility in the day-to- day schedule of a job coach is inherent in the position; those qualities made the position highly susceptible to abuse. Ms. Anderson was the boss, serving as the supervisor of job coaches and other employees at the two office locations. Ms. Anderson also did some job-coach work herself, which meant that she spent some time out in the field in addition to supervising two offices. Ms. Anderson tried to keep an eye out for job-coach employees who were taking advantage of the job flexibility and skimping on their 40-hour work weeks by doing personal business during their workday, such as using the computer at the office for personal matters, or leaving the office ostensibly for VR client business and spending some or all of the time on personal endeavors. Ms. Anderson instructed her administrative assistant to watch the job coaches and report any compliance issues she observed when the assistant was in the office (either in Largo or in Tampa) when Ms. Anderson was not there. Ms. Anderson also kept track of job-coach schedules, particularly for those job coaches who were not producing results for their VR clients. Ms. Anderson required that job coaches begin and end their workdays in the office: they were to start the day at 8:00 a.m. in the office and they were to end the day at 5:00 p.m. in the office. To ensure compliance, Ms. Anderson would call into the office at or shortly after 8:00 a.m., and the telephone would be passed around from employee to employee to verify their presence and get a report of their plans for that day. Ms. Anderson would call again or come in at 4:45 p.m., to check on each job coach. Ms. Anderson would allow quite a bit of deviation from these strict rules, but there was one strict proviso: the employee was required to call Ms. Anderson and obtain her permission first. Ms. Anderson was adamant about this direct- telephone-call rule. If a job coach set up an early morning or late afternoon meeting with an employer, and the job coach wanted to be excused from the 8:00 a.m. or 5:00 p.m. office attendance requirement because of the conflicting appointment, the job coach was required to call Ms. Anderson in advance to request permission not to come into the office, and Ms. Anderson would give permission. If an employee was ill and was going to be absent all day, the employee was supposed to call Ms. Anderson before 8:00 a.m. Ms. Anderson wanted direct telephonic contact; anything else, such as an email, was not acceptable and tended to make Ms. Anderson angry and suspicious. During Ms. Mitchell's 13 months as a job coach with SEP, she had several run-ins with Ms. Anderson regarding Ms. Mitchell's failure to comply with these procedures. Ms. Anderson verbally counseled Ms. Mitchell and reprimanded her in writing (in emails) regarding Ms. Mitchell's failure to call first before being absent, failure to call first before coming in late or leaving early, and failure to account for the time she claimed to be spending in the field. For example, in a series of back-and-forth emails on November 10 and 11, 2010, Ms. Anderson admonished Ms. Mitchell for coming in late because she did not answer the phone at the office one morning. Ms. Mitchell responded that she was there but was on another call and could not tell there was an incoming call. Then Ms. Anderson issued a written disciplinary warning reprimanding Ms. Mitchell for leaving 15 minutes early the next day, after having just been verbally counseled. Ms. Mitchell retorted that she only left five minutes early, not 15 minutes early; that technically, she did not leave early at all because she was still "on the premises" (in the parking lot, in her car, talking on her cell phone, after turning out the lights and locking up the building); and that she was being disciplined prematurely because her prior verbal counseling was for coming in late, not for leaving early. Ms. Mitchell refused to sign the written disciplinary warning because she believed it was unjust and she complained that she could not work effectively while having her integrity questioned. Ms. Anderson reminded Ms. Mitchell that she had been counseled verbally numerous times, both for coming in late and for leaving early; Ms. Anderson responded that "I do not recall several of the other conversations you mentioned in your email to the degree in which you described them."3/ On November 12, 2010, the day after these back-and- forths, Petitioner sent an email to Ms. Anderson, stating: "I'm ill and will not be in today. Have a nice day." Ms. Anderson wrote back to remind Petitioner that she still needed to call in before 8:00 a.m., as they had previously discussed, and that an email stating that she would be out the whole day was unacceptable. The SEP employee manual emphasizes these rules in section 4.1, which provides: If you are unable to report to work for any reason, notify your supervisor before regular starting time. You are responsible for speaking directly with your supervisor . . . Using email to report being absent or tardy IS NOT acceptable under any circumstances. . . . Not calling or using email to report being absent or tardy is grounds for termination. Petitioner's failure to abide by these requirements was grounds for termination, but Petitioner was not terminated. During Ms. Mitchell's 13 months of employment at SEP, she was not productive as a job coach. In fact, she never met the standards for job placements in any month of her employment.4/ Ms. Anderson was very tolerant of Ms. Mitchell's substandard performance. Ms. Anderson testified credibly that she probably kept Ms. Mitchell on the payroll longer than she should have, but did so because she liked Ms. Mitchell. Ms. Mitchell acknowledged that until June 13, 2011, she did not experience any discrimination by Ms. Anderson or anyone else at SEP. All of the evidence suggests that Ms. Anderson was exceedingly tolerant of Petitioner and other employees not performing as well as they should, regularly violating the employee rules they agreed to abide by, and taking advantage of the flexibility of the job coach position. At the heart of Petitioner's charge of discrimination are the events that took place between Monday and Wednesday, June 13-15, 2011. The precursor to these events occurred during the prior week. The credible testimony of record established that the last day of the regular school year for Pinellas County schools, before summer recess, was Tuesday, June 7, 2011. The next day, Petitioner arrived at the Largo office at around 8:00 a.m. with her two sons, who were ages three and seven at the time. Darlene Sahlin, a white female, was a newly-employed job coach who had just started working in the Largo office that week. Ms. Sahlin credibly testified that she saw Ms. Mitchell sitting at her desk in her office that morning, and that Ms. Mitchell's two boys were with her. When Ms. Mitchell saw Ms. Sahlin, Ms. Mitchell whispered "shhh" to her two boys and pushed them under her desk. Petitioner spoke with Ms. Anderson during that morning's check-in call shortly after 8:00 a.m., but Petitioner did not tell Ms. Anderson that she had her children in the office with her, nor did Petitioner ask Ms. Anderson for permission to have either child in the office.5/ This is a matter addressed by the employee manual, which provides that visitors to the office must be authorized. As soon as Petitioner finished her morning check-in conversation with Ms. Anderson, Ms. Sahlin observed Petitioner gathering up her sons and their belongings, and they left the office and did not come back the rest of the day. Ms. Sahlin knew this, because as a new job coach, she did not yet have any field work and was spending the entire day in the office reviewing files and learning how to do paperwork. Ms. Sahlin credibly testified that the same pattern was followed on Thursday and Friday, June 9 and 10, 2011: Petitioner came to the office at around 8:00 a.m. with her two boys, and stayed only until after she spoke with Ms. Anderson at the morning check-in call; then she left with the boys and did not return all day. On Friday afternoon, Ms. Sahlin told Kim Robinson, the part-time administrative assistant who split her time between the Largo and Tampa offices, about this curious pattern followed by Ms. Mitchell that week; Ms. Robinson had not been present in the Largo office on the three mornings when Petitioner brought her sons to work and then left. Ms. Sahlin asked whether job coaches were allowed to bring their children to work and whether they could leave for the day the way Petitioner had been doing. Ms. Robinson responded strongly that Ms. Anderson would be very upset to know what Petitioner had been doing, and that Ms. Sahlin had to tell Ms. Anderson. Ms. Robinson and Ms. Sahlin both ended up telling Ms. Anderson about Ms. Sahlin's observations. Ms. Robinson was under instructions from Ms. Anderson to serve as her "eyes and ears" when Ms. Anderson was not there; it was Ms. Robinson's responsibility to observe whether employees were following the rules and to report anyone who did not follow the rules. At around the same time that Ms. Robinson told Ms. Anderson about Petitioner having brought her children to the office, Ms. Robinson also reported to Ms. Anderson that job coach Kathryn Reed had been committing rules violations. Ms. Robinson informed Ms. Anderson that Ms. Reed had been coming in late and leaving early without first calling Ms. Anderson for permission. On Monday, June 13, 2011, Petitioner had a normal conversation with Ms. Anderson during the regular morning check- in call. Although Ms. Anderson knew at that time about Petitioner having brought her children to work the prior week without permission, Ms. Anderson did not bring up that subject. Ms. Anderson credibly testified that, although she was angry that Petitioner had not followed rules by telling Ms. Anderson and asking permission to have the children in the office or asking for time off because of problems arranging for a babysitter, Ms. Anderson still would not have terminated Petitioner's employment based on these violations, despite Petitioner's other compliance and performance issues. Later that morning, Petitioner called Ms. Anderson to complain about an email from Ms. Anderson announcing an upcoming change to the pay periods. Petitioner had just received a full month's pay on June 5, 2011, but understood the change to mean that in two weeks, her next paycheck would be for less than a full-month's pay (which would stand to reason if she had just received one-month's pay). Petitioner complained that employees should get more than two weeks' notice, and told Ms. Anderson the change was "not fair." Ms. Anderson responded that if Petitioner wanted to talk about "not fair," then what was really not fair was Petitioner bringing her children to work without asking permission first, and without telling Ms. Anderson that she had done so. At first, Petitioner denied that she had brought any children to work. Ms. Anderson then told Petitioner that Ms. Sahlin had reported that she saw Petitioner with her children in the office. Petitioner then admitted the incident in part (see endnote 5), and ended the call. After Petitioner got off the phone with Ms. Anderson, Petitioner went straight to Ms. Sahlin's office to confront her for telling on Petitioner. Ms. Reed went with Petitioner to confront Ms. Sahlin. Ms. Sahlin was seated at her desk in her small office, which was approximately eight feet by eight-to-ten feet in size. Petitioner, a tall, large-framed woman, stood in front of Ms. Sahlin's desk. Ms. Sahlin was perhaps as tall as Petitioner, and though not petite, she was more slender than Petitioner. With Ms. Sahlin seated and Petitioner standing in front of her desk, Petitioner would have been an imposing figure. In addition, Ms. Reed stood in Ms. Sahlin's doorway; as Ms. Reed explained it, there would have been no room for her to also enter the office, as small as the office was. Ms. Sahlin could not have exited without running into Ms. Reed or unless Ms. Reed retreated. Although the testimony regarding some of the details of this confrontation was in dispute, the core facts were admitted. To the extent the testimony was in dispute, Ms. Sahlin's version is accepted as more credible and more consistent with the core admitted facts. According to Ms. Sahlin, Petitioner confronted her in an accusatory, threatening manner. Petitioner shook a finger in Ms. Sahlin's face and called her a "snitch" for reporting to Ms. Anderson that Petitioner had her boys in the office. Ms. Reed's presence in the doorway served to make Ms. Sahlin feel trapped, because she could not have left through the doorway with Ms. Reed blocking it. Petitioner ended the confrontation by telling Ms. Sahlin that she should not speak to Petitioner and should act like Petitioner does not exist when Ms. Sahlin sees her. Ms. Sahlin was understandably shaken by this confrontation, not in the sense of feeling physically threatened by Petitioner and Ms. Reed, but rather, in the sense of being a new employee confronted by the two experienced employees who held the same position she did. She was left wondering how she was going to be able to manage working while being frozen out in this fashion. Petitioner's version of this confrontation differed only as to the details regarding tone and physical posturing. Petitioner admitted that she went to Ms. Sahlin's office to confront her about telling Ms. Anderson that she had brought a child to work one day the prior week, and that Ms. Reed was with her the whole time. While Petitioner attempted to characterize her confrontation as "simply ask[ing] her in a respectful tone" why Ms. Sahlin told Ms. Anderson, the very fact of Petitioner’s going into Ms. Sahlin's small office, with Ms. Reed in tow, and standing over a seated Ms. Sahlin for the purpose of asking why Ms. Sahlin told on Petitioner, was inherently confrontational. This was not a neutral inquiry, such as if Petitioner had asked Ms. Sahlin what she was working on. Moreover, Petitioner's announcement to this new employee that she should pretend that Petitioner did not exist when she saw her in the future is inherently threatening, serving as a warning that Petitioner intended to freeze out this new employee, not cooperate with her or be helpful, as punishment for Ms. Sahlin having snitched on her. Ms. Sahlin called Ms. Anderson to complain about Petitioner's confrontation. Ms. Anderson had Ms. Sahlin document her complaint in writing, which was done by Ms. Sahlin that same day. June 13, 2011, proved to be quite the drama-filled day. In addition to the Mitchell-Reed confrontation with Ms. Sahlin, Ms. Reed had her own confrontation with Kim Robinson about Ms. Robinson telling on Ms. Reed. Ms. Reed was the instigator. She followed Ms. Robinson into an office, closed the door behind them, and proceeded to accuse Ms. Robinson of being a "snitch" by telling Ms. Anderson that Ms. Reed had been coming in late and leaving early. Ms. Robinson responded that it was part of her job to be a snitch. In describing this confrontation, Ms. Reed did not attempt to characterize her tone as simple or respectful, although she disputed Ms. Robinson's testimony that she used off- color language in threatening Ms. Robinson. Regardless of what was said, once again the very nature of the encounter, instigated by Ms. Reed, was inherently confrontational and threatening. Ms. Reed made it clear that she did not want Ms. Robinson to report her again, while Ms. Reed believed that to be her responsibility. Ms. Robinson complained to Ms. Anderson about Ms. Reed's confrontation and documented the complaint in writing. Ms. Anderson apparently was not in the Largo office during all of the drama on June 13, 2011, but after spending a good part of her day fielding complaints from the Largo office, she informed each of the four employees--Petitioner, Ms. Reed, Ms. Sahlin, and Ms. Robinson--that there was too much drama and they were being too emotional, and she directed each of them to take the rest of the day off without pay. Ms. Anderson called Petitioner on her cell phone that day after Petitioner left the office for field work, to discuss the confrontation with her. Ms. Anderson told Petitioner that she knew Petitioner had gone into Ms. Sahlin's office, and asked Petitioner how she could have scared that old lady the way she did. Petitioner admitted that she spoke with Ms. Anderson that day, but did not say how she responded to Ms. Anderson's question or what else was said about the incident. Petitioner did remember that she was told to take the rest of the day off without pay, but Petitioner claimed she did not know that the other three employees were also sent home without pay. Petitioner did not go to work the next day. Instead, she called Ms. Anderson to inform her that she would be out sick. At the hearing, Petitioner testified that she was "all stressed out" because she had been sent home without pay and without being asked to tell her side of the story. Ms. Anderson sent an email to Petitioner later in the morning on June 14, 2011, telling Petitioner to contact her when she was on her way to the office the next morning, and not to go in the office without checking with her first. That next morning, June 15, 2011, Petitioner went to the office and found Ms. Anderson waiting for her in the parking lot. Petitioner went into the office with Ms. Anderson, where she found that her belongings had been packed up. Petitioner stated that she knew what that meant, and Ms. Anderson confirmed that Petitioner was being terminated for creating a hostile work environment by her confrontation with Ms. Sahlin. At some point, Petitioner learned that Ms. Reed had been terminated the day before while Petitioner was taking a sick day for her stress. Ms. Reed was informed that she was being terminated for creating a hostile work environment by her confrontation with Ms. Robinson. Petitioner's claim at issue here is that she was terminated because of her race. As evidence of that claim, Petitioner asserts that Ms. Anderson took Ms. Sahlin's word and never asked Petitioner for her side of the story regarding the June 13, 2011, encounter; that Petitioner was sent home without pay; and that she was fired, when Ms. Sahlin was not fired. Petitioner asks for the inference that because she is black, Ms. Anderson is white, and Ms. Sahlin is white, the termination must have been based on race. The credible evidence does not support a finding that Petitioner was terminated because of her race. Instead, the credible evidence establishes that Petitioner could have been, and perhaps should have been, but had not been, terminated for a number of legitimate business reasons: her performance that was far below the required standards; her documented violations of the established office rules requiring advance telephone calls to obtain permission for late arrivals, early departures, and days off; and her dishonesty in bringing her children to work three days in a row without permission, and never disclosing that fact to her boss until Ms. Sahlin reported her. The credible evidence establishes that the last straw that caused Petitioner to be terminated was Petitioner's confrontation with Ms. Sahlin, in which Petitioner's behavior was inappropriate and threatening, ending on Petitioner's warning to Ms. Sahlin that she could expect such hostility to continue. To the extent Ms. Reed's treatment bears on the validity of Petitioner's charge, the credible evidence establishes that, like Petitioner, Ms. Reed could have been terminated for any number of legitimate business reasons prior to June 14, 2011, including substandard performance as a job coach and noncompliance with rules, but that the last straw that caused her to be terminated was when Ms. Reed confronted Ms. Robinson in an inappropriate and threatening way, on the same day that Ms. Reed joined Petitioner to confront Ms. Sahlin.6/ While it is factually correct to observe that both of the instigators of these confrontations were black, and both persons who were confronted and whose reports led to the terminations were white, the credible evidence establishes that the terminations were because of the confrontations, not because of the race of the instigators.7/ The evidence does not establish, as Petitioner argued, that she was not asked for her side of the story because of her race. Instead, Ms. Anderson testified with a great deal of credibility that she did not ask Petitioner to give her side of the story because Petitioner admitted the confrontation. As to the details, by that point in their employment relationship, Petitioner had earned Ms. Anderson's mistrust. It would not have mattered what Petitioner said to explain the confrontation, not because Petitioner was black, but because Ms. Anderson believed that Petitioner had been dishonest with her before, had shown a propensity to deny everything, and could not be trusted. Ms. Anderson also testified that she believed Ms. Sahlin's description of the confrontation because Ms. Sahlin was a new employee on her best behavior and would have no reason to lie. In other words, Ms. Anderson had not yet come to distrust Ms. Sahlin. Rather than a function of race, this was a function of time; before long, Ms. Anderson would come to distrust Ms. Sahlin just as she distrusted Petitioner. Ms. Anderson's perspective through which she considered the events of June 13, 2011, could be fairly summarized this way: at the time of the Mitchell-Reed confrontation with Ms. Sahlin, Ms. Anderson knew that Ms. Sahlin had, in fact, reported that Petitioner brought her children to work; Ms. Anderson also knew from her own past encounters with Petitioner regarding rules violations that Petitioner would try to deny any violations, just as she tried to deny that she brought children to work until she learned that Ms. Sahlin, an eyewitness, had reported her. Knowing these facts, it was reasonable for Ms. Anderson to find Ms. Sahlin's description of the confrontation to be credible. This was not a situation in which both Ms. Sahlin and Petitioner were accused of wrongdoing, with both of them pointing the blame at the other one. Instead, Petitioner was the instigator of a confrontation and Ms. Sahlin was the person confronted. Petitioner admitted this much. Finally, Petitioner offered, as circumstantial evidence that she was terminated because of her race, the alleged disparate treatment of Ms. Sahlin.8/ According to Petitioner, Ms. Sahlin committed many more egregious violations during the roughly seven months of her employment at SEP until the end of 2011 when she was terminated or otherwise ended her employment under unpleasant circumstances.9/ The credible evidence does not establish that Ms. Sahlin was treated more favorably than Petitioner, nor does the evidence establish that Ms. Sahlin's employment record was comparable to, or worse than, Petitioner's. Petitioner remained employed at SEP as a job coach for 13 months; Ms. Sahlin lasted at SEP as a job coach for only about half that long. Petitioner's performance and productivity as a job coach were shown to be well below the established standards. To meet the required standards, Petitioner should have secured at least 37 job placements while employed as a job coach at SEP. Instead, according to SEP’s business records, she only secured three job placements in total: one in January 2011, one in March 2011, and one in April 2011. Ms. Sahlin's performance was also described as below standards, but the only comparative testimony on this subject was that Ms. Sahlin's performance was better than Petitioner's. From the perspective of job performance and productivity, it appears that Petitioner was treated more favorably than Ms. Sahlin by continuing to draw the same salary for twice as long as Ms. Sahlin, despite being more of a financial drain on SEP. Petitioner and Ms. Sahlin both engaged in their fair share of rule violations during their employment, such as failing to call in for permission to come in late or leave early, failing to document their schedules upon request, using the work computer for personal business, and talking back to, or arguing with, Ms. Anderson.10/ The details and timing of Ms. Sahlin's transgressions were not documented in the record and thus cannot serve as the basis for meaningful comparison. However, it was documented that during her seven-month tenure at SEP, not only was Ms. Sahlin verbally counseled and reprimanded in writing, but she was also suspended three times without pay: the first time on June 13, 2011, when she was sent home early without pay (along with Petitioner, Ms. Reed, and Ms. Robinson); the second time, in November 2011, when she was suspended for three days without pay; and the last time, when she was suspended for two weeks without pay, after which she was either terminated or left under unpleasant circumstances that were tantamount to termination. In contrast, during Petitioner's 13-month tenure at SEP, she was disciplined by written reprimand and verbal counselings, and she was only suspended once without pay when she was instructed to take the rest of the day off without pay on June 13, 2011. Once again, it appears from the evidence that if anything, Petitioner was treated more favorably than Ms. Sahlin, not the other way around. Ms. Anderson reasonably articulated the single biggest difference between Petitioner's record and Ms. Sahlin's record: Ms. Sahlin's transgressions never involved the sort of confrontational, threatening behavior directed at another employee that Petitioner engaged in. The fact that Petitioner was terminated as a result of having confronted Ms. Sahlin is not evidence that Petitioner was treated less favorably than another employee who is not in a protected category. There was no evidence that any other employee engaged in similar confrontational, threatening behavior directed to another employee and was not terminated as a result. The only evidence of another employee engaging in similar confrontational, threatening behavior was with respect to Ms. Reed, and her confrontation of Ms. Robinson, for which she was terminated. An equally reasonable explanation for Petitioner's termination, not articulated by Ms. Anderson, was offered by Ms. Sahlin. Ms. Sahlin, who was subpoenaed to testify, was the only witness to testify against what her personal interests would dictate, which added to the credibility attributed to her testimony by reason of the substance of what she said and her demeanor. Ms. Sahlin testified that despite being terminated, and despite the bad working relationship she and Ms. Anderson had, and despite the fact that--quite candidly--she does not like Ms. Anderson, Ms. Sahlin strongly rejected the notion that Ms. Anderson was motivated by racial discrimination in terminating Petitioner. Instead, Ms. Sahlin explained that Ms. Anderson had serious trust issues as a result of having been taken advantage of in the past. From this perspective, the terminations of Petitioner and Ms. Reed are understandable because their confrontations threatened the "snitch" system that was critical to Ms. Anderson as a means to guard against job coaches taking advantage of her again. Based on the totality of the more credible evidence, Petitioner failed to meet her burden of proving that Respondent engaged in unlawful discrimination. Petitioner did not prove her charge of discrimination that her employment was terminated because of her race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent Supported Employment Plus, Inc., did not commit an unlawful discriminatory employment practice as charged, and dismissing Petitioner Shakaria Mitchell's charge of discrimination. DONE AND ENTERED this 30th day of August, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 30th day of August, 2013.
The Issue Whether the Duval County School Board (Board) may terminate Respondent, Cleveland F. William, Jr.'s, employment as a teacher based upon incompetence under the Duval Country Teachers Tenure Act (the Act). This issue is dependent upon whether the Board showed Respondent to be incompetent and whether the Board complied with the procedural requirements of the Act.
Findings Of Fact Respondent was first assigned to Fort Caroline Middle School during the academic year 2000-2001 to teach 6th grade science. Kathy Kassees was the principal at Fort Caroline Middle School during that school year. Respondent's brother was extremely ill and died during the school year. Respondent's performance evaluation for that school year was less than satisfactory. See Exhibit 2, 2000-2001 Performance Evaluation. Respondent concedes that his performance in 2000-2001 was less than satisfactory. See paragraph 56 of Respondent's Post-hearing Brief. When a tenured teacher in the Duval County system has a performance evaluation of less than satisfactory, the teacher may elect to transfer to another school, and Respondent exercised that option for the school year 2001-2002. Respondent was moved to Stillwell where he was assigned to teach 7th grade science. In addition, he was assigned for the first time to teach inclusion classes. Inclusion classes are made up of students who are exceptional education students who may have various exceptionalities. These exceptionalities may include disabilities such as deafness, emotional and behavioral problems, and developmental disabilities. Behavioral problems may include students diagnosed with attention deficit disorder and hyperactivity. Stillwell utilizes a program of instruction called the America's Choice Plan (ACP). The ACP is a comprehensive educational program which covers all aspects of instruction, organization of the classroom, and display of student materials in the classroom. ACP has its own vocabulary of terms to describe activities and things. For example, "artifacts" refers to student work and other materials posted in the classroom. It is expected that "artifacts" will be posted and changed periodically. Weekly meetings to discuss the system are called "Tending the Garden" meetings. ACP had been used at Stillwell previously and the returning faculty were familiar with it. Respondent had never worked with ACP before. Ms. Kassees had prepared a Success Plan for Respondent after he received his unsatisfactory evaluation to help him improve his deficiencies. Respondent took this plan with him to Stillwell, but the plan did not address ACP or inclusion classes. Mr. Marjenhoff, the principal at Stillwell, met with Respondent and discussed Marjenhoff's expectation of Respondent. They did not discuss any special requirements or changes necessitated by ACP or inclusion classes. Petitioner was unable to establish that it had prepared and delivered a new Success Plan to Petitioner at Stillwell. After his poor evaluation in February of 2002, Respondent asked Mr. Marjenhoff for a copy of the Success Plan and one was produced which was signed by Mr. Marjenhoff and dated August 6, 2001, and by Respondent on March 27, 2002. See Exhibit 13. Respondent did attend various ACP, "Tending the Garden" in-service educational classes presented by Dianne Rahn; Urban Systemic Initiative (USI) seminars presented by Rose Curry; and classes presented by his department head, Margarita Arroyo. His attendance and punctuality at these meetings was on par with his peers. The first indication of evaluative inspections came in a November 28, 2001, memo to Respondent from Marjenhoff stating that Dianne Dunn, a cadre member, would be contacting him about setting up a classroom visit. She did not conduct a visit until January 28, 2002. See Exhibit 11 and attachments. The annual evaluation of faculty occurs in February. Petitioner concedes that other than the cadre work by Dunn and some instruction on USI by Curry, little was done by way of individualized in-service training to address Respondent's shortcomings. Respondent was not afforded much in the way of unique, individualized oral counseling or critiques of his performance during the first part of the school year. See paragraphs 21 and 22 of Petitioner's Post-hearing Brief. A review of Curry's visits reflects she met with Respondent approximately once each month for a rough average of an hour, with the exception of the first meeting which was four hours. Curry's logs do not reflect the corrective actions taken with regard to Respondent's teaching. This hardly constitutes an accelerated effort to improve Respondents performance. See Exhibit 21. The dates of the various class visits and evaluations by Marjenhoff are in February and March. See Exhibits 12, 18 and 19. A review of the records of the in-class visits and commentaries by the observers reveal that too many general recommendations were made rather than specific, concrete changes to implement. For example, Darrell Perry visited Respondent's class and was concerned about its physical organization, i.e., where the television was located, the direction in which the seats were oriented, and where Respondent's desks was located. This was written up in March, which was late in the year to raise these issues, and Perry did not suggest or volunteer to help Respondent alter the room to meet Perry's expectations. Also see Exhibit 11 and attachments. In sum, there was too much jargon and too little performance-oriented, hands-on correction of Respondent. Memoranda relating to Respondent's performance all seem to be dated after January 2002. See Exhibits 16 and 17. The corrections that were made came too late to have a meaningful impact upon the improvement of Respondent's teaching performance.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board provide Respondent another year in which timely and appropriate in-service training is provided to correct his deficiencies in teaching. DONE AND ENTERED this 29th day of January, 2003, 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 29th day of January, 2003. COPIES FURNISHED: David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Michael B. Wedner, Esquire City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent caused the experience increments which had been in effect for all adult education teachers to be modified or terminated, and reduced the hourly wage amounts paid to adult education teachers. However, the real question presented is whether adult education teachers were included within the bargaining unit. The position of adult education teachers was not mentioned either in the inclusions or exclusions of the descriptions of the bargaining unit. Whether they would be included therefore turns upon whether adult education teachers are regularly employed certificated personnel." Adult education teachers were not required to be certificated, one primary requirement for inclusion in the unit. In addition, persons employed in the adult education program included both certificated day-time teachers and administrative personnel specifically excluded from the unit. Their employment was not contractual and could be terminated if a particular class was cancelled or dropped based upon lack of student enrollment. In such a case the adult education teacher's employment would be automatically terminated. Adult education classes were presented at night and the maximum number of hours that any adult education teacher would work would be six (6) hours per week. For both groups, employment as an adult education teacher was in addition to their regular employment. From a budgetary standpoint, adult education teachers were compensated from a separate functional breakout within the school budget to which that portion of their compensation earned as an adult education teacher was charged. No deductions were made from the adult education portion of a teacher's salary for retirement or Social Security. Based on the foregoing facts, the Hearing Officer finds that adult education teachers are not "regularly employed certificated personnel" and therefore, are not within the bargaining unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no action be taken on the charges as stated in Paragraphs 10(A)(B)(C)(D)(E)(F)(G)(J)(H) and Paragraphs 11(A) and (B). Based upon the foregoing Findings of Fact and Conclusions of Law relating to Issue XI and Paragraph 10(H) of the complaint, the Hearing Officer would recommend that the Commission enter its order requiring the Respondent to cease and desist its refusal to bargain upon request over mandatory items of collective bargaining. DONE and ORDERED this 29th day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ron Meyer, Esquire Frank & Meyer, P.A. Flagship Bank Building Tampa, Florida Norman J. Smith, Esquire Brinson and Smith, P.A. Post Office Drawer 1549 Kissimmee, Florida 32741 Austin Reed, Esquire Public Employee Relations Commission 2003 Apalachee Parkway Tallahassee, Florida 32301 Mr. Leonard Carson, Chairman Public Employees Relations Commission 2003 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether the School Board policy that requires full-time non-degreed teachers of vocational programs to pass a basic skills test as a condition of being certified by the School Board and as a condition of continued full-time employment in such programs is an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent, the School Board of Hillsborough County, Florida (School Board or Respondent), employs non-degreed persons to teach certain vocational subjects, including, health occupations and cosmetology. In or about May 1990, the Florida Legislature enacted Section 231.1725, Florida Statutes (2001), which authorized school boards to establish qualifications for substitute teacher, teachers of adult education, and non-degreed teachers of vocational education. By virtue of that provision, which became effective in 1990, non-degreed vocational teachers are not required to obtain state-issued teaching certificates required of teachers of non-vocational subjects in Florida public schools. Pursuant to Subsection 231.1725(1)(c), Florida Statutes (2001), school boards, including Respondent, are required to establish the minimum qualifications for non-degreed teachers of vocational programs. The School Board has established requirements for the employment and certification of persons seeking to be employed as non-degreed teachers of vocational programs. The requirements for certification include requirements not identified as the minimum requirements in Section 231.1725, Florida Statutes (2001). On or about May 22, 1991, the Division of Personnel and Human Resources submitted Agenda Item 3.02 for approval to the School Board. According to the "Agenda Item" form submitted to School Board members, the proposed policy concerned non-degreed full-time vocational instructional personnel, part-time vocational instructional personnel and adult education personnel. The form indicated that the proposed policy was required because Section 231.1725, Florida Statutes (2001), "absolved the state of responsibility of issuing state certificates for non-degreed full-time, part-time vocational and adult education teachers" and each school district was "responsible for determining both eligibility and district certification requirements for non-degreed vocational and adult part-time teachers." The rationale for the proposed policy was that "recent legislation [Section 231.1725, Florida Statutes] has resulted in the need to create a district certification process" for non-degreed full-time personnel, part-time vocational instructional personnel, and adult education instructional personnel. On or about June 11, 1991, the School Board held a public meeting in accordance with its policies and procedures, and state law and approved "the proposed policies concerning certification for non-degreed full-time vocational, part-time vocational, and adult education teachers, as necessitated by recent legislation (F.S. 231.1725) which shifts responsibility of issuing eligibility certificates for such personnel." The 1991 Agenda Item 3.02 consisted of three separate policies that were being recommended for approval by the School Board, for the following separate and distinct categories of employees: non-degreed full-time vocational instructional personnel; part-time vocational personnel; and adult education instructional personnel. The proposed policy and procedures for non-degreed full-time vocational instructional personnel provided the following: Policy: The School Board authorizes the employment of personnel to teach full-time in non-degreed vocational programs to comply with Section 231.1725(1)(c), Florida Statutes. Procedures: An applicant must hold at least a high school diploma or the equivalent and meet the established minimum competency in the area of assignment. The minutes of the June 11, 1991, meeting state that "the proposed rules will now go through necessary process including advertising and public hearing per Administrative Procedures Act," with a notation to "See minutes of July 16, 1991." There is no indication that this process was not carried out as noted. On August 6, 2002, at a regular meeting, the School Board considered and unanimously approved School Board Policy 6.25. Section 2 of School Board Policy 6.25, addresses certification of full-time and part-time teachers of non-degreed programs. The policy provides in pertinent part the following: FULL-TIME TEACHER CERTIFICATION (Non-degreed programs): The Office of Teacher Certification issues an initial 3-year nonrenewable temporary certificate in the same manner that state-certified teachers are certified. During the validity period of this temporary certificate, the teacher must produce documentation of the following to qualify for the professional certificate: Successful completion of the district's Preparing New Educators (PNE) Program. Successful completion of the State Professional Educator's Exam. A minimum of three years successful teaching experience. Successful completion of the (4) district certification courses listed below or their university equivalents. [1.] Surviving the First Year of Technical Teaching [2.] Special Teaching Methods for Technical Teaching [3.] Special Needs Student for Technical Education [4.] Philosophy, Practices and Management of Technical Education. Verification of basic skills by successful completion of the Test of Adult Basic Education (TABE) at or exceeding the profile established for the area of certification, or successful completion of another recognized test of basic skills accepted for state-certificated teachers. Upon receipt of the above documentation and of the appropriate application fee, the Office of Teacher Certification issues the full-time technical and career education teacher the 5-year Professional District Certificate that is valid for five years from July 1st of the school year it was issued. This certificate must be renewed in the identical manner that a state-issued certificate is renewed. According to School Board Policy 6.25, the School Board's requirements for certification as a non-degreed teacher of vocational programs include the successful completion of the Test of Adult Basic Education ("TABE") or successful completion of another recognized test of basic skills accepted for state certificated teachers, and successful completion of the Professional Education Examination. The School Board does not require the passage of these tests in order to meet the minimum qualifications for initial employment. The executive summary which describes the purpose of the superintendent's recommendation regarding School Board Policy 6.25, states in pertinent part the following: In 1990, by legislative action, districts assumed responsibility and authority for establishing employment and credentialing qualifications for teachers of non-degreed vocational programs and of part-time adult programs. The School Board originally adopted procedures in 1991 to address these matters. Various improvements and refinements to these procedures, many of which have paralleled provisions provided by statute to state-certificated teachers, have been adopted as sound practices over the years. The enclosed manual, "Guide to Hiring Teachers: Technical & Career and Adult & Community Education Programs," reflects these improvements and modifications. In accordance with School Board Policy 6.25, the School Board issues three-year temporary teaching certificates to full-time non-degreed vocational teachers upon their hiring. During the first three years that a full-time non-degreed vocational teacher is employed, the teacher must produce the documentation enumerated in Section 2 of School Board Policy 6.25 and listed in paragraph 10 above, to qualify for the district professional certificate. The School Board's requirement that non-degreed full- time vocational teachers successfully complete a basic skills test and the Professional Educator Examination is not a requirement of initial employment, but is required in order to obtain a district teaching certificate. The district-issued teaching certificate is a prerequisite for a non-degreed vocational teacher to continue full-time employment in such capacity. Non-degreed vocational teachers employed by the School Board on a full-time basis for three years may not continue such full-time employment unless they obtain a district-issued professional certificate by meeting the requirements of School Board Policy 6.25, which includes successfully completing the basic skills test. The School Board employs non-degreed vocational teachers on a part-time basis. Part-time non-degreed vocational teachers are not required to take a basic skills test under the School Board's current policy, and those teachers were not required to do so prior to 1990, when the State issued teaching certificates to this category of teachers. Pursuant to the School Board's current policy, non- degreed vocational teachers may be hired by the School Board to teach vocational courses on a part-time basis, and there is no requirement that they ever take or successfully complete a basic skills test. However, in order to continue full-time employment as a non-degreed vocational teacher beyond the initial three years of employment, the teacher must successfully complete the basic skill test. If the non-degreed vocational teacher fails to do so, that individual may no longer work as a full-time non- degreed vocational teacher. Petitioners are non-degreed teachers of vocational subjects who were formerly employed by the School Board as full- time, non-degreed teachers of vocational programs. Petitioners are affected by the challenged rule because each has been deemed ineligible for a district-issued certificate and for continued employment as a non-degreed teacher of vocational programs due to his or her failure to comply with one or more of the School Board's requirements for certification as a non-degreed teacher of vocational programs. Here, Petitioners failed to successfully complete at least one part of the required basic skills test. Non-degreed vocational teachers who are terminated or not rehired as full-time teachers because they failed to successfully complete the basic skills test may be employed by the School Board as part-time vocational teachers or as substitute teachers. The School Board employs substitute teachers in vocational subjects in the same fashion it employs substitute teachers for academic subjects. The only requirement to become a substitute teacher is a high school diploma and the completion of a ten-day training program. Although Petitioners failed to successfully complete the basic skills test requirement of School Board Policy 6.25, they are eligible for employment as part-time non-degreed vocational teachers or as substitute teachers. Petitioner McNeeley is currently employed as a part-time vocational teacher, and Petitioner Kennedy is employed as a full-time substitute teacher in a vocational program. Prior to 1990, non-degreed vocational teachers were employed in the same manner as degreed teachers. During that time period, the State of Florida issued certificates to both degreed teachers and non-degreed teachers. The State of Florida required all teachers, degreed and non-degreed, to take and pass the FUCOSE exam, which later became the Florida Teachers Certification Exam, ("FTCE"). From 1990 through 1991, Janice Velez, general director of Human Resources for the Hillsborough County School District, was part of a consortium of Florida school districts that worked together to develop a policy for the employment and certification of non-degreed vocational teachers. As a result of the work of the consortium, the School Board developed its current policy and procedures, which require non-degreed vocational teachers to take and pass a basic skills test.
Findings Of Fact Respondent is an annual contract teacher with the Dave County Public Schools and hold a Florida State teacher's certificate. Although she had worked as a teacher assistant in the past, her first year of employment as a full time teacher was the 1980-81 school year. Respondent was a teacher at Melrose Elementary School for the 1981-81 school year. At the beginning of the school year, she was assigned to teach a Compensatory Education Class. These are small classes and, in Ms. Harper's case, never exceeded 11 students. She was, however, required to keep and retain student records to enable subsequent teachers to determine at what level the student was functioning. After Respondent was transferred from the Compensatory Education classroom, the assistant principal requested that she turn in the records for the class. Respondent stated that she had destroyed them. Respondent's next assignment at Melrose Elementary School was as the teacher of a fifth-sixth grade combination regular education class. The assistant principal officially observed Respondent in the classroom three times and unofficially observed her on additional occasions. She found that Respondent lacked effective instructional planning based on Respondent's failure to complete lesson plans. The collective bargaining agreement between the School Board and the Respondent's union stated that lesson plans were an essential part of the teaching process and a proper subject for evaluation. On one occasion, the school was preparing for and audit. Auditors (administrators from other schools) check teacher's plan books, grade books and other teaching materials. The assistant principal contracted Respondent several times in advance of the audit in an attempt to prepare her for it. However, Respondent failed to develop the required lesson plans, so the assistant principal wrote out a week's plans for her. She asked Respondent to take the plans home over the weekend and copy them in her own handwriting. The following Monday at the beginning of the audit, Respondent had only filled out plans for Monday, Tuesday and Friday. There were no lesson plans to be delivered to the auditors regarding Wednesday or Thursday. Testimony of Respondent's supervisor established that she was unable to control the students in her classroom, primarily because she did not assign them anything to do. Furthermore, she sent her students out to play without supervision and left her classroom unattended on several occasions, even though she had previously been instructed by her supervisor not to do so. Respondent received an unacceptable performance rating in the area of "techniques of instruction." This rating was based on the fact that Respondent did not pretest her students and therefore had no knowledge of what the student did or did not know, what he needed to be taught or where to place him in the classroom. As a result, she attempted to teach students division when those students had not yet mastered prerequisite skills. She did not divide her class into ability groups so that she could teach groups of students at their levels of comprehension, and she did not maintain student profiles which would have shown her a particular student's abilities and deficiencies. Respondent either did not assign homework to her students or they did not return it because she had no records to indicate such assignment or files containing student homework. Her records of student grades were incomplete and only sporadically maintained. In the spring of 1982, two students from Respondent's class ran into the principal's office crying. The female student had welts on her chest and face; and the male student had similar injuries to his arms. These injuries were the result of an attack by Respondent. She had not been authorized to administer corporal punishment by her supervisor. Although there was another incident where Respondent chased a student with a ruler, this was the only situation in her teaching career where her loss of control had serious consequences. She appears to regret this incident. Ms. Harper was reassigned to South Hialeah Elementary School for the school year 1982-83. When she reported to South Hialeah Elementary School on September 20, 1982, she was given a lesson plan format, a teacher handbook and other pertinent teaching materials. Respondent received a two day orientation during which she was permitted to read the handbook, observe other teachers and talk with the grade level chairman. She was given instruction in writing lesson plans in the format used throughout the county and required by the UTD-School Board Contract. She was then assigned a regular fourth grade classroom. On her second day of teaching, the assistant principal noted an unacceptable noise level emanating from Respondent's classroom during the announcement period. When she walked into the room, she found Respondent preparing her lesson plans with the students out of control. The assistant principal advised Respondent that this was not the proper time to prepare lesson plans. The next day the situation was the same, and fights broke out between students. The assistant principal was concerned for the safety of these students because of the fights and because Ms. Harper's classroom was on the second floor and students were leaning out of the windows. On October 4, 1982, the assistant principal conducted a formal evaluation of Respondent's classroom teaching, and initially found Respondent preparing lesson plans and not instructing or supervising her students. During the reading lesson, Respondent did not give individual directions to the students, but merely told them all to open their books to a particular page. Since the students were not all working in the same book because they were functioning at different levels of achievement, this created confusion. Finally, the students who had the same book as Respondent were instructed to read, while other students did nothing. After a brief period of instruction, the class was told to go to the bathroom even though this was the middle of the reading lesson and not an appropriate time for such a break. The assistant principal noted that Respondent did not have a classroom schedule or rules. The classroom was in constant confusion and Respondent repeatedly screamed at the children in unsuccessful attempts to maintain order. The assistant principal determined that these problems had to be addressed immediately. Accordingly, in addition to a regular long-term prescription, she gave Respondent a list of short-term objectives to accomplish within the next two days. These objectives consisted of the development of lesson plans and a schedule, arranging a more effective floor plan in the classroom, making provisions for participation by all of the students and developing a set of classroom rules. The assistant principal advised Respondent that if she had any difficulty accomplishing these objectives, she should contact her immediately. The short-term objectives were never accomplished. Respondent did not develop classroom rules. Although the assistant principal and other teachers attempted to teach her to write lesson plans, this was relatively unsuccessful. The principal observed the classroom on October 6, and found that no improvements had been made. She also noted that Respondent had not complied with the outline for lesson plans required by the contract between the UTD and the School Board. Neither had she complied with school's requirements for pupil progression forms. The principal advised Respondent to attempt once again to work on the short-term prescription assigned on October 4, 1982. Subsequent observations and assistance did not result in any noticeable improvement. Respondent was unable to understand the need for organizing students in groups according to their abilities. Her students contained to wander aimlessly about the classroom. She was unable to document required student information even after repeated demonstrations. She did not test students and she failed to record their grades, except sporadically. Other teachers and parents complained about classroom conduct. Some parents requested that their children be moved out of Ms. Harper's class. Others complained to school officials about telephone calls from Ms. Harper at 2:00 a.m. or 6:00 a.m. Even the school custodian complained because Respondent's students repeatedly threw papers out of the windows. The principal arranged for Respondent to meet with the grade level chairman and the assistant principal to learn to develop lesson plans. She obtained information about classes at the Teacher Education Center of Florida International University and directed Ms. Harper to attend the classes. She subsequently determined that Respondent had not attended. Respondent told the principal that she could not attend because of car trouble. At the hearing, Respondent stated that not only did she have car trouble, but since she was a single parent, she lacked the time and money to attend the classes. She conceded, however, that the classes were free. In a further effort to assist her, Respondent was excused from her regular classroom duties to observe successful teachers. On one occasion she was found taking a coffee break instead. Again, there was not improvement apparent from this remedial measure. At the principal's request, the School Board's area director observed Respondent on November 11, 1982. Her testimony established that Respondent worked with only one group of three students in the classroom and the reading lesson being taught to those children was below their appropriate level. She also observed that there were no records indicating the progress of Respondent's students and that the students were talking continually. Due to her numerous difficulties in teaching and the lack of progress in correcting the deficiencies, the principal, assistant principal and area director concluded that Respondent lacked the requisite competence to continue in her contract position. A recommendation of dismissal to the School Board followed on January 6, 1983, Respondent was suspended. After her suspension, Respondent secured employment as a teacher of English for speakers of other languages (ESOL) at the Tri-City Community Association. Testimony of its director established that Respondent is an effective teacher of ESOL and that she trains other teachers to perform this function.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's Florida teaching certificate and providing the right of reapplication after one year. DONE AND ENTERED this 20th day of December, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 20th day of December, 1983. COPIES FURNISHED: Craig R. Wilson, Esquire 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Ellen Leesfield, Esquire 2929 S.W. Third Avenue Miami, Florida 33129 Donald L. Griesheimer, Director Education Practices Commission Department of Education The Capitol Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
The Issue Has the Respondent committed any act as set out in Section 231.28, Florida Statutes (Supp. 1980) which would constitute grounds for the revocation or suspension of her certificate to teach in Florida?
Findings Of Fact Respondent, Carolyn Joe Brown, holds a Rank 5 substitute teacher certificate #379621 issued by the Department of Education, State of Florida, on December 14, 1978. It is valid from July 1, 1976 until June 30, 1986. On August 17, 1978 Respondent was charged by an information with fraudulently obtaining welfare benefits to which she was not entitled. She allegedly failed to disclose her employment for a one-month period and misrepresented her rent as being $100.00 per month rather than $80.00 per month. Ms. Brown pled guilty to that information. On December 15, 1978, the Polk County Court entered a judgment which withheld adjudication and placed her on six months probation on the condition that she pay restitution in the amount of $145.00 and court cost of $100.00. Subsequently Respondent was charged with two counts of welfare fraud and with one count of grand larceny. These charges arose out of her employment at a food stamp office in Lakeland where she created two fictitious accounts. She pled guilty as charged. On April 9, 1979, the Circuit Court in and for Polk County, Florida, entered a judgment which withheld adjudication; placed her on probation for five years; ordered her to serve six months in county jail; 1/ and to make restitution in the amount of $4,040.00 within six months after her release from jail. This last condition was later modified on September 6, 1979 to provide that she make restitution payments at a rate of $70.00 per month until the $4040.00 is repaid. Ms. Brown agreed to all the conditions of her probation. Respondent is behind in her monthly restitution payments. At the time of the final hearing she was $485.00 in arrears. Ms. Brown is one of nine children. During high school she became pregnant, married, and had to interrupt her education. After the birth of her child she obtained her high school diploma by attending adult evening high school. Because of her strong desire to become a teacher she took a position as a teacher's aide with the Polk County school system in 1971. By then she had two children. While working during the day she attended Polk County Community College at night. Her Associate of arts degree was awarded in May, 1976. Ms. Brown then enrolled at the University of South Florida in Tampa. She was required to drop out however, when her car expired. To continue her education she enrolled at Florida Southern College in Lakeland. She continued there until her jail term in April, 1979. In order to take final exams for the quarter she obtained a release from jail on a temporary leave. On December 14, 1979, Ms. Brown received a Bachelor of Science degree from Florida Southern College with a major in elementary education. She completed an application on August 12, 1980 for a teacher's certificate in elementary education and filed it with the Department of Education. On the application she disclosed her arrests and their disposition. The Commissioner of Education served the instant administrative complaint on Respondent on August 21, 1980. At the present time Respondent lives with her second husband, Edward Brown. They have three children living with them. Their family income consists of Mr. Brown's salary of $9,000.00 per year, Ms. Brown's income from substitute teaching (approximately $1,000.00 last year during part of which she was pregnant) and an unspecified amount of child support paid to Ms. Brown by her former husband. Since Ms. Brown's graduation from Florida Southern College she has been a substitute teacher in several Polk County schools. The majority of her teaching has been at Kathleen Junior High School whose principal is Charles Fee. Mr. Fee learned of her criminal charges and dispositions from Ms. Brown herself during an interview she had with him at the beginning of the last school year. He subsequently recommended that she be certified as a full-time teacher and said in a letter supporting her application: October 13, 1980 To Whom it May Concern: Carolyn Joe Brown has worked quite often as a substitute teacher at Kathleen Junior High School during the 1979-80 and 1980-81 school years. She has been the most capable and best performing substitute teacher we have had for that time. She works well with children, maintains good discipline, and completes all tasks laid before her quite efficiently. Had her certification been complete I would have hired her for a full-time position as teacher of compensatory communications this year. I hope that her certification will be granted in the near future so that, in case of a vacancy, I may hire her. I write this with full knowledge of the circumstances surrounding her previous court appearance and conviction on charges of food stamp fraud. I feel that she has shown the proper degree of repentance and, having adjusted appropriately, will be a credit to the teaching profession. Your consideration in this matter will be appreciated. Sincerely, Charles J. Fee, Principal The criminal charges against Ms. Brown have not reduced her effectiveness as a teacher. It has not been shown that either the students or the teachers in the Polk County area are aware of those charges or their disposition. The criminal charges against Ms. Brown arose out of her employment at the food stamp office of the Department of Health and Rehabilitative Services in Lakeland, Florida. That employment which began on January 24, 1977, ended on November 17, 1977 because she had created two files for fictitious families. In concert with Naomi Glover and Shirley Williams Ms. Brown certified case files for the families of Sandra Jackson and Joyce Smith. After the creation of these files, person representing themselves as Smith and Jackson collected a total of $4,040.00 worth of food stamps. As a result of her participation in this scheme Ms. Brown herself did not receive any food stamps but she did receive an unspecified amount of cash for her part. Since her birth, Ms. Brown has been a member of the Mount Sinai Primitive Baptist Church in Lakeland, Florida. Its minister, Reverend Whittaker, has known her all her life. She was "raised up in the church." In his opinion Ms. Brown's participation in food stamp fraud was a mistake on her part, but she is generally of good moral character and is capable of teaching children in Polk County, Florida. During her probation Ms. Brown has been supervised by William Anderson, a parole and probation officer. He has recommended Ms. Brown for a full-time teacher's certificate and believes that she has good character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order suspending teacher certificate #379621 of Carolyn Joe Brown for a period of one (1) year, provided however, that the imposition of that suspension be STAYED as long as Respondent remains in compliance with the terms of her probation as determined by the Circuit Court in and for Polk County, Florida. Should the court revoke her probation the STAY shall immediately be lifted and her license suspended. The final order should further provide that if she successfully complete her term of probation, these proceedings shall be dismissed. DONE AND RECOMMENDED this 4th day of June, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1981.
The Issue Whether Petitioner is eligible to participate in the Florida Retirement System based on his employment from January 29, 2001, through June 30, 2004.
Findings Of Fact The Secretary of the Department of Management Services through the Division is the administrator for the FRS. FRS was established by the State of Florida to provide pension benefits to eligible employees of the State of Florida and county agencies, including county school boards. Petitioner, George Tamalavich ("Petitioner" or "Mr. Tamalavich"), attended Fitchburg State College in Massachusetts, where he received a certificate for teaching in the trade industry. Prior to coming to Florida, Petitioner taught at the Worchester County Trade School for eight years, and participated in the Massachusetts State Pension Plan. In 1990, Petitioner relocated to Florida and obtained a part-time position, first for two days a week, then increasing to four days a week, teaching a computer-aided manufacturing and design course at McFatter Vocational Technical School (“McFatter”) in the Broward County School District (BCSD). In his initial position at McFatter, Petitioner testified that he knew he did not qualify for annual leave or other fringe benefits, including FRS membership, although he claimed not to remember that anyone specifically told him he was not receiving pension credit. From October 1993 until June 1999, Petitioner was employed by the BCSD in a full-time position under the terms of an annual contract. He testified that, with the annual contract, he had a salary, received fringe benefits and did not have to submit time sheets. Because he was employed in a regularly established position, Mr. Tamalavich was eligible for membership in the FRS and received service credit for 5 years and 9 months, through the end of his contract in September 1999. In September 1999, Petitioner requested and received a leave of absence for the 1999-2000 school year. The letter advising Mr. Tamalavich of the approval of his leave included a requirement that he notify the BCSB of his plans for the following year by March 1, 2000. In a letter dated February 14, 2000, the BCSB sent a reminder of the March 1, 2000, deadline. On April 3, 2000, the BCSB sent notice to Mr. Tamalavich by certified mail, with a receipt returned to the BCSB, that his termination would be recommended for failure to respond to the February 14, 2000, letter. Mr. Tamalavich testified that he received notice of his termination after the fact but not the letters setting the March 1 deadline. The notice of termination did not include information on appealing that decision. Mr. Tamalavich was hired at a different school in 2001. When he returned to work he signed agreements dated August 28, 2001, for the 2001-2002 school year; January 27, 2003, for the 2002-2003 school year; and August 25, 2003, for the 2003-2004 school year. Petitioner was employed as a part- time adult vocational education instructor at Atlantic Technical Center (“Atlantic”) in the BCSD during these school years. During his employment at Atlantic, Petitioner submitted time sheets and was compensated on an hourly basis. He acknowledged in his testimony that he was in a temporary position when he returned to work in August 2001. The agreements for part time employment at Atlantic provided that: THE ADMINISTRATOR MAY INITIATE OR TERMINATE THIS AGREEMENT UPON NOTICE. This appointment is contingent upon sufficient enrollment and attendance in the program/course “assigned” or the class will be canceled and this agreement shall be null and void. The employee's signature below indicates acceptance of the appointment subject to all that: terms and conditions of Board Policy 6Gx6- 4107. BCSD policy 6Gx6-4107 provides, in pertinent part, 2. The conditions of employment listed herein apply only to those personnel employed on a part-time, temporary basis to teach courses on a course-by-course basis or to provide part-time instructional support to programs in post-secondary adult vocational education, adult general education, Community Instructional Services, and education for personal improvement. . . . . Part-time temporary teachers shall have no guarantee or expectation of continued employment and may be terminated upon written notice by the location administrator. . . . . 7. Part-time temporary teachers shall be paid an hourly salary based upon the Salary Schedule adopted for part-time, temporary employees. . . . . 9. Part-time, temporary teachers shall not be eligible for a continuing contract or for a Professional Service Contract and are not entitled to fringe benefits regardless of the time of service as a part-time employee. Mr. Tamalavich testified that he saw BCSD policy 6Gx6- 4107 for the first time at the hearing in this case, although he worked at Atlantic from August 2001, until he was forced to leave due to a serious illness on March 12, 2004. The principal of Atlantic, who hired Petitioner, testified that he would determine every nine or eighteen weeks whether enrollment was sufficient and then give Mr. Tamalavich his schedule. Because Petitioner did not have six years in the FRS prior to July 1, 2001, and was not employed in a regularly established position on July 1, 2001, when vesting requirements were reduced from ten to six years, the Division determined that he is not vested in the FRS and therefore he is not eligible to receive retirement benefits from the FRS. Mr. Tamalavich claims entitlement to more FRS service credit because of errors made by the BCSD, which reflected that he was enrolled in the FRS from July 1, 2003, until August 25, 2004, although initially his counsel asserted that the contested period of time extended to June 30, 2005. As a result of a computer programming error, the BCSB incorrectly grouped together all personnel who had worked for more than six months and notified them, including temporary adult vocational education instructors, that they were eligible for FRS service credit. The notice dated May 7, 2003, was sent to "Identified Employees" in temporary positions existing beyond six months advising the employees that they would be enrolled in FRS effective July 1, 2003. Mr. Tamalavich testified that he received the notice. After the notice of May 7, 2003, several temporary adult vocational education instructors began to request the Division to review their entire employment history to determine their FRS service credit. After receiving an inordinate number of these requests and reviewing on a case-by-case basis personnel documents provided by the BCSB, the Division determined that temporary adult vocational education instructors were being reported in error by the BCSD for FRS service credit. In a letter dated June 7, 2004, the Interim State Retirement Director wrote to the Superintendent of the BCSD, citing Florida Administrative Code Rule 60S-1.004(5)(d)(3), which excludes positions established with no expectation of continuation beyond one semester or one trimester. The letter also included other factors related to ineligibility for FRS credit, including compensation at an hourly rate, and employment based on enrollment and funding contingencies. The Superintendent was advised specifically that "[a]dult vocational education instructors are essentially temporary in nature, where there is no promise, claim or right of employment beyond the quarter, semester or trimester to which they are appointed to teach." On June 23, 2004, the Director of the Benefits Department responded for the BCSD conceding that part-time adult vocational education instructors, including those filling temporary positions, were inadvertently enrolled in the FRS beginning on July 1, 2003, and that the FRS contributions would be retroactively reversed. On August 25, 2004, a notice was sent by the BCSB to "identified employees" advising them that adult vocational education teachers were erroneously enrolled in the FRS, and that they would be removed retroactively to July 1, 2003. Mr. Tamalavich received the notice that did not include any information on appealing the decision. There was no claim of erroneous deductions from Mr. Tamalavich’s pay, despite his testimony that FRS contributions were taken out of his paycheck. Employee funds are not withheld for payments into the FRS plan. It is and has been, since 1975, solely employer-funded. For temporary employees who are not eligible for enrollment in the FRS, the BCSB provides a FICA Alternative Retirement Plan administered by Bencor. Contributions to the Bencor-administered plan were made on behalf of Mr. Tamalavich, who requested and received a distribution from that fund in January 2007.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner’s request to participate in FRS from January 29, 2001, through June 30, 2004. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2008. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Jane Letwin, Esquire The Law Office of Jane Letwin 10540 La Placida Drive, North Coral Springs, Florida 33065 J. Leonard Fleet, Esquire Fleet Dispute Resolution 625 32nd Avenue, Southwest Vero Beach, Florida 32968 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-0950 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
