Findings Of Fact Thomas L. Berkner, Petitioner, holds a continuing contract status as principal of elementary school in Orange County. During the 1977-1978 school year Petitioner was assigned as principal of the Winter Garden Elementary School which had a student enrollment of approximately 250 and consisted of kindergarten, first and second grades only. The Orange County School Board consolidated Winter Garden and Dillard Street Elementary Schools for the school year 1978-1979 leaving one principal for the school which retained the separate facilities, but was called Dillard Street Elementary School. The job of principal of the consolidated schools was given to the Dillard Street School principal and Petitioner was transferred to the position of Program Coordinator, ESEA Title I at the same salary he was paid as principal. The ESEA Title I Program is a federally funded project to serve economically disadvantaged and educationally deprived or disadvantaged children in grades 1, 2, and 3 but math is extended to grades 4, 5, and 6. The pay grade for Program Coordinator Title I was pay grade 46 and when first assigned Petitioner's personnel records reflected this pay grade (Exhibit 3). However, the records were corrected to reflect his continuing contract status and his pay grade was increased to 48 (Exhibit 4) the same pay grade for elementary school principals for schools with enrollment below 800. Although program coordinators are on annual contract status, Petitioner does not, while serving in this capacity, lose the continuing contract status as an elementary school Principal which he acquired in 1970. Scholastic and experience requirements for various positions in the Orange County school system are revised when these positions are advertised for applicants and generally reflect the highest qualities available in the local job market. At the present time elementary school principals and program coordinators are required to hold a masters degree. In addition program coordinators must be certified in elementary education and supervision, and have a minimum of five years teaching experience at the elementary level. Elementary principals must be certified in elementary school administration and supervision, and have a minimum of five years teaching experience (Exhibits 5, 7, and 9). Both principals and program coordinators perform primarily administrative functions as opposed to teaching functions. The principal is given overall responsibility for the school to which he is assigned and has certain statutory duties and authority that are not visited upon other positions. These include administrative responsibility for evaluating the educational program at his school, recommending the transfer and assignment of personnel at his school, administrative responsibility for school records, authority to administer corporal punishment and suspension of students, and perform such other duties as may be assigned by the Superintendent. Those duties assigned by the Superintendent are contained in the Job Description, Elementary School Principal (Exhibit 7) and phrased in the lexicon of education administrators, call upon the principal to promote, develop, coordinate, formulate, involve, manage and initiate programs and relationships to optimize the effectiveness of the school. The job description of the Program Coordinator ESEA, Title I (Exhibits 5 and 9) assigns to him responsibility for supervision of the Title I Program. The program coordinator's typical duties include interpreting the philosophy and goals of the program, assisting teachers, planning activities, participating in program planning, assisting principals and staffs, preparing and submitting reports and records, and performing other duties that may be assigned. Both jobs involve dealing with teachers and students, supervision, and administrative functions in carrying out the program for which each is responsible. The principal carries out his duties in the school to which he is assigned and works from his office while the program coordinator is responsible for the Title I program in several schools and spends a large part of his time away from the "office" he shares with other program coordinators. The principal has a secretary while the program coordinator must share a secretary with other program coordinators. However, one witness described the secretary at one elementary school as a school secretary and that the secretary did not work solely for the principal. Of those 15 typical duties of an elementary school principal listed on Exhibit 7, the program coordinator performs all but 5 and they involve duties that may be described as school-oriented rather than program-oriented. Of those 7 typical duties listed on Exhibit 9, Job Description for ESEA Title I Program Coordinator, the elementary school principal performs all except serve on Title I advisory council. Several witnesses testified that the position of principal was more prestigious than that of program coordinator, however, when all the evidence is considered it appears that prestige, like beauty, is in the eye of the beholder. While testifying in his own behalf Petitioner averred that as a program administrator he had no administrative duties and no personnel duties. Other program coordinators testified that they did have administrative and personnel duties. Petitioner acknowledged that most of the typical duties listed on Exhibit 7 were also performed by program coordinators.
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Among these schools are Homestead Senior High School, South Dade Senior High School, and Dr. William A. Chapman Elementary School. The School Board provides 180 days of instruction for students during the regular school year. Respondent has been employed as a teacher by the School Board since 1983.1 She has a continuing contract of employment with School Board. From 1983 through the end of the 1992-93 school year, Respondent was assigned to Homestead Senior High School (Homestead). Respondent was reassigned to South Dade Senior High School (South Dade) for the 1993-94 school year. She remained at South Dade until 1997. At both Homestead and South Dade, Respondent taught mathematics. Donald Hoecherl was the principal of South Dade from 1994 until 1999. During his first year at South Dade, Mr. Hoecherl had "problems and concerns [regarding Respondent's] numerous absences from work and the fact that those absences seriously impacted the delivery of the education product" to Respondent's students. He reviewed Respondent's South Dade attendance records and discovered that there was a "pattern of absences": 102 absences during the 1993-94 school year and 74.5 absences during the 1994-95 school year, as of May 19, 1995. Mr. Hoecherl then prepared the following memorandum, and gave it to Respondent (on May 19, 1995), after discussing its contents with her: MEMORANDUM May 19, 1995 TO: Henrietta Dolega, Teacher FROM: Donald A. Hoecherl, Principal South Dade Senior High School SUBJECT: ABSENCE FROM WORK SITE DIRECTION Please be advised that you have been absent from the worksite during the 1994-95 school year for a total of 74.5 days. Additionally, during the 1993-94 school year you were absent from the worksite for a total of 102 days. The absences were listed as follows: sick-9, personal-1, contagious disease-7, leave without pay-24, hardship- 32, sick leave bank-18, and emergency leave- 11. Your absences from duty adversely impact the educational environment by: failing to provide support services for students, impeding the academic progress of your students, failure in providing a continuity of instruction and effective operation of this school. As a result of your continued absences from work you are advised of the following procedures concerning any future absences: Intent to be absent must be communicated directly to Mr. Hoecherl or Mr. Dawson and then to the appropriate secretary to secure a substitute in accordance with procedures delineated in the faculty handbook. Emergency lesson plans for twenty days on file with your department chairperson. Maintain the emergency lesson plans at 20 days upon return from absences. Absences for illness must be documented by your treating physician and a written medical note presented to Mr. Hoecherl or Mr. Dawson upon your return to work along with a medical release to return to full duties. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. These directives are in effect upon the receipt of this notice and are necessary to prevent adverse impact to students and their academic progress, and to insure a continuity of the educational program. Additionally, these procedures are meant to maintain effective worksite operations. Please be assured that assistance will continue to be provided to facilitate your regular attendance. Non-compliance with the directives will be considered a violation of professional responsibilities. The directives contained in the memorandum were reasonable in nature and within Mr. Hoecherl's authority to give Respondent. Mr. Hoecherl required Respondent to have "[e]mergency lesson plans for twenty days on file with her department chairperson" because "there would often be that many [consecutive] da[ys] [that Respondent would be] out." On May 22, 1995, Mr. Hoecherl held a Conference-for- the-Record with Respondent to discuss Respondent's "excessive absences from work." Mr. Hoecherl subsequently prepared (on June 2, 1995) and furnished to Respondent (on June 7, 1995) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: A conference for the record was held on May 22, 1995, in the office of the principal. The conference was attended by: Katrina Chinni, Union Steward, Henrietta Dolega, Teacher, Carol Brown, Assistant Principal and Donald A. Hoecherl, Principal. The conference as indicated in the notification dated May 19, 1995, addresse[d] your excessive absences from work. Please find attached the memorandum titled "Absence From [Work] Site Direction." The procedures outlined in that directive were reviewed during the conference. You are reminded that these procedures must be adhered to. Mrs. Chinni indicated that you felt two areas outlined in the absence from work site direction procedures were unreasonable and bordered on violating your contractual rights. The items were the requirement to have 20 days of emergency lesson plans on file with your department chairperson and direction to notify two people of your absences. After further review the established guidelines will remain as written in the "Absence From Work Site Direction." That memorandum, therefore is now a formal part of this summary of the conference for the record. Additionally, you were provided information regarding areas of assistance available to you through the Dade County Public School System. I am confident that the concerns identified can be corrected. You are reminded that you are entitled to attach a written response to be included as part of this process. In an effort to help Respondent improve her attendance, Mr. Hoecherl referred Respondent to the School Board's Employee Assistance Program on May 25, 1995. Respondent's attendance, however, did not improve. Furthermore, "she didn't always" follow the directives set forth in Mr. Hoecherl's May 19, 1995, memorandum. There were occasions when she did not have a 20-day supply of lesson plans on file with her department chairperson; neither did she consistently notify Mr. Hoecherl or Mr. Dawson of her intent to be absent. Accordingly, on December 19, 1995, Mr. Hoecherl held another Conference-for-the-Record with Respondent. Mr. Hoecherl subsequently prepared (on January 16, 1996) and furnished to Respondent (on February 28, 1996) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: A conference for the record was held on December 19, 1995 at 9:05 A.M. in the office of the principal. The conference was attended by Katrina Chinni, Union Steward, Henrietta Dolega, Teacher, and Donald A. Hoecherl, Principal. The conference as indicated in the notification of the conference for the record dated January 15, 1995, addressed your continual absence from work. It was noted during this conference for the record that as of December 19, 1995 you have acquired twelve absences from work. It was noted that your absence disrupts the educational process for our students. Additionally, it was noted that as of December 19, 1995 you were out of all accrued sick leave. Also, you were reminded that on several occasions you failed to follow the prescription provided on May 19, 1995 in the Absence From Work Site Directi[on]. You were reminded that you must notify the Principal or the Principal's Designee in addition to Ms. Dafcik. Additionally, you were reminded that failure to comply with the guidelines outlined in the conference for the record and the Absence Form Work Site Directi[on] would result in additional administrative action. Please feel free to contact me if I may be of any help in providing any assistance in an effort to mediate this ongoing problem. You are reminded that you are entitled to attach a written response to be included as a part of this process. I am confident that the concerns identified in this conference can be corrected Ms. Chinni, on behalf of Respondent, submitted the following written response to Mr. Hoecherl's January 16, 1996, memorandum and requested that it be considered an "addendum" to the memorandum: In the summary of conference for the record for Henrietta Dolega held Tuesday, December 19, 1995, the following items were omitted: The conference was also attended by Ted Hennis, Assistant Principal. The union stated that Ms. Dolega had documentation for all of her absences and that she was actively trying to address her health problems. The union stated that Ms. Dolega had shown a pattern of intent to comply with the directive to inform Mr. Hoecherl when she was going to be absent. Respondent was absent a total a 46 days during the 1995-96 school year. From the beginning of the 1996-97 school year through October 24, 1996, Respondent had ten days of absences. Respondent also arrived late to work and failed to provide "emergency lesson plans" in accordance with Mr. Hoecherl's May 19, 1995, memorandum. Accordingly, on October 24, 1996, Mr. Hoecherl held another Conference-for-the-Record with Respondent to address these ongoing problems. Mr. Hoecherl subsequently prepared (on October 25, 1996) and furnished to Respondent (on October 28, 1996) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: A Conference-for-the Record was held on Thursday, October 24, 1996 at 8:54 a.m. Present at the conference were Ted Hennis, Assistant Principal; Henrietta Dolega, Teacher; Donald A. Hoecherl, Principal; and Katrina Chinni, UTD Representative. This conference was held in compliance with the UTD Contract Article XXI and addressed: Absences from work. Lateness to work. Failure to provide emergency lesson plans as outlined in the work site directive. Absences from Work A review of your attendance indicated that in addition to your absences addressed during the Conference-for-the-Record held on January 16, 1996, you missed an additional twenty-seven (27) days for a total of 46 days during the 1995-1996 school year. As of this date, you have been absent a total of ten (10) days for the 1996-1997 school year. Additionally, you are currently out of accrued or personal leave. Furthermore, it has been noted that on several occasions you have been late to work. Your absences from duty and lateness to work adversely impact[] the educational environment by: failing to provide support services for students, impeding [t]he academic progress of your students, failure in providing a continuity of instruction and effective operation of this school Your failure to maintain the emergency lesson plan file is in direct disregard for the procedures established prior to and re- established during the Conference-for-the Record held January 16, 1996. In an effort to be clear, as this is a new school year, you are reminded that, as a result of your continued absences from work you are advised that you must continue to adhere to the following procedures concerning any further absences: Intent to be absent must be communicated directly to Mr. Hoecherl or Mr. Hennis and then to the appropriate secretary to secure a substitute in accordance with procedures delineated in the Faculty Handbook. Emergency lesson plans for twenty (20) days on file with your Department Chairperson and Mr. Hennis. Emergency lesson plans must be reviewed by Mr. Hennis prior to being placed in your emergency lesson plan file. Maintain the emergency lesson plans at a twenty (20) day level upon return from absences. Absences for illness must be documented by your treating physician and a written medical note presented to Mr. Hoecherl or Mr. Hennis upon your return to work along with a medical release to return to full duty. Any absence not documented as indicated above and outside of your six (6) personal days will be listed as unauthorized leave without pay. If it is determined that future absences are imminent, leave must be requested and procedures for Board Approved leave implemented. In regard to [the] Gail L. Grossman, Attorney at Law, request to reschedule the Conference-for-the-Record as she was unavailable to attend and provide representation[,] [y]ou were reminded that Article XXIV of the UTD Contract states "An employee ma[]y not be represented by a minority/rival union or by an attorney in a Conference-for-the-Record. This administrator asked if you had any comments and you replied that in regard to the lesson plans provided during one of your absences that the Department Chairperson misunderstood your references to the mixed review, thus not providing an adequate lesson for the day. The directives established are in effect as of this conference and are necessary to prevent adverse impact to students and their academic progress and to [e]nsure a continuity of the educational program. Additionally, these procedures are necessary to maintain an effective worksite operation. Also be assured that assistance will continue to be provided upon your request. In conclusion, failure to comply with these directives will result in additional disciplinary action. You are apprised of your right to append, to clarify or to expand any information recorded in the conference by this summary. Mr. Hoecherl again referred Respondent to the School Board's Employee Assistance Program on October 24, 1996, in a continuing effort to help her improve her attendance. Respondent's attendance, however, continued to be a problem. By February 24, 1997, Respondent had accumulated 40 days of absences for the school year (nine days of sick leave, two days of personal leave, 25 days of authorized leave without pay, and four days of unauthorized leave without pay). By memorandum, dated February 25, 1997, to Dr. Thomasina O'Donnell, a director in the School Board's Office of Professional Standards, Mr. Hoecherl requested a "determination of fitness" for Respondent. The memorandum read as follows: I am by way of this memorandum requesting the assistance of the Office of Professional Standards regarding Ms. Henrietta Dolega (employee # 143398). Ms. Dolega has a history of excessive absenteeism from the 1993-1994 school year to present. Ms. Dolega's attendance pattern has seriously impacted the students in her charge. At the present time, she is assigned to teach Algebra II for five class periods. Based on the information provided, I am requesting that a Determination of Fitness be conducted prior to Mrs. Dolega's return to South Dade High School. Please contact me at 247-4244 if you require any additional information. Appended to the memorandum was a "leave history that Mr. Hoecherl provided to Dr. O'Donnell" indicating the number and types of Respondent's absences from the 1993-1994 school year up to February 24, 1997. As of March 10, 1997, Respondent had been absent 28 consecutive days. On March 7, 1997, Respondent had requested, in writing, "a leave of absence without pay effective 2/24/97 through 3/10/97 (TENTATIVE)." On March 10, 1997, Mr. Hoecherl sent the following memorandum to the School Board's Leave Office requesting that Respondent's leave request be denied: I am requesting that the Leave Without Pay Request from Henrietta Dolega, employee #143398 be denied. As you can see from her request, Ms. Dolega is requesting leave from February 20 through March 10, 1997. Ms. Dolega has been absent from work a total of fifty (50) days this school year. Her latest absences began January 27, 1997, and as of March 10, 1997, continues for 28 consecutive days. This current request for Leave Without Pay comes to us after the fact. As a result, a permanent substitute could not be secured. Ms. Dolega continues to notify us on a weekly basis of her attendance status. Additionally, a review of Ms. Dolega's attendance history indicates that this is not a first time occurrence. . . . On March 14, 1997, Dr. O'Donnell held a Conference- for-the-Record with Respondent, at which it was agreed that Respondent would be placed on medical leave (without pay) until April 30, 1997. Dr. O'Donnell subsequently prepared (on March 19, 1997) and then mailed to Respondent a memorandum in which she summarized what had transpired at the conference. The memorandum read as follows: On March 14, 1997, a meeting was held with you in the Office of Professional Standards. In attendance were: Mr. Don Hoecherl, Principal, South Dade Senior; Ms. Julia Menendez, Director, Region VI; Ms. Yvonne Perez, Bargaining Agent Representative, United Teachers of Dade (UTD); and this administrator. This meeting was held to clarify your status in reference to returning to work and your future employment with Dade County Public Schools. Your attendance pattern over the past four years was reviewed as follows: 1993-94 102 total days absent 1994-95 75.5 total days absent 1995-96 46 total days absent 1996-97 55 total days absent as of 3-14-97 Despite the fact that you have provided documentation from your physician, your pattern of absences has caused serious problems with the delivery of an appropriate curriculum and the continuity of the educational program. You have been absent the past 35 consecutive days and you were notifying the school on a daily or weekly basis. Therefore, Mr. Hoecherl was not able to hire a full-time certified teacher to replace you. At this point, the following options were reviewed with you: be in attendance every day resign you position from Dade County Public Schools retire, if eligible request leave. Your pattern of absences and leaves is disruptive and must stop. A long term solution is vital. You agreed to request leave through April 30, 1997. By April 23, 1997, you will provide official written clearance by your physician or you will extend your leave through the end of the 1996-97 school year. Should you return this school year, Mr. Hoecherl will expect you to be in attendance every day. If you are absent, the school will take action. Also, you will be required to clear through the Office of Professional Standards prior to your return either in May or August 1997. You were reminded to follow the directive previously given you regarding absences. You must speak with Mr. Hoecherl or Mr. Hennis during work hours. Do not leave messages on answering machines or with anyone else. Further, you were directed to provide original notice from your physician rather than a fax. It is the desire of DCPS that you can resolve your health issues and return to work. However, if you cannot, a more permanent resolution must be reached. You agreed to provide to me the original leave form with an attached doctor's notice by March 24, 1997. Respondent, who suffered from adhesions, thereafter requested, and was granted, a series of extensions of her medical leave (without pay). After being on medical leave for three years, Respondent became depressed and started seeing a psychiatrist, Stephen Kahn, M.D. By letter dated March 30, 2001, Dr. Kahn "released [Respondent] to resume her position as full-time teacher without restriction." On April 25, 2001, Dr. O'Donnell held a Conference- for-the-Record with Respondent to discuss Respondent's return to the classroom. Dr. O'Donnell subsequently prepared (on April 26, 2001) and furnished to Respondent (on May 5, 2001) a memorandum in which she summarized what had transpired at the conference. The memorandum read as follows: On April 25, 2001, a conference-for-the- record was held with you in the Office of Professional Standards (OPS). In attendance were: Ms. Clemencia D. Waddell, Region Director, Region VI; Dr. Randy Biro, Bargaining Agent Representative, United Teachers of Dade (UTD); and this administrator. Service History As you reported in this conference, you were initially employed by Miami-Dade County Public Schools as a teacher in October 1983, and you were assigned to Homestead High School through June 1993. You were assigned to South Dade Senior High School from August 1993 through January 1997. You have been on Board approved leave since January 1997 through the present. You indicated that your teacher certificate is valid through June 30, 2004, in Elementary Education, Mathematics, and that you hold a Continuing Contract (CC) with the District. Conference Data Reviewed A review of your personnel file in the Office of Professional Standards reveals an extensive documentation of attendance and performance problems since 1984. On March 14, 1997 a conference-for-the-record was held in the Office of Professional Standards. On that date, your attendance pattern was reviewed from the prior four years and is as follows: Years Days Absent 1993-1994 102 days 1994-1995 78.5 days 1995-1996 46 days 1996-1997 55 days (prior to March 14th) At the March 14, 1997, conference-for-the- record held in the OPS, you were told that despite the extensive documentation provided from a variety of treating physicians, your absences are deemed to be excessive. You were advised that if you could not be in regular attendance to request a Board- approved leave of absence; which you did. A review of your leave history is as follows: Leave From Through Type October 8, 1992 December 16, 1992 Illness October 25, 1994 December 16, 1994 Illness February 2, 1994 May 31, 1994 Illness February 18, 1997 February 15, 2001 Personal As of this date, you have exhausted all leave options available to you through Miami-Dade County Public Schools and no further requests for any type of leave would be honored. You were asked if you understood this condition and you indicated that you did. You were told that your treating physician, Dr. Stephen Kahn, forwarded a statement which read, "Ms. Dolega is released to resume her position as full-time teacher without restriction." However, he did not respond to several requests from OPS to review the job descriptions for both elementary and secondary teacher. Dr. Randy Biro stated that you feel you can perform all of the responsibilities of a teacher. Ms. Clemencia Waddell informed the participants that you are assigned to William A. Chapman Elementary School with teaching duties within your area of certification. You were told that, from information provided by the payroll department, you would be granted four sick days upon your return. You were also told that taking into consideration your previous history with poor attendance that you would be referred to OPS if you were absent; you said that you understood. Action Taken You were reminded of the availability of services from the District's support referral agency. You were provided the option to resign your position with Miami- Dade County Public Schools. The following directives are herein delineated which were issued to you during the conference concerning future absences. Be in regular attendance and on time. Intent to be absent must be communicated directly to Ms. Paulette Martin, Principal, William A. Chapman Elementary. Site procedures for provision of lesson plans and material for the substitute teacher when absent must be adhered to in the event of any absence from the site. Should future absences exceed the number of days accrued, the absences will be considered LWOU and employment action will ensue. These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to students and their academic progress, the operation of the work unit, and to insure continuity of the educational program. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of disciplinary measures. During the conference, you were provided with a copy of School Board Rule 6Gx13-4A- 4E-1.01, Absences and Leave. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely affects this level of professionalism. Ms. Martin, Principal, was apprised as to your return to the worksite on April 30, 2001, to assume classroom duties. Action To Be Taken You were advised that the information prescribed in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Superintendent of Region VI and the Principal of William A. Chapman Elementary School. Any noncompliance with the prescriptive directives issued would result in the recission of site disciplinary action and compel district disciplinary measures to include dismissal. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have such response appended to your record. The directives given to Respondent at the April 25, 2001, Conference-for-the-Record (and "delineated" in Dr. O'Donnell's summary of the conference) were reasonable in nature and given with proper authority. The "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent" at Dr. William A. Chapman Elementary School (Chapman Elementary) required each teacher to have a folder containing lesson plans for a five-day period for use by a substitute in the event of the teacher's absence. Respondent returned to the classroom after more than a four-year absence on April 30, 2001. She was assigned to Chapman Elementary to teach a third grade class with 13 or 14 students. Paulette Martin is now, and has been since the 2000-01 school year, the principal of Chapman Elementary. In early May of 2001, shortly after Respondent's return to the classroom, her younger brother passed away. Too upset to come to work, Respondent took off from work the following day. Her absence was covered by accrued leave and authorized. Respondent took off from work one other day during the 2000-01 school year following her return to work. Feeling "bad[ly]" about her brother's death and her failure to have attended his funeral (in Maryland), Respondent had trouble sleeping at night. It "got to a point" where Respondent believed that, for the sake of her health, she needed to take a day off from work. That day was June 7, 2001. This second absence following her return to the classroom was also covered by accrued leave and authorized. Respondent was not assigned to teach summer school following the 2000-01 school year. Respondent returned to Chapman Elementary for the 2001-02 school year. In September and October of that year she was absent a total 12 days (September 4, 14, 27, and 28, and October 1, 2, 3, 4, 5, 10, 22, and 23). Six of these days of absences (September 4, 14, 27, and 28 and October 1 and 22) were covered by accrued leave and authorized. The remaining days of absences were not covered by accrued leave and they were unauthorized. These absences "had a negative impact on [the students in Respondent's] class." On October 30, 2001, Ms. Martin prepared the following memorandum, which she subsequently gave to Respondent: SUBJECT: NOTICE OF EXCESSIVE ABSENCES September 4 Sick September 14 Sick September 27 Sick September 28 Sick October 1 Sick It has been determined that you have been excessively absent during the 2001-2002 school year. To date, you have been absent on the following days: October 2 LWOPU[2] October 3 LWOPU October 4 LWOPU October 5 LWOPU October 10 LWOPU October 22 Sick October 23 LWOPU Your absences total twelve (12) days, exceeding the number of days you have accrued. As stated in the Summary of the Conference-for-the-Record of April 25, 2001, you were advised of past absences and directed as follows: Be in regular attendance and on time. Intent to be absent must be communicated directly to the principal. Site procedures for provision of lesson plans and materials for substitute teachers when absent must be adhered to in the event of absence. Should future absences exceed the number of days accrued, absences will be considered Leave Without Pay (Unauthorized) and employment action will ensue. You were also advised that noncompliance with these directives would necessitate a review by the Office of Professional Standards for imposition of disciplinary measures. Please be advised that this memorandum is being submitted to the Office of Professional Standards and the Region Director for Personnel for review and subsequent action. Ms. Martin brought to Dr. O'Donnell's attention that "once again [Respondent] was experiencing attendance problems and had been excessively absent." Accordingly, on November 16, 2001, Dr. O'Donnell held a Conference-for-the-Record with Respondent. Dr. O'Donnell subsequently prepared (on that same date) and furnished to Respondent a memorandum in which she summarized what had transpired at the conference. The memorandum read, in pertinent part, as follows: Conference Data Reviewed A review of the record included reference to the following issues: Attendance-to-date Leave/attendance history Previously issued attendance directives. You returned to the work site on April 30, 2001. You were absent two days before the end of the school year which ended on June 15, 2001. Your attendance for the current school year is as follows: Sick/Personal 6 Temporary Duty 1 Leave Without Pay 6 (Unauthorized) 13** **through October 23, 2001 15 days absence since your return from leave on April 30, 2001 You were asked if you wished to respond to this continuing pattern and you said that in reference to your absences last May, your brother passed away. You stated that you have had all of your teeth pulled and replaced and that is why you have been absent this school year. You were reminded of the directives regarding attendance that you have been previously issued. You were told that your dental problem should have been addressed during the summer or winter break or any time that would not interfere with the educational program of the students. You were then reminded of a meeting held with you in the Office of Professional Standards on March 14, 1997, which was held to review your absences and ability to return to work. The following options were reviewed with you at the meeting: Be in attendance every day Resign your position from Miami-Dade County Public Schools Retire, if eligible Request leave You effected a leave retroactive to January 1997 after the March 1997 meeting. You were reminded of your previous record of absences and leaves as reviewed at the conference- for-the-record held in the Office of Professional Standards on April 25, 2001 which was as follows: Years Days Absent 1993-1994 102 days 1994-1995 78.5 days 1995-1996 46 days 1996-1997 55 days** **through January 1997 when you effected leave. Leave From Through Type October 8, 1992 December 16, 1992 Illness October 25, 1994 December 16, 1994 Illness February 2, 1994 May 31, 1994 Illness February 18, 1997 February 15, 2001 Personal You were reminded that previously your absences had been deemed to be excessive. You were also reminded that you have exhausted all leave options and no further requests for any type of leave would be honored. You were asked if you wished to respond to this information and you declined comment. At the April 25, 2001 conference-for-the- record, which was held in OPS, your treating physician forwarded a statement which read in full, "Ms. Dolega is released to resume her position as full-time teacher without restriction." At that meeting, Dr. Randy Biro, your Member Advocate, stated that you are able to perform all teaching responsibilities. You were also reissued attendance directives. You have failed to comply with the directives which were issued to you by virtue of your six unauthorized absences during the current school year. Your actions are considered to be gross insubordination. You were asked if you had any statement to make regarding your continued pattern of excessive absences and you did not. Action Taken You were told that due to your history of excessive absences, you had been referred to OPS. On two previous occasions, as well as today's conference, you were issued the following directives: Be in regular attendance and on time. Intent to be absent must be communicated directly to Ms. Paulette Martin, Principal, William A. Chapman Elementary. Site procedures for provision of lesson plans and materials for the substitute teacher when absent must be adhered to in the event of any absence from the site. Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay Unauthorized (LWOU) and employment action will ensue. Pending further review of this case and formal notification of the recommended action of disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact to the operation of the work unit and to the services provided to students, as well as to insure continuity of the program. Noncompliance with these directives will necessitate further review by the Office of Professional Standards for the imposition of (additional and immediate) disciplinary action. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely affects this level of professionalism. Ms. Martin was apprised as to your return to the worksite. You were advised to keep the information presented in this conference confidential and not discus this with students or staff. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Superintendent of Region VI, Assistant Superintendent in the Office of Professional Standards, and the Principal of William A. Chapman Elementary School. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include any of the following: a letter of reprimand, Domain VII (PACES Professional Responsibilities Component) Professional Improvement Plan (PIP) which could impact the annual evaluation decision, suspension, or dismissal. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have such response appended to your record. Respondent was not absent in November of 2001. Her next absence was on December 10, 2001. This absence was covered by accrued leave and authorized. A determination was made that Respondent "be recommended for dismissal for the following charges: gross insubordination, willful neglect of duty and incompetency." On December 12, 2001, Dr. O'Donnell held a Conference- for-the-Record with Respondent to discuss this recommendation. Respondent was given the option to resign or retire "in lieu of dismissal." Speaking through her union representative, Respondent declined the offer, claiming that her "absences were due to illness." On the days that she was absent following her return to the classroom on April 30, 2001, Respondent did not report to work because she believed that she was too ill to do so. Although she was well aware of the directive that she had been given to "[b]e in regular attendance," she felt that, because of her condition on these days, she was not able to come to work and properly discharge her classroom teaching responsibilities. At the beginning of the school year, Respondent cut her leg on her dishwasher and the wound did not heal properly. She consulted her physician, who prescribed two antibiotics for her. The antibiotics "knocked [her] for a loop" and she missed work as a result. Respondent also missed a day of work because she had a bout of diarrhea. On September 27 and 28, 2001, and October 1, 2, 3, 4, and 5, 2001, Respondent was recovering from oral surgery (the extraction of all of her remaining teeth) that was performed on her after school on Wednesday, September 26, 2001. She was absent on these days because she was "taking pain pills and [she] was really in pain." The surgery that resulted in her absences on September 27 and 28, 2001, and October 1, 2, 3, 4, and 5, 2001, was done to enable Respondent to receive full upper and lower dentures. Respondent had a long-standing need for such dentures. The dentures were necessary, as her dentist, Dr. Hans Sperling, testified (by deposition), because: [Respondent] ha[d] extensive decay in her mouth present to the point that the teeth were not restorable. She also had severe periodontal disease, extensive bone loss around the teeth, which will not render the teeth appropriate to use as [an] abutment to retain either a partial denture or fixed bridges. Dr. Sperling first noticed "extensive decay in [Respondent's] mouth" during her initial visit to his office on October 9, 1999. At that time, Dr. Sperling told Respondent that "she needed the extractions" and that they should be "done by an oral surgeon" because of the "extensive amount of teeth that need[ed] to be taken out." He further advised her "that she would need a complete exam before anything else was done." Respondent did not see Dr. Sperling again until April 6, 2001, when Dr. Sperling gave her a "complete exam," which revealed that she still had "severe decay in her teeth." Dr. Sperling also found that she had "severe periodontal disease." Respondent next saw Dr. Sperling on June 26, 2001. On that date, Dr. Sperling "took impressions of her lower and upper jaws," the first step in the process to provide her with dentures. Respondent was next scheduled to see Dr. Sperling on July 19, 2001, but she "broke[] this appointment." Respondent next saw Dr. Sperling on August 9, 2001. During this visit, Dr. Sperling "registered her bite so [he could] articulate the models on an articulator." Respondent's next visit to Dr. Sperling was on September 5, 2001, when she "tried . . . the [dentures] that she was going to be having." Her last pre-surgery visit to Dr. Sperling was on September 25, 2001, when she picked up the dentures that the oral surgeon was going to place in her mouth. Dr. Sperling advised Respondent that it would take approximately four days for her to recover from the oral surgery and suggested that she schedule the surgery for a Thursday so she would be able to return to work on the following Monday. Respondent scheduled the oral surgery for Wednesday, September 26, 2001. Respondent believed that, by having the surgery on this date, she would miss only two days of work and only one day with her students inasmuch as Friday, September 28, 2001, was a teacher planning day and she anticipated that she would be able to return to the classroom the following Monday, October 1, 2001. Respondent had enough accrued leave to cover this anticipated two-day absence. Respondent's recovery, however, took longer than anticipated and she was absent the entire workweek (Monday, October 1, 2001, through Friday, October 5, 2001) following the surgery. Dr. Sperling conducted a "post-operative evaluation" of Respondent on October 1, 2001. He observed that "the healing was within normal limits," although Respondent did complain to him that she was still experiencing pain. Respondent did not have the surgery done during the preceding summer, when she was not working, because she could not afford it at that time. The dentures that were placed in her mouth "are temporary[.] [E]ventually [she will] have implants." While Respondent's absences following her return to the classroom on April 30, 2001, were not contumacious acts, she did willfully disregard the directives given her that her "[i]ntent to be absent must be communicated directly" to Ms. Martin and that "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent must be adhered to in the event of any absence from the site."3 Respondent repeatedly failed to follow these directives despite having the apparent ability to do so (just as she had ignored similar directives when she was teaching at South Dade under Mr. Hoecherl's supervision). Respondent did not communicate her intent to be absent to Ms. Martin prior to any of her absences. Furthermore, Respondent did not maintain a folder containing lesson plans for substitute teachers to use in her absence. Respondent was verbally advised that she was not in compliance with the "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent." Nonetheless, to the detriment of the students in her class, she continued to wait until after the instructional day had begun (anywhere from 45 minutes to an hour and beyond) to provide (by facsimile transmission) lesson plans for the substitute teacher (rather than maintaining a folder with a five-day supply of lesson plans). At its January 16, 2002, meeting, the School Board took action to "suspend [Respondent] and initiate dismissal proceedings against [her] from all employment by the Miami-Dade County Public School, effective the close of the workday, January 16, 2002, for gross insubordination; incompetency; and willful neglect of duty."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment as a continuing contract teacher with the School Board for her "gross insubordination" and "willful neglect of duty," as more specifically described above. DONE AND ENTERED this 7th day of June, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 7th day of June, 2002.
Findings Of Fact At all times material hereto, Respondent was employed by the School Board of Dade County as a classroom teacher. During the 1980-1981 school year, Respondent was assigned to Southwood Junior High School as a science teacher. During that school year, Dr. E. L. Burck was the principal at Southwood. In August, 1980, Respondent applied for a part-time position teaching photography during the evenings at Robert Morgan Vocational Technical Institute. When Dr. John D. White, the vice principal at Robert Morgan, hired Respondent, he explained to Respondent that it would be necessary for Respondent to qualify for a teaching certificate in the area of photography. Respondent told White that he believed he was certifiable based upon his work experience and indicated to White that he would pursue the necessary steps to obtain his certification. At the time that White hired Respondent to teach part-time during the fall 1950 semester, White knew that Respondent was employed full-time at Southwood. During the fall 1980 semester, the administrators at Robert Morgan determined they wished a full-time program at Robert Morgan and decided that if enough students would be generated, they would need a full-time photography teacher in January, 1981. The possibility of a full-time position was discussed with Respondent. Respondent decided that if he could obtain a full-time position at Robert Morgan in January, he would pursue obtaining certification; however, if he could not obtain a full-time position, he would not pursue obtaining certification since it was difficult to teach full-time at Southwood in addition to part-time at Robert Morgan. During December, 1980, while enrollment was underway at Robert Morgan and it appeared probable that a full-time photography position would become available, Respondent spoke with Dr. Burck at Southwood regarding the possibility of transferring to Robert Morgan on a full-time basis beginning January 5, 1981, the first day of classes following the Christmas, 1980, vacation. Burck explained to Respondent the procedures relating to such a transfer of assignment and further explained that he needed to have definite information as soon as a final decision had been made so that he could initiate procedures for obtaining a teacher to replace Respondent. Just prior to Christmas vacation, Dr. White (as the potential "receiving principal") and Dr. Burck (as the potential "sending principal") discussed the possibility of the full-time photography class and the possibility of Respondent's transfer to Robert Morgan to teach that class. White explained that he did not yet know if the full-time class would materialize but that he would give Burck two weeks' notice in order that Burck could find a replacement teacher. Burck conveyed to Respondent the content of this conversation and advised Respondent that until such time as the class materialized and Respondent was replaced at Southwood, Respondent was still a staff member at Southwood and Burck expected to see him on January 5, 1981. Respondent did not report for work at Southwood on Monday, January 5, 1981, and failed to advise anyone at Southwood that he did not intend to return to teach his classes. Burck and another employee of Southwood attempted to locate Respondent. On January 6, 1981, White ascertained that there was sufficient enrollment for the full-time photography teacher's position at Robert Morgan. He instructed an employee at Robert Morgan to process the necessary paperwork to hire Respondent full-time. It was discovered that Respondent did not have, nor had he applied for, his vocational certificate covering the field of photography. Since White had told Respondent in August, 1980, to obtain certification and Respondent had apparently done nothing to do so, White gave to Respondent a deadline of Friday, January 9, 1981, to obtain verification of his ability to secure the proper teaching certificate. Also on January 6, 1981, White and Burck discussed Respondent's employment. White advised Burck that Respondent was teaching part-time at Robert Morgan and that there appeared to be a problem with Respondent's certification. Burck then talked with Respondent, and Respondent told Burck that he was teaching at Robert Morgan as a full-time instructor and that the certification problem would be resolved shortly. Burck told Respondent he needed an immediate resolution because Respondent's students at Southwood were without a regular teacher. Burck reminded Respondent that Respondent's assignment was at Southwood and that no transfer had been officially requested or granted. Burck contacted Dr. Thomas Peeler, South Area Director, and requested Dr. Peeler's assistance in resolving Respondent's status. On January 7, 1981, Dr. Peeler contacted White at Robert Morgan and advised White that Respondent was not reporting to work at Southwood. White had assumed that Respondent was reporting to his assigned school. Peeler instructed White to advise Respondent that he was to report to work at Southwood the following day. On January 7, White told Respondent to report to Southwood the following day. On January 8, White again advised Respondent that he was to report to work at Southwood. On January 9, White released Respondent from his part-time teaching assignment at Robert Morgan since Respondent had not achieved either obtaining the required certification or obtaining verification that he was in fact certifiable. Also on January 9, Burck contacted Respondent and advised Respondent that he had not been transferred and was still assigned to Southwood. On Monday, January 12, 1981, Dr. Peeler, the South Area Director, ordered Respondent to report to his teaching position at Southwood on Tuesday, January 13. Later that same day, Dr. Burck ordered Respondent to return to work on the 13th. Respondent told Dr. Burck that he would not return to work. On January 13, Dr. Peeler wrote Respondent, ordering him again to immediately report to his teaching assignment at Southwood. Peeler advised Respondent that his failure to report could result in suspension. In view of Respondent's continued refusal to obey orders, and in view of Respondent's advice to Burck the evening of January 12 that he would not report to Southwood to fulfill his teaching duties, a replacement teacher was located to fill Respondent's position as a science teacher at Southwood. Between January 5, 1981, and January 30, 1981, Respondent did not report to his assigned teaching position despite repeated orders from his superiors, Respondent knew that his place of employment had not been changed, and Respondent was absent from his teaching duties without leave. On January 30, 1981, a conference was held among Mr. Eldridge Williams, the Executive Director of the Office of Personnel for the Dade County Public Schools, Dr. Thomas Peeler, the South Area Director, and Respondent to discuss Respondent's repeated failure to report to work and Respondent's employment status. At that meeting, Respondent offered to return to work at Southwood on February 2, 1981; however, his position had been filled. Insofar as payroll status, Respondent was classified as absent without leave. No alternate position was available for placement of Respondent through the remainder of the 1980-1981 school year. On March 9, 1981, Patrick Gray, the Assistant Superintendent in the Office of Personnel, wrote Respondent regarding the south area supervisor's recommendation that Respondent be suspended or dismissed from employment. Gray's letter ordered Respondent to immediately return to Southwood or to resign or to retire in order that his employment status could be resolved. At the time he wrote that letter, Gray was not aware that Respondent's position at Southwood had been filled. In response to his letter of March 9, Gray received a letter from Respondent dated March 16, 1981, requesting another conference. A second conference between Respondent and Eldridge Williams was scheduled for April 2, but Respondent refused to meet with only Williams. Accordingly, a conference was scheduled for April 17, 1981, with Patrick Gray, Eldridge Williams, Dr. Peeler and Respondent. As a result of that conference, Respondent submitted a leave request dated April 22, 1981, requesting leave for the period of April 27, 1981, through the end of the school year in June, 1981. This request for leave was approved by Gray on August 7, 1981, retroactive for the period requested. A formal letter of reprimand dated October 13, 1981, was issued to Respondent as a result of his insubordination in refusing to report as ordered to Southwood Junior High School. During the 1981-1982 school year, Respondent was assigned to Redland Junior High School as a science teacher. Utilizing proper procedures, Respondent was absent on September 16, September 28, October 6, October 22, October 23, October 26, October 27, October 28, October 29, October 30, November 2, November 3, November 4 and November 5, 1981. On September 28 and October 6, Respondent utilized personal leave. On the other 12 days, he utilized sick leave. On November 5, 1981, Respondent advised Judy Cobb, Assistant Principal at Redland Junior High School, that he was looking for another job. Cobb advised Norman Lindeblad, Principal of Redland Junior High School, of this conversation with Respondent. On Friday, November 6, 1981, Respondent advised Lindeblad that he would not be returning to his teaching assignment at Redland Junior High School. Respondent told Lindeblad to fill Respondent's teaching position, and Lindeblad advised Respondent that he could not do so without receiving such directive in writing. Lindeblad advised Respondent that he expected Respondent to report to his teaching position on Tuesday, November 10, 1981, absent some other resolution of the problem such as approved personal leave or resignation. Late in the evening on November 9, 1981, Respondent telephoned Lindeblad at home and advised Lindeblad that he would not report on Tuesday, November 10, 1981, to teach his classes. On Tuesday, November 10, 1981, Respondent once again advised Lindeblad that he would not return to his teaching position at Redland. Respondent scheduled an appointment with Lindeblad on November 11 to finally resolve his status, and Lindeblad advised Respondent that unless verification of illness was provided, Lindeblad would commence recording Respondent's leave as leave without pay beginning on Friday, November 6, 1981. On November 11, 1981, Respondent appeared at Redland Junior High School and gave to Lindeblad a memorandum authorizing Lindeblad to replace Respondent in his science teaching position as of Wednesday, November 11, 1981. On November 16, 1981, the personnel office received an application for leave without pay from Respondent, which application was dated November 11, 1981, and which application requested leave effective November 11, 1981, due to Respondent's ill health. The portion of the application for leave requiring the signature and recommendation of the principal was not completed. Although the application required a statement from a physician justifying the request if the request were based upon ill health, Respondent provided only a short letter signed by a therapist possessing a degree in education stating that Respondent felt stress and frustration. No information regarding any physical symptoms, diagnosis or prognosis was volunteered. Since proper procedures require the principal's recommendation for extended leave, Lindeblad was asked to provide his recommendation to the personnel office. On November 18, 1981, Lindeblad sent a memorandum to the Office of Personnel stating that he did not recommend approval of leave for Respondent since no statement from a physician had been provided to verify Respondent's alleged ill health and because Lindeblad felt that the Respondent had begun unauthorized leave before he even requested leave. On November 19, 1981, Patrick Gray advised Respondent that Respondent's request for leave was not approved. Respondent was further advised that since he refused to carry out his teaching assignments for the second year in a row and since Respondent was simply attempting to obtain a teaching position in an area for which he was not certified and could not be certified, then Respondent's options were limited to either resignation or suffering suspension and dismissal proceedings. Respondent did not resign, and dismissal proceedings were initiated. Respondent was absent in accordance with proper procedures for the 14 days ending on November 5, 1981, as set forth in Paragraph numbered 24. Commencing on November 6, 1981, Respondent was absent without leave. Although Respondent eventually obtained verification of his work experience for the addition of photography to his teaching certificate, as of October 1, 1981, Respondent was still not certifiable for the reason that he still needed three full years of teaching experience and 14 semester hours of credit in vocational education courses. By the time of the final hearing in this cause, Respondent had still not obtained a teaching certificate enabling him to teach photography.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of gross insubordination, incompetency, willful neglect of duty and absence without leave; dismissing Respondent from employment by the School Board of Dade County; and denying Respondent's claim for back pay. DONE and RECOMMENDED this 21st day of January, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Building, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Robert F. McKee, Esquire 341 Plant Avenue Tampa, Florida 33606 Leonard Britton Superintendent of Schools Dade County Public Schools Lindsay Hopkins Building 1410 NE Second Avenue Miami, Florida 33132
The Issue Whether one or more unlawful employment practices have been committed against Petitioner by Respondent on the basis of what is commonly called "reverse racial discrimination," as a result of Petitioner's national origin (German), or in retaliation.
Findings Of Fact Respondent is the Alachua County School Board and constitutes an "employer" under Chapter 760, Florida Statutes. Petitioner is a white male, born in Germany, but living in the United States. He is "not yet" a United States citizen. He does not have, and never has had, a contract of employment with Respondent. Petitioner holds a B.S. in Elementary Education, an M.S. in Biology/Chemistry Education, and a Ph.D. in Natural Sciences from foreign universities. He has teaching certificates from Germany and Australia and has taught with distinction in New Guinea. He has worked in scientific fields at the University of Florida and has published scientific papers. Petitioner was issued a Florida temporary educator's (teaching) certificate for "Grades 6-12 Biology, Chemistry, and Physics" on February 4, 1998, covering July 1, 1997 to June 30, 1999, which was renewed through June 30, 2002. However, to receive a permanent professional educator (teaching) certificate, Petitioner needed to meet the general requirements and specific subject requirements listed on the statement of eligibility, including completing the Building Excellence Through Successful Teaching Program. Apparently, he completed the necessary requirements for a permanent professional educator's license, including a year of observed teaching in Indian River County, during the 2000-2001 school year. Once determined to be subject-area qualified, Petitioner was added to Respondent School Board's district-wide substitute teacher list, beginning with the 1998-1999 school year. All Alachua County public schools have access to this list. It is up to each school's principal or the principal's designee to telephone names on the list until a substitute for a specific teacher's absence is located and agrees to come. Persons on the list are not guaranteed any days of employment and principals individually can choose among available substitutes at will. As a substitute teacher, Petitioner did not have a contract of employment with Respondent. Therefore, he was not protected by the specific due process investigation and hearing rights afforded by such contracts or by a union collective bargaining contract. Respondent's teaching job applications do not request information about national origin. Therefore, anyone reviewing one of Petitioner's job applications would not know his national origin. Even if Petitioner listed his foreign degrees and universities, that would not clearly delineate his nationality. Petitioner understands English well, but not perfectly. He speaks with a pronounced accent, and it is unlikely anyone meeting him would assume him to be a native-born American. On August 13, 1998, Petitioner wrote a letter to Respondent's Superintendent Mazarra, a white male, outlining his extensive teaching and educational administrative experience in New Guinea and Australia, his experience as a soccer coach and a Boy Scout leader, his Florida existing credentials (see Findings of Fact 3-4), his past scientific employments and publications, the several languages he speaks, and his foreign degrees. The letter went on to complain (1) that he had not been hired in Alachua County in 1997 to teach high school chemistry because he did not have the Florida experience; (2) that when he reapplied in February-March 1998, for one Alachua County school's advertised science opening, after having completed some Florida requirements and after having taught in Gilchrist County, the Alachua County school's position had been filled with a "permanent substitute usually a non-certified teacher"; (3) that when he interviewed for a chemistry/physics position, the administrator (i.e. principal) did not show up and had to be searched for by the receptionist; and (4) that he had written letters to principals to which they did not respond. Petitioner's letter to Mr. Mazarra received no response, but apparently was placed in either Petitioner's Alachua County Substitute Teacher File or Personnel File, or in both. There is no clarity as to which file. Petitioner had admitted in evidence a tape recorded phone message he received on his telephone answering machine on or about October 15, 1998. (P-15).1 It is found that on October 15, 1998, Petitioner was telephoned by a female on the Santa Fe High School staff who requested that Petitioner return her call if he could substitute at that school the next day. The same answering machine tape also contains requests from other Alachua County schools for Petitioner to come in to substitute. Apparently, the receiver was not fully hung-up at Santa Fe's end, and Petitioner's answering machine recorded the female speaker reading a long list of all the subject areas in which Petitioner had listed himself as available to teach. The subjects ranged from teaching physics to acting as a soccer coach and generally parallels Petitioner's August 13, 1998, letter. A male voice in the background laughed and said "Aborigines," probably in reference to Petitioner's Australian credentials. Petitioner takes offense that there was laughter and that the man laughing did not appreciate that Petitioner had not taught Australian Aborigines, but another ethnic group. The laughing male could as easily have been a student as a member of the Santa Fe faculty or administrative staff, but he was certainly not the female staff member calling Petitioner to substitute the next day. Petitioner feels his April 13, 1998, letter gave rise to the laughter and comments on the October 15, 1998, Santa Fe phone call attempting to hire him. Petitioner feels his April 13, 1998, letter caused him to be discriminated against as "over-qualified" from 1997 to the present. K.S., a black female student, testified at formal hearing that on October 20, 1998, while Petitioner was substituting in her classroom at Fort Clarke Middle School (Ft. Clarke), she asked Petitioner for a pass to go to the bathroom, having failed to go during the change of classes. This request was made during the confusion of taking attendance and settling the class down to work. Petitioner denied her request. She also testified that when she made a second request a short time later, Petitioner grabbed her by the arm and told her to go back to her seat, calling her a "little black chicken." Petitioner admitted that he believed K.S. should have used the restroom between classes on October 20, 1998, and that he had a general policy at that time of denying or delaying students' requests to go to the bathroom because there had been newspaper and other reports that students were having sexual relations in school lavatories. However, he emphatically denied that the second request and denial described by K.S. ever took place. Petitioner presented evidence and character witnesses to demonstrate that he has close personal friends of many races and has taught many races and nationalities all over the world. Petitioner personally finds racial epithets and slurs of any kind abhorrent. At the time of the disputed-fact hearing, Petitioner was attending and teaching in a multi-racial church. His character witnesses rate him as non-violent and unlikely to grab females of any age. Prior to October 20, 1998, Petitioner had substituted for Ms. Jones, an English teacher at Ft. Clarke, to whom he had written a letter. His statements therein with regard to student deportment may be read as critical of her methods and her students. They reflect Petitioner's very rigid approach at that time to classroom interactions and an inability to keep children on task if a seating chart was not provided by the regular classroom teacher. Contrary to Petitioner's perception, it was, in fact, the policy at Ft. Clarke not to deny children the use of the restroom. Ft. Clarke left it to the individual teacher's discretion when, and for how long, s/he let children be out of class for that function. Most teachers used a hall pass method of control. The Alachua County teachers and administrators who testified agreed that letting more than one student go to the restroom simultaneously was not good classroom management, but that a single student should not be required to wait an entire class period. "Sex appointments" in Ft. Clarke's restrooms were not a problem in 1998. The situation K.S. described at hearing is basically the situation she and her parents complained-of to Ft. Clarke School personnel by telephone after school hours on October 20, 1998, and in person at the school on October 21, 1998. Charles Hall, Ph.D., was Principal of Ft. Clarke in 1998-1999. Dr. Hall is a black male. He assigned the investigation of the complaint to his white female Assistant Principal, Delores Utley. If a full-time contract teacher is accused by a student, a more formal investigation ensues and under certain conditions, after the investigation is complete, a contract teacher is given the opportunity to place his or her written explanation/defense in his/her Personnel File with the investigation report. See Section 231.291, Florida Statutes. In some instances, there also is a formal procedure with clearly established due process rights and a formal hearing with confrontation of witnesses and representation. These protections are not generally afforded by Alachua County to its substitute teachers, because they have no "property rights" to a specific teaching position. On October 21, 1998, Delores Utley separately interviewed K.S. and several students from the class. As might be expected, some students did not see the incident and some did not hear the racial epithet, but at least two students from K.S.'s class confirmed her version of the incident. Ms. Utley found K.S. and all the students credible because K.S. admitted there had been some misbehavior going on in the class when the incident occurred and because the children's stories were not identical, although she ultimately reported in a letter to the School Board's Human Resources Office (see Finding of Fact 31) that the alleged comment by Petitioner was "little black turkey."2 Ms. Utley made some other inquiries and observed Petitioner's empty classroom to be in disarray. She decided Petitioner should be removed from the Board's substitute teacher list, in part because of the state of the classroom which evidenced, to her, that his class was out of control. Petitioner was never approached by anyone about those additional charges. Sometime on October 21 or October 22, 1998, Ms. Utley telephoned her decision to Ms. Louise Hall, Personnel Specialist in the School Board's Human Resources Division, who told her to write up her recommendation. Ms. Hall, a white female, is no relation to Dr. Hall, Ft. Clarke's Principal. At no time did Ms. Utley require that K.S. or her parents fill out an incident form. Petitioner claimed that this was required by Respondent School Board's rules, but he did not present the rule upon which he relied. Principal Hall was aware of Ms. Utley's investigation and conclusions, but may not have read her letter (see Finding of Fact 31) when he met with Petitioner. Their meeting probably occurred on the morning of October 22, 1998, but could have been on October 21, 1998. Neither man's recollection of the date or contents of this conversation is very clear. Petitioner did not appreciate the seriousness of the charges at the time, but he feels he denied them. Dr. Hall felt Petitioner was a very nice man but that Petitioner had offered no explanation of the alleged incident and spent their interview showing Dr. Hall pictures of Petitioner's travels. Dr. Hall did recall that after his interview with Petitioner some students complained to him that Petitioner had called them "idiots." Petitioner was never approached by Dr. Hall about these additional charges. On October 22, 1998, Ms. Utley wrote a letter to Louise Hall, which stated in whole": This is to inform you of an incident involving a substitute teacher [Petitioner] which occurred at Fort Clarke Middle School on Tuesday, October 20, 1998. I received a phone call at approximately 4:00 p.m., on October 20th from S.S., mother of K., a. 7th grade student at Ft. Clark Middle School. S.S. said that K. was very upset when she came in from school and reported that a substitute teacher had grabbed her and called her a name. I asked Mrs. S. if she could give me specific details about what had happened. Mrs. S. explained that the incident occurred in K.'s 7th period Math class. The substitute teacher's name was [Petitioner]. K. had told her that she asked the teacher for permission to use the restroom and was told no. When she went to the teacher and asked a second time he grabbed her by the arm and said, "I told you no, now sit down you 'black Turkey'". I told Mrs. S. her call was the first I had heard of a problem in that class, but that what she reported was unacceptable. We would not tolerate a substitute touching a child or referring to her in a derogatory manner. I said that [Petitioner] would be removed from Ft. Clarke's substitute list and I would call personnel and recommend he be removed from the district list. After speaking with Mrs. S., I was informed by Mr. Emery Bishop, assistant principal for administration, that the custodian had reported that the room was left with paper and calculators strewn all over the floor and desks scattered around the room. [Petitioner], the substitute, had not reported any problems or discussed any concerns with administrative staff at anytime during that day. The following morning, K.S., K's father, came to my office concerned about the incident. He wanted to be sure that it had not been ignored and that action would be taken. I explained that we had removed [Petitioner] from our list and had made a recommendation to the district office for his removal from the substitute list. He asked that I contact him when I had heard from the district about the final resolution. On Thursday, October 22, 1998, I called Mr. S. to tell him that [Petitioner] would no longer be allowed to substitute in district schools. He was satisfied that action had been taken and thanked me for keeping him informed and following through on his concerns. Since the reporting of this incidence [sic.], several students have spoken with Dr. Charles Hall, principal of Ft. Clarke, about [Petitioner] calling them "idiots" during their math classes. These incidences [sic.] took place throughout the day in different classes. (Initials used to protect the child and "Petitioner" used in place of Petitioner's full name for clarity) (P-9.)3 Ms. Utley initially had considered just removing Petitioner's name from Ft. Clarke's substitute call sheet, but prepared the letter to Louise Hall to remove him from the School Board's master list due to Ms. Hall's request for documentation when they had spoken by phone. Dr. Hall allowed Ms. Utley's letter to go to Louise Hall after he had telephoned Ms. Hall. Neither Ms. Utley, Dr. Hall or Ms. Hall considered Ms. Utley's letter to be a request for a full-scale Human Resources Office investigation in October 1998. The following are among published School Board policies applicable to substitute teachers: PROFESSIONAL ETHICS Maintain a professional attitude at all times. Refrain from criticizing teachers for whom you substitute and making uncomplimentary comparisons between schools and students. It is important to keep information regarding school, personnel, and pupils confidential. REMOVAL FROM SUBSTITUTE TEACHER LIST Failure to comply with the state, county or school policies and procedures. Unsatisfactory teaching performances. Excessive failure to accept assignments. Use of corporal punishment. Use of drugs or alcohol on school properties. Use of profane or obscene language on school properties. Failure to perform teaching duties in a professional manner. Failure to complete and return update form concerning availability. (R-2) On October 22, 1998, Ms. Hall wrote to Petitioner on behalf of her then-superior, Synester Jones, Human Resources Director, who is a black female, as follows: On October 21, 1998, we received a call from an administrator at Ft. Clarke Middle School who informed us of an incident that had been reported by a female student and the student's parents. An investigation of the incident by the school revealed that during class, the student requested to go to the restroom twice and that you denied both requests. After the second request, it was reported that you grabbed the student's arm, told her she could not go to the restroom, and called her a name that implied a racial slur. After a review of this incident, we have concluded that this behavior is not conducive to a positive learning environment for students and therefore, effective immediately, your name has been removed from the substitute list. (P-2.) Ms. Hall testified that she placed a copy of both her letter and Ms. Utley's letter in Petitioner's Substitute Teacher File and/or Personnel File. She maintained that this file or these files (there is no clarity if they are one or two files) is/are not the same file as Petitioner's "Active Applicant" file for purposes of hiring full-time teachers. Ms. Hall, in fact, removed Petitioner from Respondent Board's substitute teacher list on behalf of her superior. Ms. Hall did not remove Petitioner from the list of applicants applying for full-time teaching positions. Petitioner testified he never saw Ms. Utley's letter until after filing the charge of discrimination. Petitioner now believes that Ms. Utley's and Ms. Hall's letters made their way to his Active Applicant's file, and at hearing, he contended they were a deterrent to his being hired as a full-time teacher in Alachua County. On October 28, 1998, and November 17, 1998, Petitioner wrote Superintendent Mazarra, seeking an independent investigation of the October 20-22, 1998, charges by K.S. and her parents. Superintendent Mazarra did not answer Petitioner. On December 30, 1998, Synester Jones answered Petitioner, on behalf of the Superintendent, stating: I am in receipt of the letters you wrote to the Superintendent in reference to the termination of your employment as a substitute teacher. We very much regret the necessity to terminate the employment of any substitute teacher in the public schools of Alachua County. However, our first and foremost responsibility is to the students of this district. Whenever, [sic] a student and/or parents report incidents that may be harmful to students, immediate action must be taken. Administrators from Fort Clarke Middle School met with the student, her parents, as well as other students from the class, and they were convinced that there was probable cause to be concerned about the conduct of the substitute in charge. As a substitute, you were a temporary "on-call" employee, and the school district did not have an obligation to conduct a full- scale investigation into complaints about your job performance or continue your employment after concerns had been reported. The actions taken in this incident were consistent with past practice. Neither Ms. Hall nor any other Human Resources Department staff members have discriminated against you in any manner. I apologize for any misunderstandings about the nature of your employment with the school district. (P-6.) No investigation was forthcoming. On January 25, 1999, Petitioner sent a letter and affidavit (P-10 and P-16) to Superintendent Mazarra, requesting a conference. After receiving no reply Petitioner filed his charge of discrimination with the Florida Commission on Human Relations on or about April 10, 1999.4 Petitioner thereafter also directly approached School Board and County Commission members for redress. Petitioner claims that none of his protests about the October 20, 1998, incident and its handling were placed in his Personnel File but that the Utley and Holmes letters were, and that these letters precluded his being hired for any full-time teaching positions. Petitioner admitted that he has only assumed the foregoing to be true. Ms. Pratt, currently Human Resources Director, could not say with any certainty whether the Utley and Holmes letters and Petitioner's letters were located in a "complaint file," which is an extension of Petitioner's Personnel File, or not. If Petitioner's situation at Ft. Clarke had resulted in a formal complaint against him, which in turn had resulted in an investigation by the Human Resources Office, everything would have gone in Petitioner's Personnel File, but in this case, she was not sure. There is also a separate file for teaching applications which is purged after one year. There is simply no clarity on this issue of the files. Petitioner also contends that he was not hired as a full-time teacher in any Alachua County school due to the prejudicial effect of the Utley and Hall letters and/or as a result of discrimination against him due to his national origin (German), race (Caucasian), and/or in retaliation for the letters he wrote protesting his treatment with regard to the October 20, 1998, incident and/or the August 13, 1998, letter complaining about failure to hire him.5 Normally, a principal with a teaching vacancy calls the Board for a list of eligible full-time teaching position applicants and then directly contacts the applicants in whom the principal is interested. These contacts would show up in the Respondent's tracking device, established in 1998. However, applications before 1998 were not tracked, and if Petitioner went on an unstructured (informal, unscheduled, or not-through-regular channels) interview after 1998, it would not show up in the tracking device. In May 1998, Petitioner applied for a science teacher position at Gainesville High School. Petitioner was interviewed in June 1998, by Gainesville High School Assistant Principal Susan H. Arnold, a white female. Ms. Arnold testified that she had been seeking someone with a knowledge and understanding of physics who would have a rapport with students conducive to learning. She would have liked to hire someone certified in the subject area. She testified that she did not find her interview with Petitioner to be memorable. She was clear that neither his race or national origin had anything to do with her decision not to hire him; that she was not pressured by anyone not to hire him; and that she knew of no conspiracy to hire African- Americans. Instead of Petitioner, Ms. Arnold hired Sarah Poulos, who also was a white female, because she felt Ms. Poulos had the best mix of qualifications. She emphasized that Ms. Poulos had already taught for a year and she had observed Ms. Poulos teaching. At the time she hired Ms. Poulos, Ms. Arnold believed her to be certified in physics. Petitioner produced a School Board document showing that Ms. Poulos was not certified in physics when she was approved for hire at Gainesville High School by the School Board on August 17, 1998. She was approved by special appointment "out-of-field." Out-of-field hires are not unusual. Teachers hired out of field have to be certified in some other subject and have a limited time to become certified in the additional subject area in which they are hired. Dr. Hall became principal of Gainesville High School after Ms. Poulos was hired there by Ms. Arnold. He was at Ft. Clarke Middle School in May-August 1998. All of Petitioner's involvement with Ms. Arnold and Gainesville High School occurred prior to his August 13, 1998, letter to Superintendent Mazarra and, although the School Board approval of Ms. Arnold's hiring of Ms. Poulos post-dated that letter, Ms. Poulos was hired well before the October 20-22, 1998, Ft. Clarke incident and Petitioner's April 10, 1999, charge of discrimination. Petitioner testified that he drove to Hawthorne High School to apply for a teaching job posted on the School Board's web site; that when the black principal saw him, the principal removed the paper job description from a bulletin board in the school; and that when Petitioner returned to the Human Resources Office, a woman told him the Hawthorne teaching position was still open. Petitioner was not specific when this alleged series of events occurred, and there was credible testimony that the web site lags behind actual hirings. Leila Pratt, Respondent's current Human Resources Director, had assembled business records of the School Board which she summarized in reply to the Florida Commission on Human Relations' investigation of Petitioner's April 10, 1999, charge. At the disputed-fact hearing herein, she testified from this summary 6 that between 1997 and 1999, Petitioner had three times applied to Hawthorne High School and that, sequentially, Hawthorne had hired a white female with appropriate certification who had four years of teaching in Alachua County schools at the time of hire; had hired another white female with appropriate certification who had four years of teaching in Alachua County schools; and had hired a black female with appropriate certification and three years of teaching experience, one year of which had been in Alachua County schools. On February 26, 1999, prior to his charge of discrimination, but after he had been removed from the public school substitute list for cause, Petitioner was interviewed for a substitute teaching job at PACE, a center for troubled girls in Alachua County. He testified that after telephoning Respondent School Board's Offices, the PACE interviewer asked Petitioner to leave; told him "it is with the School Board now"; and declined to tell him what she had learned during the telephone call. Petitioner maintains that PACE is not a county public school or required to use its substitute list and assumed that Respondent prevented his being hired as a private school substitute. One Alachua County public school principal inadvertently hired Petitioner to substitute teach on April 19, 1999, without realizing he had been removed from Respondent School Board's substitute teacher list on October 22, 1998. Because Petitioner, in fact, taught that day, his record was reactivated long enough for the School Board to cut him a paycheck for the time he actually worked. Then his name was immediately removed from the substitute teaching list. Petitioner testified that he interviewed in mid-July 2001, for a science teacher position with Principal of Eastside High School Sandy Hollinger, a white female. Ms. Hollinger testified that she did not look at any of Petitioner's files with Respondent School Board or talk to anyone at the School Board Offices about him. On an average, Ms. Hollinger interviews 20 people a year. She had interviewed throughout the previous school year and into the summer. She was searching for a teacher to work with "at risk students." In her view, teacher certification is just an entry level qualification. She remembered her interview with Petitioner to be congenial and stated that Petitioner had a nice portfolio. However, he had indicated that in the past he had played the harmonica so as to bond with children, and she felt that would be an ineffective "intervention" strategy for dealing with "at risk" students. Petitioner presented an August 8, 2001, rejection letter showing Eastside High School had filled a biology teaching position with someone other than himself. He presented no name or evidence of the race, national origin, or qualifications of the person hired. According to Ms. Pratt, between 1997 and 1999, Ms. Higgins, a white female with appropriate certification and six years of teaching experience in Alachua County, was hired instead of Petitioner to teach biology. Also, a white male, Mr. Passaro, with one year of teaching experience in Alachua County, was hired to teach chemistry instead of Petitioner. Ms. Hollinger believed she hired Mr. Passaro for the biology position for which Petitioner interviewed in July 2001. Petitioner interviewed at Newberry High School for a general science position and claimed that the person already teaching there was not certified. He presented no dates he interviewed or corroboration that the person then teaching was not certified. According to Ms. Pratt, between 1997 and 1999, Petitioner applied twice to Newberry High School for a general science teacher position. Both times, other white males with appropriate certification were hired. One man had one year of teaching in Alachua County. The other man had taught 20 years, four of which were in Alachua County schools. All the educators who testified mentioned that graduate degrees and publications do not guarantee that a candidate will make a good teacher or fit the style or student body of a particular school. Petitioner maintained that he had no problem being hired in counties other than Alachua and alleged a variety of damages for Alachua County's failure to hire him. Indeed, Petitioner has been employed as a teacher in other counties for the greater part of the interim period from October 20, 1998, to the present. In March 1999, Petitioner taught in Marion County until the end of that school year, filling in for a full-time teacher who was on maternity leave. He did not apply to teach there for the 1999-2000 school year. In the fall of 1999, Petitioner was employed to teach physics and integrated science in Palm Beach County. He resigned at the end of the first quarter. He taught as a science teacher in Indian River County for the full 2000-2001 school year. (See Finding of Fact 5). Although Petitioner's foregoing employments in other school districts suggest that he met those other School Boards' respective needs and was the most qualified applicant who applied in those counties at those respective times, they do not prove discrimination against Petitioner by the Alachua County School Board, because they do not compare him to the other applicants applying to the Alachua County School Board or to that Board's needs at any specific time. Petitioner's foregoing employments in other counties from March 1999 to June 1999, from September 1999 to January or February 2000, and from September 2000 to June 2001, demonstrate that he would not have been able to accept, during these periods, a full-time teaching position in Alachua County to cover those periods, without dishonoring those commitments. Further, these other employments mitigate his claim for lost wages during those periods. Petitioner and Respondent have each devoted a great deal of hearing time and space in their Proposed Recommended Orders to Petitioner's employment during the fall semester of 1997-1998, at Trenton High School, Gilchrist County. However, Petitioner's problems with Gilchrist County (i.e., whether his contract was cancelled in December 1997, due to lack of funding or because he was a poor classroom manager) are not part of the instant case. Gilchrist County is a different employer than the one at bar and the Florida Commission on Human Relations has never had an opportunity to consider a charge of discrimination against it. Likewise, the Trenton High School principal was never contacted at any time material to the instant discrimination charge/Petition against this employer by anyone associated with the Alachua County Schools concerning Petitioner. Therefore, neither employment entity was influenced by the other, and Petitioner's entire episode at Trenton High School is irrelevant to these proceedings.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 31st day of May 2002.
Findings Of Fact Because the Division is accepting certain of the Hearing Officer's Findings of Fact, and rejecting others in part or in total, each Finding of Fact in the Recommended Order will be considered separately. Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted in part. Mrs. Kauffman was hospitalized for surgery in 1981 and 1982. There is no evidence that she had been hospitalized during the prior five open enrollment periods. It was after the 1983-84 school year that she decided to make some changes in her retirement system (T. 110) Paragraph 4: Accepted. Paragraph 5: Accepted. Paragraph 6: Accepted in part. Mr. Kunkel accepted the concept that the termination must be a "bona fide termination." He further stated that the acceptance of Ms. Meadows' resignation and her reemployment could be accomplished at the same school board meeting. Paragraph 7: Accepted in part as being only partially correct. The Division rejects the portion as being an incomplete statement of the correspondence in this case between the school board and the Division. Respondent's Exhibit #2, Item 9, states as follows (letter from Joseph E. Cahill to Marilyn Peters, dated December 11, 1985): Your attention is invited to the means of proving actual termination, i.e., a copy of the member's resignation, a copy of the advertised vacancy, evidence of payments for unused annual and sick leave or evidence of loss of unused annual and sick leave, etc. The point to be made is that there must have been an actual termination, not merely a paper transaction purporting to reflect a "termination" and concurrent "reemployment" -- for the purpose of circumventing the spirit and intent of the pertinent statute. Paragraph 8: Accepted. Paragraph 9: Accepted. Paragraph 10: Rejected. In reviewing the facts of a particular fact to determine if there has been a bona fide termination, the Division reviews several factors; a copy of the resignation, a coy of the advertised vacancy for the member's position and "evidence of payments for unused annual and sick leave, or of the loss of unused annual and sick leave due to termination." The review is multi-factoral and not based on any one indicia (Wooten's Deposition Exh. 1 and Exh. 2). Paragraph 11: Accepted in part. Both Meadows and Kauffman had consulted with Mr. Kunkel for legal advice and had had meetings with Dr. Pierce soliciting his cooperation in securing the transfers. Their principals had been contacted concerning whether or not the teachers would be accepted back into their prior positions. The Superintendent had also expressed his willingness to recommend the Petitioners for their former positions. While the school board does the actual hiring and the Superintendent does the recommendations for the hearing, Petitioners had done everything within their power to ensure that they would be hired into their prior positions. Paragraph 12: Accepted. Paragraph 13: Accepted in part. While the Petitioners proceeded with the game plan as agreed to in their meeting with Dr. Pierce in September, 1987, it is evident that the plan was proceeding in spite of statements from the Division that there must be a clear termination and not merely a paper transaction done solely for the purpose of circumventing the spirit and intent of the law (see Respondent's Exhibit 2, Item 9) Paragraph 14: Accepted in part and rejected in part. While the statement of the Hearing Officer is correct that the Petitioners missed two pay periods from December 5, 1987 to January 3, 1988, it is also irrelevant to the issues of the case. While Petitioners apparently terminated employment for the two pay periods, the interest of the Division concerns itself with membership in the retirement systems, either TRS or FRS, and the requirements of the Division necessary to be considered a terminated member of either of those systems. The Division's Interest is not whether the Petitioners are or have terminated employment with the School Board. In this proceeding, the Division has not made a determination as to the validity of the "terminations" or "resignations." Paragraph 15: Accepted. The personnel action forms were initiated by the principals of the two schools in which the Petitioners taught. Ms. Sandra Russell, the principal for Ms. Kauffman signed the personnel action form on December 1, 1987, before the effective date of the resignation. She stated that she would not have signed the form had she not heard from the personnel office that her signing the form was the appropriate thing to do (Tr. 154). Paragraph 16: Accepted. Paragraph 17: Accepted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered effectuating the transfer of Petitioners from TRS to FRS commencing with their reemployment by the county school board. DONE AND ENTERED this 21st day of February, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioners' Proposed Findings Of Fact 1.-19. Adopted in substance. 20.-22. Unnecessary. 23.-52. Adopted in substance. Respondent's Proposed Findings Of Fact 1.-2. Adopted in substance. Not supported by direct evidence. Addressed. Unnecessary. 6.-7. With exception of proposed finding #7 following the first sentence, adopted in substance. 8.-14. Addressed. COPIES FURNISHED: Leslie Holland, Esq. 208 West Pensacola St. Tallahassee, FL 32301 Stanley M. Danek, Esq. Department of Administration 440 Carlton Building Tallahassee, FL 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esq. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 =================================================================
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Respondent has been employed by the School Board as a teacher since 1990. For the 2009-2010 school year, Respondent was employed pursuant to a professional services contract as a kindergarten teacher at Rogers Garden Elementary School (Rogers Garden). She was transferred to Rogers Garden from Wakeland Elementary, where she had taught a pre-kindergarten class during the previous school year. The precipitating cause for the Administrative Complaint against Respondent was that during the 2009-2010 school year, out of the 190 school days when Respondent was expected to be at work, she was absent for at least 95 days.3 The School Board's policy on employee attendance, set forth in Policy 6.2 of the School Board's promulgated Policies and Procedures Manual, has as its basic premise that employees are expected to be present and working at the job site at all times. If an employee is going to be absent from work, authorization is required in the form of sick leave or other approved absence. In general, an employee such as Respondent, accrues ten sick-leave days per ten-month school year. If not used, accrued sick leave accumulates from year to year. "Personal" leave sought for personal reasons, instead of medical reasons, may be requested, and, if allowed, comes out of accrued sick leave. Once an employee runs out of accrued sick leave, the options are either to borrow sick leave from the "sick leave bank," if the employee is eligible, or to request unpaid leave, which may be allowed if the reason is substantiated.4 Under School Board Policy 6.2(2)(b)(2), if an employee is absent even one day without having obtained authorization, the employee is subject to termination. Under the same policy, even if authorization is obtained for an employee's individual absences, those absences can mount to the point that they become "excessive." By the School Board's policy, excessive absenteeism, even though authorized, subjects an employee to termination because of the adverse impact on the school, the students, and the other employees. The School Board policies do not adopt any bright-line test quantifying what constitutes "excessive" absenteeism. Instead, the circumstances are considered in each case. As the Superintendent credibly explained, a uniform standard quantifying excessive absenteeism for all School Board employees would not make sense, because the impact varies depending on the position the employee holds. A school district bears a greater adverse impact from absences by a classroom teacher than from absences by most other types of employees. The classroom teacher's ongoing presence is critical to carrying out the school district's educational mission because of the relationships the teacher builds with his or her students. The adverse impact from teacher absences is probably greatest for a kindergarten teacher, because kindergarten students are most vulnerable to harm from disruption in the classroom routine and teacher changeover. The Superintendent explained the factors he considers when assessing a complaint of excessive absenteeism. He would consider whether the employee's absences exceed average absences for other employees. He would review the employee's overall record, including indicators of performance issues or disciplinary matters. He would consider mitigating circumstances, such as the reasons for the absences. All of these factors would be judged in the context of what position the employee was holding when the absences occurred, so as to consider what adverse impacts were imposed on the school system. Wendy Mungillo, principal of Rogers Garden for the 2009-2010 school year, became concerned about Respondent's attendance by January 2010. The issue was brought to her attention by other teachers who were part of the kindergarten team, because the others were having to pick up the slack. Lesson plans for Respondent's kindergarten class were not always completed to the extent that a substitute could carry them out. Substitutes could not always be arranged quickly enough, so coverage for Respondent's absences had to be provided through the team. By January 15, 2010, Respondent had called in sick on 15 work days, necessitating arrangements for multiple substitutes. No medical documentation was requested for the sick leave up to this point, because the Rogers Garden principal was trying to give Respondent the benefit of the doubt, as is her common practice. Meanwhile, during this first half of the school year, Ms. Mungillo was attempting to evaluate concerns about Respondent's performance in the classroom. The principal had issued a Notice of Return to Documentation Program to Respondent on September 21, 2009, identifying numerous areas of concern. A Notice of Return to Documentation Program is issued when a principal has concerns about a teacher's performance in the classroom. The notice triggers a process of formal observations in which the principal schedules dates to attend class to observe and evaluate the teacher while teaching in the classroom. For each classroom observation, the principal prepares specific evaluation and feedback, in writing, and then conducts and records a post-observation conference with the teacher. After Respondent was placed on the documentation process, Ms. Mungillo was able to schedule and carry out only one 30-minute in-classroom observation on November 19, 2009, for which a post-observation conference was conducted on December 17, 2009. A follow-up observation was supposed to take place on January 15, 2010, according to Ms. Mungillo's notes on Respondent's attendance, but Respondent called in sick that day. The next time the principal attempted to schedule an observation, she described what happened in a written complaint, as follows: On Tuesday, February 9th, I met with Ms. Rainville to discuss several discipline referrals she had written that were inappropriate. I discussed with her that I felt like she needed help in her classroom with classroom management. At that time I also set up an observation with her for Friday, February 12th. I told her I wanted to see her teaching math. When I asked her when her math time was, she could not tell me[,] only that it was after lunch. Later that day she wrote me an email that stated the following: "Wendy, I just realized that the day we picked is the school Valentine's Day. I also have company coming from Brazil today. I would rather schedule this next week, please, Brook " Ms. Mungillo responded to Ms. Rainville's request to cancel and reschedule the classroom observation by stating that she was "not willing to change the date." Ms. Mungillo noted that there was no school-wide Valentine's Day activity planned and asked what Respondent's company from Brazil had to do with her teaching duties. Respondent did not directly respond; instead, she called in sick for February 10, 11, and 12, 2010. In effect, she unilaterally cancelled the scheduled observation after she was unsuccessful convincing Ms. Mungillo to reschedule it. Respondent also missed, with virtually no notice, an important exceptional student education (ESE) staffing meeting, which had been scheduled for February 10, 2010. Respondent was supposed to meet with persons from the ESE department and with the parents of one of Respondent's students to address ESE services for the student or problems the child was having. Attendance of all participants at these meetings is very important, not only because of the need to timely address the subject of the meeting, but, also, because it is a challenge to coordinate the scheduling of these meetings. Respondent offered no explanation for her absences on February 10, 11, and 12, 2010, either then or at the final hearing. The implication is that she was not at work, because she wanted to spend time with her company from Brazil, while avoiding her classroom observation. Incidentally, her absence caused, at a minimum, disruption to the ESE program, delay in addressing the needs of one of her students, and inconvenience to the parents and others involved in scheduling the meeting. Respondent's absence on February 12, 2010, was of particular concern to Ms. Mungillo. Ms. Mungillo saw a pattern to Respondent's absences, which were timed to avoid scrutiny of Respondent's classroom performance. Ms. Mungillo reasonably became concerned that this pattern was more than just a coincidence. Ms. Mungillo was aware that Respondent had been returned to the documentation process at Wakeland Elementary in the prior school year. At a conference in April 2009, the principal at Wakeland Elementary gave Ms. Rainville a Notice of Return to Documentation Program, identified the areas of concern with Ms. Rainville's classroom performance and outlined expectations. A memorandum summarizing that conference noted that a formal observation would not take place yet, but that a meeting would be held on May 22, 2009, to review Ms. Rainville's progress. However, on the morning of May 22, 2009, before the progress-review meeting could take place, Respondent had a fall in her classroom. As she explained it, she fell forward over the back end of a rocking chair and hurt her head and her right knee (where she had had knee replacement surgery less than a year earlier). Respondent filed a workers' compensation claim and did not return to work for the remainder of that school year. Because of budget cuts, Respondent's position at Wakeland Elementary was eliminated, and she transferred to Rogers Garden for the beginning of the 2009-2010 school year. Since Respondent never went back to the classroom at the end of the 2008-2009 school year, the Wakeland Elementary principal was never able to evaluate Respondent's classroom performance. There is no performance evaluation in evidence for Respondent for the 2008-2009 school year. Ms. Mungillo attempted to continue the documentation process started at Wakeland Elementary, but as noted, was only able to conduct one 30-minute classroom observation; the next two times Ms. Mungillo tried to schedule another classroom observation, Ms. Rainville called in sick. As it turned out, February 9, 2010--the day Respondent asked to cancel the scheduled February 12, 2010, classroom observation because of Valentine's Day and company from Brazil-- ended up being Respondent's last day at work to teach her kindergarten class in the 2009-2010 school year. So just like in the prior school year at Wakeland Elementary, Respondent's absences interrupted the Rogers Garden principal's ongoing effort to evaluate Respondent's classroom performance. Just as for 2008-2009, no performance evaluation is in evidence for Respondent for the 2009-2010 school year. On Friday afternoon, February 12, 2010, Ms. Rainville contacted the claims adjuster from her 2009 workers' compensation claim. She told him she wanted to re-open her claim for re-treatment because her right knee was hurting. Following a holiday, on February 16, 2010, Ms. Rainville was authorized to have her knee checked. She saw a physician who referred her to an orthopedic specialist and imposed interim work restrictions that would have allowed Respondent to return to work only if she could stay seated there. This was not reasonably possible for a kindergarten teacher, so beginning on February 16, 2010, Respondent was authorized to take workers' compensation leave. On February 25, 2010, Respondent went to the orthopedic specialist to whom she was referred, Dr. Shapiro. He examined Respondent and determined that she had no work-related injury. He also determined that Respondent was able to return to work without any restrictions, despite her knee issue. Dr. Shapiro conveyed the following work instructions for Respondent to the School Board's Risk Management Department: "No Restrictions/full duty work release to job position held prior to this injury." Dr. Shapiro also reported that Respondent has "[a]chieved Maximum Medical Improvement (MMI)" and that Respondent was "[a]ble to return back to work on Monday [March 1, 2010]." Respondent refused to acknowledge these instructions, because she disagreed with the doctor. Despite being medically cleared to return to work, Respondent called in sick on Monday, March 1, 2010, and again on Tuesday, March 2, 2010. Ms. Mungillo called Respondent on Tuesday morning to advise that medical documentation would be required for her absences that week. Ms. Mungillo also told Respondent that she had to know Respondent's intentions for her employment for the rest of the year; if Respondent was going to remain absent, Ms. Mungillo could arrange for a permanent substitute, instead of the multiple substitutes they had been scrambling to arrange on an ad hoc basis each time Ms. Rainville called in sick. On March 2, 2010, Ms. Mungillo submitted her concerns about Respondent's absences, along with Respondent's attendance records thus far that school year, to Debra Horne in the Manatee County School District's Office of Professional Standards (OPS). The OPS is the office that investigates matters of concern involving employees, if the matters could lead to suspension without pay or termination of employment. The OPS initiated an investigation that same day. Respondent's attendance records submitted by Ms. Mungillo to the OPS showed that through March 2, 2010, Respondent had been absent from work on 29 days when she was expected to be at work; on 28 of those days, she should have been teaching her kindergarten class. Instead, 11 different substitute teachers covered Respondent's kindergarten class. When substitutes could not be found quickly enough, other teachers had to provide coverage in addition to their own teaching responsibilities. In an effort to obtain the medical documentation required by Ms. Mungillo for the week of March 1, 2010, on March 4, 2010, Ms. Rainville went to see Dr. Alan Valadie, who had performed knee replacement surgery on Ms. Rainville's right knee in June 2008. He diagnosed "patellar clunk syndrome," which he described in his testimony as development of scar tissue that can occur in patients who had knee replacement surgery. This scar tissue catches at a point in the range of knee motion and can cause a clicking sound, with or without pain, at that point in the range of motion. The treatment for patellar clunk syndrome is more knee surgery to remove the scar tissue. Dr. Valadie concluded that Ms. Rainville should get the follow-up knee surgery. He filled out a Family Medical Leave Act (FMLA) application form for Ms. Rainville so that she could apply for leave from work in order to have the knee surgery and allow time for post-surgical recovery. On the FMLA application form completed by Dr. Valadie, he responded "no" to the question asking whether the employee is unable to perform any of her job functions due to the condition. However, he indicated that after surgery, she would need a recovery period when she would not be able to work. Dr. Valadie did not indicate on the FMLA application form whether the knee surgery he thought Ms. Rainville needed had already taken place or was scheduled for some future date. However, he specified that Ms. Rainville would require leave from work beginning on March 1, 2010. No ending date was provided despite the form calling for both a beginning and ending date for the requested leave. In total, the application was incomplete and confusing. If Ms. Rainville's pre-surgery knee condition did not render her unable to perform any of her job functions, then the only possible reconciliation of the responses was that she had had her surgery on March 1, 2010, but the form did not indicate that was the case. Separate from the FMLA form, Dr. Valadie also filled out a "Work/School Status Note," known as a "doctor's note," indicating that he had seen Ms. Rainville on March 4, 2010, and instructing as follows: "Patient is to be off work starting 3-1-2010 until furthur [sic] notice." As confirmed by Dr. Valadie's deposition testimony, both the FMLA form and the doctor's note were misleading. Dr. Valadie made clear that he thought he was filling out both the FMLA form and the doctor's note so that Ms. Rainville could arrange for leave in order to have the knee surgery and to have a period of time off from work after surgery for recovery. But Ms. Rainville did not have her knee surgery until July 9, 2010. Neither Dr. Valadie, nor any other physician, offered any medical justification for Dr. Valadie's statements in the FMLA application and the doctor's note that Ms. Rainville needed to be excused from work beginning on March 1, 2010. Instead, the only evidence in the record related to Ms. Rainville's medical status on March 1, 2010, was that Ms. Rainville was fully cleared medically to return to work. Dr. Valadie did not even see Ms. Rainville so as to diagnose the condition he said needed surgery until March 4, 2010. When he saw Ms. Rainville then, his medical judgment (like that of Dr. Shapiro) was that her knee condition did not interfere with her performing any of her job functions, as he indicated on the FMLA application. When Ms. Rainville submitted the FMLA application form filled out by Dr. Valadie, the school district staff handling those applications began calling Ms. Rainville for additional information, because the form was incomplete and seemingly inconsistent. Most significant to an FMLA request, the application lacked an end date, and it also lacked specific information on when the surgery had been done or was scheduled, so as to justify the beginning date. The staff attempted to get this information from Dr. Valadie, through Ms. Rainville. After several weeks, Ms. Rainville informed staff that Dr. Valadie had said the "end date" should be May 28, 2010, which coincides with the maximum 12-week leave allowed under the FMLA for this kind of request. Dr. Valadie was supposed to submit written confirmation of the medically necessary end date, but there is no such written confirmation in the record, and it appears that none was ever submitted. Ms. Rainville never responded to the staff's telephone requests for information regarding the surgery that was the basis for the leave request, such as whether it had occurred yet, and, if so, when. After these unsuccessful efforts to obtain complete information through telephone calls with Respondent, on May 5, 2010, Respondent was given written notice of the continued deficiencies in the FMLA application and documentation with one final chance to provide the missing information. When no revised application or additional information was received, on May 17, 2010, the FMLA request was finally denied. After Respondent conveyed an "end date" for her leave request, which she said she obtained in a phone conversation with Dr. Valadie, even though no written confirmation had been received yet from Dr. Valadie, on March 11, 2010, Ms. Mungillo signed an authorization for Respondent to take a regular (non-FMLA) unpaid leave of absence from school from March 1, 2010, until May 28, 2010. This allowed Ms. Mungillo to hire a permanent substitute for Respondent's kindergarten class. Ms. Mungillo authorized this leave because of the apparent medical necessity indicated by Dr. Valadie, even though the explanation remained confusing and inconsistent. Ms. Mungillo learned for the first time at the final hearing that Ms. Rainville did not have knee surgery until July 9, 2010, and that as of the final hearing date (approximately one month into the 2010-2011 school year), Ms. Rainville claimed she had not yet recovered to the point of being able to return to work. Ms. Mungillo testified credibly and without hesitation that she would not have approved Ms. Rainville's leave of absence from March 1, 2010, if she knew that Dr. Valadie did not think any leave of absence from work was medically necessary until the knee surgery was actually performed, which was not until July 9, 2010. Since the authorization for Ms. Rainville's leave of absence was obtained through misleading statements, that leave of absence should be considered unauthorized. At the very least, the leave of absence for the period of March 1, 2010, through May 28, 2010, was insufficiently documented with evidence of medical necessity for the entire period of time.5 Finally, to complete the school year, Pat Barber, Ms. Rainville's union representative, submitted another sick leave request for Ms. Rainville from June 1, 2010, through June 10, 2010, the last day of school. Ms. Mungillo gave her conditional approval, subject to receipt of a doctor's certification within five days. Ms. Barber submitted a prescription for Ms. Rainville apparently signed by Daniel Small, M.D., of the Sarasota Arthritis Center, stating as follows: "Off work 5/28/10?6/10/2010 due to continuing health problems. She is unable to perform her duties as a teacher at this time." No medical documentation or additional information was provided, such as when Ms. Rainville saw Dr. Small, what "health problems" were referred to, or how they interfered with Ms. Rainville's duties as a teacher. While Ms. Rainville's testimony at final hearing seemed to indicate that she was suffering from knee pain, she did not explain why she went to a different doctor, instead of the doctor whose care she was under for her knee condition and who ultimately performed the surgery. Upon the conclusion of the OPS investigation into Respondent's absenteeism, the results were presented to a panel comprised of persons within Respondent's chain of command, and the panel unanimously recommended to the Superintendent that Respondent's employment be terminated for violating the School Board policy against excessive absenteeism. Though not bound by the panel's recommendation, the Superintendent concurred and recommended that Respondent be terminated from employment. The Superintendent reasonably considered Respondent's overall record. While Respondent had favorable evaluations and professional development plans up through May 2008, the Superintendent took note of the performance concerns over the last two school years. He reasonably considered the mid-stream performance evaluations that were being attempted under the Return to Documentation process at both Wakeland Elementary and Rogers Garden, both of which were thwarted by Respondent's absences for the remainder of each school year. The Superintendent also took note of two written disciplinary reprimands issued to Respondent, one in December 2008 at Wakeland Elementary and the next in January 2010 at Rogers Garden. The Superintendent also reasonably considered Respondent's history of absenteeism as far back as records were available, beginning in the 1993-1994 school year after Respondent had been teaching for three years. Many of these years reflect substantially more than the amount of paid leave time Respondent could have been entitled to, even if she had taken no paid leave whatsoever during her first three years of employment. For example, in school year 1999-2000, Respondent used more than twice the number of sick leave days than she accrued that year. She did not have sufficient sick leave days accrued from prior years, because she was docked for two days' pay. Again in the very next year, Respondent took more days off than she was entitled to and was docked for another four days of pay. This pattern continued with Respondent's pay docked for excess absences beyond authorized paid leave in 2001-2002, 2003-2004, 2006-2007, and every year since then. The magnitude of Respondent's absences in prior years pales in comparison to the 2009-2010 school year. Indeed, the testimony of several witnesses with many years of experience handling these types of matters, including Superintendent McGonegal, was that Respondent's absences greatly exceeded most anything they had ever seen before. The absences were described as "at the top" in terms of excessiveness. Respondent attempted to establish that she was being singled out for harsher treatment than others who had also been absent a lot. However, no credible evidence was presented of any incidents of absenteeism that were sufficiently similar to Respondent's to be considered comparable. That the School Board may have taken no disciplinary action against employees who took more than ten days of sick leave in a single school year, fails to establish any inequity in the proposed treatment of Respondent here. Respondent's 2009-2010 absences are of a magnitude that is nearly ten-fold more than the attempted comparison. The fact remains that Respondent's 2009-2010 absences, even if all authorized legitimately (as was found not to be the case), easily meet or exceed any reasonable definition of excessive. No similar case was shown to exist. The Superintendent also reasonably considered the progressive discipline approach apparently incorporated into the Collective Bargaining Agreement (CBA) between the School Board and MEA. The Superintendent explained that the progressive discipline policy, while preferred, is not required as a lock-step approach in every case. If the idea of progressive discipline is to allow an employee to conform their conduct before receiving harsher consequences, that would not have worked here, since most of Respondent's absences were supposedly due to legitimate medical issues. If Respondent was truly unable to come to work, warning her that she may be terminated if she continued to be absent, would not change her inability to come to work. In addition, Respondent made it impossible to address concerns about her mounting absences in performance evaluations because Respondent kept calling in sick when her performance evaluations were scheduled. Finally, the Superintendent reasonably considered and rejected the lesser disciplinary step of suspension without pay, because Respondent had already chosen to be absent without pay. Under these circumstances, the Superintendent reasonably determined that he had the discretion to proceed to termination within the parameters of the progressive discipline policy. No evidence was presented to establish any different requirement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Manatee County School Board, enter a Final Order terminating Respondent, Brook Rainville's, employment. DONE AND ENTERED this 28th day of October, 2010, 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 28th day of October, 2010.
The Issue The issues are as follows: (a) whether Respondent committed an unlawful employment action by discriminating against Petitioner based on his age and gender in violation of Section 760.10, Florida Statutes; and (b) whether Respondent retaliated against Petitioner for filing a grievance.
Findings Of Fact Respondent is a public taxing district responsible for educating Bay County's children from pre-kindergarten through high school. Respondent employs roughly 6000 instructional, support, and administrative personnel. Respondent's instructional employees are covered by Respondent's anti-discrimination policy and a collective bargaining agreement (CBA) between Respondent and the local bargaining unit, the Association of Bay County Educators (ABCE). The CBA governs many aspects of the employment relationship between the District and its teachers, including procedures for involuntary transfers and lay offs due to funding issues. Respondent's schools are divided as follows: (a) high school includes ninth grade through twelfth grade; (b) middle school includes sixth grade through eighth grade; and (c) elementary school includes kindergarten ages through fifth grade. Petitioner is a 51-year-old male. He began working for Respondent as a teacher in 1990. For the 2008/2009 school year, Petitioner worked as a teacher at Respondent's Haney Technical High School and Center (Haney). At that time, Haney operated two concurrent programs: a technical education program and a high school program. Petitioner taught physical education and science in the high school program. During the 2008/2009 school year, Respondent decided to eliminate the Haney high school program due to budget cuts and lower student census. Respondent also made the decision to combine the Haney technical education program with an adult education program from another closed school. The Haney high school program was not Respondent's only major adjustment for economic reasons. Respondent also closed five other schools and cut over 100 positions. This process resulted in 154 displaced teachers. All of Haney's high school teaching positions, including Petitioner's, were to be eliminated. Sandra Davis, principal at Haney, asked for voluntary transfers. No one in the high school program volunteered to transfer. Ms. Davis requested that certain high school teachers remain at Haney to teach in the restructured program at Haney. Ms. Davis made the decision to keep the teachers at Haney based on consideration of the projected need in the restructured Haney program for the upcoming year and after considering the teachers' certifications and experience. Teachers with continuing contracts or professional service contracts, who were not to remain at Haney, were placed in the displaced teachers' pool. The pool included Petitioner and all teachers who worked in schools or programs that Respondent intended to eliminate. There was a meeting on April 20, 2009, between Superintendent William Husfelt, the District's Personnel Department, and the displaced teachers in the District. At the meeting Respondent explained the procedures for transferring/reassigning displaced teachers. The displaced teachers were provided with a list of all of Respondent's vacant positions. Respondent then asked each displaced teacher to list their top three positions. Every teacher was granted an interview for their top three positions. Petitioner selected positions at Hiland Park Elementary School, Lynn Haven Elementary School, and Mowat Middle School. According to Petitioner, he listed the middle school because it was close to his home. He was granted and attended interviews for all three positions. Petitioner recently obtained his certification in elementary education. However, he had no recent substantive experience teaching elementary students. The principals who interviewed the displaced teachers selected the people to fill vacant positions at their respective schools on a competitive basis. During one such interview, it became apparent that Petitioner was not as familiar with the method of teaching reading as more experienced teachers and/or even other recently certified elementary education professionals. The vast majority of Petitioner's experience was teaching high school students. He was used to working with students more similar in age and behavior to middle school students. The principals who interviewed Petitioner did not select him to fill any of his top three positions. At the end of this interview/selection process, there were 34 teachers who were not selected for any position, including Petitioner. During the hearing, Petitioner confirmed that he did not believe any discrimination or retaliation took place prior to and through the time of the interviews. Petitioner understood it was a competitive selection process with over 100 applicants. On or about April 28, 2009, Respondent conducted a second meeting with the remaining displaced teachers. At the meeting, displaced teachers were again asked to list their top three choices for placement from the remaining vacant positions. Petitioner listed Hiland Park Elementary, Tommy Smith Elementary, and Lucille Moore Elementary. Superintendent considered the displaced teachers' lists, their certifications and experience, the vacant positions, and other factors. At no time did Respondent promise to place a displaced teacher in a position of the teachers' choice. Superintendent Husfelt placed Petitioner at Everitt Middle School, teaching science. Petitioner was qualified to fill the position, but it was not one of his choices on his second top-three list. Female applicants were appointed to fill all of the positions at the elementary schools. On or about May 11, 2009, Petitioner and Ms. Davis met to discuss Petitioner's informal grievance relative to his involuntary transfer. Ms. Davis denied the informal grievance. On May 26, 2009, Petitioner filed a formal Grievance with Ms. Davis regarding his involuntary transfer/reassignment. She denied the grievance. On June 10, 2009, Petitioner and Superintendent Husfelt's designee, Pat Martin, had a Step II grievance meeting. Respondent subsequently denied Petitioner's grievance. Sometime in June 2009, Petitioner applied for five vacant positions at Hiland Elementary School. There were fifth grade vacancies, two fourth-grade vacancies, and one third-grade vacancies. Petitioner received an interview for these positions. However, all five positions were filled with female teachers. The involuntary transfer did not cause Petitioner to suffer any loss of pay, benefits, or seniority. The new position was approximately five miles away from his former position. During the hearing, Petitioner testified that he researched the Internet to determine the percentage of male teachers in Respondent's elementary schools, kindergarten through grade five. According to Petitioner, four percent of the teachers are male. Respondent presented evidence that approximately 11.58 percent of its elementary school teachers, kindergarten through sixth grade, are male. These raw statistics, standing alone, are not competent evidence that Respondent is intentionally excluding male teachers in its elementary schools. Petitioner admitted during the hearing that he had no evidence regarding the age of Respondent's elementary school teachers, male or female. Therefore, there is no evidence of age discrimination. Petitioner stated at hearing that the transfer to the middle school caused him to suffer an adverse action because industrial air pollution in the area caused him to take more sick leave than when he taught at Haney, about five miles away. This argument has not been considered here because Petitioner raised it for the first time during the hearing and because Petitioner had no competent medical evidence to support his claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 June, 2010. COPIES FURNISHED: Robert Christopher Jackson, Esquire Harrison, Sale, McCloy, Duncan & Jackson, Chtd. 304 Magnolia Avenue Panama City, Florida Gerry D. McQuagge 1608 Georgia Avenue 32401 Lynn Haven, Florida 32444 Jerry Long, Ed. D. 803 Skyland Avenue Panama City, Florida 32401 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether Petitioner is entitled to a permanent Florida Educator's Certificate.
Findings Of Fact Petitioner was born on May 25, 1976. She was educated predominantly in the Tampa Bay area, having attended two years of elementary school, all of middle school, and all of high school in Largo. Petitioner is Hispanic and conversant in Spanish, which is the first language that she learned at home, but her primary language is now English, which she speaks fluently and without accent. Petitioner attended the University of South Florida (USF), from which she graduated on July 1, 1998, with a bachelor of science degree and a 3.3 grade point average. She majored in English education and completed the state-approved teacher education program for English certification for grades 6-12. While attending USF, Petitioner participated in an internship under the supervision of a reading teacher with 11 years' teaching experience. During the internship, which ran from January to April 1998, Petitioner taught language arts and drama to Hillsborough County middle-school students who were predominantly Hispanic. Petitioner's supervising teacher gave her two employment references: the first to the Hillsborough County School District and the second to the Pinellas County School District. In the first reference, which is dated April 5, 1998, the supervising teacher evaluated Petitioner as "excellent" in all categories. The categories are "appearance," "English usage," "cooperation and dependability," "emotional stability," "mature judgment," "leadership," "ability to get along with others," and "ability to work with children in a friendly and understanding way." In her remarks, the teacher stated: "We will be lucky to have her." The teacher enthusiastically recommended that Petitioner be employed as a substitute. In the second reference, which is dated September 18, 1998, the supervising teacher assigned Petitioner the highest score in all categories except "ability to discipline," "professional attitude & growth," and "sympathetic understanding and treatment of students," for which the teacher assigned Petitioner the second highest rating. In response to a question if she know why Petitioner should not work with students, the supervising teacher responded, "Absolutely not." In response to a question if she would employ Petitioner, the supervising teacher stated that she would. Under additional comments, the supervising teacher added: "[Petitioner] motivated students on every level. She has the management skills of a ten year teacher." This case arises out of Petitioner's employment during the summer of 1998 as a residential counselor with the Summer Migrant Institute at the University of South Florida (Migrant Institute). This was Petitioner's first job after college. Her prior employment consisted of working at Walgreens pharmacy, escorting USF teachers and students to ensure their safety while walking the USF campus at night, working in the USF Marriott cafeteria, and serving as a substitute teacher in Hillsborough and Pinellas counties. Her present employment is in customer service at the Home Shopping Network. The Migrant Institute is a six-week program sponsored jointly by USF and the Hillsborough County School District. Each summer, eligible middle- and high-school students from throughout Florida live in USF dormitories and attend remedial academic instruction in USF classrooms. The Migrant Institute employs teachers and residential counselors, among other staff. During the summer of 1998, the teachers, residential counselors, and three administrators in charge of the program all resided in the dormitories with the students. The residential counselors performed a variety of supportive roles, such as serving as liaisons with the parents, advisors to the students, and assistants to the teachers. The administrators assigned female residential counselors to female students and male residential counselors to male students, at about a 1:10 ratio. Residential counselors, but not teachers, were required to eat their meals with the students in the cafeteria. There is some dispute, even among the administrators, as to what the administrators told the residential counselors they could and could not do with the students. The record suggests that the assistant director, in particular, was somewhat ambitious in his description of the guidelines and prohibitions that the administrators gave the residential counselors. Of course, nothing in the record suggests that Petitioner lacked the common sense to recognize that she could not voluntarily have sexual contact with a 13-year-old male student. The record is less developed as to what the Migrant Institute rules required Petitioner to do if a 13-year-old male student kissed her, once or even twice. However, the evidence does not support, and even contradicts, the assertions of the administrators that the rules of the Migrant Institute prohibited any contact whatsoever between staff and students of the opposite sex. The student involved in this case is A. M., who was born on August 21, 1984. He had failed most of his classes during the prior school year. He attended the Migrant Institute at the suggestion of his school counselor, who hoped that he could acquire sufficient skills to earn a promotion to the next grade. A. M. took five or six classes during the six-week summer program and earned grades of Bs, Cs, and Ds in his courses. A. M.'s first four weeks at the Migrant Institute passed without incident. In the fourth week, A. M. met Petitioner. Although she was not his residential counselor, A. M. approached Petitioner one afternoon while walking to the dormitories from his last class. During this initial conversation, Petitioner and A. M. spoke only about baseball. However, later in the fourth week, Petitioner and A. M. spoke about other matters, such as his grades and personal problems that he was having that interfered with his academic performance. A. M. missed his father, who was working in Mexico. During the fourth week, Petitioner asked A. M.'s teacher to release him from class, so that Petitioner and A. M. could talk about his problems and academic performance. One day, during the fourth week, after Petitioner and A. M. had spoken three or four times, Petitioner and A. M. happened to encounter each other in a stairwell in the dormitory. It was late in the afternoon after the recreation period, just before the students were to prepare to eat supper. Someone had directed Petitioner to find another boy. After she had found him, Petitioner was climbing the stairs to return to her room when she met A. M. walking down the stairs. Petitioner and A. M. spoke for about a minute on the stairs. Then, without warning, A. M. kissed Petitioner briefly on the lips. Completely surprised by A. M.'s behavior, Petitioner pushed him hard, saying, "What the fuck are you doing?" Obviously unhurt by the push and unoffended by the language, A. M. replied that Petitioner had nice lips. She ignored A. M.'s impertinent comment and warned him never again to misbehave in this manner. A. M. apologized and said that he knew he should not do that. Petitioner added that she did not want to get into trouble or be fired from the program, and A. M. said that he understood. Due to her concerns that she would get into trouble for getting kissed and pushing and swearing at a student, Petitioner decided not to report the incident to the administrators. The next time Petitioner saw A. M. neither of them said anything about the incident, and their relationship returned to how it had been prior to the incident. On one other occasion, Petitioner removed A. M. from class to talk to him. On one occasion, Petitioner sat next to A. M. in the cafeteria and ate lunch with him. Two or three days after the stairwell kissing incident, Petitioner encountered A. M., again late in the afternoon. After having walked her students back to their dormitory following class, Petitioner returned to the classroom building to tutor some boys in a study hall. Knowing Petitioner's teaching background, someone had asked her to tutor the boys because, the prior day, one of the boys' tutors had left the program to return to Mexico. A. M. was among the boys in the study hall. For about 45 minutes, Petitioner tutored the boys, but A. M. was disruptive for the entire time, slamming books and throwing paper. Petitioner told him to stop being disruptive and do his work, but he ignored her. Unable to summon assistance, because she would be leaving the study hall unsupervised, Petitioner tried to deal as best she could with A. M., who was a reasonably large, well developed boy. At the end of the study hall, Petitioner dismissed the other students for dinner, but told A. M. to remain so she could speak to him. Petitioner told A. M. that she did not appreciate his behavior and that other students had a right to learn. Petitioner and A. M. were both sitting, facing each other. Suddenly, A. M. leaned over and kissed Petitioner briefly again. Petitioner was upset, although not angry. She said that they had spoken about this before, and he needed to consider the position in which his behavior left both of them. A. M. again agreed not to attempt this behavior. Again, Petitioner did not report the incident due to concerns that she would get into trouble. It is difficult to describe Petitioner's characterization of these two incidents. At the hearing, Petitioner seemed somewhat shy and even intimidated. In her dealing with the authority represented by the persons at the hearing, Petitioner seemed a very young 24 years old and presumably was an even younger 23 years old during the summer of 1998, as she credibly claims to have felt uncomfortable with the three administrators. On balance, the most compelling view of all of the evidence is that Petitioner felt that A. M.'s behavior was a relatively minor annoyance--a product of an otherwise-harmless crush that he had on her and, if revealed, a potential source of trouble for her with her supervisors. Regardless of her handling of A. M.'s advances, Petitioner unwisely did not discourage his flirting, as she admits even to have engaged in some undescribed flirting herself with A. M., "explaining" that he had told her that he was 16 years old. On Sunday, July 19, the director of the Migrant Institute summoned Petitioner to his room to discuss with him, the assistant director, and the residential counselor supervisor reports that they had heard that Petitioner had an improper relationship with A. M. The director, Patrick Doone, was a USF employee. For the most part, he delegated responsibility for the residential counselors to the assistant director, Sundy Chazares, an assistant principal of a high school within the Hillsborough County School District, and the residential counselor supervisor, Rosie Mendez, also a USF employee, who had been a residential counselor for the preceding seven years before becoming the residential supervisor in the summer of 1998. The meeting consisted of two parts. In the first part, which lasted 15 minutes, Mr. Doone began by asking Petitioner if there was "anything going on" between her and a student, possibly naming A. M. Petitioner said that there was not. Mr. Chazares then took over, saying that he knew that A. M. and Petitioner had kissed. Petitioner admitted that she and A. M. had kissed, but added, "it's not the way you think it is." The meeting quickly became confrontational, with Mr. Chazares and Ms. Mendez loudly making accusations, rather than asking questions and giving Petitioner a chance to explain. Illustrative of the level of discourse was Ms. Mendez's rhetorical question, "So you like 14- year-old boys?" Petitioner began to cry and did not say anything else. Mr. Doone then told Petitioner to return to her room, which she did. After a brief discussion among the three administrators, they decided to terminate Petitioner from the Migrant Institute program that night. Mr. Doone summoned Petitioner from her room and told her, "Pack up your bags and leave the premises as soon as possible." After packing her clothes and saying goodbye to the girls whom she had supervised, Petitioner left the USF campus that evening and did not return, nor did she have further contact with A. M. As a result of her termination from the Migrant Institute program, Petitioner lost the job that she had been given to start teaching fulltime in the Hillsborough County School District in the fall of 1998. On September 14, 1998, Petitioner completed an application for a teaching position with the Pinellas County School District. Submitted the next day, the application discloses the employment with the Migrant Institute. Petitioner answered "no" to the question, "Have you ever been suspended without pay, or dismissed from employment or resigned while an investigation was in progress for possible disciplinary action?" The declaration above Petitioner's signature states in part: "I declare that the answers given by me to the foregoing questions and statements are true and correct without pertinent omissions." At the time that she responded to this question, Petitioner was represented by counsel concerning the incidents of the summer of 1998. However, the Administrative Law Judge excluded evidence of reliance upon advice of counsel. Petitioner testified that she felt that a confidentiality directive issued by a Hillsborough County School District investigator precluded the disclosure of her termination, but this explanation is inadequate. If Petitioner had developed evidence of reliance upon advice of counsel, the evidence might have been mitigative, but not entirely exculpatory because such reliance must be justifiable. The application squarely asked whether the applicant had ever been terminated, and Petitioner failed to answer the question. No legal advice can overcome these simple facts. The incidents during the summer of 1998 do not constitute gross immorality or moral turpitude. These incidents do not constitute personal conduct that seriously reduces Petitioner's effectiveness as an employee of the school board. These incidents do not constitute a violation of any of the rules cited in the proposed recommended order of Respondent. Petitioner did not kiss A. M., but was kissed by him. Petitioner mishandled the misbehavior of A. M. by not reporting it to one of the administrators, at least by the second occasion, although it appears likely that Petitioner justifiably feared that she might lose her job, even if she had reported the misbehavior after the first incident. In any event, Petitioner clearly did not enter into a sexual relationship with a 13-year-old student. The omission of the termination from the Pinellas County School District application was material and dishonest. By answering the question in the negative, Petitioner made a fraudulent nondisclosure of information that is crucial to the hiring decision that any school district must make. Lying on this application denied Petitioner's prospective employer of the right that it has to learn of material facts concerning job applicants, weigh this information, and then arrive at an informed employment decision.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order granting Petitioner a Florida Educator's Certificate. DONE AND ENTERED this 26th day of June, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 26th day of June, 2000. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 B. Edwin Johnson Attorney at Law 1433 South Fort Harrison Avenue Suite C Clearwater, Florida 33756 J. David Holder Law Offices of J. David Holder, P.A. Post Office Box 489 DeFuniak Springs, Florida 32435
Findings Of Fact The Respondent, Steven T. George, began teaching in the Bay County school system in the fall of 1977. He was employed as a physical education teacher and as a coach. The Respondent has had an exemplary record as an instructional employee of the Bay County School Board until he encountered personal problems during the 1988-89 school year. During the 1988-89 school year, he was employed as a physical education teacher and assistant football coach at Mosley High School. During that school year, his supervisor, Assistant Principal Sarah Cooper, observed his performance deteriorate unexpectedly and in a way which was out of character from his previous level of performance and demeanor. She found occasions when he was not properly supervising his class and when he had not done lesson plans, as required by the school administration. Ms. Cooper had to assist the Respondent in developing a semester examination, however, he ultimately used an examination given to him by another teacher. Thereafter, he administered the examination but did not complete the grading of it and failed to complete his grade book, which responsibility was ultimately performed by Ms. Cooper. Additionally, during the 1988-89 school year, the Respondent was observed to become increasingly isolated from other members of the faculty. His behavior became characterized by unpredictability, excessive arrogance, argumentativeness, anger and verbal aggression, which was entirely different from the personality traits which he had exhibited and which his co-workers and supervisors had observed since he had been with the school system. Indeed, female teachers in the physical education department were reluctant to be alone in the workroom with him because of the advent of these objectionable personality traits. The Respondent, during this period of time, was undergoing a divorce, or the aftermath of one, which involved a very emotional custody dispute with his former wife concerning custody of their daughter. During the 1988-89 school year, he was observed to repeatedly burden his co-workers and school administrators with the details of his personal problems and to exhibit uncharacteristic and rather severe emotional outbursts of both anger and grief. After being counseled by his supervisors concerning what they believed to be rather bizarre behavior, when measured against his prior performance and demeanor in other school years, the Respondent ultimately voluntarily admitted himself to Charter Woods, a psychiatric treatment and evaluation facility. The Respondent spent approximately 5-1/2 months in that facility, underwent treatment in response to his supervisor's advice to "get some help", and returned to Mosley High School to complete the 1988-89 school year. For the remainder of that school year, the Respondent satisfactorily assumed and carried out all of his responsibilities and performed his work as a teacher in good fashion. His temperament and demeanor had returned to that of the friendly and caring teacher and co-worker which he had formerly been before his personal problems developed. His supervisor, Ms. Cooper, gave him a satisfactory annual evaluation at the conclusion of the 1988-89 school year. The Respondent's emotional difficulties and related performance difficulties as a teacher reappeared in the 1989-90 school year. During the pre-planning phase of his teaching and coaching duties for the 1989-90 school year, in August of 1989, the Respondent was observed to be very disruptive, argumentative, and, indeed, hostile to a visiting speaker at a seminar for instructional personnel. He was observed to repeatedly interrupt the speaker with arrogant, argumentative questions and comments, during the course of which behavior he was observed to be pacing back and forth at the rear of the room where the seminar was conducted while all other attendees at the seminar were seated and listening to the speaker. This arrogant, argumentative behavior was so apparent and so inappropriate for the seminar-type setting in which it occurred that his supervisor felt it necessary to apologize to the speaker at the lunch break on that day. Additionally, during this pre-planning phase of the school year, which is before the children arrive for the school year, the Respondent was observed to have difficulties in his dealings and relationships with other coaches arising out of his increasingly arrogant, argumentative attitude and behavior. Because of this and, inferentially, because his supervisors were aware of his emotional difficulties with which they had had experience the previous school year, the decision was made to relieve him as assistant football coach at Mosley High School. A meeting was held with the Respondent, Mr. Tucker, the Principal, and Mr. Cochran, the head coach, to explain that action to the Respondent and to explain to him that he would still continue as a physical education instructor. In the course of that meeting, the Respondent became very emotional, hostile, and argumentative. He exhibited frequent angry outbursts to the extent that he would not allow Mr. Tucker or Mr. Cochran to adequately explain the basis of the personnel action directed at him. The Respondent ultimately, angrily departed from the meeting before it was completed. On that same day, he left Mosley High School without administrative permission and went to Cherry Street Elementary School on some mission related to his daughter, who was a student at that school. She had been the subject of a bitter custody dispute between the Respondent and his former wife. He is accused of interfering with the operation of Cherry Street Elementary School on that occasion, although the record does not reflect what his conduct was at Cherry Street Elementary School that day. The 1989-90 school year then commenced at Mosley High School with the arrival of the students. The Respondent assumed his regular duties as a physical education instructor. He was observed, early in that school year, on a number of occasions, to fail to control behavior of students in his gym class and to fail to be in his gym class at appropriate times which amounted to inadequate supervision of his students on those occasions. His planning for his classes was observed to become sporadic, with repeated occasions when he failed to have lesson plans prepared. Also, in the fall of the 1989-90 school year, he was observed to forget his keys to the physical education area on a number of occasions. He would, on repeated occasions, forget, from one period in a school day to the next, what he was to teach that following period. He would have to be reminded by his colleagues. He would also forget to call his students in adequate time at the end of the physical education period for them to dress for their next classes. He had to be reminded by his colleagues to do this. He would also repeatedly forget when he had extra duty, such as "door duty" and locker room assignments. His general level of cooperativeness with his colleagues declined markedly. His behavior became harsh and rude to his colleagues and to students. He was observed to be very harsh and rude to a new student coming into his physical education class and spoke loudly, in an abrasive manner to the student in front of the class, embarrassing that student. These problems occurred repetitively and in rapid succession during the first month of the school year in September of 1989. Because of the nature of the problems, the past history of the Respondent's emotional instability whereby he had lost his ability to be a caring, productive, well-performing teacher (which had been his unblemished record of behavior and performance for all the years he taught prior to the 1988-89 school year), Mr. Tucker, the Principal, felt that he had to act quickly to prevent an even worse situation occurring in the 1989-90 school year when he observed that the Respondent's emotional instability of the year before was recurring. Consequently, Mr. Tucker requested that the superintendent, Mr. Simonson, meet with the Respondent in an effort to resolve his difficulties in the matter of his perceived emotional instability and resulting declining performance. Accordingly, a meeting was held with the Respondent, Mr. Simonson, and Mr. Tucker on September 30th. At the meeting, the Respondent was confronted with the fact of his displayed emotional instability and related declining teaching performance, at which point he became very belligerent and hostile. He was, alternatively, on the verge of tears and shouting in anger. Because of the above-stated reasons for the meeting and because of the emotional instability which was so apparently displayed by the Respondent during the meeting, Mr. Simonson gave the Respondent three days of sick leave to allow him to remain at home and get some professional attention to try to regain his emotional stability before returning to the classroom. The Respondent's problems persisted, however. Although the precise date is uncertain, at approximately this time, the Respondent announced that he was going to seek election as Superintendent of the Bay County school system in opposition to Mr. Simonson. The Respondent testified himself that he elected to run for this office while he was still a teacher at Mosley High School in part, at least, to save his job because he believed that the Bay County school administration and particularly, Mr. Simonson, would be reluctant to discharge him while he was a political candidate in opposition to Mr. Simonson because of the bad impression that might make on the electorate. Shortly after he made this announcement, again on an undetermined date in the fall of 1989, the Respondent was involuntarily hospitalized pursuant to the "Baker Act", Section 394.467, Florida Statutes. Apparently, the Respondent's family members had him committed although the precise reasons are not of record. The Respondent expressed the belief at hearing that his family members had him committed because of his announcement to run for Superintendent, although that is not established to be the case. The Respondent, at the time he was committed, believed that he did not suffer from a mental condition justifying his commitment pursuant to the Baker Act. The Respondent has since come to understand that he suffered from a manic-depressive condition, also known as a "bi-polar disorder". As a result of this eventuality, Mr. Simonson determined that the Respondent should not be teaching in the school system during such a period of emotional instability. In order to be fair to the Respondent, he did not want to actually suspend him from his duties. Accordingly, Mr. Simonson elected to place the Respondent in the status known as "overused sick leave", which means that the Respondent, although he had used up all of his annual and sick leave, could still be carried on the personnel records as an employee in terms of retaining his retirement and insurance benefits, although he was not paid for the time he was absent from his duties as a result of this decision and as a result of his emotional condition. Accordingly, the Respondent was, in this fashion, removed from his instructional duties and from his job site in the fall of 1989, after his involuntary commitment, pursuant to the Baker Act. Thereafter, in the fall of 1989, the Respondent obtained treatment at the "Life Management Center" in Bay County under the care of Dr. Nellis. Dr. Nellis diagnosed the Respondent as suffering from manic-depression and prescribed Lithium to treat his manic condition. The Respondent responded well to treatment, such that Dr. Nellis, late in the fall of 1989, opined that he was fit to return to work as a teacher. The Respondent apparently accepted the fact of his illness, continued taking his medication after being released by Dr. Nellis, and was returned to his duties with the Bay County school system at Rosenwald Middle School in late January or early February of 1990. Once again, he returned to his "old self", in terms of his adequate performance as a teacher, his emotional stability, good relationships with colleagues and students, and his prior demeanor as a genuinely caring teacher. His performance for the remainder of 1990 through the end of classes in June was good. He worked for the remainder of that school year as a physical education instructor, which is the field in which he is certified as a teacher. The Respondent had also been seen by Dr. Zumarraga beginning in November of 1989, who also found him to be manic-depressive, and who informed Mr. Simonson, by letter presented to Mr. Simonson by the Respondent, that the Respondent was taking medication for his illness and had exhibited acceptable behavior. As a result of those assurances by the Respondent's psychiatrist, Mr. Simonson had allowed the Respondent to return to work at Rosenwald Middle School in approximately early February of 1990. Apparently, sometime in late spring or early summer of 1990, the Respondent had doubts that he was still suffering from his condition and consulted another physician for an additional opinion. Apparently, he quit taking his medication sometime during the summer of 1990 as a result of that consultation. In late August of 1990, the Respondent returned to Rosenwald Middle School as a physical education instructor. Ms. Love, who had been Assistant Principal at the school, had moved up to the position of Principal. In the spring of 1990, the Respondent had been quiet and cooperative, had gotten along well with colleagues and students, and had performed his duties well, after undergoing treatment and being placed on a program of medication for his manic- depressive disorder. In the fall, however, he was immediately observed by Ms. Love and others of his colleagues and supervisors to have reverted to the arrogant, abrasive and extremely assertive attitudes and behavior, which he had exhibited in the fall of 1989, prior to securing treatment. Before these attitudes and behavior had manifested themselves, however, and immediately upon the start of the 1990-91 school year, given his long and worthwhile experience in the physical education field in the county system, Ms. Love asked the Respondent if he would work on a plan for a "middle school olympics" athletic event. The Respondent agreed to do this and immediately began setting about the formulation of a plan whereby all of the middle schools in the county would participate in the olympics athletic event on a given day at Tommy Oliver Stadium. He arrived at a plan to accomplish this and drafted it in memorandum form. Instead of sharing it with Ms. Love, however, he transmitted it directly to the Superintendent, Mr. Simonson. This was a departure from appropriate procedures for the planning of such events because the Respondent did not transmit his plan to Ms. Love for her initial approval before its being communicated to supervisory personnel at the county district level. The Respondent became somewhat obsessed with the idea of planning and conducting the olympics event, devoting an inordinate amount of time and energy to it. In early September, the Respondent brought a student to the office for disciplinary reasons asserting that he had caught the student stealing or "going through the lockers". Upon questioning of the Respondent by Ms. Love, it was learned that he did not find the child in the locker room or dressing room actually invading lockers, but found him in the locker room area where he was not supposed to be. He accused the child of stealing or attempting to steal when he had not actually observed him do this. The Respondent was criticized in this action for not having actually observed the child stealing and yet accusing him of it and for having brought prior behavior of the child up in his disciplining of the child, which Ms. Love felt to be inappropriate. In fact, the Respondent had some justification for suspecting this particular child of wrongful conduct or illegal activity because of past disciplinary violations committed by the child of a similar nature. At approximately the same period of time, in early September, the Respondent was observed to have grabbed a child by the arm in the act of admonishing the child for some alleged miscreant behavior and stating that "I am going to break your little arm". Ms. Love counseled the Respondent about these two instances and gave him an "improvement notice" on September 7, 1990 concerning them. An improvement notice is a disciplinary memorandum or report to a teacher such as the Respondent by which the Principal admonishes a teacher for inappropriate behavior and directs steps for improvement of the situation which led to that criticized behavior. On September 14, 1990, Ms. Love had another formal conference with the Respondent, since she had seen his arrogant, abrasive, overly-assertive behavior with colleagues and students continuing. She discussed with him his inappropriate behavior towards students and faculty and the matter of the Respondent's disciplinary referral of a student to the guidance counselor. He had referred a student to the guidance counselor for discipline and had been overbearing and abusive to the guidance counselor in his communication with her concerning the disciplinary referral. Ms. Love counseled him about the basic procedures involved in referring students for discipline, which specifically do not involve the guidance counselor. Rather, disciplinary referrals should appropriately go to the administration of the school, as delineated in the teacher's handbook, which the Respondent had previously been provided. Additionally, Ms. Love felt that the Respondent had exhibited a pattern of not turning in required documents in a timely manner; therefore, she gave him an improvement notice for these matters dated September 28, 1990. In fact, however, it was not established by the Petitioner that the Respondent had been untimely in turning in any required documents, reports, and the like, other than one report which had been due on a Friday, when he was absent due to illness and which he promptly turned in on the following Monday. During the fall of 1990, the Respondent was observed to frequently share details of his custody dispute and problems concerning his child and problems with his wife or former wife through notes, letters and conversations with other members of the staff in an inappropriate manner. He appeared to be emotionally preoccupied with these personal problems while on duty. On the third day of school in the fall of 1990, Mr. Simonson located his office temporarily at Rosenwald Middle School. He had done the same thing at other schools in the county that were having disruptions caused by on-going construction during the fall. Rosenwald Middle School at this time was undergoing construction work, including work on its air-conditioning system, such that many of the students and teachers did not have the benefit of air- conditioning. Mr. Simonson, therefore, elected to spend a day or so at Rosenwald Middle School on a sort of "Bob Graham Work Day". Ms. Love announced that fact over the public address system during the morning announcements on that day. The Respondent came to Ms. Love's office a short time later carrying the school's daily bulletin in his hand. He seemed hostile and agitated, leaned over her desk and shook the bulletin in her face, stating to her that he wanted her to sign on the bulletin her name and the statement she had made about the reason the Superintendent was at the school on that day. He further stated to her, in effect, that he was "fixing to be fired" and that he wanted Ms. Love to admit and put in writing on the face of the morning school bulletin the real reason, as he felt it, why the Superintendent was at the school that day. Ms. Love refused to do this and considered this behavior to be bizarre and threatening, given that the Respondent obviously felt that the Superintendent had been on campus that day to "spy on him". During late September of 1990, the school embarked, at the behest of Ms. Love and other administrators and teachers, on a "school spirit week" contest. The contest involved decorating the doors of the classrooms by the students, using as themes for the decorations certain words which denoted various aspects of "school spirit". The doors were to be decorated during "trust class time". "Trust classes" are classes which meet for approximately fifteen minutes or so at the outset of the school day, somewhat analogous to what is commonly known as "homeroom classes". The students were allowed to decorate the doors during their trust class time. Ms. Love accused the Respondent of keeping students overtime in their trust class, which required them to miss part of their next class and be tardy to that class in order to decorate his room door. In fact, she gave him an "improvement notice" in the nature of a reprimand for this on September 28, 1990. It was not proven, however, that the Respondent had actually kept students late at his behest for this purpose. In fact, his testimony is that he required no students to stay in his trust class working on door decorations after the time for the trust class to be over and instructed them to obtain permission from their other teachers should they elect to stay overtime to decorate the doors. The Hearing Officer having weighed the testimony, candor and credibility of the witnesses on this issue, including the ability of the witnesses to have knowledge of the facts concerning the time and methods employed to accomplish the door decoration effort, this violation of school procedures was not proven. The door decoration contest was judged on September 28, 1990 and the Respondent's class did not win. The Respondent became very agitated and angry at this result to the point of requesting and obtaining a meeting with Ms. Love concerning it. His temper and emotions were out of control on this occasion. He behaved in a loud, abrasive, and angry manner, even to the point of alternately crying, shaking, and shouting. He accused Ms. Love of penalizing his children by denigrating their efforts in the door decoration contest in order to hurt him, claiming that her actions really were a personal vendetta against him in the course of which the children were victimized. In the midst of his emotional outburst concerning this matter, he refused to listen to any explanation which Ms. Love attempted to give him but repeatedly interrupted her efforts to explain how the contest was judged and its rules. He even attempted to call a newspaper concerning the incident. He was inordinately obsessed with the conduct of the contest and with the result. As this incident with Ms. Love was progressing, Corporal Lassiter, the school Resource Officer, observed and heard part of it. In his view, having observed the behavior of the Respondent on this occasion and being aware of the Respondent's past history, Mr. Lassiter considered the possibility of initiating an involuntary Baker Act hospitalization at that moment, because of the Respondent's behavior. During the course of this confrontation with Ms. Love, Mr. Lassiter or others persuaded the Respondent to step across the hall to a different office to calm down. After he went into the other office with Mr. Lassiter and another administrator, Mr. Barnes, the Respondent's behavior continued to be somewhat bizarre. His demeanor toward Mr. Lassiter and Mr. Barnes alternated from being very angry and upset with them to calling them, and acting toward them, as though they were good friends. At one point, he told Mr. Lassiter that when he got elected Superintendent, all would hear about this incident in the newspaper and the reasons for it all "would become very clear". He stated then that Mr. Lassiter and Mr. Barnes would have good employment positions with him when he became Superintendent. Alternatively, before making these statements and also after making these statements, he became angry and hostile to both men, saying, in essence, that they were "all against me", becoming accusatory toward them and asserting, in essence, that Mr. Lassiter, Mr. Barnes, Ms. Love, and others in the administration were seeking to do him harm. Partly at the instance of Mr. Lassiter, the Respondent finally calmed down sufficiently to accede to Mr. Lassiter's recommendation that he call a substitute to take over his classes for the remainder of the day. A substitute was called and Mr. Lassiter then escorted the Respondent to his truck in order to see that he was removed safely from the campus without further incident with colleagues or students. As the Respondent was getting into his truck, preparing to leave the campus, he told Mr. Lassiter to "tell Ms. Love that she can kiss my ass". Teachers are required to be at Rosenwald Middle School by 7:30 a.m. The first bell rings at 7:37 a.m., and the "trust class" begins at 7:45 a.m. On approximately six occasions during September of 1990, Ms. Love had to sit in on the Respondent's trust class because he was late arriving at his class. She gave him an improvement notice concerning this deficiency on September 28, 1990. Additionally, on two separate occasions, Mr. Lassiter handled the Respondent's trust classes when he was late. The next school day after the incident concerning the door decoration contest on September 28, 1990 was October 1, 1990, a Monday. The Respondent was approximately 20 minutes late to school that day. Ms. Love, being concerned about the ramifications of the behavior she had witnessed in the Respondent the preceding Friday, met with the Respondent when he arrived at school for purposes of determining his state of mind and to talk to him about his tardiness. She found him still agitated, although not as much as he had been on Friday, the 28th. He continued to accept no responsibility for those actions and for his tardiness. He denied even being late, and as a result, Ms. Love assigned the school Resource Officer, Corporal Lassiter, to accompany the Respondent whenever he had students with him for the remainder of the day. It should be pointed out, however, that on most of the occasions when the Respondent was tardy to his first class during September of 1990, it was because he did not have a key to fit his office and would have to look for another co-worker to let him in. He was given a key at the outset of the school year which did not fit. Consequently, he disposed of it, ordering another key, the provision of which to him was delayed for unknown reasons. Later that same day, the Respondent brought between 20 and 30 students to the office for being tardy to class. The procedure for handling tardies at Rosenwald Middle School is that if a child is tardy, a teacher counsels with the child at first. The parents are contacted, the child is assigned to "team detention", and a student misconduct form is forwarded to the appropriate administrator upon tardies becoming repetitive. It is unusual to bring a student to the Principal's office for tardiness. The Respondent explained when they arrived at the Principal's office that all of the students were late to class and that Ms. Love should do something about it. This was a departure from normal procedures in dealing with tardy students. It should also be pointed out, however, that the school administration had recently issued a memorandum admonishing teachers that they should deal more severely with tardy students. When this entire group of students proved to be tardy on the day in question, the Respondent volunteered, with the agreement of the other physical education teachers/coaches, to escort the students to the Principal's office for disciplinary reasons concerning their tardiness. The other teachers involved agreed. On that same occasion, on October 1, 1990, when the Respondent had the group of students waiting outside the Principal's office, he apparently had some sort of confrontation with a student named Malackai. Apparently, the student was arguing with him and denying being tardy, which was the reason he was brought to the office. The Respondent offered to wrestle the student after school and "tear him limb from limb". This action caused Mr. Lassiter to step between the Respondent and the student and to send the student to Ms. Love's office to prevent any further such confrontation. Although the student was large for his age, these actions by the Respondent intimidated the student. On that same day, the Respondent was giving a lesson in softball on the softball field. He was being observed by Mr. Lassiter at the time at the behest of Ms. Love, who was concerned about his emotional stability. During this lesson, the Respondent, for unknown reasons, began rather randomly talking about accidents, lions, the dangers of eating red meat, and some sort of discussion of suicide. When he observed a student not paying attention to him, he hit the student on the head with a clipboard. He then continued his rambling discussion. A few minutes later, the same child asked when they would be allowed to play softball; and the Respondent hit him with the clipboard again. The student got tears in his eyes and was intimidated by the Respondent's conduct. When Mr. Lassiter observed that the Respondent might be about to commit the same act for a third time, he stepped between the student and the Respondent in order to prevent this from happening again. Physical education teachers are required to supervise students by direct observation in their locker room where they dress out for physical education classes and then dress in their regular clothes again at the end of classes. This is necessary in order to prevent fights and horseplay in the locker room, which can be dangerous. On October 1, 1990, during the Respondent's period to supervise the boys' locker room, he attempted to telephone Mr. Tucker, the Principal at Mosley High School. While he was on the telephone, he left the locker room class unsupervised and was unable to observe and supervise the locker room from the location of the telephone in the coach's office. On October 2, 1990, the Respondent again left his physical education class unsupervised while he was talking on the telephone for some 15-20 minutes. During the month that the Respondent had worked with Mr. Kent in the physical education department, Mr. Kent felt that although the Respondent generally had handled his duties well, he had spent an excessive amount of time on the telephone, rather than being in his assigned area. October 2, 1990 was the Respondent's last day of employment with the Petitioner. He was suspended with pay and shortly thereafter, the School Board met and accepted the Superintendent's recommendation to suspend the Respondent without pay based upon the conduct described in the above Findings of Fact occurring in August and September of 1990. The Board took the positions that this conduct amounted to gross insubordination, willful neglect of duty, and misconduct in office. In the Amended Administrative Complaint, on which this matter proceeded to hearing, which was filed on July 30, 1991, the factual allegations of the Complaint assert that the suspension action was taken based upon "alleged gross insubordination, willful neglect of duty, and misconduct in office"; however, the Amended Complaint actually charges that the factual allegations set forth in the Amended Complaint violate Section 231.36, Florida Statutes, and Rule 6B-4.009(3), Florida Administrative Code, concerning misconduct in office allegedly so serious as to impair the Respondent's effectiveness in the school system and charges incapacity (as a subset of incompetency) alleging violations of Rules 6B-1.001, 6B-1.006, and 6B-4.009, Florida Administrative Code. Thereafter, after the suspension occurred, the Respondent was involuntarily hospitalized pursuant to the Baker Act on the day following an apparent arrest for DUI, fleeing or attempting to elude a police officer, and having a concealed firearm. The Respondent was convicted of none of these charges but, rather, pled nolo contendere to a reduced charge of reckless driving and to a misdemeanor weapons charge. Adjudication of guilt was withheld. In fact, the weapon which the Respondent had in his car was believed by him to be legally possessed since it was merely the 22 pistol with which he used blanks for training his bird dogs. The pistol happened to be on the floorboard of his car when he was arrested by the officer. The Respondent spent a short period of time at Bay Medical Center, pursuant to involuntary Baker Act commitment on this occasion. Also, in 1990, at an undetermined time in the fall, he voluntarily admitted himself to the Rivendell Psychiatric Center for approximately 2-1/2 weeks in order to receive additional evaluation because he was unsure whether he was actually manic-depressive or not. Thereafter, while still suspended from his employment, in May of 1991, the Respondent apparently had an argument with his parents at their home in Bonifay and then left their home to return to his own home in the vicinity of Panama City in Bay County, Florida. Rumors apparently were communicated to law enforcement officials to the effect that the Respondent had threatened to kill his parents and had left their home with a high-powered rifle and was journeying to Panama City to his own home. Apparently, as a result of such reports, after the Respondent was at his own home, to his surprise, law enforcement vehicles and numerous law enforcement personnel, especially the Bay County Sheriff Department Swat Team, arrived in his yard, and, by megaphone, demanded his surrender. A television news crew was present at the scene and filmed the incident, which may have received billing as an "armed confrontation" between the swat team and the Respondent. In fact, this is untrue. When the Respondent observed the law enforcement officers arriving on his premises in a number of vehicles, he telephoned his attorney to inform him of the situation and then went to the door in response to the directive that he come outside. When he went to the door to ascertain why the law enforcement officers were at his residence, he was armed with a fork and a hamburger. He was charged with no crime in connection with this incident, although, apparently, he was involuntarily committed under the Baker Act once again for a brief period of time. The incident was disseminated to the public on the electronic media. However, no armed confrontation was proven to have occurred, nor was there any proof that the Respondent ever threatened to kill his parents. Although Mr. Simonson testified that there would be a great public outcry if he reinstated the Respondent because of this incident and the other incidents, there was no showing by the Petitioner that the incidents occurring at Rosenwald Middle School leading to the Respondent's suspension nor the incidents involving the alleged high-speed chase were ever communicated to the public generally or to parents of students of the Bay County school system or the students themselves. It was not shown by the Petitioner that the Superintendent or other officials of the Petitioner received any complaints from parents or members of the general public concerning the Respondent, his behavior, or his teaching performance. The incidents involving the alleged high-speed chase and the swat team confrontation, delineated in the above Findings of Fact, did not occur while the Respondent was on school premises nor while he was engaged in his duties as a teacher or coach. With regard to either incident, he was not shown to have committed any crime or conduct which can constitute misconduct in office. Both incidents occurred in the Respondent's private life, away from his employment and away from the School Board premises. The only conduct shown to have been disseminated in the public media involved the Respondent being taken into custody at his home by the Sheriff's swat team because the television news crew was there filming the incident. He was charged with no crime on that occasion and was shown to have committed no form of reprehensible conduct. He was merely involuntarily committed shortly thereafter, pursuant to the Baker Act. None of that can constitute misconduct in office, much less misconduct in office which in any way abrogates his effectiveness as a teacher in the school system involved. The Respondent has been taking Lithium and Prozac for his manic- depressive condition since 1989. He is presently under the treatment of Dr. David Smith, a licensed psychologist; and Dr. Ben Pimentel, a licensed psychiatrist, at a facility known as the "Life Management Center", as an outpatient. Both of these professionals opined that if the Respondent continues to take his medication, the symptoms of mania and depression will remain in remission, as they are at the present time. Indeed, in the past, since he first began taking medication for his condition in 1989 after being diagnosed as manic-depressive, at those times when the Respondent was taking his medication, his behavior and his teaching performance was up to the good and satisfactory standard which he had consistently exhibited from 1977 through the 1987-88 school year. It is only on those occasions when he has ceased taking his medication, in the apparent belief that his problem was not a chronic one, that he has exhibited the emotional instability, such as that displayed at Rosenwald Middle School in August and September of 1990, which is the subject of this proceeding. Indeed, both Drs. Smith and Pimentel, the only experts testifying in this proceeding, who testified for the Respondent, established that if the Respondent continues to take his medication, his symptoms of mania and depression will remain in remission and he will be competent to teach in terms of both his emotional stability and his ability to perform his duties as a teacher. Although Dr. Smith acknowledged that the rudeness exhibited by the Respondent on the occasions at issue in this case and his behavior involving striking a student and offering to wrestle a student might be behavior unrelated to the bi-polar disorder, the totality of the evidence supports the finding that, in the Respondent's case, given the many years of his teaching experience when he was a calm, caring, competently-performing instructional employee with behavior not characterized by such outbursts and aggressiveness, such conduct is, indeed, directly related to the present, active nature of his disorder on those occasions. On those occasions, he was not taking his medication. Dr. Pimentel believes that the Respondent needs to continue his medication. If he does continue his medication, he will be competent to continue teaching or to once again teach because his symptoms will remain in remission. Dr. Pimentel believes that the Respondent may need the motivation of a court order or employment directive or condition to insure that he continues his medication because if he obtains a medical opinion that he is no longer sick, he may not take the medication and stop the treatment. Additionally, Dr. Pimentel finds that the Respondent will require monthly counselling sessions and monitoring of his medication level to make sure it remains at a therapeutic level. Under those conditions, however, he would be capable of resuming his teaching duties. The Respondent, in his testimony, expressed the wish to obtain another medical opinion to make sure, in his view, that he is still manic- depressive, although he accepts the diagnosis that he is manic-depressive and is willing to continue his medication and to submit to monthly monitoring of his medication and monthly treatment by his presently-treating professionals.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Respondent, Steven T. George, be suspended for a period of two years, but that the suspension be abated and the Respondent immediately reinstated to his duties as an instructional employee of the Bay County school district, with all of the rights of a tenured teacher, under the following circumstances which should remain in effect for a probationary period of two (2) years: His psychiatrist shall file monthly with the School Board a detailed report of his attendance at counselling sessions and the result of his monthly blood tests to ascertain if his medication remains at therapeutic levels. He is required to maintain the therapeutic levels of Lithium and Prozac or such medication as his physician and psychiatrist deem medically appropriate. If he fails to attend counselling sessions or to maintain therapeutic blood levels of his appropriate medication for any two (2) consecutive months, then this should be determined to be, at law, willful neglect of duty, subjecting him to dismissal as a teacher with the Bay County school district subject to the Respondent's right to contest such an employment action, pursuant to Section 120.57, Florida Statutes, in this forum. There should be no award of back pay in light of the above Findings of Fact and Conclusions of Law. There should be no award of attorney's fees in light of the above Findings of Facts and Conclusions of Law , and the opinion in Werthman v. School Board of Seminole County, Florida, 17 FLWD 1245 (Fla. 5th DCA, opinion filed May 15, 1992; Case Number 91-1831). The cases cited by the Respondent seem to accord the Respondent a hearing opportunity on the issue, with award of fees being discretionary. The Werthman decision appears contra in termination proceedings, however. DONE AND ENTERED this 31st day of May, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact 1-23. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the record evidence. Accepted. Accepted, except that it was not proven that he had "gone through Ms. Love's mailbox". Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by preponderant evidence. 28-29. Accepted. Rejected, as not supported by preponderant, competent evidence. Rejected, as not supported by preponderant, competent evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by preponderant evidence. 33-35. Accepted. 36. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 37-39. Accepted. 40. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 41-47. Accepted. 48. Rejected, as not, in its entirety, being in accordance with the preponderant, competent evidence of record. 49-56. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 57-61. Accepted. 62. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-13. Accepted. 14. Rejected, as not supported by preponderant evidence. 15-22. Accepted. 23. Rejected, as not entirely in accordance with the preponderant evidence. 24-30. Accepted. 31-36. Accepted. 37. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accordance with the preponderant evidence. 38-41. Accepted. 42-48. Accepted. 49-51. Accepted. 52. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 53-54. Accepted. Rejected, as not in accordance with the evidence of record. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not in accordance with the preponderant evidence of record. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not being entirely in accordance with the preponderant evidence of record. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 61-63. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 64-72. Accepted. Rejected, as not in accordance with the preponderant evidence of record. Rejected, as not in accordance with the preponderant evidence of record. (Second No. 74). Accepted. 75-78. Accepted. 79. Rejected in the sense that it was proven by the Petitioner that at the time he was suspended, the Respondent was incompetent to teach due to incapacity related to his emotional instability. 80-85. Accepted. COPIES FURNISHED: Jack W. Simonson, Superintendent P.O. Drawer 820 Panama City, FL 32402 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Franklin R. Harrison, Esq. HARRISON, SALE, ET AL. 304 Magnolia Avenue P.O. Drawer 1579 Panama City, FL 32401 David Brooks Kundin, Esq. DOBSON & KUNDIN, P.A. 210 South Monroe Street P.O. Box 430 Tallahassee, FL 32302
