The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on November 9, 2007.
Findings Of Fact Petitioner is a Chinese-American female who was hired by Respondent on or about August 29, 2005, as a bilingual Customer Service Representative I (CSR I) in the Customer Service Department. Respondent is a natural gas marketing company providing natural gas to customers in Florida, Georgia, New Jersey, and New York. The function of Respondent’s Customer Service Department is to assist its natural gas customers. The Customer Service Department divides its CSR I and Customer Service Representative II (CSR II) employees into teams in the call center. The call center floor is divided into four sections each of which contain a number of work stations. Each team is based in its section with a person who is “team leader.” In each area, the team leader has a supervisor. Petitioner sat with her team in a work station closest to her team leader. Petitioner felt isolated from her co-workers in the location were she was placed because the work station next to her was vacant for a period of time. Petitioner speaks English and Chinese. Because Petitioner was hired as a bilingual CSR I, her initial rate of pay was $9.75 per hour. This rate of pay was $.50 per hour higher than the starting wages of non-bilingual customer service representatives. After being employed for one year, Petitioner received an Employee Performance Evaluation which rated six areas of job performance with a score range of 1 for “unsatisfactory performance” to 5 for “exceptional performance.” Petitioner received a rating average of 3.3 (a score of 3 indicates “meets expectations” and a score of 4 indicates “exceeds expectations.”) Petitioner received a 6.6 percent raise following her annual performance evaluation in August 2006. In August 2007, Petitioner received another annual Employee Performance Evaluation with a rating average of 2.5 (a score of 2 indicates “marginal performance”). Petitioner received a 5 percent raise following her second employee performance rating in August 2007. Petitioner thereafter received a cost of living wage increase and another bilingual wage increase. At the time she was terminated from employment in November 2007, Petitioner was receiving a rate of pay of $11.50 per hour. Respondent typically imposes disciplinary action to its employees in the following sequence: a verbal warning; a first written warning; a second written warning; a final warning; termination from employment. Petitioner’s personnel file reveals that in 2006, there were six instances in which Petitioner received verbal warnings followed by first written warnings, and one instance in which she received a second written warning. The categories listed on the personnel documents for which Petitioner received these disciplinary actions were tardiness, behavior/conduct, absenteeism, and adherence to schedule. Petitioner’s personnel file reveals that in 2007, she received progressive discipline for failure to follow policy and procedure. That is, she received a verbal warning on April 19, 2007; a first written warning on April 25, 2007; a second written warning on May 18, 2007, and a final warning on June 17, 2007. Also in 2007, Petitioner received a verbal warning for absenteeism. In between the time she received the verbal warning until she was terminated on November 1, 2007, Petitioner received almost 50 coaching sessions. From March of 2006 until she was terminated in November 2007, Petitioner received 105 coaching sessions. Respondent provides coaching sessions to employees so that they can improve their job performance when needed. During a coaching session, a supervisor or other person will sit with the employee during a call and, afterwards, instruct or “coach” the employee as to how their performance could be improved. On November 1, 2007, Petitioner received a termination notice for failure to follow policy and procedures and performance. In January 2007, Respondent sent an e-mail to employees which consisted of a job posting for the position of Quality Assurance Analyst-Bilingual. The job description for a Quality Assurance Analyst lists “Bilingual in Spanish a plus” under the category “Minimum Education, Work Experience and Qualifications.” This is a salaried position with an expected hiring range of $37,000 to $40,000 (presumably an annual salary.) Petitioner did not receive an interview for this position. John Pinillos, an employee of Respondent already working in the quality assurance department who is fluent in English and Spanish, was hired for the position. In August 2007, Petitioner applied for the position of Payment Processor. The job posting noted, “Performance, attendance, tardiness and any disciplinary actions will be reviewed as part of the initial screening process.” The expected hiring range was listed as $9.08-$9.99 (presumably per hour). It is Respondent’s policy that when an employee applies for a job, the employee’s disciplinary actions are reviewed from his or her personnel file. Petitioner’s application for this position came after the final warning in June 2007, which ultimately resulted in her dismissal. Petitioner was not granted an interview for the Payment Processor position. At a point in time that is not entirely clear from the record, Petitioner applied for a CSR II position. The person who was hired for the position was an employee named Jeffrey Hill. Mr. Hill had not received any disciplinary actions, and had 26 counseling sessions during the year prior to his being hired for the job. Typically, an employee performing at a desirable level receives approximately 20 to 50 coaching sessions within a year. When Petitioner was terminated, she was escorted out of her work area. Other persons collected her personal belongings. Petitioner felt embarrassed by this and believes that she was treated this way because of her national origin. However, at hearing, Petitioner acknowledged that she was not aware of whether other employees who were terminated were allowed to collect their own belongings. It is Respondent’s policy that employees in the customer service and call centers who are being terminated are escorted from the call room to another location to have the termination meeting. At that time, the employee’s supervisor goes to the employee’s desk with a witness, gathers the employee’s personal belongings, and places them in a box. The box is taken to the location where the termination meeting is taking place. There was no competent evidence presented that establishes that Petitioner’s termination, or any other employment action taken by Respondent, was based on race or national origin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 18th day of September, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 18th day of September, 2008.
Findings Of Fact The business of the Respondent. Respondent is, and has been at all times material herein, created directly by the Constitution of the State of Florida and constitutes a Department or administrative arm of the government that is administered by individuals who are responsible to public officials or to the general electorate. At all times material herein, the Respondent is engaged in and has been engaged in the business of operating a county school system in Pasco County, Florida. The labor organization involved. Pasco Classroom Teachers Association is now, and has been at all time material herein, an employee organization within the meaning of Section 447.203(10) of the Act. The issues. Whether the Respondent unlawfully refused to employ Ronald Eckstein on a continuing contract status; whether it unlawfully refused to reappoint him as department chairman and whether it unlawfully refused to grieve the above acts in violation of Florida Statutes. Whether the Respondent unlawfully terminated Sharyn Disabato and also, whether the Respondent unlawfully failed to grieve the termination of Sharyn Disabato pursuant to Article 12 of the parties collective bargaining agreement. Whether the Respondent unlawfully terminated Fred Rydzik and whether it unlawfully refused to grieve the termination of alleged discriminatee, Fred Rydzik. Whether the Respondent unlawfully adopted a salary schedule which amounted to a 5 percent wage reduction for employees in the certified bargaining unit; whether it unlawfully froze every employee's increment steps and three; whether it unlawfully reduced all supplements paid to bargaining unit employees and also whether it unlawfully postponed previously scheduled preschool planning days. Whether the Respondent unlawfully refused to process dues authorizations card executed by bargaining unit employees in violation of Section 447.303 of the Act. Alleged unfair labor practices. (a) The Facts The Pasco Classroom Teachers Association, hereinafter sometimes referred to as PCTA, was certified by the Public Employees Relations Commission, hereinafter sometimes referred to as PERC, on April 17, 1975, as the exclusive representative of the certified personnel employed by the School Board, except those who hold supervisory authority specifically excluding the Superintendent, Assistant Superintendents, District Level Supervisors, Directors, Principals, Assistant Principals, and Curriculum Assistants from functioning as a second-in- command in the building. The PCTA and employer were as stated parties to a collective bargaining agreement which by its terms was effective August 6, 1974, through June 30, 1975. Larry Smith is PCTA's designated bargaining agent and Ronald Forguson is the Employer's designated bargaining agent. The Respondent employs approximately 2500 instructional employees throughout the county at 25 or more locations or school districts. The employer operates in a manner which is somewhat unique to most school districts in that a school year begins in approximately July of each year and the instructional personnel work a 45 day schedule and they are off approximately 15 days. This system is referred to as the Track system and there are 4 tracks described as A, B, C and D. Alleged discriminatee, Sharyn Disabato, was employed by the employer from the school year 1973 through June of 1975. Ms. Disabato testified that her duties consisted of providing an atmosphere for students to learn science, math, social studies, art, music and physical education at Schrader Elementary School, where she was employed. Schrader is an open school, which means that there are no classroom areas partitioned off and all student's and teachers are somewhat visible at all times. Disabato's students consisted of fourth, fifth and sixth graders. Her most recent employment contract was for a 196-day period beginning July 24, 1974 through June 30. She testified that she was very active in curricular activities as well as extracurricular activities. For an example, she testified that she served on the construction committee, which was a committee formulated to provide input for an addition to the facility. Ms. Disabato testified that she sponsored the bus patrol group and assisted several teachers on science projects and assisted new teachers in locating resource materials, filing cabinets, new books and to generally review the overall physical plant. During her last year of employment, she received the "Teacher of the Year" award for her school. Her principal at Schrader Elementary School gas Larry Robison. She also served as the building presentative, which meant that she handled grievances filed by the other teachers. She assisted Mr. Larry Smith in contacting her fellow employees to execute payroll deduction authorization forms. She was approached by her principal sometime in October of 1974 and was asked by him to form a committee of volunteers to make up the association's building committee. That committee was designed to present and resolve grievances that the other teachers were experiencing at the school. She also asked employees to serve on the committee to "maintain the collective bargaining agreement". She was the assistant committee chairperson and during committee meetings, Mr. Robison attended. Mr. Robison also asked her to schedule all building committee meetings. She joined the union at the inception of her employment with the employer. Beginning in January of 1974, she researched the contract and proposed and formulated several provisions which are now presently contained in the contract. She also served on the bargaining team during January of 1974; she conducted surveys and spent approximately 3 hours, 3 times each week for a total of more than 100 hours preparing contract proposals. According to her testimony, in addition to the above activities in which Mr. Robison would know of her union activities, she also indicated that her name appeared on several union flyers which were distributed throughout the facility and also, on one occasion, she was approached by Mr. Robison, who at that time told her that "bargaining wasn't what she thought it to be." At Schrader, during the school year 1974-75, there were approximately 580 students and approximately 26 instructional personnel. She testified that the building representative association meetings were conducted on a monthly basis and that she presented and resolved grievances which were filed by both union as well as non-union members and that she acted as a conduit for resolution of all employee grievances. Sometime prior to November, Disabato testified that she mentioned to Mr. Robison that all vacancies had to be advertised, whereupon Mr. Robison approached Mr. Smith and asked him if that was in fact the case. According to Disabato, Smith informed Mr. Robison that vacancies were to be advertised. During January 1975, Disabato began formulating new contract proposals and a flyer was distributed around the school building, which somewhat depicted her activities in this regard. She testified that Mr. Robison may have seen the flyer. The alleged discriminatee testified and the record reflects that she often criticized school and administration policies and in those instances in which she felt that the contract was being violated by the administration, she would immediately call such to their attention. She testified further that Mr. Robison did not take kindly to such criticism. She testified that during the school year 73-74, she received an outstanding rating and at no place on her evaluation form did there appear any teaching deficiencies. During school year 74-75, she indicates that she was evaluated by Mr. Robison sometime in February 1974. On that evaluation, she testifies that Mr. Robison informed her and noted on her evaluation form that she needed improvement as to her rapport with fellow employees. Also, that as to her personal qualities, she was uncooperative. Specifically, he mentioned an incident wherein she had interceded on behalf of another fellow teacher, Mayna Radacky, and that her interjection upset Mrs. Radacky. When she was presented with the evaluation form, the alleged discriminatee felt that she needed a witness present and at that meeting she took Mrs. Radacky along with her. On voicing her objections to the alleged deficiencies noted on the evaluation form Mr. Robison merely indicated to her that she lacked rapport with her fellow employees and aside there from, he was very unspecific. Upon receipt of this evaluation, Ms. Disabato wrote a letter to Mr. Robison indicating her dissatisfaction with the evaluation and she relayed this to him by giving a letter to his secretary. According to M. Disabato, Mr. Robison told her that her letter would be attached to her evaluation. By letter dated March 14, Ms. Disabato was informed that she would not be rehired. When asked the reason, Mr. Robison informed her that "he would hire someone to do a better all-around job." Ms. Disabato testified that she did not request a written list of reasons for Mr. Robison's refusal to rehire her. She testified that her attitude with Mr. Robison was very good prior to her participation in negotiations for the collective bargaining agreement, but thereafter Mr. Robison's attitude, in her opinion, changed. She testified that after her participation in negotiations, problems occurred on a daily basis for her to resolve. She testified that during a faculty meeting held sometime in November December 1974, Mr. Robison announced to the faculty members that "you do not have a guardian angel" and their problems should be addressed to him. During the beginning of the 1974-75 school year when all of the faculty personnel were introduced, Ms. Disabato indicated that Mr. Robison omitted introducing her to the other faculty members and that such omission was purposeful on his part inasmuch as he was reading from a printed list and further that the same situation occurred on another occasion. She indicates that after all the other instructors were introduced, Mr. Robison tried to pretend that the omission was inadvertent and he thereupon introduced her. Sometime in September or October of that year, Disabato testified that she was called in to a conference with Mr. Robison whereupon he indicated that she was insubordinate to him; that she did not respect him, and that he "should be respected." He also told her at that time that she was a "gutsy lady and that if this had occurred three years earlier, she'd be walking the streets. Upon learning of Ms. Disabato's discharge or nonrenewal of her contract, a petition was circulated by other teachers supportive of Ms. Disabato and approximately one-half of the instructional personnel signed such petition. In an effort to resolve her non-renewal grievance, Ms. Disabato first talked to Larry Smith and they completed a grievance form. On various occasions, Smith and Ms. Disabato attempted to meet with Mr. Robison in an effort to resolve the grievance to their satisfaction, and on each occasion, Mr. Robison refused to meet with them. Ms. Disabato, when asked, knew of no other contract teachers who were not rehired during the school year 1975-1976. On cross-examination, Ms. Disabato related two instances wherein grievances advanced by her to Mr. Robison were resolved. Specifically, she raised an objection to a janitor vacuuming the halls during school hours and this procedure was stopped. Also, with regard to posting vacancy announcements, Mr. Robison, subsequent to her protest, advertised all vacant positions. She also worked with and mutually resolved the problem or a problem regarding long distance phone calls and the utilization of subs during the school year. She also reiterated on cross-examination the fact that her name was deliberately omitted from other lists, but she was not specific in indicating other lists which her name was omitted from as she previously testified to on direct examination. Larry Smith, PCTA's Executive Director, testified that he attempted to grieve the non-renewal of Sharyn Disabato's contract by initially attempting to contact Mr. Robison by telephone sometime in mid-March, 1975. Thereafter he called Dr. Ferguson with no success. The next day he contacted Mr. Robison and Mr. Robison informed him that he would contact him the following Friday. On or about March 21, Smith called Dr. Forguson by telephone and he would not accept the grievance indicating the the grievance was invalid and the non-renewal of an annual contract teacher was not a grievable item. He was also, at that time, instructed by Mr. Robison to deal a with Dr. Forguson. Smith made several attempts to send a written grievance to Mr. Robison and Dr. Forguson and on each occasion the grievance was returned. The procedure of sending a grievance by certified mail was also futile. Finally, the association's president, David Suttle, was able to get the grievance served by the sheriff's department, but the Respondent, and/or its agents, would not hear the grievance. Smith testified that they failed to accept the grievance in order to "prevent binding arbitration." Smith states that Superintendent Thomas Wateman and their counsel, Mr. Joe McClain, gave this opinion. Smith testified that not only M. Disabato's grievance would be handled in a similar manner, but that Ronald Eckstein and Fred Rydzik's or any other grievance of a similar nature would not be a matter subject to the grievance provision of the collective bargaining agreement. Smith stated that they (the Respondent) made it clear to him that grievances dealing with renewal of a contract was not a grievable item under the contract. Thereafter, Smith indicated his opinion that the grievance was not appealed to level 3 because it would be futile to do so based on his prior attempts. Smith testified that employees voiced extreme concern about their job security after Ms. Disabato's contract was not renewed and that several employees, specifically the annual contract teachers who are non-tenured, asked to withdraw their authorizations for payroll deductions of their dues check-off. Larry Robison has served as the principal at Schrader Elementary School for approximately 3 years and he is in charge of the overall operation of the school. He testified that in the employment process, he makes what is essentially the final recommendation in that an employee cannot be hired, that is, an instructional employee, cannot be hired without recommendation by him to obtain a teaching position at the school. Robison testified that he evaluates new teachers approximately 3 times annually and that both annual contract teachers and continuing contract teachers are evaluated only once per year. Robison testified that the evaluation process consists of conferences, both informal and formal visits, and that in making his evaluation, he relies on mental notes primarily. He testified that in instances wherein he notes deficiencies in an instructor's teaching skills, he advises them of such deficiencies and provides ample time for them to correct any deficiencies that, in his opinion, are warranted. He testified that the amount allotted a deficient teacher varies according to the teacher's ability to correct the problem that he notes. Robison testified that he was aware of Ms. Disabato's position as the building representative in 1973 and that this fact was a matter of common knowledge throughout the school. He was also aware of her participation on the union's bargaining committee during school year 1973. He also admitted asking either Ms. Disabato or Richard Culp to formulate the building committee, which was in his opinion, a forum to resolve grievances. David Suttle, PCTA's vice president and an elementary teacher at Elfers School for approximately five years was called and testified that he was a "building rep" for the school year 1973-1974 and served on the negotiating team for 1974 and 1975. Suttle testified that the binding arbitration provisions included in the contract was based on passage of Florida Statute 74, Chapter 100 and Chapter 447, Florida Statutes. Suttle testified that PCTA attempted to grieve the matter of Ms. Disabato's separation, but that the Respondent refused to accept the grievance and that based on the fact that this grievance was not accepted and the employer failed to grieve it, the union felt that it would be futile and fruitless to attempt to grieve the discharges of the other two discriminatees contained in the consolidated Complaint. 2/ Suttle testified that the union received the letter from the sheriff's department indicating that they would no longer serve grievances filed by the union. Suttle testified that during a union meeting with management in mid-May, 1975, the employer indicated that they had the right to determine "what was or was not a grievable matter." Suttle testified that the subject charges were filed when it became clear that issues regarding the renewal or non-renewal of annual contract teachers would not be accepted. Suttle testified also that during this meeting in mid-May the employer was informed that unfair labor practices would be charged with PERC based on their failure to accept the grievance regarding the non-renewal of annual contract teachers. Suttle testified that various employees indicated to him that they felt reprisal would be taken if their union activities were known by the employer. Suttle testified that union deduction authorizations were cancelled and that salaries were unilaterally cut. Suttle testified that the fear of reprisals was not only confined to union members but also to non-union members as well. After Suttle was examined and excused, the general counsel and the charging party rested their case with regard to the allegations contained in Case No. 1040. At the outset of the defense to the charge in this case, the Respondent made a Motion to Dismiss which the undersigned denied, based on his opinion that the general counsel and charging party had presented a "prima facie" case. Respondent's Defense to CA-1040 3/ Minnie Kownach, secretary to Mr. Robison for approximately three years, testified that on March 24, 1975, Larry Smith visited the office at approximately 2:30 p.m. She advised Mr. Robison of Mr. Smith's presence. Mr. Robison was in the office interviewing another teacher; she buzzed Mr. Robison and he asked her to tell Mr. Smith that he would be glad to see him at another time. She testified that Mr. Smith stayed in the office and at approximately 2:45 on that day, Ms. Disabato came down and she and Mr. Smith stayed until approximately 3:00. She testified that Mr. Smith did not make an appointment to see Mr. Robison on that date, i.e., March 24. Marsetta Haspelhorn, assistant principal at Schrader since January, 1974, testified that she was on the team with Ms. Disabato and Sharyn Watson for a period of time and that she observed Ms. Disabato's teaching. She testified that she had a conversation with Ms. Disabato about the non-renewal of her contract when she learned about it, and during a break during April, 1975, in the teachers' lounge, she asked Ms. Disabato not to file unfair labor practice charges inasmuch as it would "ruin her reputation." She testified that Ms. Disabato informed her the "the union would take care of her." She testified that she and Ms. Disabato are friends. She testified that Ms. Disabato is an effective teacher; however, her discipline leaves something to be desired. She testified that Ms. Disabato sometimes stops a pupil and tells him that he should not be doing something and that she is "harsh with the students." She testified that Ms. Disabato is vocal if another employee or person expresses views contrary to her own. She testified that she was aware that Ms. Disabato had problems with some teachers; however, she "got along with others", She testified that she and Ms. Disabato were not on good terms and that she did not try to help new teachers, whereas other teachers helped. She testified that Ms. Disabato was antagonistic towards Mr. Robison and that this attitude was pervasive and increased as the year progressed. She noted no change in the attitude or demeanor of employees since Mrs. Disabato's separation and that employees of Schrader are "always open." She testified that the employees never expressed any fear or reprisal for voicing complaints. She acknowledged that Mrs. Disabato was the building committee representative. She testified that Mrs. Disabato always questioned school practices during faculty meetings and that she did so more frequently than other employees. She testified that she was not a union member because she felt that she did not "need the union's backing." She testified that although no teachers other than Mrs. Disabato complained to Mr. Robison, they were not afraid of him. She testified that she never observed Mr. Robison refusing to speak to Mrs. Disabato or to introduce her. She testified that Mr. Robison omitted her name in an open house meeting and that she did not take it as an insult. She testified that Mrs. Disabato and Mrs. Radacky had a good relationship and that Mrs. Disabato approached Mrs. Radacky about the problem regarding the students missing the bus. However, she testified that she did not overhear Mrs. Disabato tell Mrs. Radacky not to take the students home. She testified that the separation of Mrs. Disabato has had no effect on the employees' freedom of expression at the school and that Culp was a building "rep" during the time that Mrs. Disabato was a building representative and is still employed and continues to serve as a building representative. She testified that Mrs. Disabato has an "explosive personality" and that if she cannot get things her way, she would walk away with a "sarcastic" look. The charging party introduced a telegram into evidence which purports to be a message to Mrs. Disabato signed by Carolyn White, Mary Garrison, Sue Walsh, Jane Foteys, Karen Johnson, Russ Willie, James Baretti, Tom Barnard, Gene Turner, over the Respondent's objection. The hearing officer received the exhibit into evidence. On cross examination Mrs. Haspelhorn testified that she did not know whether Mrs. Disabato was well thought of by her peers. She testified that she purchased a home from Mr. Robison. She testified that the problems of Mrs. Disabato and Mr. Robison related to school policies, and that the problems were not union related. She testified that she was unaware of Mrs. Disabato's union activities. She testified that Mrs. Disabato complained of school practices and often disagreed with school policy and that her disagreement was aired in a "loud tone." She testified that Mrs. Disabato told her that she would be employed by the union. She also testified that the other employees have not talked to her about Mrs. Disabato's separation. Leona Supurka, an elementary teacher at Schrader for the past two years, was called and testified that she has been employed in Maryland and in Pennsylvania as a teacher for approximately 16 years. She testified that she did not work in close proximity to the alleged discriminatee, and that she (Mrs. Disabato) did not offer any assistance to her. She testified that Mrs. Disabato's attitude toward the principal was rude and it was the type of rudeness in which she had never experienced a teacher voice to a principal. She testified that she was presented with a petition supportive of Mrs. Disabato on two separate occasions; that she refused to sign it and also that she resented being approached on two occasions by employees who felt that she should sign the petition. She also testified that Mrs. Disabato was disruptive and not always with, and in fact, frequently questioned school policies. She testified on cross examination that Mrs. Disabato offered no assistance to her. However, she also testified that no occasion arose wherein the alleged discriminatee would have needed to assist her. She testified that Mrs. Disabato expressed rude manners in faculty meeting on two occasions that she could recall In late September or early October, 1974. She testified that on one occasion Mrs. Disabato disagreed with the arrangement or timing of the lunch schedule and that Mrs. Disabato was insubordinate at faculty meetings. She testified that in her opinion, the employer is the boss and the employee should go along; that if there is disagreement, it should be voiced in a private conference. She testified that she was of the opinion that Mrs. Disabato was a disruptive influence on the faculty at Schrader and that she probably discussed this fact with Mr. Robison during the school year. Catherine O'Conner, an employee of approximately ten months in Pasco County, testified that she does not know Mrs. Disabato as a teacher, but that she was approached on two occasions to sign a petition supportive of Mrs. Disabato. She also testified that she felt intimidated by being approached on two separate occasions, inasmuch as she had voiced her opposition to signing the petition. Mrs. O'Conner testified that she did not know whether or not Mrs. Disabato was irrational or not and she was very vague about meetings regarding the presentation of contract to teachers within the "required" 30-day period. She testified that the contracts were presented later and that she was upset that the contracts were not presented timely. She could not recall if Mrs. Disabato assisted her when she became a teacher at Schrader. Larry Robison, the principal at Schrader, was called and testified that he received an evaluation by PCTA in mid-May, 1975. He testified that he was unaware that Mrs. Disabato was a union officer. He testified that his decision to non-renew Mrs. Disabato's contract had nothing to do with union activities. He testified and the record evidence shows (see Respondent's exhibit no. 4, which is received in evidence) that his overall rating was 3.4 out of a possible 5. He testified that he received his lowest evaluation in the areas of (1) reacting positively to constructive criticism; (2) seeks to lessen the non-teaching burden by avoiding excessive paper work and supervises without favoritism by equalizing teaching loads and administrative assignments. He testified that he was aware that Mrs. Disabato was a building rep and that she was a union member. He testified that in early 1974, Mrs. Disabato was very active in the union. He testified that he could have discussed Mrs. Disabato with other faculty members. He testified that he discharged Mrs. Disabato based on her behavior, her rudeness to students, her poor rapport with peers and uncooperativeness. He also testified that he also discharged her based on her difficulty with regard to "getting along with the administration." He testified that the Radacky incident played a small part of his decision to non-renew Mrs. Disabato's contract. Mr. Robison testified that he was the party who upset Mrs. Radacky during the incident. He testified that he left a note to Mrs. Radacky indicating that he was sorry that he caused her to be upset and that he was sorry that he had created discord with one of her peer groups. However, in an affidavit given to the Public Employees Relations Commission dated on or about May 29, he testified that the reason he discharged Mrs. Disabato was based on her harshness, her lack of cooperation, and interference with other affairs of the building that's none of her business. He later testified on redirect that she was not rehired because she was a building representative, nor did he observe any increase in her union activity during the prior year. On re-cross examination, he testified that he made the decision independently not to rehire Mrs. Disabato. Gary B. Potts, teacher-coach and department chairman, social studies, Hudson High School, testified that he knew Ron Eckstein and that he did not tell Ron Eckstein or anyone how he got to be department chairman. He testified that he received more votes than anyone in the recommendation to the principal for the social studies department chairmanship. He testified that he did not vote in the election and that there were perhaps five or six employees in the social studies department who would have been eligible to vote for the recommendation. He testified that prior to the election, there was a lot of conversation regarding the vote and as to how the department was being run under Mr. Eckstein's chairmanship. He testified that he talked to approximately two of the four or five employees in the social studies department regarding their vote and the chairmanship election and that on one occasion Mr. Coy Pigman, the principal, called him in to ask him if he would assume the chairmanship if offered. He also testified that he spoke to a Mr. Ronald Clayback, an employee in the math department. He testified that he was a union member, however, there was some mix up in his dues authorization and the authorization had not been either executed on time or the Respondent was not deducting the dues pursuant to his dues check off authorization. Margaret Rose De Jong, a teacher at Hudson Senior High School from July 1974 through November 1974, testified that she resigned her duties at Hudson due to Ronald Eckstein; however the reasons cited in her resignation indicated that she resigned due to health reasons. She testified that she disagreed with Ronald Eckstein and Mr. Sinholtz, also an employee instructor in the social studies department and when she attempted to interject new ideas in the classroom, they were met with extreme criticism from Eckstein and Sinholtz. She testified that Mr. Eckstein attempted to utilize the inquiry method in a classroom setting of approximately 40 to 50 students and that that procedure was not a proper one in a class of that size. On cross examination she testified that she never spoke to Mr. Pigman regarding the stated reasons in her resignation letter. She also testified that she suffered a miscarriage approximately one month after leaving her duties at the school. She testified that health reasons played no part in her decision to resign. Case No. 1037 Jerry Morriss, an employee of Gulf High School since 1970 and the current PCTA vice president testified that he served on the negotiating team and he was the chief negotiator for the parties current collective bargaining agreement. Morriss testified that the contract contains specific language pursuant to Florida Statutes 74.100 regarding sick leave, grievance procedure, etc. He testified that he had filed grievances and that he has known Ronald Eckstein since the 1973-74 school year. He testified that Eckstein became a union member in the summer of 1973, and that Coy Pigman, Principal, knew of Eckstein's union activities based on the fact that Eckstein was a building representative. In March 1975, he testified that Pigman told him that his attitude towards him had changed. He testified that Eckstein was Instrumental in filing a grievance protesting the overlap in the teachers work schedule i.e., the 5 period vs. the 6 period day. He testified that during March, 1975, Eckstein showed him a copy of what in actuality is a renewal of his employment status only on an annual contract basis as opposed to a continuing contract. He testified that Eckstein accepted the annual contract status inasmuch as he felt that it was his only employment opportunity as Mr. Pigman was not recommending him for employment on a continuing contract basis. He testified that Eckstein asked for but was not given a list of deficiencies. Sometime in April of 1975, he testified that the issue regarding Ronald Eckstein's renewal on an annual contract basis was brought up and he was of the opinion that Eckstein was entitled to a list of reasons as to what area(s) he was deficient in. He testified that he discussed procedural due process requirements and to that Pigman did not respond. He testified that Pigman sought his advice regarding Eckstein and Pigman indicated to him that Mr. Eckstein was "riling up". According to Morriss, Pigman told him that teachers should come to him individually and not collectively. He testified that the principal told him that Mr. Weightman, the superintendent, attempted to abort his contract. On cross examination he testified that he had no direct knowledge that Eckstein applied to the county for a continuing contract but that he was present when Eckstein accepted the 4th year annual contract employment. He reiterated the fact that the principal sought his advice on many matters. He testified that Eckstein was a good teacher and his performance was better than some teachers that Pigman gave continuing contract status. He testified that he informed Mr. Pigman that he was as good as Don Roland (apparently an employee whom Mr. Pigman had given a continuing contract) and that Pigman nodded in approval. On redirect Morriss testified that as a result of Mr. Eckstein's separation, the union was experiencing a more difficult time signing members, that employees are concerned about their union activities and the union is concerned about its loss in membership. Morriss testified that he did not feel inhibited. Ronald Eckstein, the alleged discriminatee herein, was a teacher at Pasco County for approximately 3 years and testified that he was County Social Studies Chairman during the school year 1973-74 and he was a member of the skills committee during the school year 1974-75. During the school year 1973- 74, he received the "Teacher of the Year" award at Hudson Senior High, he was a member of the chess club, the faculty scholarship fund, co-sponsor of the student government association, a union member since 1973, an executive board member, a county parliamentarian, building representative during the school year 1973- 74, an FEA member during school year 1973, chairman of the constitutional revision committee and during school year 1974-75, senior building representative which required him to coordinate all building representatives. In addition, he presented grievances to the principal and organized the teachers to support the principal, Coy Pigman, to the school board. He also testified that he informed the principal of the elected members of the PCTA. He testified that on one occasion, Pigman asked him how the collective bargaining agreement negotiations were going. Be also distributed union materials in the school and his picture is on the inside cover page of the collective bargaining agreement which is Petitioner's Exhibit no. 3 received in evidence. During January 1974, Mr. Pigman, the principal, asked Eckstein why were problems relayed through him. He testified that he handled complaints for both union as well as non-union members. His testimony is that during the late part of the 1974-75 school year, the principal told him that PCTA was drawing lines and that the principal associated him with the "Uniter", which is a union publication. Eckstein was evaluated by Mr. Pigman on approximately March 21, and at that time Mr. Pigman informed him that he was "having difficulty filling out his evaluation. He testified that Mr. Pigman questioned him regarding Pigman's receipt of an anonymous letter written by a parent which was critical of some teaching practices allegedly attributed to Mr. Eckstein. He testified that Mr. Pigman failed to be specific regarding any deficiencies that he might have in his teaching abilities. He testified that overall he was graded either excellent, outstanding or not applicable, but he was rated needed improvement in the areas of not accepting comments favorably and that Pigman indicated to him that his teaching methods were good and he was knowledgeable, active and reliable. He testified that Pigman informed him that he did not like to rate teachers exceptional or outstanding. Eckstein asked Pigman if he would receive continuing contract and he replied that he was having a "difficult time". Specifically, that he had a "feeling" which he (Pigman) could not put in words. Eckstein testified that he was told by Pigman that he was more effective than others whom he had given continuing contract status. Eckstein testified that he accepted the annual contract offer because he had no alternative and that when he asked Mr. Pigman for the reasons, he replied that he "was not obligated to state reasons for denial of continuing contract status". Eckstein asked Pigman for a letter indicating the reasons for the denial of continuing contract status and also that he was extremely concerned about Pigman's "feelings". Pigman replied that he thought it would be a good idea for him to serve a 4th year on annual contract status. He testified that during a meeting during the early part of the school year he was given a letter noting that he "failed to meet the educational requirements of the community". (See Charging Party's Exhibit No. 19 received in evidence.) During that same year Eckstein was not awarded the social studies department chairmanship. Eckstein testified that he did not attempt to grieve the non-renewal of the continuing contract or of his failure to be awarded the chairmanship. He testified that he was told (apparently by Pigman) that he was "too enthusiastic". Eckstein testified that the "too enthusiastic" remark related directly to his union activities; that he has been ostracized since the non-renewal of his continuing contract; that this event inhibited other employees from freely associating with him especially the annual contract teachers and that based on this action he was declined to serve as building representative. Eckstein testified that he was asked by Pigman whether or not he wrote various articles of the "Uniter". Coy Pigman, Principal, Hudson Senior High School for the past 2 years and prior thereto served as guidance counselor for approximately 3 years, was examined as an adverse witness based on his position as principal. Pigman testified that in making the recommendation for a continuing contract teacher he consults with his curriculum advisor and evaluates classroom performance as well as other responsibilities. He testified that he also consults with his assistant principal as to whether or not a particular employee he has in mind should receive a continuing contract. He testified that if an instructor is not given verbal or written deficiencies, he would expect that that teacher would expect to be renominated on a continuing contract basis. He testified that he prefers dealing with teachers on a professional basis rather than a written basis or via written communications. He testified that in evaluating instructors he utilized day to day staff contacts. He testified that he made the recommendation regarding the departmental chairmanships during the first two weeks in April testified that he rated Eckstein strongly but that after the evaluation he told him to be "more tactful". Pigman testified that it was not uncommon for instructional personnel to have personality differences but that several employees were forced to resign due to differences that they had with Eckstein. Pigman testified that the problems with regard to personality differences were personal in some instances, for example, a Mr. Corvalis, but that as the differences related to other staff instructional personnel, the problem was significant. He related an incident regarding Ms. De Jong, who testified that she was harassed and that Mr. Eckstein made her appear immature in the presence of fellow teachers, and that the curriculum assistant and the assistant principal made similar remarks to him. He testified that according to the resignations records, Ms. De Jong resigned based on ill health, however, in actuality, she resigned due to her differences with Eckstein. Pigman also related an incident regarding a student who had been sent to see the dean by Mr. Eckstein and when the dean, Gus Manticus, was informed that the student had filled out her own discipline slip, Mr. Manticus sent the student back to Mr. Eckstein's class. There-after, Mr. Eckstein approached Mr. Manticus and shouted, "Why did you send her back to my class" Pigman testified that he asked Mr. Eckstein to refrain from yelling at his dean, Mr. Manticus. Pigman testified that he granted Eckstein leave to attend the FEA convention and the he told Mr. Eckstein to keep politics out of the school. He said he did this on a precautionary measure and that to his knowledge the witness did not engage in any politics during school hours. He testified that during Mr. Eckstein's evaluation he noted the resignations that had allegedly been occasioned by difficulties regarding personality clashes and the anonymous letter received from a parent. He testified that he thought that Eckstein was in fact the teacher whom the letter was directed to because Virginia Collins (also an instructor at the school) indicated that she was having a difficult time with students following her lesson plans and that when he visited Mrs. Collins' class, one of the students stated Mr. Eckstein and gasped and closed his mouth in a surprised manner, which in Mr. Pigman's opinion concluded that Mr. Eckstein had in fact made a statement that students should be able to choose their lesson plans; that the students outnumbered the faculty and that in a democratic society they should be able to voice their opinions. Pigman testified that he used the evaluation form as a motivational item and that he gave Eckstein a 4th year annual contract due to differing philosophies and actions. He acknowledged the fact that Eckstein was not the only teacher whom he had differing philosophies with. Be noted that Eckstein was above average and that he possessed outstanding teaching abilities and techniques, that he was not irrational or militant. He testified that he denied Eckstein the chairmanship for the social studies department based on his non-recommendation to him by his fellow instructors. He testified that he rated Eckstein as needing improvement regarding students making their own decisions with regard to what they do in class. He also acknowledged the fact that he told Eckstein that he was "over zealous". He testified that he was aware that PCTA opposed the superintendent, Mr. Weightman's, nomination. Be also testified that he knew that Mr. Eckstein was actively involved in union activities. He further recalled meetings he had with Mr. Eckstein regarding the resolution of grievances. Pigman testified that he and Eckstein had a good relationship until school year 1974-75. He testified specifically that Eckstein was not given the chairmanship due to personnel problems and recommendations in the social studies department. He also emphasized that Eckstein possessed good abilities and techniques. Pigman testified that he was unaware that the professional practices code required him to give any instructor who requests such a list of written deficiencies. On cross examination, Pigman testified that he made the decision independently regarding appointing Eckstein as a annual contract teacher rather than a continuing contract teacher. Kenneth B. Sennholtz, Jr., an employee in the social studies department was called and testified that he has known Mr. Eckstein for approximately three years. He testified that he was present during the meeting with Mr. Pigman and Mr. Eckstein in which Eckstein received his evaluation. He also testified that during that same time he received his evaluation he and Eckstein reversed roles as witnesses for receipt of their evaluations. He testified that he was impressed that the principal liked the teaching techniques, the professional preparation of developing the social studies curriculum but that the principal stated that he had "this feeling" about Eckstein. He testified that he did not quite understand what Mr. Pigman's "feelings" were but that he knew that as a teacher, Mr. Eckstein was "more effective than other teachers". He testified that Mr. Pigman informed him that employees had left and that he knew they left but it's not Mr. Eckstein's fault; that Mr. Eckstein was not to blame and that Mrs. De Jong had personal illness. He testified that Mr. Pigman later learned that it was due to the difficulties that Mrs. De Jong and Mr. Eckstein were experiencing. Sennholtz testified that he asked Mr. Pigman why he wasn't advised that other members on the social studies staff were having difficulties with him whereupon Mr. Pigman indicated that he felt that they were not that important. Sennholtz testified that Eckstein was rated outstanding or one below in most categories and that he was not aware of or knew exactly how to incorporate Pigman's "feelings" into the evaluation form. He testified that Pigman indicated reservations about filling in needs improvement on the evaluation but that he did not know where else to put it. He testified that Eckstein was not given his evaluation but he was permitted to look through his personnel file. He testified that Pigman informed him that form A was strictly an "inhouse" form and that it would not be placed in Eckstein's personnel file. On form B Eckstein was rated outstanding or exceptional in all ranges. Sennholtz testified that Eckstein asked Pigman if he would be considered for continuing contract and he replied that it was "a difficult question". Sennholtz testified that Mr. Pigman informed him that he intended to align himself with Mr. Weightman during the coming school board election and that he was aware that he, Eckstein and the union actively supported the incumbent superintendent Ray Stuart. Pigman advised Mr. Sennholtz that he would not hold his or Eckstein's political differences against them. He testified that Pigman's philosophy was one of "fitting students into the society" whereas Eckstein's philosophy was one of "developing students to their maximum potential; that society is dynamic and students should be so prepared". Sennholtz also testified that Eckstein and he had done an excellent job in dealing with controversial issues which Pigman noted and that he would handle such issues in a similar manner if he was in a classroom. Sometime during October, 1974, Pigman and Sennholtz had a conference regarding the anonymous letter which is charging party's exhibit no. 20 received in evidence. According to Sennholtz, Pigman called a conference to rebut or to be prepared for any charges that might arise as a result of the "anonymous" letter, and that he paid little credence to the letter inasmuch as the party failed to identify themselves and further that the comments would not be used against them in any manner. Sennholtz related an incident regarding a problem with the stage door during a play in which Mr. Eckstein was involved. He testified that Manticus slammed the door and the door fell down and Eckstein indicated to Manticus that the door was important whereas Manticus jokingly said that "he would fix it; it's simple to fix." Eckstein disagreed but remained calm according to Sennholtz. Sennholtz testified and the evidence is clear that the Pasco County Teachers Association supported the incumbent superintendent Steward whereas Corvalis, according to Sennholtz, stated that the union should not endorse a candidate but that if one was in fact endorsed, it should be Mr. Weightman. Sennholtz testified that Eckstein and De Jong had little or no contact but that he and De Jong worked together as a team. He testified that De Jong wasn't happy because there was a lack of independence with regard to the track program and that Eckstein modified the program to satisfy Mrs. De Jong. He testified as to problems, small problems, with Lucinda South but that they were basically political and philosophical differences and that as to the alleged difficulty with Virginia Collins, Eckstein and she are good friends. Sennholtz related his opinion that Eckstein's demotion inhibited the employee association; that they fear reprisals and that its difficult to recruit building representatives because they are fearful of criticizing board policies. He testified that he is more cautious in his dealing with school rules and regulations because he does not want to inadvertently violate a rule or regulation which could be regarded as "just cause" for his dismissal. On cross examination he testified that he had no knowledge of any family problems that existed between Eckstein and his wife and that they are mutual friends; that he (Eckstein) according to his information, was experiencing no financial difficulties, that he recently purchased a home and was thinking of purchasing a pool etc. He also testified that he attached little credence to the 'anonymous' letter and also the principal asked them to "forget about it." He testified also that Potts asked Eckstein why wasn't he selected chairperson inasmuch as Potts was only at the school approximately 1 year whereas Eckstein was a better teacher and that the opposition (to Mr. Weightman) resulted in discrimination, i.e., quasielective (appointive) positions were given to those who supported Mr. Weightman, i.e., the dean, the assistant principal, etc. He testified that no union member was given a higher position than they previously held after January, 1975. He testified that after Eckstein's nonrenewal of continuing contract, it is difficult to solicit union members. He also testified that Weightman advised employees to cancel their dues authorization forms. He testified that he noticed that Eckstein had gone through an entire school year receiving commendations and was suddenly "framed." He testified that Pigman asked Eckstein for a copy of the collective bargaining law in January and Eckstein gave a copy to Pigman. He testified that Pigman forced his respect and acknowledged the right of employees to have philosophical differences and that he (Pigman) advised that he noted "an appreciable increase in his union activities." He testified that he and Eckstein supported Mr. Pigman in obtaining the principalship at his school. He testified that Pigman felt that he was being put up to do things by Mr. Eckstein. He also testified that Pigman was given a copy of all union materials and that Mr. Eckstein was told to report directly to him. Respondent's defense to CA 1037 Richard Coot, Assistant Principal, Hudson Senior High School testified that he tallied the votes in the social studies department. The evidence surrounding the tally is reflected in Respondent's Exhibit no. 5 admitted into evidence over the objection of the Charging Party based on the fact that copies were not the "best evidence." Coot testified that he tallied the ballots on or about April 15. Coy Pigman was recalled and testified that he was aware that both De Jong and Kratovill resigned due to difficulties with Eckstein. He denied telling anyone that he placed instructor Rodey on continuing contract status although he was a better teacher than Eckstein. Pigman testified that he received an overall evaluation of 2.6 by PCTA. Pigman testified that Eckstein's union activities played no part in his decision to not renew his continuing contract. He testified on cross examination that Eckstein cooperated with him on filling out discipline slips and he also indicated he asked Rose De Jong to write a list of difficulties that she had with Ronald Eckstein. He testified that he was unaware of any health problems of Mrs. De Jong however in later testimony, he acknowledged that he was aware that health problems existed at the time of her resignation. He was unclear as to whether he was testifying that the health problem played a part but that the health reason would be the easiest way out rather than to cite the health reason which then would just be a pretext for the real reason i.e. the difficulty with Ronald Eckstein. He testified that in March, 1975, the determination was made that based on projections that at least two new teachers would be needed in the social studies department, however, the two individuals who allegedly would be permitted to vote (recommend) were not told that they would be in the social studies department. Specifically, the record tends to indicate that they were Mr. Carvealis and Mr. Manticus. He testified that he made an error in his affidavit and that there was no rating of the social studies department chairmanship recommendations. He states that he appointed Potts as chairmen of the social studies department because in his opinion "he was a better teacher than Eckstein." Case No. 1041 Fred Rydzik was employed by the county in September of 1973, as a substitute teacher and approximately 10 days later he was appointed a full time substitute teacher. Thereafter in January of 1973, he was appointed to a full time position and he was employed through June 30, 1975. His lest employment was at Gulf Jr. High School where his principal was James Campbell. Rydzik served as co-sponsor for the conservation club during the school year 74-75, he sponsored several field trips, managed the publication of the yearbook for the school year 74-75 end in order to do this, he gave up his planning period. He was also on the guidance committee, coach for the "powder puff" football team, chairman of the tutorial committee based on the selection by the guidance counselor, director of the energy management center and he taught power and industrial arts as a substitute teacher. As a full time instructor, Rydzik taught English and Personal Development. He testified that during his evaluation by Mr. Campbell, he was asked to sign blank evaluation forms in Spring 1974. He was evaluated as being effective. Rydzik refused to sign blank forms because in his mind it was not a proper thing to do based on his prior military experience. During the spring of 1974, he became involved with employees who were trying to form an affiliate of the American Federation of Teachers (a labor organization). He testified that several co-workers approached him about forming an affiliate and during the summer of 1974, in a conversation with Campbell, Campbell spoke to him about the union not being viable. Campbell, according to Rydzik concurred and suggested some building association (i.e. an in-house employee group) rather than a union. During the fall of 1974, he testified that Monique Lefebre, his department chairman, told him that he would have to wear a tie. Thereafter he was called into the office and was asked by Campbell "why wasn't he wearing a tie?" Campbell told him that "he would wear a tie." Rydzik testified that he was unaware of any rule or regulation which prohibited an instructor from coming to school without wearing a tie however he complied with Campbell's directive. The effort to form an affiliate of AFT was unsuccessful although Rydzik testified that he successfully solicited and obtained signed authorization cards for approximately 160 employees. He testified that the AFT president denied a charter to Pasco County, due to political infights. In late September, 1974, Rydzik spoke to PCTA's president Larry Smith about merging the solicited employees with PCTA and that conversation resulted in the solicited employees merging and joining PCTA as a joint group. Rydzik testified that Campbell was aware of his union activities based on conversations he had with him and because his name appeared on various flier's which were distributed throughout the school. Rydzik testified that during early spring 1975, he spoke at a faculty meeting regarding a union meeting and the principal told the faculty that they didn't have to remain whereas they had been asked to remain for other activities such as pitches for the sale of life insurance and cookware sales and other utensils on the school's proper. Rydzik testified that he was rated effective in most areas in his evaluation but that he was rated as needing improvement in the area of turning in his plan book. Rydzik testified that he asked Campbell what he meant about needing improvement and Campbell replied that "he heard that his plan book was on most occasions, turned in late." He testified that his plan book would be one or two days late. Rydzik testified that in order to rectify his problems regarding his plan book, he talked to various experienced teachers who shared ideas and that each teacher who observed his plan book indicated that his plan books were better than most. He testified that two week units, a planning period, was a requirement whereas he was required to submit three week units and that his percentages were always rejected whereas other teachers were not. Rydzik testified that he did not grieve his problems regarding his plan book because of his annual contract status and also because various teachers warned against grieving that matter. Rydzik testified that criticisms regarding his plan book grew worse as the year proceeded and although he tried to correct whatever problems he experienced, he was never able to do so. He testified that to his knowledge, he was never personally observed by Mr. Campbell or Mrs. Lefebre in the classroom. However, he testified that during his evaluation he was told that "he had a good class." During the evaluation he was criticized about not patrolling bathroom duties as scheduled, however, he testified that he in fact followed the schedule. Rydzik testified that he was tardy approximately six times during the school year (school started at 6:30 am.). He states that on two occasions he was late approximately 15 minutes, and four or five times he was late less then 10 minutes. He also testified that on two occasions he was late as much or more than an hour. 4/ On April 2, 1975, Rydzik returned to work after having been on a 15 day off duty track and was at the time told by Campbell that he would not be recommended for employment. Rydzik asked Campbell why he was not being recommended for employment for the coming school year and Campbell replied "he could get someone better all around." Rydzik testified that he and other union members including Larry Smith, had discussed this problem and Smith informed him that he would not file a grievance inasmuch as similar grievances had been rejected by Respondent. He testified that Campbell informed him that he would reply to his request for a written list of deficiencies but Campbell never replied. He testified that he was a member of the bargaining team, that proposals were formulated sometime in January, 1975, and the bargaining sessions commenced during the spring of that year. In addition to serving on the bargaining team, Rydzik ran for the union vice president but lost that election. Rydzik testified that he received his second evaluation which is Charging Parties no. 25 received in evidence on the date therein noted although the date of the writing is different from the date that he actually received it. That is, the observation period as reflected on the exhibit covers a period from June 1974 thru June 1975 whereas Rydzik received it on April 22, 1975. Rydzik testified that he was regarded as the information source regarding any contract problem and fellow employees constantly inquired of him the status of the contract. He testified that the Math Department Head, Mr. Gibson, inquired of him regarding suggestions during January thru March of 1975, and he was viewed by him as a leader regarding contractual knowledge. Charging Parties no. 26 is a petition supportive of Rydzik and is signed by approximately 35 of the 60 instructors. Rydzik testified that employees were fearful to associate with him especially the annual contract teachers due to their financial obligations. He testified that several employees indicated that "if the union could not protect its own certainly it could not protect them." Rydzik testified that Mike Thomas of PCTA cautioned against his taking an active role in the union inasmuch as he was on annual contract rather than other employees who had tenure and could provide the leadership. James Campbell, the principal since February, 1972, was called and examined as an adverse witness. Campbell testified that there are approximately 75 instructional personnel including the support personnel. He testified that he evaluates on the basis of his daily observation of employees end that he hired Rydzik based on a recommendation of a Mr. Tucker. He testified that he evaluated Rydzik at least once although according to regulations he was required to do so at least three times per year. Charging Parties no. 27 received into evidence is the evaluation of Fred Rydzik. Campbell testified that he rated Rydzik in the low to strong areas in most categories and that he was "satisfied with his work." He denied ever asking Rydzik to sign a blank evaluation form. He recalled calling Rydzik in to discuss the incident regarding his not wearing a tie during school hours. He testified that Rydzik informed him that he could grieve the matter but that he would wear a tie until the grievance was resolved favorably on his behalf. He recalled the faculty meeting wherein Rydzik was introduced as a union representative. He testified that he called Rydzik in to inform him of his tardiness and his failure to fulfill his bathroom duties. He testified that Rydzik was late as much as 5 minutes on two occasions and 30 minutes on several occasions; he also recalled the problem with regard to Rydzik's planbook. He testified that his rapport was somewhat weak in that he failed to speak with and listen to his department head. The only deficiency notes on his evaluation was lateness in turning in his planbook. He was aware of no other instructional personnel that Rydzik had problems with. Campbell testified that Rydzik inquired why he was not being recommended for employment for the coming school year whereupon he informed him that it was a personnel cutback. He testified that he lost a total of six employees and he filled three of those positions which included a Spanish instructor and an industrial arts instructor. He testified that Rydzik was not appointed or recruited for the industrial arts position inasmuch as he lacked state certification in industrial arts. Campbell testified that he did not respond to Rydzik's request for a written list of deficiencies because he felt that that was "within his discretion." Campbell testified that he did not personally observe Rydzik. He testified that he would see Rydzik in the hall and around the campus but he relied on the evaluations of his curriculum assistant and the assistant principal and it was his own decision not to rehire Rydzik based on his discretionary authority. Campbell testified that he retained teachers normally with effective evaluations. Campbell testified that from the period of March 21, which was the date of his first evaluation of Rydzik thru April 2, 1975, which was the period that he made the decision not to renew or rehire him, he witnessed no improvement in Rydzik's tardiness, his bathroom duties or his plan book difficulties. Campbell also denied that he told Rydzik that he preferred a local building representative rather than a union. With regard to Rydzik's protest of the failure to provide english books to each student, Campbell testified that he referred the letter to the language arts department wherein they advised that books would not be a worthwhile expenditure for the current year but the parties did agree to provide books for the coming school year. Campbell indicated however that he did not respond to the union's letter concerning this problem. He testified that he is of the opinion that he is an administrator and the department head can best determine the needs of students due to their daily contact. Campbell testified that he was never told by Dr. Forguson that the discharge of Rydzik was not a grievable matter. Campbell admits having knowledge of Rydzik's union activities and also of knowing that Rydzik and others were interested in breaking away from PCTA and forming an affiliate of FTA. Campbell testified that he was unaware of Rydzik's relationship with his peers or what they thought of him personally. Campbell testified that he did not personally observe Rydzik's plan book prior to his determination to not renew his contract. Campbell testified that he was rated by PCTA in June and that his overall rating was 3.6. Linda Elkins, an art teacher of approximately 5 years and who is on continuing contract has known Rydzik for approximately 1 year. Elkins testified that she approached Rydzik regarding forcing a union and that he attended several meetings with officials of AFT. She testified that Rydzik was very active in the union's organizational drive. Elkins testified that she had a son who was one of Rydzik's students end he rated Rydzik as the "top teacher" of the school. She testified that she taught some of the same students as Rydzik and she heard favorable comments from several students regarding his teaching ability. She testified that she observed Rydzik's plan book and it was more thorough then many others whose plan books were approved and she was accordingly led to believe that Rydzik was about to be "axed." She also testified that it was probably true that Rydzik should not have played an active role in the union drive. She testified that since the discharge of Rydzik, most employees without continuing contracts status are afraid to participate in collective activities. On cross examination, she testified that several employees informed her that inasmuch as they were on annual contracts they would not sign the petition supportive of Rydzik. She testified that over 100 students commended Rydzik on his teaching abilities. Elkins testified that she was late and she received a note cautioning her to not be late again. She reiterated the fact that morale seemed to drop after Rydzik's separation. Donald W. Livesey, an employee for approximately 5 years was called and examined as follows: Livesey testified that Rydzik assisted him in trying to bring an affiliate of AFT into the school. He testified that Rydzik solicited him to join the union and that Rydzik got along with most employees. He testified that Rydzik "could have had a problem with his department head, Monique Lefebre." He testified that Rydzik asked to borrow his plan book which he loaned to him. He testified that Rydzik took his plan book home and based on his observation of Rydzik's plan book, it was better than most teachers. He testified that Rydzik was one of the "better dressed teachers in the school," end the parents often expressed a desire to have him teach school there based on his good rapport with kids. He testified that Rydzik was very active in all the plans and extra curricular activities end that his plan beak was very good. He expressed the opinion that Rydzik was a "superior teacher" and does not remember Rydzik not being on bathroom duty. He testified that during early 1975, the tension mounted after the commencement of collective bargaining negotiations. He also testified that a co-employee, a Mrs. Snell, did not sign a petition supportive of Rydzik until she was informed that she would be recommended for employment for the coming school year. He stated that it is common knowledge throughout the school that employees fear reprisals for testifying and they are expressing tenseness due to Rydzik's separation. He expressed his opinion that Rydzik was terminated due to his union activities. On cross examination he reiterated basically the same testimony that he testified to on direct. Barbara Snell, an employee at Hudson High School for approximately 3 years was called next and examined as follows: Snell testified that she had been tardy approximately 6 times during the period from July 1, 1974 thru April 1, 1975. She testified that she arrived earlier on numerous occasions, approximately 10 minutes and she on occasions remained late. She testified that she shared bathroom duty with Rydzik and that because she knew that they were being watched, she made a special effort to avoid being remiss in her bathroom duties. She testified that she could overhear Mr. Rydzik's class lectures because their planning periods were staggered and in her opinion Mr. Rydzik was "one of the best teachers she had seen". She testified that she feared reprisals from her employer due to the fact that she is an annual contract teacher. She voiced her opinion that the atmosphere around the campus has been somewhat tense and the employees fear being critical of the principal, Mr. Campbell. She testified that she signed the petition supportive of Mr. Rydzik after she had been rehired for the current school year. Bruce Bluebaum, a math teacher of approximately 4 years was called and testified that he knew Mr. Rydzik and that their homerooms were on opposite sides of the hall facing each other. He testified that on numerous occasions he observed Mr. Rydzik on bathroom duty and he was always in and around the bathroom during the class period changes. He testified that students liked Rydzik very much and always "flocked around him". Bluebaum testified that Rydzik worked diligently about his planbook and in his opinion, his plan book was excellent. He testified that Rydzik's planbook would always be turned down based on the dislike that existed between Mrs. Lefebre, his department head, and he. He opined that Mrs. Lefebre would search to find a way of "axing him". He testified that Rydzik was regarded as the "leader in the school". As to Rydzik's teaching abilities, he related an incident wherein he put on a mock trial and he also generally stated that Rydzik was "very innovative and a very good teacher". He gave the opinion that Rydzik was dismissed because he was "too vocal" in union activities and due to the dislike of him by his department head. On cross examination, he also opined that the teachers around the campus felt that the principal, Mr. Campbell, was led astray and made the wrong decision with regard to discharging or, that is, not rehiring Rydzik. He testified that when a union meeting was announced, Mr. Campbell would make the announcement in a manner which tended to show that he somewhat disliked having union meetings held on the campus facility whereas employees were asked or "forced" to sit through meetings regarding sales of "pot and pans". He indicated this same procedure with regard to insurance sales. Bluebaum testified that grievances were not well accepted around Gulf High School. Ruth J. Morris, a community school manager and employed at Gulf Junior High for approximately 9 years testified that she has known Fred Rydzik for approximately 2 years. Morris is presently the school's building representative. She testified that she had dealt with the principal, Mr. Campbell, on numerous occasions and she has assisted in the development of evaluation forms. She testified that evaluations tend to lose their worth because "different standards are used" nor do principals place much reliance on evaluations but that a new teacher will tend to feel that if they are not evaluated highly, it will play some important role in whether or not they will be rehired the next year. She testified that she evaluated Mr. Rydzik's planbook and told him that it was excellent. She testified that the employees in her opinion were afraid of criticizing Mr. Campbell but in cross examination she also testified that complaints were received satisfactorily by him. Campbell, she noted, was rated very good in an evaluation conducted by PCTA. Respondent's Defense to CA-1041 Monique Lefebre, Department Chairman, Social Science at Crawford Junior High School, has served in that capacity for approximately 5 years. She was the alleged discriminatee, Fred Rydzik's department chairman. Lafebre testified that Rydzik turned in his planbook only once or twice and that she did not talk to him about not timely turning in his planbook. She testified that initially Rydzik failed to perform his bathroom duty but that after warning him, he fulfilled his duties in that regard. This was noticed by her particularly after Rydzik received his mid-term evaluation. Lefebre also testified that she noted certain deficiencies in Rydzik's planbook percentages and that based or the manner in which she criticized them, there was no way that he could correct the deficiencies inasmuch as the time period had passed wherein such deficiencies could have been corrected. She testified that during a faculty meeting at the early part of the school year, male instructional personnel were told to wear a tie during school hours and to refrain from walking out of the faculty lounge with coffee. She testified that she observed Rydzik not wearing a tie for a period of approximately 15 days after this rule was announced and when she spoke to him about not wearing a tie and he failed to heed her advice, she then spoke to the principal. She testified she was aware that other teachers violated the coffee rule also although she did not personally see them. She testified that this was an unwritten rule and to the best of her recollection Rydzik was not present when the principal announced the rules regarding males wearing a tie or that they were not to walk out of the faculty lounge with coffee. She testified that the problem with regard to Rydzik not performing his bathroom patrolling occurred during the early part of the year, perhaps in late August or early September but that after he was evaluated during the early part of the year she did not notice him failing to perform his bathroom duty. James Campbell, the principal at Gulf, indicates that the sign in sign out sheets have been in effect for quite some time at the school. Respondent's exhibit no. 9 reflects inter alia, the sign in - sign out records of Rydzik and other instructional personnel at the school. He testified that he noted on a few occasions Rydzik would write in or drawn in a "smiling face" in the spot where he was to sign in. Campbell testified that based on his calculation Rydzik was late on approximately 51 occasions during the school year and that 3 occasions his secretary called him and he was late for as much as one hour. Campbell was rated by PCTA and on that evaluation form he was rated 3.6 of a possible 5. (See Respondent's exhibit no. 10, received in evidence). Campbell testified that union activities played no part in his decision to not rehire Rydzik nor did he have any knowledge as to Rydzik's serving as a building representative or running for any union office. On cross examination, Campbell testified he evaluated Rydzik on or about September 22 and his final evaluation came approximately 3 weeks later. He testified that in his opinion, 3 weeks was sufficient for Rydzik to correct any deficiencies noted on his evaluation. Campbell testified that school officially starts at 6:30 and homeroom begins approximately 6:45 a.m. He also testified that during the early part of the school year the time clock was not working and a small clock was used to apprise the employees of the correct time. A casual or cursory look at the time sheets indicates that there were a number of instructors who were late and that the correct time was not always adhered to nor was there any rigid policing of the time sheets. That is to say that instructors would often record that they would come in at say 6:30 a.m. whereas they might in fact arrive at 5:30 a.m. or on the other hand they might arrive at 6:45 a.m. and the same is true for signing out. Specifically employees may sign out at 2:00 and leave the building at say 1:30 or they may leave as late as 4:00. Campbell testified that he did net regard the fact that employees signed in when in fact they arrived earlier than that period as being violative of the "sign-in" rule and that the only objection he had to such procedure was a situation where for example a faculty member would leave the school say at 1:40 and sign out at 2:00. The records reflect that other employees were late a number of times. One case in point is Lucia Adkinson. Her time sheet reflects that she was late as much as 27 times during the past school year for a total of 665 minutes. The record also reflects that there was no method whereby one could determine whether employees were late or whether they were out on school business. Campbell's testimony regarding the sign-in, or time sheets reflect that a number of employees were late and this can be established by looking at the time sheets for Gene Lydman, Debbie Snyder, Mrs. Fisk, William Lynch, and a number of other employees, too numerous to recite herein. It was also noted that the time sheets are recorded in pencil and are easily distorted and difficult to determine if in fact an alteration has been made. Testimony was also heard by Campbell that on the PCTA evaluation form his lowest rating was in the area of "evaluating objectively after sufficient observation". Dr. Ferguson was called and testified that based on an examination after the hearing in the subject case commenced, he was able to determine that 5 employees were promoted to managerial or non-unit positions after Mr. Weightman was nominated. He testified that one employee was put on 4th year continuing contract and served as a building representative rather than on annual contract. He testified that throughout the county, approximately 19 annual contract teachers were not rehired and that 7 teachers were put on 4th year annual contracts. He testified that an examination of the school boards records indicate that on June, 1975, there were approximately 590 employees on dues check off and that on July 28th the number was 429 employees and the 429 figure does not reflect those employees who were serving on D track. Ferguson testified that the only alleged discriminatee that he knew was Ron Eckstein and this knowledge came from observing his picture in the collective bargaining agreement which is charging parties exhibit no. 3 received in evidence. At the conclusion of case numbers 1037; 1040 and 1041, counsel for Respondent asked the hearing officer to take official notice of the official regulations of the Department of Education and official notice of Florida Statutes 447. Thereafter Respondent rested as to cases 1037; 1040 end 1041. General Counsel end Charging Party's rebuttal in cases 1037, 1040 and 1041 Ronald Claybeck, an unemployed male teacher who served the previous school year at Hudson Senior High testified that his prior experience included serving as a teacher in New York State's school system for approximately 12 years. Claybeck testified as to conversations preceding the election and subsequent to the election of the social studies chairmen at Ronald Eckstein's school. Claybeck testified that there were conversations regarding the number of possible ballots to be cast regarding the recommendation to the principal for the social studies chairmanship and there was some discussion as to whether two deans who were working in the social studies or other departments would be permitted to vote. Those individuals are a Mr. Carvealis and a Mr. Menticus. He said the conversation was generally that the two deans would be permitted to vote in the election. He testified that Carvealis indicated that he would vote for Potts who in fact received the chairmanship due to a personality clash that Carvealis had with Eckstein. Clayback expressed a reluctance to testify end in fact testified under subpoena because he "feared his wife's job (an elementary teacher at Hudson Elementary School)." Claybeck testified that he and Potts are neighbors and that Potts told him that Eckstein was "a competent teacher end that he (Potts) indicated as much to the principal, Coy Pigman". He testified that Potts indicated to him that he was called in by Pigman and asked if he wanted the chairmanship. Clayback testified that Potts remained neutral as to the chairmanship because Eckstein was a good teacher although he differed with him regarding his teaching methods. Clayback testified that it was obvious that Carvealis and Eckstein did not agree with each other. Clayback testified that another factor leading to his reluctance to testify was occasioned by the fact that he was called approximately two days before his appearance and he had an unlisted phone number. He testified that he was told that if he testified, "his wife's job would be in jeopardy". On redirect examination Clayback testified that he attended the union hall and was given a subpoena by Mr. Matthew, charging parties' attorney and he also gave his phone number to Larry Smith, union president. Fred Rydzik was also recalled and testified that he was not given a new school book by his department head, Mrs. Lefebre. Rydzik also testified he was not evaluated by Lefebre, nor did she assist or advise him of his duties nor did she tell him that he was deficient. Rydzik testified that he turned his planbook in approximately 12 times at 3 week intervals as per the schedule and that to the best of his recollection he failed to turn the planbook in only on two occasions meaning that he in fact turned the planbook in approximately 10 times. He testified that his planbook was never approved by Mrs. Lefebre. He testified that he was unaware of any dress code relating to males wearing a tie. He also denied that he failed to wear a tie on 15 occasions as testified to by Mrs. Lefebre. Mr. Rydzik also denied taking coffee to areas other than the yearbook planning and production area and that he served his bathroom duty daily. Rydzik testified that the schedule relating to patrolling the bathroom and the hall was "a loose schedule". Rydzik testified that on 3 occasions the office secretary called and informed him that he forgot to sign in and in those instances, his entry for signing in remained blank. He testified that he was late on no more than seven occasions and this was for a period of 5 minutes or so. He testified that there were approximately 3 times that he was late as much as 1 hour and that his examination of the time sheets indicate that there were approximately 12 alterations. On redirect examination, Rydzik testified that sometime in January, 1975, Campbell told the employees that they would not sign others out and that he obeyed this mandate. Josephine Lofland was also called to testify and testified that it was common practice to sign in at the proper time even though employees did not always arrive at the time recorded. She testified that on example of this was Art Engle, a curriculum coordinator who was late on several occasions according to a Mrs. Williams. This concluded the evidence taken in cases 1037, 1040 and 1041. Case Number Ca-1062 and Case Number CA-1082 Larry Smith, the union president was called and testified that he assisted in the negotiations for end ratification of the current collective bargaining agreement. (Charging Parties' exhibit no. 3). Smith testified that both parties were pleased to ratify the contract and they discussed the amiable relationship that existed based on the contract. Smith testified that good faith bargaining existed through November, 1974, end that the union supported the incumbent superintendent, Ray Stewart, actively. Smith testified that he started working with the newly elected superintendent Weightman, late in November, 1974. Smith testified that in late January or early February, 1975, the negotiations and the atmosphere appeared to, in his opinion, "breakdown." He testified that he requested voluntary recognition and that he presented to Dr. Ferguson, the Respondent's designated collective bargaining agent, approximately 90 percent of the employees who had executed authorization forms. He testified that Dr. Ferguson recommended recognition be granted on a voluntary basis. Accordingly, PCTA was certified by PERC on April 17, 1975. Negotiations for a collective bargaining agreement began on or about April 24, 1975, and a mediator was assigned approximately 60 days thereafter, after the parties had reached an impasse. Smith testified that he contacted a mediator and the mediator indicated that he would be pleased to assist the parties at arriving at a settlement but based on his experience in the mediation field, it would be fruitless to do so unless he was requested jointly by both parties. Smith testified that a special master was assigned sometime in early July, 1975. Smith testified that he received a written authorization from Mr. Weightman designating Ferguson as the school board's agent for collective bargaining. Smith testified that he was present at all the negotiations and acted as the union's chief spokesman. The proposal submitted by the union included salary and increment proposals, planning days etc. Smith testified that at a school board meeting on or about May 6, 1975, the school board, over his objection, adopted the proposed schedule as provided in the old collective bargaining agreement i.e., (Charging Parties' exhibit no. 3). Smith indicated that this objection came through oral objection and by a letter sent to Mr. Ferguson prior to May 6. Smith testified that Ferguson was not prepared to and did not present salary proposals, based on a claim that the parties or the school board did not know its true financial condition. Smith testified that at no time did the union waive its right on salaries, planning days or salary increments. He testified that increments were cut by approximately 5 percent and instructional personnel salaries were frozen at the old rate. Smith recalls making an objection after he was shown charging parties' exhibit no. 33 which was received in evidence. Smith testified that he had no indication that check off authorizations would be revoked prior to the cut off by the school board. Charging parties' exhibit no. 33 received in evidence is a reflection of the evidence regarding dues check off. Smith testified that he advised Ferguson that the dues authorizations were continuous in nature and that article 2, section 2, page 3 of charging parties' exhibit no. 3 in fact provides for continuous check off. Smith testified that he was afforded a short period i.e., from July 28th thru August 5th to sign the D Track teachers and this is evidenced by charging parties' exhibit no. 34 received in evidence. He testified that he expressed concern about the short period of time to Dr. Ferguson. The testimony indicated that D Track teachers were off duty during the period In question and therefore they had to be contacted either at their homes or through other means. Smith testified that he thereafter contacted PERC regarding the dues check off problem and PERC indicated its opinion which in essence is an advisory opinion indicating that in its opinion the dues check off authorizations were not in violation of Florida Statutes, 74, Chapter 100. On cross examination Smith reiterated the fact that after Mr. Weightman took office the bargaining relation ship appeared to "breakdown." Smith testified that on July 2, Dr. Ferguson advised him that if employees were not signed by the date indicated in his letter i.e., August 5, they would not be deducted.
Recommendation Based on the foregoing findings and conclusions I hereby recommend that the Public Employees Relations Commission enter an order finding that the actions by Respondent, as set forth above and more specifically in the subject administrative complaints, constitute unfair labor practices within the meaning of Section 447.501(1)(a) and (b), Florida Statutes, as alleged. RECOMMENDED this 28th day of April, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether the Duval County School Board (Board) may terminate Respondent, Cleveland F. William, Jr.'s, employment as a teacher based upon incompetence under the Duval Country Teachers Tenure Act (the Act). This issue is dependent upon whether the Board showed Respondent to be incompetent and whether the Board complied with the procedural requirements of the Act.
Findings Of Fact Respondent was first assigned to Fort Caroline Middle School during the academic year 2000-2001 to teach 6th grade science. Kathy Kassees was the principal at Fort Caroline Middle School during that school year. Respondent's brother was extremely ill and died during the school year. Respondent's performance evaluation for that school year was less than satisfactory. See Exhibit 2, 2000-2001 Performance Evaluation. Respondent concedes that his performance in 2000-2001 was less than satisfactory. See paragraph 56 of Respondent's Post-hearing Brief. When a tenured teacher in the Duval County system has a performance evaluation of less than satisfactory, the teacher may elect to transfer to another school, and Respondent exercised that option for the school year 2001-2002. Respondent was moved to Stillwell where he was assigned to teach 7th grade science. In addition, he was assigned for the first time to teach inclusion classes. Inclusion classes are made up of students who are exceptional education students who may have various exceptionalities. These exceptionalities may include disabilities such as deafness, emotional and behavioral problems, and developmental disabilities. Behavioral problems may include students diagnosed with attention deficit disorder and hyperactivity. Stillwell utilizes a program of instruction called the America's Choice Plan (ACP). The ACP is a comprehensive educational program which covers all aspects of instruction, organization of the classroom, and display of student materials in the classroom. ACP has its own vocabulary of terms to describe activities and things. For example, "artifacts" refers to student work and other materials posted in the classroom. It is expected that "artifacts" will be posted and changed periodically. Weekly meetings to discuss the system are called "Tending the Garden" meetings. ACP had been used at Stillwell previously and the returning faculty were familiar with it. Respondent had never worked with ACP before. Ms. Kassees had prepared a Success Plan for Respondent after he received his unsatisfactory evaluation to help him improve his deficiencies. Respondent took this plan with him to Stillwell, but the plan did not address ACP or inclusion classes. Mr. Marjenhoff, the principal at Stillwell, met with Respondent and discussed Marjenhoff's expectation of Respondent. They did not discuss any special requirements or changes necessitated by ACP or inclusion classes. Petitioner was unable to establish that it had prepared and delivered a new Success Plan to Petitioner at Stillwell. After his poor evaluation in February of 2002, Respondent asked Mr. Marjenhoff for a copy of the Success Plan and one was produced which was signed by Mr. Marjenhoff and dated August 6, 2001, and by Respondent on March 27, 2002. See Exhibit 13. Respondent did attend various ACP, "Tending the Garden" in-service educational classes presented by Dianne Rahn; Urban Systemic Initiative (USI) seminars presented by Rose Curry; and classes presented by his department head, Margarita Arroyo. His attendance and punctuality at these meetings was on par with his peers. The first indication of evaluative inspections came in a November 28, 2001, memo to Respondent from Marjenhoff stating that Dianne Dunn, a cadre member, would be contacting him about setting up a classroom visit. She did not conduct a visit until January 28, 2002. See Exhibit 11 and attachments. The annual evaluation of faculty occurs in February. Petitioner concedes that other than the cadre work by Dunn and some instruction on USI by Curry, little was done by way of individualized in-service training to address Respondent's shortcomings. Respondent was not afforded much in the way of unique, individualized oral counseling or critiques of his performance during the first part of the school year. See paragraphs 21 and 22 of Petitioner's Post-hearing Brief. A review of Curry's visits reflects she met with Respondent approximately once each month for a rough average of an hour, with the exception of the first meeting which was four hours. Curry's logs do not reflect the corrective actions taken with regard to Respondent's teaching. This hardly constitutes an accelerated effort to improve Respondents performance. See Exhibit 21. The dates of the various class visits and evaluations by Marjenhoff are in February and March. See Exhibits 12, 18 and 19. A review of the records of the in-class visits and commentaries by the observers reveal that too many general recommendations were made rather than specific, concrete changes to implement. For example, Darrell Perry visited Respondent's class and was concerned about its physical organization, i.e., where the television was located, the direction in which the seats were oriented, and where Respondent's desks was located. This was written up in March, which was late in the year to raise these issues, and Perry did not suggest or volunteer to help Respondent alter the room to meet Perry's expectations. Also see Exhibit 11 and attachments. In sum, there was too much jargon and too little performance-oriented, hands-on correction of Respondent. Memoranda relating to Respondent's performance all seem to be dated after January 2002. See Exhibits 16 and 17. The corrections that were made came too late to have a meaningful impact upon the improvement of Respondent's teaching performance.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board provide Respondent another year in which timely and appropriate in-service training is provided to correct his deficiencies in teaching. DONE AND ENTERED this 29th day of January, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2003. COPIES FURNISHED: David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Michael B. Wedner, Esquire City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether the refusal by the Respondent District School Board of Madison County to sign a contract prepared by a representative of the Madison County Education Association after a meeting of the Parties held for the purpose of reaching a collective bargaining agreement on November 18, 1975 was an unfair labor practice.
Findings Of Fact The Madison County Education Association was recognized by the District School Board of Madison County as exclusive bargaining agent for a unit of instructional employees of Madison County Schools on April 1, 1975. Formal negotiations for the purpose of reaching a collective bargaining agreement commenced on or about July 3, 1975. An impasse was reached on or about August 1, 1975 and the controversy was submitted to a special master under Section 447.403, Florida Statutes. A Special Master, Marvin A. Griffin, was appointed by Curtis L. Mack, Chairman, Public Employees Relations Commission, "to investigate the disagreement between the Madison County School Board and the Madison County Teachers Association." After a hearing on August 29, 1975 and September 12, 1975, Mr. Griffin filed a report dated September 26, 1975. He then offered to write a synthesized agreement and presented a draft of an agreement (hereinafter designated Contract 1) entitled "Agreement between Madison County Education Association and District School Board of Madison County, Madison, Florida, October 1, 1975." The Superintendent of Public Instruction, Gene Stokes, formally rejected the Special Master's recommendations concerning a number of articles in the agreement and made recommendations on disputed items in the Special Master's report. The District School Board of Madison County met with the Madison County Education Association and the School superintendent on November 13, 1975, at which meeting the School superintendent and the Teachers Association explained their positions. No final action was taken, and the item was tabled until November 18, 1975. At the meeting on November 18, 1975, the proposed agreement of the Special Master was modified by the superintendent's recommendation and was further modified by a Motion of school board member Eugene P. Bowie to Article XVII. (TR. 44) The agreement as modified was not reduced to writing at the meeting on November 18, 1975. The President of the Teachers Association, Florise Whittemore, used the special Master's agreement and her notes and reduced the agreement to writing (hereinafter called Contract 2 ), as she had understood the agreement. After the agreement was typed, it was presented to the teachers on November 25, 1976 and ratified by them. The pertinent portion of the official minutes of District School Board of Madison County adopted at its regular meeting, December 1975, reads: "Article XVII, $500 increase in base pay for each teacher." An unsigned copy of the contract prepared by Mrs. Whittemore was delivered to school Board Member Pickles through his daughter. A copy was also delivered to Mr. Bowie in person. A signed copy was delivered in December to the Chairman of the School Board and the negotiator Lloyd Day. Upon presentation of the contract agreement as drafted by the Madison County Education Association, member Albert W. Waldrep refused to sign the contract contending that the interpretation as shown in the teachers contract of the Motion by School Board member Bowie was in error. Member Bowie meant by his Motion that the raise should be from June 30, 1975 and Member Albert W. Waldrep understood that Member Bowie's Motion meant from November 1, 1975. Respondent then instructed its attorney to redraft the provisions of the contract pertaining to salary and said redraft (hereinafter called Contract 3) was adopted by the Respondent and signed by Chairman C. W. Pickles and attested to by Gene Stokes, Superintendent. The Charging Party refused to accept Contract 3 as redrafted by Respondent. The Charging Party thereafter filed an unfair labor charge which resulted in a formal Complaint and Notice of Hearing being issued by Public Employees Relations Commission on April 21, 1976. The Hearing Officer further finds: The Motion by Member Bowie relative to the dispute in this cause was voice recorded "Here I recommend a $500 raise per year for each teacher." It was amended by Member Pickles and concurred in by Mr. Bowie to state "base pay" and then seconded by Mr. Pickles. There was no mention of what date the raise was to be effective. There was no discussion of "retroactive pay" or "bonus pay", although the pay increase as intended by Member Bowie would have involved an increase of $150 per month for each of the three months of July, August and September. Member Bowie, cognizant of Contract 1 and prior negotiations, meant the raise to begin June 30, 1975. His Motion was intended to encompass Contract 1 as submitted by the Special Master and recommended by Superintendent Stokes. Mr. Waldrep, cognizant of the prohibition against retroactive pay and the shortage of funds, believed that he voted for a raise beginning November 1, 1975. Teacher salary checks for July, August and September, 1975, had been cut prior to the November 1975 Meeting. The words of the Motion "Here I recommend $500 raise per year for each teacher" together with the amendment or clarification "base pay" does not speak to the point in controversy and is consistent with either an interpretation to mean "fiscal year" or "calendar year." The contract as rewritten, typed and submitted to the members of the School Board [designated Contract 2] was the understanding of the Madison County Education Association of an agreement reached by the Parties at the November 18, 1975 meeting. The contract as rewritten, typed and submitted to the teachers [designated Contract 3] was the understanding of a majority of the five-member District School Board of Madison County of an agreement reached by the Parties at the November 18, 1975 meeting. There was no final agreement between the Parties as to the disputed salary increase effective date. After the November 18, 1975 meeting, Contract 2 was written by the Charging Party without the aid of the Respondent. It reflected an interpretation of the Motion most favorable to Charging Party's financial interests. After the November 18, 1975 meeting, Contract 3 was written by the Respondent without the aid of the Charging Party. It reflected an interpretation of the Motion most favorable to Respondent's financial interests. The facts of the cause do not reflect an unfair labor practice under Section 447.501, F.S., for the reason that the refusal by the parties to sign either Contract II or Contract III was based on the fact that no final agreement had been reached on the disputed issues at the collective bargaining meeting of November 18, 1975.
Recommendation Dismiss the complaint. DONE and ENTERED this 15th day of October, 1976, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Leonard Carson, Chairman Public Employees Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32301 Edwin B. Browning, Esquire Post Office Drawer 652 Madison, Florida 32340 R. T. Donelan, Jr., Esquire 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301 Rod W. Smith, Esquire 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301 Florise Whittemore, President Madison County Education Association Madison, Florida Tobias Simon, Esquire and Elizabeth deFresne, Esquire 208 West Pensacola Street Tallahassee, Florida 32304
The Issue The issue in this case is when the 97-day probationary employment period began to run for each of the Respondents, and whether their employment could be terminated without just cause.
Findings Of Fact Petitioner is the School Board of Polk County, the entity responsible for operating, monitoring, staffing, and maintaining the public schools of Polk County. The Board hired both Respondents, Diane O'Brien and Marcee Gunn, to fill positions within the Polk County School System. Prior to the 2003-2004 school year, Federal requirements under the "No Child Left Behind" ("NCLB") program mandated that by the end of the 2005-2006 school year, all teachers in core academic areas must be "highly qualified" as defined by Federal guidelines. The guidelines state that a teacher must possess a combination of both appropriate certification and documentation of subject area knowledge. The determination of whether a teacher had the requisite knowledge was done by way of a battery of tests in the subject areas. At the time the NCLB program was instituted, Polk County was experiencing a high level of growth and was hiring approximately 1,200 new teachers each year. The shortage of teachers who had obtained the highly qualified status resulted in the Board hiring a class of teachers who were not highly qualified, but under certain restrictions. These teachers were deemed D-1 provisional substitute teachers. The D-1 teachers were hired with the intention of allowing them to be employed as substitutes, pending their passage of the subject area tests. D-1 teachers were first hired by the Board to fill positions in the 2002-2004 school year. D-1 teachers were paid a daily rate of pay and received insurance and retirement benefits. If the teacher ultimately became highly qualified, they were to be given seniority consideration retroactive to the date of their hire.1 As substitutes, D-1 teachers were "at will" employees and were not contract employees. Their employment could be terminated with or without cause at any time. All D-1 positions were terminated at the end of the school year for which they were hired. If a teacher had not obtained highly qualified status, they could be hired as a D-1 teacher for the next school year. The D-1 program was eliminated, in whole, at the end of the 2007-2008 school year. Diane O'Brien Respondent, Diane O'Brien, worked as a para-educator for 15 years before earning a degree in special education from Nova Southeastern University in 2006. O'Brien was hired by the Board to be a D-1 substitute teacher for handicapped students at Haines City High School for the 2007-2008 school year. At the time of her hire, O'Brien signed a Conditional Employment Agreement that refers to her as "Teacher." The agreement does, however, set forth certain requirements for becoming a regular teacher. O'Brien was assigned a full-time para-educator to assist her and was given a classroom for purposes of fulfilling her position. At all times during the school year, O'Brien acted as and considered herself to be the official teacher for the class. O'Brien was evaluated during the school year by the principal and the assistant principal. O'Brien attended the IEP meetings and was responsible for writing IEPs for her students. O'Brien was never referred to by staff or other teachers as a "substitute" teacher during that school year. Nonetheless, O'Brien signed a document entitled, "Guidelines for Provisional Substitute Teachers 2007-2008 School Year" when she was hired. The document clearly indicates the requirements for a regular teacher and states that until such requirements are met, the teacher is considered a provisional D-1 substitute. O'Brien does not specifically remember signing this particular document; she said she signed many documents when hired, and none of them were explained to her. O'Brien did not meet the requirements to be a regular teacher at that time. During the 2007-2008 school year, O'Brien was paid as a D-1 substitute teacher, i.e., $115 per day, plus benefits. As early as August 2007 (the month classes began), O'Brien contacted a Ms. Capoziello requesting that her salary be changed to full-time teacher salary. She was advised that she had not yet met the requirements for a full-time teacher, because she had not yet met the "Certified, Qualified and Highly Qualified" requirements set forth in the Guidelines for Provisional Substitute Teachers. In December 2007, O'Brien indicated in an email that she was working hard to pass the necessary tests, but had not yet done so. In January 2008, O'Brien contacted the human resource officer to inquire as to when her status would change. In response, she received the following explanation: Please refer to the individualized Guidelines for Provisional Substitute Teachers 2007-2008 School Year that you signed on August 8, 2007. During New Educator Orientation, you were provided with the requirements necessary to attain "highly qualified" status for your ESE assignment. You are fully certified in ESE, but according to federal legislation, you are not considered "highly qualified" as defined in the law, because you have not "demonstrated subject matter competence" to teach ESE academic subjects. [F]or your current assignment, you need to pass the Elementary Education K-6 subject area exam to be deemed "highly qualified." After you have completed this requirement that was provided to you on August 8, 2007, then you will be eligible to transfer to B1 status as a regular teacher. (Emphasis in original.) After the end of the 2007-2008 school year, O'Brien passed the subject area exam necessary to achieve "highly qualified" status. She was then hired in the 2008-2009 school year as a regular teacher by the Board. O'Brien commenced work under her first annual contract with the Board as a regular teacher on or about August 11, 2008. On November 11, 2008, a memorandum was issued to O'Brien by the Board entitled, "Dismissal of Instructional Employee During 97-Day Probationary Period." O'Brien signed the memorandum, acknowledging receipt. The memorandum identifies O'Brien as "an initial annual contract teacher." The effect of the memorandum was termination of O'Brien's employment by the Board. O'Brien maintains that her period of teaching during the 2007-2008 school year was as a regular teacher. If that is the case, then she could not be terminated within the 97-day probationary period without the establishment of just cause. Marcee Gunn Respondent, Marcee Gunn, received her education at the University of Missouri at St. Louis. Gunn received her Florida teaching certification and was, in August of 2007, a certified teacher. Gunn was hired by the Board as a pilot D-1 substitute teacher for the 2007-2008 school year. A pilot substitute teacher fills in for absent teachers at one particular school, rather than going to various schools. In February 2008, Gunn was transferred from a pilot substitute to a permanent position as a kindergarten teacher at the School. The previous teacher had moved to another position, and Gunn was asked to fill the position through the end of the current school year. The permanent position was also classified as D-1 substitute, because Gunn had not yet become highly qualified. Gunn acted as, and considered herself to be, the full-time kindergarten teacher. She organized the classroom, prepared all student assignments, issued a monthly newsletter, and attended IEP meetings. Gunn was evaluated in her position by the principal and assistant principal. While Gunn was a pilot D-1 substitute, she received pay of $115 per day, plus benefits. At the time she became the permanent kindergarten teacher she received the same pay, but believed she would be receiving regular teacher pay. However, upon taking the kindergarten teacher position, Gunn signed a document entitled, "Guidelines for Provisional Substitute Teachers 2007-2008 School Year." The document clearly indicates that Gunn was being hired as a D-1 substitute and sets forth the requirements for becoming a regular teacher, i.e., passing a test in the subject area to be taught. Gunn also acknowledges signing the document, but does not have any specific recollection of having seen it. She did know that the document required her to pass the K-12 subject area exam in order to be reclassified as a regular teacher. Gunn's position was terminated at the end of the 2007-2008 school year. Gunn was re-hired by the Board for the 2008-2009 school year as a regular teacher for the same kindergarten class. (The evidence is not clear whether Gunn was hired in 2008-2009 as a D-1 substitute or a highly qualified teacher. The fact is not relevant, however, because even if she was a regular teacher, she would have been in her first year of an annual contract.) On November 14, 2008, a memorandum was issued to Gunn by the Board entitled, "Dismissal of Instructional Employee During 97-Day Probationary Period." Gunn signed the memorandum, acknowledging receipt. The memorandum identifies Gunn as "an initial annual contract teacher." The effect of the memorandum was termination of Gunn's employment by the Board. Gunn maintains that her period of teaching during the 2007-2008 school year (or at least a part of it) was as a regular teacher. If that is the case, then she could not be terminated within the 97-day probationary period without the establishment of just cause. There is no dispute by Respondents that the dismissal memoranda were issued within 97 days of their commencement of work during the 2008-2009 school year. Rather, each Respondent contends that their full-time, contracted employment with the Board commenced earlier than the 2008-2009 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Polk County School Board, terminating the employment of Respondents, Diane O'Brien and Marcee Gunn, effective as of the dates determined by the Board. DONE AND ENTERED this 20th day of November, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 20th day of November, 2009.
Findings Of Fact Respondent has been employed by Petitioner as a teacher's aide in a mentally handicapped classroom for the past three years. Prior to her employment, Respondent, who is the mother of a handicapped child, worked as a volunteer classroom aide. She is active in the Parent Teacher Association and is a girl scout leader. Respondent attended an orientation session at the beginning of the 1983-84 school year where school policies were discussed. However, she does not remember any explanation of corporal punishment policy and did not receive a copy of Petitioner's rules on this subject. Respondent has had no formal training in education and is not certificated. Respondent recalls a discussion at the beginning of the school year with the special education teacher who was her supervisor. The teacher advised Respondent not to hit Robert Pelligrino because his sister would likely take legal action. The teacher concedes that she made a special point of telling Respondent not to strike Robert Pelligrino, but claims to have forgotten everything else about the discussion including the reason for this unusual warning. On or about February 3, 1984, while engaged in her duties as a teacher's aide, Respondent slapped the student Robert Pelligrino in the face. She struck the child with sufficient force to leave a mark which was visible for a brief period following the incident. Although Petitioner presented no evidence to establish that Respondent struck Robert Pelligrino, she readily admitted doing so. However, Respondent claims she was merely trying to correct his finger-sucking habit. This alibi is rejected, in that events leading up to the incident provoked Respondent and caused her to believe that Robert needed to be disciplined while his unacceptable behavior was fresh in his mind. Robert, who is mentally handicapped, tripped a smaller, handicapped student who fell and was injured as a result of Robert's action. Respondent first went to the aid of the injured student and immediately thereafter slapped Robert. The two other incidents were attested to by Robert's sister, Mrs. Donna Ferrell, who was serving as a volunteer aide on February 1, 1984. Mrs. Ferrell and Respondent were both working with a group of handicapped children on the occasion of a class field trip. Mrs. Ferrell observed Respondent beating on the chest of one student in an effort to re-attach a "stick-on" name tag which the child had removed. Later, on the bus, Mrs. Ferrell observed Respondent reach out and strike or tap a student on the top of his head to gain his attention. This evidence did not establish that Respondent injured either student, that she used undue force, or that she was attempting to punish either of them.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order dismissing its charges against Respondent. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The DeSoto Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1984.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as a school custodian based on the allegations contained in the Notice of Specific Charges filed June 21, 2001.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public education within the school district of Miami-Dade County, Florida. See Section 4(b) of Article IX of the Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a custodian at Miami Edison Middle School (Miami Edison) and Horace Mann. Both schools are public schools located in Miami-Dade County, Florida. On May 16, 2001, Petitioner voted to suspend Respondent's employment as a school custodian and to terminate that employment. Respondent is a non-probationary "educational support employee" within the meaning of Section 231.3605, Florida Statutes, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system who is employed as a teacher assistant, an education paraprofessional, a member of the transportation department, a member of the operations department, a member of the maintenance department, a member of food service, a secretary, or a clerical employee, or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 231.1725. . . . "Employee" means any person employed as an educational support employee. "Superintendent" means the superintendent of schools or his or her designee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . In the event a superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement. Respondent is a member of the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME). AFSCME and Petitioner have entered into a Collective Bargaining Agreement (the Agreement) that includes provisions for the discipline of unit members. Article II of the Agreement provides that Petitioner may discipline or discharge any employee for just cause. Article XI of the Agreement provides specified due process rights for unit members. Petitioner has provided Respondent those due process rights in this proceeding. Article XI of the Agreement provides for progressive discipline of covered employees, but also provides that ". . . the degree of discipline shall be reasonably related to the seriousness of the offense and the employees [sic] record. " Article XI, Section 4C of the Agreement provides that employment may be terminated at any time for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. On February 6, 1996, Respondent was issued a memorandum from the principal of Miami Edison involving Respondent's use of profanity in the presence of students. In the memorandum, the principal directed Respondent not to use profanity on school grounds. On May 21, 1998, Respondent, Mark Wilder, Clarence Strong, and a student were in the cafeteria of Horace Mann preparing for a fund raising activity. Respondent spouted profanities directed towards Mr. Wilder and threatened him with a mop handle. Respondent feigned a swing of the mop handle, causing Mr. Wilder to reasonably fear he was about to be struck by the mop handle. Mr. Wilder had done nothing to provoke Respondent. Mr. Strong knew Respondent and was able to defuse the situation. Mr. Wilder reported the incident to Senetta Carter, the principal of Horace Mann when the incident occurred. Ms. Carter reported the incident to Petitioner's director of region operations. Respondent received a copy of the School Board rule prohibiting violence in the workplace. After investigation, the school police substantiated a charge of assault against Respondent. On March 15, 1999, Petitioner's Office of Professional Standards held a Conference for the Record (CFR) with Respondent pertaining to the incident with Mr. Wilder. Respondent was specifically directed to refrain from using improper language and from displaying any action that another person could interpret as being a physical threat. On October 25, 2000, during the evening shift, Respondent physically assaulted William McIntyre and Noel Chambers while all three men were working as custodians at Horace Mann. Respondent shouted profanities towards both men, threatened them, and violently grabbed them by their shirt collars. Respondent punched Mr. McIntyre in the area of his chest and broke a chain Mr. Chambers wore around his neck. Mr. Chambers and Mr. McIntyre reported the incident to Robin Hechler, an assistant principal at Horace Mann. Respondent came to Ms. Hechler's office while she was interviewing Mr. McIntyre about the incident. When Ms. Hechler attempted to close the door to her office so she could talk to Mr. McIntyre in private, Respondent put his hand out as if to move Ms. Hechler out of his way. Ms. Hechler told Respondent not to touch her and instructed him to wait outside her office. Ms. Hechler later told Respondent to come in her office so she could interview him. Respondent was acting irrationally. Ms. Hechler told him if he could not control himself she would call the school police. Respondent replied that was fine and walked out of her office. Ms. Hechler reported the incident to the school police, who ordered Respondent to leave the premises. Following the incident, neither Mr. Chambers nor Mr. McIntyre wanted to work with Respondent because they were afraid of him. In response to the incident involving Mr. McIntyre and Mr. Chambers, the principal of Horace Mann referred Respondent to the Petitioner's Employee Assistance Program on November 2, 2000. Respondent's shift was changed so he would not be working with Mr. Chambers or Mr. McIntyre. On November 7, 2000, Respondent attacked J. C., a student at Horace Mann, in the cafeteria area of Horace Mann to punish J. C. for something Respondent thought J. C. had said or done. Respondent shouted profanities towards J. C. and choked his neck. J. C. was very upset and injured by Respondent's attack. Respondent was arrested on November 7, 2000, on the offense of battery on a student. On February 21, 2001, he was adjudicated guilty of that offense, placed on probation for six months and ordered to attend an anger control class. Respondent was also ordered to have no contact with J. C. School Board Rule 6Gx13-4-1.08, prohibiting violence in the workplace, provides as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public Schools [sic] employees have a right to work in a safe environment. Violence or the threat of violence will not be tolerated. School Board Rule 6Gx13-5D-1.07, provides that corporal punishment is strictly prohibited. Respondent's attack on J. C. constituted corporal punishment. School Board Rule 6Gx13-4A-1.21, provides as following pertaining to employee conduct: I. Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ORDERED this 12th day of December, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2001. COPIES FURNISHED: Frank Ferguson 7155 Northwest 17th Avenue, No. 9 Miami, Florida 33147 John A. Greco, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Dr. Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The central issue in this proceeding is whether the Department of Banking and Finance's (Agency) action relating to an intended contract award was arbitrary, illegal, fraudulent or dishonest. Petitioner alleges that the Institute for Instructional Research and Practice of the University of South Florida (Institute) has no statutory authority to perform the contract. The intervenor, Hewitt, Olson & Associates, Inc., joins this allegation. By stipulation at hearing, Petitioner limited its protest, and the issues, to that allegation.
Findings Of Fact The Department of Banking and Finance is the agency with the statutory responsibility to administer and enforce laws related to mortgage brokerage and mortgage lending. It licenses persons eligible to practice in those fields. Eligibility is based, in part, on education and experience as well as on a written test. While the agency formerly administered the tests, it reached the conclusion that it needed a more extensive test; it needed to know whether items were valid and it needed a study guide for people who intended to take the test. For those reasons, it sought outside expertise in its RFP no. BF-12/94-95. The Department received timely responses from Petitioner and the two intervenors in this proceeding. The cover of the bound proposal from the University of South Florida states that the proposal is submitted by the Institute for Instructional Research and Practice, University of South Florida, College of Education, Carolyn D. Lavely, Ph.D., Director. Within the cover is a copy of memorandum of delegation of authority to execute research contracts and grants, by Betty Castor, President of the University of South Florida. There are also separate submittal letters executed by John C. Kuttas, Senior Contracts and Grants Administrator, Division of Sponsored Research at the University, and by Dr. Lavely and Roslyn Heath, Assistant Director, Division of Sponsored Research at the University. (Respondent's Exhibit #3). The services described in the proposal are to be performed by the Institute of Instructional Research and Practice at the University of South Florida. The Institute describes its qualifications on pages 32 and 33 of its proposal: The Institute for Instructional Research and Practice (the Institute) was established in 1984 by the Florida Legislature. Originally respon- sible for research, development, and validation of instruments for measuring subject area knowledge and teacher effectiveness, the Instituted has developed and validated more than 60 examinations for the state's master teacher and teacher certification programs. Since its inception, the Institute has expanded its range of testing activities beyond assessments of teachers to include assessments of students, school admini- strators, and non educators who require testing for professional licensure. The Institute's staff of 35 persons includes statisticians, psychometricians, computer specialists, and editorial and clerical support personnel trained in the provision of products and services directly related to all phases of test development, administration, and statistical analysis. Experienced in all aspects of testing, Institute staff have been actively involved in drafting legislation; setting standards; performing task analyses; developing, validating, and pilot testing specifications and examinations; administering examinations; scoring, analyzing, and reporting the results of a variety of tests for the State of Florida; and conducting related research. Institute personnel manage a large-scale test development operation, conduct research, and document and produce standardized tests. The Institute is now the third largest producer of teacher exams in the United States. (emphasis in original) The University of South Florida has contracted for similar services with several state agencies including the Department of Insurance, the Department of Education, and the Department of Business and Professional Regulation. The Institute provides the testing services and uses the contracts to further its own research and expertise, to collect and analyze data and to train graduate students in the College of Education. RFP no. BF-12/94-95 is not a request for research services and is not a request for a research contract. The services under the contract have research and training components. The Institute does research related to item analysis; it accumulates data as a result of administering the exams and it analyzes and researches the data. Dr. Lavely and other Institute staff publish in research journals and make presentations to research associations based on the experience of the Institute in its testing contracts. Graduate students are involved in the training and research aspects. Thus, it is clear that even if the contracting agency is not receiving a direct research "product", the Institute and the University are deriving a research benefit from the services under the contract. Since its creation by statute in 1984, the Institute's enabling legislation has not been amended. It received an initial appropriation of $750,000 from the legislature, and no appropriation since then. Payments for all contractual services provided by the Institute are routed through the University of South Florida's Division of Sponsored Research. The contract to be awarded from the agency's RFP No. BF-12/94-95 would be considered a "fixed cost contract" by the Institute. Any contracts performed by the Institute are entered into by the University of South Florida through the Division of Sponsored Research.
Conclusions (2)(a) As no petition for hearing has been filed, the right to a hearing has been waived. See Fla. Admin. Code R. 28-5.111. (b) The Department has substantial doubt as to the correctness of the conclusions of the Hearing Officer as expressed in the Recommended Order but declines to rule for the reasons set forth herein. (3)(a) None of the parties to this proceeding have alleged that this agency has acted impermissibly in the bid review process. It is apparent, however, that the process can be improved. In a typical bid proceeding, agency employees draft the bid request, review the bids, and make an initial determination regarding which bid is the lowest responsible bid. If a protest is filed which fails to allege disputed issues of material fact, an employee of this Department may be assigned to act as hearing officer. After the hearing is conducted, the agency head or the designee of the agency head then renders a determination on the bid protest. Accordingly, in the absence of any disputed issues of material fact, the bid process can be conducted solely by personnel of this agency. Such a procedure can hardly command the confidence of the public which rightly deserves an open government and adequate assurances that the bidding process is effectuated without bias or favoritism of any kind. In cases where there are disputed issues of material fact, the Hearing Officer of the Division of Administrative Hearings is limited to deciding whether the agency acted fraudulently, illegally, arbitrarily, or dishonestly. Accordingly, even in instances where a person independent from the agency reviews the bid process, such person's input is limited. Therefore, it seems apparent that more should be done to give the public and persons who wish to do business with the State of Florida confidence that tax dollars are being spent in the most appropriate manner. Based upon the foregoing, efforts must be made to improve the process so that the citizens of the state can be assured that there is adequate oversight in the bid process. There is the additional concern that ways must be found to increase the involvement of the mortgage brokerage industry in the testing process. The present process proposes that the state, or an agent of the state, develop the test, administer the test, score the test, and post the results of the test with little or no participation from the mortgage brokerage industry. While there is a legitimate function for state government in the testing process, efforts should be made to include the mortgage brokerage industry in the process. It seems apparent that implementing the above-stated principles will require the input of both the private and public sector and may also necessitate the implementation of statutory amendments. Based upon the foregoing, it is in the best interest of the state not to award the contract to any person at this time pending review of the bid process especially in view of the fact that the Department is able to administer the test on at least a temporary basis while this matter is resolved.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED that the Department of Banking and Finance enter its final order awarding the contract in RFP BF-12/94- 95 to the University of South Florida. DONE AND ENTERED this 28th day of July, 1995, in Tallahassee, Leon County, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1995. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire William B. Graham, Esquire 300 East Park Avenue Tallahassee, Florida 32301 Henry W. Lavandera, Esquire University of South Florida ADM -250 4202 East Fowler Avenue Tampa, Florida 33620-6250 Jack Silver, Esquire 439 Northeast Seventh Avenue Fort Myers, Florida 33301-1207 Margaret S. Karniewicz, Esquire Department of Banking and Finance Suite 1302, The Capitol Tallahassee, Florida 32399-0350 Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper, General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350
