STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2964

)

LEROY MCMILLON, )

)

Respondent. )

)

RECOMMENDED ORDER

The above-styled case was presented to Division of Administrative Hearings, Hearing Officer, Mary Clark, for her recommended disposition based upon stipulated facts and memoranda of law submitted by the parties.

APPEARANCES

For Petitioner: Ned N. Julian, Jr., Esquire

200 West First Street, Suite 22 Post Office Box 4848

Sanford, Florida 32772

For Respondent: H. Scott Gold, Esquire

703 East Pine Street Orlando, Florida 32801

STATEMENT OF THE ISSUES

As stipulated by the parties on February 1, 1994, this single contested issue of law remains for disposition:

May the Petitioner terminate the Respondent's employment as a custodian at Wekiva Elementary School for just cause, as an act or acts endangering the health, safety, or welfare of any employee of the district, (or for any substantially similar offense), when said act, which was, as stipulated, the repeated striking of Sallie Jenkins, the principal of Wekiva Elementary School (on the 27th of April, 1993), occurred as a direct result of Respondent's thyroid dysfunction due to Respondent's failure to appropriately medicate himself with his thyroid replacement medication after his thyroidectomy?

PRELIMINARY STATEMENT

By letter dated May 7, 1993, Superintendent Paul Hagerty informed Respondent, Leroy McMillon, that his employment as custodian would be recommended for termination by the Seminole County School Board. Respondent, through counsel, timely requested a formal hearing, and the case was forwarded to the Division of Administrative Hearings with the correspondence and with an administrative complaint for termination of a non-instructional employee.

The case was set for hearing in October, but was continued at the parties' request. On February 1, 1994, the parties executed a stipulation of facts with statement of the legal issue for disposition and they agreed to a schedule for presentation of the issue without the need for an evidentiary hearing.

The joint stipulation, filed at the Division of Administrative Hearings on February 3, 1994, references on page 2, paragraph 3, an attached evaluation of Dr. Hall. The evaluation was not attached to the document when it was filed, but was provided by Fax, at the hearing officer's request, by Mr. Julian's office, on May 5, 1994. The evaluation and stipulation are being identified in the record as Joint Exhibit #1.

The facts stipulated by the parties are adopted and incorporated in this recommended order.

FINDINGS OF FACT

1. Leroy McMillon (McMillon) is, and was at all times relevant, a non- instructional employee (custodian) at Seminole County School District's Wekiva Elementary School in Seminole County, Florida.

   
   

2. On April 27, 1993, during the school day and when both individuals were employed by the school board, McMillon attacked Wekiva Elementary School Principal, Sallie Jenkins, striking her repeatedly and injuring her.

   
   

3. McMillon and the Seminole County School Board had been involved in a previous employment termination action before an arbitrator under the collective bargaining grievance procedure. The termination action had been brought by Principal Jenkins. The result of the action was that McMillon was reinstated, but without pay for the period that he had been suspended from work. At all times prior to, and during McMillon's suspension, and thereafter subsequent to his reinstatement, McMillon and his supervisor, Sallie Jenkins, were having employment relation problems.

   
   

4. Prior to and during the period of his suspension, and subsequent to his reinstatement after arbitration, McMillon failed to take his thyroid replacement medication. He had surgery in 1992, a thyroidectomy, after which operation he was advised to take thyroid replacement medication.

5. On September 17, 1993, McMillon was examined by Richard C.W. Hall, M.D., an expert recognized in the field of thyroid dysfunction, at Florida Hospital Center for Psychiatry, in Orlando, Florida. Dr. Hall concluded that,

   
   

   "...[t]here is a reasonable medical certainty that the patient's mental state was altered by the acute absence of thyroid medications at the time that [the attack] occurred. The symptoms are characteristic of sudden disruption in levels of thyroid hormone."

   
   

   p. 7, Hall Evaluation, Joint Exhibit #1

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), F.S.

   
   

7. The collective bargaining agreement affecting non-instructional personnel of the Seminole County School Board provides that an employee may be suspended without pay or discharged, providing just cause is present, for a series of reasons, including "[e]ndangering the health, safety or welfare of any student or employee of the District". Article VI, section 5.C.

   
   

8. "Just Cause" is not defined in the agreement in the record here, nor is it defined in any relevant statute or rule. It is, however, a concept frequently examined in the context of public employee relations. Appellate courts are able to recognize just cause when they see it. Less facetiously, courts have examined the totality of circumstances surrounding a public employee disciplinary action to determine whether just cause supported the action. See, for example, City of Clearwater v. Garretson, 355 So2d 1248 (Fla. 2nd DCA 1978).

   
   

9. The stipulated facts and circumstances here do not support a finding of "just cause" for McMillon's termination. He unquestionably endangered a district employee; his attack on the principal resulted in serious injury. His attack was not willful, however, as it was caused by the mental state induced by improperly administered medication. Although he chose to not take the medication, there is no evidence that he knew or should have known of the consequences until the unfortunate incident occurred. Intent is relevant to a consideration of public employee discipline. See, Board of Regents v. Videon, 313 So2d 433 (Fla. 1st DCA 1975).

   
   

10. While this is not a handicap discrimination case, counsel for both parties in their respective memoranda rely on a thorough discussion of the federal law and cases related to section 504 of the Rehabilitation Act, and the Americans with Disabilities Act. Both counsel cite many of the same cases; for example, United States v. Southern Management Corporation, 955 F. 2nd 914 (4th Cir. 1992), which suggests that disability evaluations should be viewed on a case by case basis; and Forrisi v. Brown, 794 F.2nd 931 (4th Cir 1986) which describes a necessary inquiry of whether a particular person's impairment constitutes a significant barrier to employment for that person.

    
    

11. McMillon's thyroid dysfunction is a disabling condition which requires medication. McMillon has not reached the point described in Franklin v. United States Postal Service, 687 F.Supp 1214 (S.D. Ohio 1988), a case also relied on

    by both parties here, where repeated willful refusal to take medication rendered the worker unqualified for her job. In Franklin, the ten-year postal worker was mentally disabled with paranoid schizophrenia. She was arrested for violent acts and threats and was hospitalized several times. After she was given a last chance agreement she immediately violated the conditions of the agreement and failed again to take her medication. The federal district court found that the postal service had attempted to make "reasonable accommodation", but that the employee showed by her actions that she was otherwise incapable of performing the duties of her job.

    
    

12. The superintendent, here, proposes to bypass reasonable accommodation and to immediately terminate the employee. This is premature, as it is not yet possible to determine that McMillon is unqualified. See, School Board of Nassau County, Florida v. Arline, 480 US 273, 107 S.Ct 1123, 94 L. Ed. 2d 307 (1987).

    
    

13. McMillon is not seeking a "last chance", but rather a first chance to maintain his proper treatment after final diagnosis, which diagnosis regrettably was not obtained until after his serious attack. Now that he is apprised of his condition and its requirements, he should have an opportunity to prove that he can perform.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Seminole County School Board enter its final order denying the superintendent's recommendation for termination of Leroy McMillon and dismissing the administrative complaint.

DONE AND RECOMMENDED this 11th day of May, 1994, in Tallahassee, Leon County, Florida.

MARY 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 11th day of May, 1994.

COPIES FURNISHED:

Ned N. Julian, Jr., Esquire Post Office Box 4848 Sanford, Florida 32772

H. Scott Gold, Esquire 703 East Pine Street Orlando, Florida 32801

Douglas L. "Tim" Jamerson Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Dr. Paul Hagerty, Superintendent Seminole County School Board 1211 South Mellonville Avenue Sanford, Florida 32771

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-002964

Orders for Case No: 93-002964