STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONROE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3709

)

DENNIS GARTENMEYER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case in Key West, Florida, on February 6, 1996, and on February 12, 1996, before Patricia Hart Malono, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard D. Tuschman, Esquire

Muller, Mintz, Kornreich, Caldwell, Casey, Crosland and Bramnick, P.A.

First Union Financial Center

200 South Biscayne Boulevard, Suite 3600 Miami, Florida 33131-2338

For Respondent: Lorene C. Powell, Esquire

FEA/United Legal Division

118 North Monroe Street Tallahassee, Florida 32399-1700

STATEMENT OF THE ISSUE

The issue in this case is whether Dennis Gartenmeyer committed the acts which form the basis for the recommendation that his employment with the Monroe County School Board be terminated, and, if so, the appropriate penalty which should be imposed.

PRELIMINARY STATEMENT

In a letter dated May 23, 1995, Robert G. Walker, Superintendent of Schools for the Monroe County School District, notified Dennis Gartenmeyer that he was recommending to the Monroe County School Board ("School Board") that Mr.

Gartenmeyer be terminated from his employment with the School Board. Mr. Gartenmeyer timely requested a formal hearing, and, on July 10, 1995, the School Board entered an Order of Reference to the Division of Administrative Hearings for proceedings under chapter 120, Florida Statutes. After several continuances, the final hearing was duly noticed and held on February 6 and 12, 1996.

The School Board presented the testimony of Alan Emil Roberts, assistant director of the School Board maintenance department; Fred Sims, Director of Facilities for the School Board; John Davis, currently a custodial supervisor for the School Board in the Lower Keys; and, on rebuttal, Dale Smith, a stock clerk with the School Board maintenance department. Petitioner's Exhibits 6 (composite), 7 through 9, 16, 19, and 20 were offered and received into evidence at hearing. Petitioner's Exhibit 21 was offered and received into evidence as a late-filed exhibit, submitted to rebut Respondent's late-filed Exhibit 9, by Order dated March 21, 1996.

Mr. Gartenmeyer testified in his own behalf at hearing. Respondent's Exhibits 2, 4, 7, and 8 were offered and received into evidence at hearing; Respondent's Exhibit 2 is the transcript of the deposition testimony of Isaias Martinez, one of Mr. Gartenmeyer's co-workers in the School Board maintenance department, and Respondent's Exhibit 4 is the transcript of the deposition of Tony Oliva, who is the supervisor of the School Board maintenance department's grass cutting crew and has been Mr. Gartenmeyer's supervisor since late March, 1995. Respondent was permitted to file Exhibit 10 the transcript of the deposition testimony of Leon Fowler, President of the United Teachers of Monroe County, as a late-filed exhibit.

At hearing, Mr. Gartenmeyer also offered into evidence the transcripts of the deposition testimony of John Davis, Alan Roberts, Fred Sims, and Dennis Gartenmeyer, marked for identification as Respondent's Exhibits 1, 3, 5, and 6, respectively. These exhibits were rejected because the proposed use of the deposition testimony did not fall within the provisions of Florida Rule of Civil Procedure 1.330(a)(1), (2), or (3). On March 4, 1996, Mr. Gartenmeyer filed a Motion to Introduce Photographs as Rebuttal Evidence; the motion was not opposed by the School Board, and it was granted by Order dated March 21, 1996.

Respondent's Exhibit 9 was, therefore, received into evidence as a late-filed exhibit.

A transcript of the hearing was filed, and the parties timely submitted proposed recommended orders.

FINDINGS OF FACT

Based on the stipulation of the parties, the oral and documentary evidence presented at the final hearing, and the entire record of this proceeding, the following findings of fact are made:

1. The Monroe County School Board has the authority to terminate the employment of its instructional staff and other school employees. See section 230.23(5)(f), Florida Statutes.

   
   

2. Mr. Gartenmeyer has been employed by the School Board since November 1, 1993, and holds the position of mechanics helper in the School Board maintenance department. As such, he is classified by the School Board as non-instructional personnel. Mr. Gartenmeyer's work performance has been satisfactory, 1/ but he is known among his co-workers as someone who complains a lot.

   
   

3. In March, 1995, Alan Roberts, the assistant director of the School Board maintenance department and Mr. Gartenmeyer's direct supervisor, assigned him and a mechanic, Otis Rahming, to repair an area of the roof of the maintenance building. The repairs consisted of removing loose concrete from the roof and patching it with a non-shrinking vinyl patch.

4. On March 20, 1995, several days after Mr. Gartenmeyer and Mr. Rahming began work on the roof, Mr. Gartenmeyer was chipping concrete with a metal tool when a small piece of concrete flew into his eye. Although Mr. Gartenmeyer should have worn safety goggles while doing this work, he was wearing only his prescription eye glasses. 2/

   
   

5. Mr. Gartenmeyer immediately reported his injury to the appropriate person in the maintenance department's administrative office, and he was seen by a doctor shortly thereafter. The doctor removed the chip and advised Mr. Gartenmeyer to rest at home for one day with a patch over his eye; the doctor released him to return to work on March 22, 1995, and the written release dated March 21, 1995, contained no restrictions.

   
   

6. Mr. Gartenmeyer reported for work a few minutes before 7:00 a.m. on March 22, 1995. A number of maintenance department employees were gathered at the maintenance department building to receive their assignments for the day, among them John Davis and Isaias Martinez. Mr. Roberts approached Mr. Gartenmeyer and Otis Rahming and told them to go back up on the roof and continue working on the repairs. Mr. Gartenmeyer refused to do so, citing his doctor's instructions that he not work around concrete dust for a week. When challenged by Mr. Roberts, Mr. Gartenmeyer could produce no written instructions from his doctor containing this restriction.

   
   

7. Mr. Gartenmeyer then began reciting complaints he had with Mr. Roberts, accusing him of, among other things, disregarding his employees' safety, as demonstrated by the several injuries he, Mr. Gartenmeyer, had suffered while an employee of the School Board maintenance department. Mr. Gartenmeyer also took issue with Mr. Roberts's decision to assign him to repair the roof when there were other men qualified to do the job. During this exchange, Mr. Gartenmeyer and Mr. Roberts were standing two or three feet apart, and Mr. Davis was standing next to them.

   
   

8. As he spoke, Mr. Gartenmeyer became more upset and agitated. Although the exact sequence of events is uncertain, at some point Mr. Roberts reiterated his instructions that Mr. Gartenmeyer continue work on the roof and accused him of simply not wanting to do the work assigned. Mr. Gartenmeyer responded by threatening to go to the School Board to complain about Mr. Roberts, and Mr. Roberts told him to do what he wanted, at the same time making a gesture of dismissal with his right hand.3 Mr. Gartenmeyer yelled "don't get in my face" and shoved Mr. Roberts with both hands so forcefully that Mr. Roberts was propelled backwards several feet, out of the open front door of the maintenance building and over the step leading to the building's porch. Mr. Roberts regained his balance just a short distance from a set of five very steep concrete steps leading down from the porch to the ground.

   
   

9. After he regained his balance, Mr. Roberts was very shaken. He rushed back into the building toward Mr. Gartenmeyer, shouting angrily; his arms were down at his side. Mr. Davis intercepted Mr. Roberts and stopped him from approaching Mr. Gartenmeyer by placing a hand on his chest and telling him to stop. At the same time, Isaias Martinez restrained Mr. Gartenmeyer by grabbing his right arm. Mr. Roberts shook his head and regained control, stepped around Mr. Davis, exchanged a few heated words with Mr. Gartenmeyer, and told Mr. Gartenmeyer to follow him into the maintenance department's administrative office. Mr. Roberts went directly into the office of John O'Brien, the director of the maintenance department, to report the incident to him.

10. Mr. Gartenmeyer was immediately suspended with pay for three days and told to go home. After the suspension, Mr. Gartenmeyer was reassigned to the grounds crew, where he works under the supervision of Tony Oliva. At the time of hearing, Mr. Gartenmeyer's work with the grounds crew had been satisfactory.

    
    

11. Mr. Gartenmeyer does not dispute that he shoved Mr. Roberts, but contends that the penalty for his actions should be something less than dismissal from his employment. Mr. Gartenmeyer claims that his actions were justified under the circumstances because he felt threatened with physical harm, interpreting Mr. Roberts's gesture with his right hand as a move to hit him. He also contends that, given the circumstances of the altercation, he was provoked by Mr. Roberts's words and actions. Finally, he cites his good employment history with the maintenance department.

    
    

12. The evidence does not establish any provocation or justification for Mr. Gartenmeyer's violent outburst on the morning of March 22, 1996. Rather, the evidence establishes that Mr. Gartenmeyer's actions, both verbal and physical, were in overt defiance of the authority of his direct supervisor. Mr. Gartenmeyer's violent behavior in reaction to a work assignment displayed a contempt for authority which was publicly displayed in the workplace and in the presence of Mr. Gartenmeyer's co-workers, who were also supervised by Mr. Roberts. The greater weight of the evidence supports the finding that Mr. Gartenmeyer was both insubordinate and engaged in fighting with his supervisor.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this administrative proceeding. Section 120.57(1), Florida Statutes (Supp. 1996).

    
    

14. Because this case is a dismissal proceeding and does not involve the loss of a license, the School Board has the burden of proving the allegations against Mr. Gartenmeyer by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990).

    
    

15. Section 230.23(5), Florida Statutes (1993), provides that a school board has the power to suspend and dismiss employees as follows:

    
    

    (f) Suspension and dismissal and return to annual status.--Suspend, dismiss, or return

    to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged,

    removed or returned to annual contract except as provided in chapter 231.

    
    

16. Section 231.36, Florida Statutes (1993), defines the terms under which district administrative and supervisory staff and instructional staff may be suspended or dismissed. Since Mr. Gartenmeyer's employment does not fall under any of these categories, his dismissal is not governed by the provisions of that section or by any provisions of chapter 231. Cf. Rosario v. Burke, 605 So. 2d

    523 (Fla. 2d DCA 1992)(head custodian employed by school board is a member of the supervisory staff and can only be terminated for the acts enumerated in section 231.36(6)(b), Florida Statutes (1989)); Smith v. School Board of Leon County, 405 So. 2d 183 (Fla. 1st DCA 1981)(conduct of district administrative

    employee charged with "misconduct in office" and "gross insubordination" must fall within definition of those terms applicable in proceedings to dismiss instructional personnel).

    
    

17. Rather, for purposes of this action, the dismissal of Mr. Gartenmeyer by the Monroe County School Board is governed by the provisions of section 447.209, Florida Statutes (1993), which provides that a public employer, including a school board, has the right to "direct its employees, [and] take disciplinary action for proper cause." 4/

    
    

18. The Monroe County School Board has adopted a policy governing the "Discipline, Suspension, and Dismissal of Support Staff" to implement its responsibilities under section 230.23(5). Section 2 of this policy provides that "cause for dismissal shall include . . . (d) Interfering with another employee's work or fighting; (e) Insubordination." The conduct incorporated in the School Board's policy would, if proven, constitute "proper cause" for disciplinary action.

    
    

19. The court in Muldrow v. Board of Public Instruction of Duval County,

    189 So. 2d 414, 415 (Fla. 1st DCA 1966), defined insubordination as "disobedience of orders, infraction of rules, or a generally disaffected attitude toward authority. It is generally synonymous with contumacious, which indicates persistent, willful or overt defiance of authority and obedience, sometimes contemptuous of authority."

    
    

20. Based on the facts found herein, the School Board has proven by a preponderance of the evidence that Mr. Gartenmeyer was insubordinate and engaged in fighting in the workplace. Pursuant to the authority granted the School Board in section 230.23(5) and consistent with its policy, Mr. Gartenmeyer is subject to disciplinary action, including dismissal, for his behavior. The evidence presented by Mr. Gartenmeyer in mitigation of his actions is insufficient to justify imposition of a lesser penalty than dismissal.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Monroe County School Board enter a final order finding that Dennis Gartenmeyer is guilty of insubordination and fighting in violation of School Board policy and terminating his employment as a School Board employee.

DONE AND ENTERED this 20th day of November, 1996, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUMCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1996.

ENDNOTES

1/ In a memorandum sent to Mr. John O'Brien, Director of Maintenance for the School Board, and placed in his personnel file, Mr. Gartenmeyer was commended by the administration of the May Sands Exceptional Student Center for his quality workmanship when working on the construction of a new boys bathroom and for the care and consideration he showed the staff and students at the school.

2/ Mr. Gartenmeyer could have obtained a pair of safety goggles from the maintenance department's supply room; even if no safety goggles were in stock, he could have obtained a purchase order from the department's administrative office and purchased a pair of safety goggles from a local supply shop. He offered no satisfactory explanation as to why he did not do so.

3/ Mr. Roberts has a mannerism which involves crossing his left forearm across his stomach and resting his right elbow in his left hand. He touches his right hand to his face and frequently gestures with his right hand from this position.

4/ The parties have assumed that the proceedings to dismiss Mr. Gartenmeyer are governed by the collective bargaining agreement between the Monroe County School Board and the United Teachers of Monroe, FEA/United, AFT, Local 3709, AFL-CIO. This may be so, but neither the collective bargaining agreement nor any part of it was placed into the record of this proceeding either as an evidentiary exhibit or pursuant to a request for official recognition. In his deposition testimony, however, Leon Fowler, President of the United Teachers of Monroe County, stated that "school-related personnel" may be terminated pursuant to the collective bargaining agreement for "just cause." Consequently, even though it is not possible to frame the conclusions of law in this case in the context of the requirements of the collective bargaining agreement, it is noted that "proper cause" and "just cause," as that term relates to public employees not subject to the provisions of chapter 231, are treated herein as synonymous.

COPIES FURNISHED:

Richard D. Tuschman, Esquire Muller, Mintz, Kornreich, Caldwell,

Casey, Crosland and Bramnick, P.A. First Union Financial Center

200 South Biscayne Boulevard, Suite. 3600 Miami, Florida 33131-2338

Lorene C. Powell, Esquire FEA/United Legal Division

118 North Monroe Street Tallahassee, Florida 32399-1700

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Robert G. Walker Superintendent

School Board of Monroe County

242 White Street

Key West, Florida 33041-1788

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 95-003709

Orders for Case No: 95-003709