Moss, Mario Perez, Rodney Turner, Charles Carty, and Sherman Henry. Additionally, Petitioner's Exhibits numbered 1-11 and Respondent's Exhibits numbered 1 and 2 were admitted in evidence.
Respondent began his employment with Petitioner on October 25, 1977. For the last 13-14 years, he has been employed as a head custodian.
On August 24, 1994, he was demoted from his position as the head custodian at Fulford Elementary School to the rank of custodian. Several days later, he was assigned to a high school where he has been employed as the acting lead custodian, a rank between custodian and head custodian.
During the 1993-94 school year while Respondent was employed as the head custodian at Fulford Elementary School, a conference for the record was held on November 30, 1993, to discuss Respondent's work performance, his alleged gross insubordination, and his future employment with Petitioner. At that conference, Principal Pope and Assistant Principal Galgano discussed specific instances of their dissatisfaction with the manner in which Respondent maintained the yard at Fulford Elementary. Respondent was specifically advised that further deficiencies in his performance and further acts of gross
insubordination would not be tolerated and could lead to further disciplinary action, including non-reappointment.
On December 15, 1993, Respondent was issued a written reprimand for the reasons discussed during the November 30 conference for the record. That document entitled "Reprimand for the Record" states, in part, as follows:
You are hereby officially recommended [sic] for gross insubordination and your inadequate work performance as a head custodian that refuses to perform his job description and job assignment.
On that same date Principal Pope gave Respondent eleven written directives regarding his job duties in maintaining the yard, attending training, and using his walkie-talkie.
On February 23, 1994, Principal Pope issued a memorandum to Respondent complaining that Respondent had arrived at work late on January 31 without giving her an explanation.
On March 2, 1994, Principal Pope issued a memorandum to Respondent noting that on Saturday February 26, when the teachers and staff and their families worked in the school yard weeding and planting, the "yard had not been picked up nor had the lawn been mowed". That memorandum contained 9 directives.
On March 24, 1994, the Director of Petitioner's Department of Plant Operations issued a memorandum to Principal Pope questioning the leadership of Respondent as head custodian and noting that Fulford Elementary School could be kept cleaner. On April 15 Assistant Principal Galgano and Respondent performed
a quality assurance audit at Fulford, noting that some of the classrooms, corridors, and grounds were not maintained properly. By memorandum dated April 18 Respondent was directed to better supervise the other custodians and improve the appearance of the courtyard.
By memorandum dated May 13, 1994, Assistant Principal Galgano directed Respondent to perform specific tasks in the school yard.
By memorandum dated June 7, 1994, Assistant Principal Galgano wrote to Principal Pope, noting her May 13 memo to Respondent, noting that Respondent had to work overtime to prepare the grounds for visitors on May 25, and noting that Respondent had "shedded [sic] paper" while mowing the lawn in preparation for visitors to the school on June 3.
On June 29, 1994, a conference for the record was conducted to address Principal Pope's recommendation that Respondent be demoted from head custodian to custodian.
During the 1993-94 school year Fulford Elementary School was allocated 4.5 custodians according to Petitioner's formula. Yet, Fulford Elementary only employed 3 full-time custodians, including Respondent. A part-time person helped in the cafeteria for some undisclosed portion of that school year.
Principal Pope determined which custodians worked which shift and the specific duties assigned to each. During the 1993-
94 school year Respondent was the only custodian at Fulford
assigned to the 7:00 a.m. shift which ended at 3:30 p.m. The other 2 custodians, whom Respondent was responsible for supervising, worked the night shift which began at 3:00 p.m. They were responsible for cleaning the classrooms, offices, bathrooms, corridors, and the remainder of the school facility.
As the only custodian on the day shift at Fulford, Respondent was responsible for disarming the alarm, unlocking the building in the morning, and "policing" the grounds. He also unlocked specific classrooms for substitute teachers. He also set up the cafeteria and worked in the cafeteria during breakfast removing trash, wiping tables, and washing the floor. After the cafeteria was clean, he was free to do his yard work until lunch time when he returned to the cafeteria to work there, removing trash and washing the floor and tables.
In addition to his cafeteria and yard duties, however, Respondent was responsible for emergency clean-ups whenever a child became sick or was incontinent. He helped unload delivery trucks. He moved furniture and cabinets for teachers and office staff. He performed any other tasks requested by the principal.
Respondent carried a walkie-talkie in order that the principal and assistant principal could reach him whenever they wished. The principal paged him to perform special assignments once or twice a day as did the assistant principal.
The assistant principal had no problem reaching Respondent on his walkie-talkie. The principal complained that
Respondent ignored her when she summoned him on the walkie- talkie. On one such occasion, one of Petitioner's master custodians who was on site looked for Respondent and discovered that Respondent was riding a tractor at the other end of the school site and simply could not hear the principal paging him.
Principal Pope asked Assistant Principal Galgano to assist her in supervising the custodians. Galgano discussed with Respondent his work performance on different occasions during the 1993-94 school year. Respondent maintained that he was doing the best he could in view of the fact that he had no one to help him. During the previous school year Respondent had also requested that someone else work with him during the day. Having only one custodian during the day shift is a deviation from the standard recommended by Petitioner's Department of Plant Operations. An employee of that Department specifically advised Principal Pope that Respondent needed help since he was the only custodial worker on the day shift.
A principal can request that one of Petitioner's master custodians be sent to the school site to train that school's custodial staff. During the 1993-94 school year a master custodian was sent to Fulford on one occasion at Principal Pope's request to provide additional training for one of the custodians who worked on the night shift. On that occasion and the other time that master custodian was at Fulford he observed the yard and determined that it was "not bad." Principal Pope never
requested a master custodian to assist Respondent with additional training.
A different master custodian employed by Petitioner's Department of Plant Operations was present at Fulford Elementary on two occasions during the 1993-94 school year and observed the yard. On both of those days the maintenance of the yard met Petitioner's standards. Similarly, the other custodians who worked at Fulford that year observed the yard when they came to work and rated its maintenance as an "8" or a "9" on a scale with "10" being the highest score.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof pursuant to the Contract between the Dade County Public Schools and the American Federation of State, County, and Municipal Employees, Local 1184, and Petitioner's referral to the Division.
The parties agree that Petitioner has the burden of proving by a preponderance of the evidence that Petitioner has just cause for demoting Respondent. Petitioner has not met that burden.
The Complaint filed against Respondent after the deletion of paragraphs numbered 10(a) through 10(aa) alleges only the procedural background of this cause, the legal status of Petitioner and of Respondent's union, that Respondent was the
head custodian at Fulford Elementary, that Respondent received a written reprimand in December 1993, the dates on which conferences for the record were held, and a factual allegation concerning which no evidence was offered.
The Complaint alleges that Respondent, therefore, violated a School Board rule which was not offered in evidence and Section 231.02, Florida Statutes, which requires the fingerprinting of employees of a school board. The Complaint concludes, therefore, that Petitioner has just cause to demote Respondent pursuant to Section 230.23(5)(f), Florida Statutes, which relates to suspensions and dismissals, not demotions, and Article XI, Section 2 of the collective bargaining agreement, which affords Respondent the right to the hearing which resulted in this Recommended Order. Accordingly, the Complaint is devoid of factual or legal allegations which would support the demotion of Respondent.
Likewise, the evidence offered by Petitioner falls far short of that required to show that Petitioner's action in demoting Respondent was justified. Petitioner's evidentiary presentation consisted of vague allegations that during the 1993-
94 school year the yard was not maintained in a satisfactory manner. No specific date of deficiency was established or accompanied by the logical showing that on that date and the immediately preceding dates Respondent was able to perform yard duties because he was present, the weather permitted, and he was
not otherwise engaged in performing other required duties. On the other hand, the evidence shows that Respondent was on sick leave for an undisclosed portion of the 1993-94 school year.
The evidence is uncontroverted that Respondent received a written reprimand in December 1993. Accordingly, the subsequent disciplinary action Petitioner desires to take of demoting Respondent must be based on Respondent's conduct subsequent to December 1993. By presenting evidence using the 1993-94 school year as the relevant time frame rather than the period between the written reprimand and this intended demotion, Petitioner has failed to show the just cause Petitioner admits it is required to show in this proceeding.
Petitioner did offer memoranda issued subsequent to the December 1993 written reprimand. Most of those documents simply advise Respondent of Principal Pope's expectations and contain directives to Respondent. One of them relates to a failure to give Principal Pope an explanation for arriving at work late one morning--conduct not alleged in the Complaint as a basis for demoting Respondent.
In short, Petitioner failed to allege conduct sufficient to support demoting Respondent. Additionally, Petitioner failed to prove that it had cause for demoting Respondent and, more importantly, that it had just cause. Lastly, the factual allegations raised for the first time in
