STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE SCHOOL BOARD OF DADE COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 96-2939
)
CARMEN IVETTE ARROYO, )
)
Respondent. )
Pursuant to notice, a Section 120.57(1) hearing was conducted in this case on September 19 and 20, 1996, in Miami, Florida, on October 22 and November 1, 1996, by video teleconference at sites in Miami and Tallahassee, Florida, and on November 12, 1996, by telephone conference call, before Stuart M. Lerner, a duly designated Administrative Law Judge01 of the Division of
Administrative Hearings.
For Petitioner: Heidi N. Shulman-Pereira, Esquire
Kimberly Gossett, Certified Legal Intern The School Board of Dade County, Florida 1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
01 Pursuant to Chapter 96-159, Laws of Florida, the title of the undersigned (and of all other Hearing Officers of the Division of Administrative Hearings) was changed to Administrative Law Judge, effective October 1, 1996.
For Respondent: Ben R. Patterson, Esquire
Patterson and Traynham Post Office Box 4289
Tallahassee, Florida 32315-4289
Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges (as finally amended)?
If so, whether such conduct provides the School Board of Dade County, Florida, with just or proper cause to take disciplinary action against her?
If so, what specific disciplinary action should be taken?
On January 24, 1996, the School Board of Dade County, Florida (School Board) suspended Respondent from her position as a Food Service Manager and initiated dismissal proceedings against her. By letter dated that same date, Respondent requested a hearing on the matter. The case was originally referred to a local hearing officer. Thereafter, pursuant to the joint request of the parties, the local Hearing Officer returned the matter to the School Board. The School Board, on June 20, 1996, referred the matter to the Division of Administrative Hearings (Division) for the assignment of a Division Hearing Officer to conduct the hearing Respondent had requested.
On or about August 19, 1996, the School Board served on Respondent its Notice of Specific Charges (Notice). On September 4, 1996, Respondent filed an answer to the Notice and her affirmative defenses to the charges against her. Her affirmative defenses were stated as follows:
The Respondent, an employee of the School Board of Dade County, is reappointed to her position of employment on an annual basis. Such an annual contract is referenced in Board Rule 6Gx13-4A-1.29. The annual contract given to employees encompasses a school year that commences on July 1. The dismissal of the Respondent is premised on activity that occurred before July 1, 1994, and is barred by application of the doctrine of fairness as announced in the opinion of the court in Rosenfelder v. Huttoe, 24 So.2d 108 (Fla. 1947).
II.
The Respondent was disciplined in October 1994, and the subsequent dismissal was premised either entirely or in substantial part [on] the conduct for which she received discipline. Further discipline in the form of a demotion is barred by operation of the doctrine of fairness as announced in the opinion of Department of Transportation v. Career Service Commission, [3]66 So.2d 473 (Fla. 1st DCA 1979).
III.
The action of the Petitioner in dismissing the Respondent on January 24, 1996, from her employment as Food Service Manager is based on conduct that substantially preceded the
date of the application of discipline and is barred by the Doctrine of Laches.
IV.
The action of the Petitioner in dismissing the Respondent on January 24, 1996, from her employment as a Food Service Manager is a severe disciplinary action that ignores the doctrine of progressive discipline as described in Article XI subparagraphs A and B of the Collective Bargaining Agreement covering the Respondent's employment and between the Dade County Public Schools and the American Federation of State, County, and Municipal Employees, Local 1184. See, Collins v. Dade County School Board, 676 So.2d 1052 (Fla. 3d DCA 1996).
V.
The Petitioner separated from her position of employment by reason of abandonment on June 16, 1995. Under the Doctrine of Merger all events that may have given rise to a reason for separation merged into that letter of separation. The Respondent successfully grieved the separation of June 16, 1996. The Respondent then declined to reinstate her and chose to separate her and propose to dismiss her on January 24, 1996.
VI.
The Petitioner having made a choice to separate the Respondent on June 16, 1996, and having lost the grievance on that separation is now precluded from taking further action to separate the Respondent by reason of the operation of the Doctrine of Election of Remedies.
VII.
The Petitioner having made a choice to separate the Respondent on June 16, 1996, and having lost the grievance on that separation
is now precluded from taking further action to separate the Respondent by reason of the operation of the Doctrine of Estoppel.
VIII.
The Petitioner having made the choice to separate the Respondent on June 16, 1996, and having lost the grievance on that separation is now precluded from taking further action to separate the Respondent by reason of the operation of the Rule Against Splitting Causes of Action.
IX.
The Petitioner having made a choice to separate the Respondent on June 16, 1996, and having lost the grievance on that separation is now precluded from taking further action to separate the Respondent by reason of the operation of the Doctrine of Waiver.
On September 9, 1996, in accordance with the Order of Prehearing Instructions issued by the previously assigned Hearing Officer, the parties filed their Prehearing Stipulation. In their Prehearing Stipulation, the parties listed the following as "[f]acts which will be admitted and will require no proof at hearing:"
At all times relevant hereto, Petitioner, The School Board of Dade County, Florida, was a duly constituted school board established by Article IX of the Constitution of the State of Florida, said Board being charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida, pursuant to Article IX and Section 230.03, Fla. Stat.
Respondent was employed by the School
Board as a permanent part-time general worker from 1979 through 1986, at which time Respondent participated in the manager's training program.
At all times material hereto, Respondent was employed by Petitioner as a Food Service Manager within the School District of Dade County, Florida, and was assigned to the cafeteria at Nautilus Middle School.
At all times material hereto, Respondent served under the contract between the Dade County Public Schools and the American Federation of State, County and Municipal Employees, Local 1184 (hereinafter "AFSCME"), and this matter is currently before this Hearing Officer pursuant to Article XI, Section 2 of this contract and Chapter 120, Fla. Stat.
The School Board authorized Respondent to take a leave of absence for illness of self for the period of November 17, 1994 through May 30, 1995.
Pursuant to Section 447.209, Fla. Stat., a public employer maintains the right to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty for legitimate reasons.
Pursuant to Article II of the AFSCME Contract, management personnel have the sole right, duty and responsibility for operation of the schools. These rights include, but are not limited to, the right to discipline or discharge any employee for just and good cause.
Petitioner at its regularly scheduled meeting of January 24, 1996, took action to suspend Respondent and to initiate dismissal proceedings against her.
On September 17, 1996, and again on October 15, 1996, the
School Board filed unopposed motions to amend the Notice of Specific Charges. These motions were both granted. The Notice of Specific Charges, as finally amended (Notice), contains the following three counts:
Petitioner repeats each and every allegation contained in paragraphs 1 through
41 above with the same force and effect as if fully set forth herein.
Pursuant to Article XI, Section 4C of the AFSCME Contract, an individual may be terminated by the employer for disciplinary cause arising from the employee's non- performance of job responsibilities.
Respondent' conduct as set forth herein, including her failure to comply with administrative directives, her non-compliance with procedures of the Department of Food and Nutrition, her failure to remediate identified deficiencies, and her violations of the responsibilities for the School Food Service Program, constitute non-performance of job responsibilities in violation of Article XI, Section 4C of the AFSCME Contract.
Failure to comply with Article XI, Section 4C of the AFSCME Contract, comprises sufficient grounds and just cause to warrant dismissal pursuant to Articles II and XI of the AFSCME Contract and pursuant to Sections 230.23(5)(f), 231.3605(2)(b), and 447.209, Fla. Stat.
Petitioner repeats each and every allegation contained in paragraphs 1 through
45 above with the same force and effect as if fully set forth herein.
Pursuant to School Board Rule 6Gx13-4A- 1.21:
[a]ll persons employed by The School Board of Dade County, Florida, are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that would reflect credit upon themselves and the school system. Unseemly conduct . . . is expressly prohibited.
Likewise, "[a]ll personnel shall keep all records and shall prepare and submit promptly all reports that may be required by State Law . . . School Board Rules, and administrative directives." School Board Rule 6Gx13-4A-1.21.
Respondent's conduct as set forth herein, including her failure to comply with administrative directives, her non-compliance with procedures of the Department of Food and Nutrition, her continued failure to remediate identified deficiencies, her violations of her responsibilities for the School Food Service Program, and her unacceptable performance constitute a violation of School Board Rule 6Gx13-4A-1.21.
Failure to comply with the preceding School Board Rule must necessarily constitute sufficient grounds and comprise just cause to warrant dismissal pursuant to Articles II and XI of the AFSCME Contract and pursuant to Sections 230.23(5)(f), 231.3605(2)(b), and 447.209, Fla. Stat.
Petitioner repeats each and every allegation in paragraphs 1 through 41 above with the same force and effect as if fully set forth herein.
Pursuant to Rule 6B-4.009(4), F.A.C., gross insubordination or willful neglect of duty is defined as ". . . a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority."
Further, pursuant to Section 231.36(6)(b), Fla. Stat., any member of the district supervisory staff may be dismissed if the evidence against the employee demonstrates that the employee committed gross insubordination or willful neglect of duty.
In Rosario v. Burke, 605 So.2d 523, 524,
n.1 (Fla. 2d DCA 1992), the court noted that the definitions provided in Rule 6B-4.009(4),
F.A.C. and Section 231.36(6)(b), Fla. Stat., applied as just cause for termination of non- professional supervisory school board employees.
Respondent's conduct as set forth herein, including her continued failure to comply with administrative directives, her continued non-compliance with procedures of the Department of Food and Nutrition, her continued failure to remediate identified deficiencies, her continued violations of her responsibilities for the School Food Service Program, and her continued unacceptable performance, constitute a constant or continuing intentional refusal to obey direct orders, reasonable in nature, given by and with proper authority in violation of Rule 6B-4.009(4), F.A.C.
Conduct in accordance with Rule 6B- 4.009(4), F.A.C. must necessarily constitute sufficient grounds and comprise just cause to warrant dismissal pursuant to Articles II and
XI of the AFSCME Contract, Sections 230.23(5)(f), 231.3605(2)(b), 447.209 and
231.36(6)(b), Fla. Stat.
On September 18, 1996, the School Board filed a Motion to Strike Respondent's Affirmative Defenses. The undersigned advised the parties that he would give them an opportunity to present additional argument (in their proposed recommended orders) on the issues raised in Respondent's affirmative defenses and the School Board's Motion to Strike these affirmative defenses and that he would address these issues, if necessary, in his Recommended Order.
As noted above, the final hearing in this case was held before the undersigned on September 19 and 20, October 22, and November 1 and 12, 1996. The following witnesses testified at the final hearing: Sandra Shannon; Theresa Mallia; Jeanne Ober; Jacqueline Ruybali; Brenda Taylor; Joanne Brewton; Pauline Ferrris; Lily Jackson; Maybelle Carter; Ramon Perez; Julia Muniz; Charlene Olicker; Margaret Bowersox; Freddie Pittman, Sr.; Elsie O'Dell; Herminio Amil; A. Louise Harms; Dr. D. Patrick Gray; Alice Motley; Respondent; Christine Harris; Sherman Henry; and Susan Hand. In addition, the following exhibits were offered and received into evidence: Petitioner's Exhibits 1 through 53, 56, 57, 60, 61, 63 through 72
and 74 through 79, and Respondent's Exhibits 1, 2, 4 through 7,
and 13.02 Among the exhibits offered and received into evidence were Petitioner's First Request for Admissions by Respondent and Respondent's Response (Petitioner's Exhibit 75), in which Respondent admitted the following:
1. That at all times material hereto, you were employed by Petitioner as a Food Service Manager within the School District of Dade County, Florida, and was assigned to the cafeteria at Nautilus Middle School.
That on July 5, 1994, you were cited by Ms. Jackie Ruybali, a Summer Monitor in the Department of Food and Nutrition, for failing to maintain any organized activities in the cafeteria.
That on July 7, 1994, an informal conference was held with you to address the following concerns: your unauthorized changes to the school district menu; your reluctance and refusal to properly staff your kitchen; your improper compliance with administrative chains of command; and your unauthorized absences and tardiness.
25. That on August 4, 1994, you entered into an agreement that specifically delineated your responsibilities as to all aspects of your performance, cafeteria operations and the appropriate chain of command within your department.
65. That during the course of the C[onference-]F[or-the-]R[ecord] referenced in paragraph 63 above [held on September 22, 1994], you agreed to comply with all directives provided to you.
72. That you were provided information on
02 Seven other exhibits, Respondent's Exhibits 14 through 20, were offered into evidence, but rejected.
the district's Employee Assistance Program and you were encouraged to contact personnel in the program to address any personal concerns or problems that you may be experiencing.
77. That on October 21, 1994, it was recommended by Ms. Brewton, after she conducted another on-site visit of your cafeteria, that you apply/transfer to a different school with less responsibilities.
81. That on November 9, 1994, you requested a leave of absence without pay, which became effective November 18, 1994.
At the close of the evidentiary portion of the hearing on November 12, 1996, the parties were advised of their right to file proposed recommended orders and a deadline was established (15 days from the date of the Division of Administrative Hearings' receipt of the complete transcript of the final hearing, or December 9, 1996, whichever was later) for the filing of proposed recommended orders.
The Division of Administrative Hearings received the complete transcript of the final hearing in this case on December 17, 1996. On that same date, the parties filed a motion jointly requesting an extension of the deadline for the filing of proposed recommended orders. The motion was granted and the filing deadline was extended to January 31, 1997. On January 31, 1997, the parties filed their proposed recommended orders. These proposed recommended orders have been carefully considered by the undersigned.
Based upon the evidence adduced at hearing, the parties' stipulations, and the record as a whole, the following Findings of Fact are made:
The School Board is responsible for the operation, control and supervision of all public schools (grades K through
12) in Dade County, Florida.
At all times material to the instant case, Respondent has been employed by the School Board. She is currently under suspension pending the outcome of these disciplinary proceedings.
Respondent began her employment with the School Board in 1976 as a part-time cafeteria aid/monitor.
From 1979 to 1986, she was employed by the School Board as a permanent part-time general worker.
During the 1986-87 school year, Respondent participated in the School Board's food service managerial training program.
During her participation in the program, Respondent received training and instruction designed to enable her to perform the duties and responsibilities of a food service manager in accordance with School Board procedures and requirements.
Respondent successfully completed the training program.
Following her successful completion of the training program, she became, in the fall of 1987, the food service manager at Nautilus Middle School (after having served in a similar capacity at another school the preceding summer).
At all times material to the instant case, Respondent served as the food service manager at Nautilus Middle School (Nautilus). In that capacity she was responsible for the management and operation of the school's food service program. The Collective Bargaining Agreement
As a food service manager employed by the School Board, Respondent is a member of a collective bargaining unit represented by the American Federation of State, County and Municipal Employees, Local 1184 (AFSCME) and covered by a collective bargaining agreement between the School Board and AFSCME, effective July 1, 1994, through June 30, 1997 (AFSCME Contract).
Article II, Section 3, of the AFSCME Contract provides as follows:
ARTICLE II- RECOGNITION
SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School
Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: (1) selection and promotion of employees; (2) separation, suspension, dismissal, and termination of employees for just cause; (3) the designation of the organizational structure of the DCPS and lines of administrative authority of DCPS.
It is understood and agreed that management possess the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following:
Discipline or discharge of any employee for just cause;
Direct the work force;
Hire, assign, and transfer employees;
Determine the missions of the Board agencies;
Determine the methods, means, and number of personnel needed or desirable for carrying out the Board's missions;
Introduce new or improved methods or facilities;
Change existing methods or facilities;
Relieve employees because of lack of work;
Contract out for goods or services; and,
Such other rights, normally consistent with management's duty and responsibility for operation of the Board's services, provided, however, that the exercise of such rights does not preclude the Union from conferring about the practical consequences that decisions may have on terms and conditions of employment.
Article XI of the AFSCME Contract addresses the subject of "disciplinary action."
Section 1 of Article XI is entitled "Due Process." It provides as follows:
Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed:
verbal warning;
written warning (acknowledged); and,
Conference-for-the-Record.
Conference-for-the-Record shall be held as the first step when there is a violation
of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated personnel investigation.
The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline (i.e., in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record).
The employee shall have the right to representation in Conferences-for-the-Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated.
The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency.
The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notification of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit.
Section 2 of Article XI is entitled "Dismissal, Suspension, Reduction-in-Grade." It provides as follows:
Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board
Clerk of the employee's intent to appeal such action. The Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions- in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Dismissal, suspension, reduction-in-grade, and non- reappointments are not subject to the grievance/arbitration procedures.
Section 3 of Article XI is entitled "Cause for Suspension." It provides as follows:
In those cases where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent.
Section 4 of Article XI is entitled "Types of Separation." It provides, in pertinent part, as follows:
Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four distinct types of separation.
Voluntary-- The employee initiates the separation by resigning, retiring, abandoning
the position, or other unilateral action by the employee.
Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of 10 working days after the first day of notification of the unauthorized absence.
Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time.
Non-reappointment-- The employee is separated by management's decision not to offer another annual contract. However, such non-reappointment shall not be in lieu of discipline or lay-off. Employees whose performance has been deemed marginal by the supervising administrator, who have been counseled during the school year concerning performance, and have failed to perform acceptably shall not be reappointed. Such employees and the Union shall be put on written notice of possible non-reappointment. Counseling and written notice of non- reappointment shall be provided in a timely manner. This action shall not be arbitrary or capricious, but based upon reason for the best interest of the employer. AFSCME bargaining unit members employed by the school district in excess of five years shall
not be subject to non-reappointment. Such employees may only be discharged for just cause.
Layoff-- . . .
The factors most important in determining what type of separation occurred for a given employee are: which party initiated the action; what time of the work year the action occurred; and the employer's expressed intent.
Article XIII of the AFSCME Contract addresses the subject of "leaves."
Section 4 of Article XIII is entitled "Personal Leave Without Pay." It provides as follows:
Leave of absence for personal reasons not to exceed 30 days may be granted to permanent employees of the Dade County Public Schools, if approved by the Superintendent, subject to the following guidelines:
No wages or salaries shall be paid during such leave, except as provided in other sections of Board Rules.
All such leaves in excess of 30 consecutive workdays shall be approved by the Board, except for those granted in accordance with provisions of the Workers' Compensation Law.
Reemployment rights to a position of like status shall be protected.
Such leave shall not exceed one year in duration.
Such leave may be granted for one of the following reasons:
to serve in the Peace Corps;
to accept a Fulbright scholarship;
to fill full-time staff position(s) for AFSCME; and,
to continue no more than one parental leave.
Personal leave for reasons other than those listed above may be approved by the Board upon recommendation of the Superintendent
Permanent employees may request personal leave without pay after three years of continuous employment with the Dade County Public Schools.
Section 6 of Article XIII is entitled "Extended Sick Leave Without Pay." It provides as follows:
Extended leave without pay for illness of the employee constitutes a protection of one's employment rights. Such leave shall be granted only for health of self or family member, provided the following requirements are met:
Employees seeking such leave must make application on the form provided by Personnel Management and Services.
Such application must be supported and accompanied by the following:
identity of person in ill health;
statement from physician explaining why such leave is necessary; and
effective dates of requested leave (beginning and ending).
Such leave shall not exceed one year in duration.
Employees on such leave may, upon expiration of leave, apply for an extension. The employer may grant such extension as warranted; however, the maximum time an
employee may be absent on leave for illness of self, illness of relative, or any combination thereof shall be two years.
While an employee is on extended sick leave without pay, the employer agrees to continue to pay its regular contribution to the employee's insurance benefits.
1. Notwithstanding the limitations on the maximum length for each type of extended leave of absence without pay (i.e., extended leave for illness/personal or parental), the following overall limitation shall apply to any combination of leaves, regardless of category:
The number of calendar years granted for any single period of continuous leave of absence without pay, with the exception of extended military leave, shall not exceed the number of creditable salary years earned with DCPS immediately preceding the leave request, up to a maximum of two.
Exception to such provision will be made only for extenuating circumstances, as determined by the Deputy Superintendent for Personnel Management and Services.
Employment rights to the same position shall be protected for one year.
Employees returning from leave in excess of one year shall be assigned to an equivalent position.
Full-time employment while on leave is not permitted, unless specifically requested and approved by the Deputy Superintendent for Personnel Management and Services at the time the leave is granted. If approved for full- time employment, an employee shall not receive any fringe benefits provided by the Dade County Public Schools.
As a School Board employee, Respondent was obligated to act in accordance with School Board rules and regulations, including Rule 6Gx13-4A-1.21, which was in effect at all times material to the instant case and which provides, in part, as
follows:
Permanent Personnel
RESPONSIBILITIES AND DUTIES
EMPLOYEE CONDUCT
All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves 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 presence of students is expressly prohibited.
Records and Reports
All personnel shall keep all records and shall prepare and submit promptly all reports that may be required by State Law, State Department of Education Rules, School Board Rules, and administrative directives. . . .
As a food service manager, Respondent was required to comply with the written policies and procedures adopted by the School Board's Department of Food and Nutrition (DFN), including those described below, of which she was made aware.
DFN's Food Service Procedure Number B-6 addresses the subject of "menus and standardized recipes." It has been in effect since August of 1986 and provides, in part, as follows:
MENUS, BREAKFAST AND LUNCH
Lunch and breakfast menus are on a four-week cycle. Lunch menus are planned for student choices in accordance with Federal Regulation 210.10, National School Lunch Program, which states in part: "whenever possible provide a selection of foods from which children may choose the reimbursable lunch." The lunch menu is designed to provide one-third of the Recommended Dietary Allowance as established by the Food and Nutrition Board of the National Academy of Sciences and the National Research Council. Breakfast menus are planned to meet one fourth of the Recommended Dietary Allowance.
Menu items are based on student responses to food preference surveys and actual student involvement with taste-testing and bid evaluation. Alternates are offered throughout the serving period to provide choices for students and staff. . .
MENU CHANGES
When the county-wide menu is changed at the school level, the principal and the food service administrator should be advised.
DFN's Food Service Procedure Number G-12 contains the "job descriptions" of various food service positions. It has been in effect since August of 1991 and provides, in part, as follows:
All food service personnel must be informed of the duties and responsibilities of the position they are occupying. The following
job descriptions are general statements about the operation and policies established by the Department of Food and Nutrition. Individual school operations and County procedures may require additional duties which would also be a part of a particular job description and become the responsibility of the employee holding that position.
FOOD SERVICE MANAGER I-VI
FUNCTION OF JOB:
The school food service manager is directly responsible for the fiscal management and operation of the food service program of an individual school, as well as any satellite programs assigned to that location. He/she must manage the program in compliance with the School Board of Dade County Administrative Rules and the Department of Food and Nutrition Procedures Manual. The food service manager must train and supervise school food service personnel and organize the work of the food service department by scheduling hours, duties, and equipment for maximum use. Performance is subject to review by administrative superiors as well as through periodic inspections and evaluation procedures.
Description of Duties: Accounting/Auditing
All payroll hours must be certified as accurate before submitting to payroll clerk.
Free and reduced price meal records and all prepayments must be clear, accurate, and auditable.
Cash register change and petty cash must be maintained separately and returned to Food Service Accounting at the end of the year according to existing procedures. If a food service manager must leave prior to the end of the year, these funds must balanced and passed on to the new food service manager or
the principal. | ||
D. Complete all appropriate | cash | register |
procedures. Ordering/Inventory Receiving | ||
Evidence of pre-planning is necessary to determine control of food usage.
Inventory levels of all purchased and commodity foods and non-food items must be kept at a minimum for financial and sanitation purposes.
Standardized menus and portion sizes must be followed to maintain proper food costs and to comply with U.S.D.A. guidelines.
Leftover food must be accurately accounted for and used according to food service procedures.
No food may be taken from the food service facility, including scraps for pets. All items to be transferred must be accompanied by a transfer slip.
Check purchases upon delivery and complete appropriate receiving procedures.
All food usage inventory and ordering records must be completed accurately.
Personnel
When hiring new employees or disciplining employees, the principal and food service coordinator should be notified.
Proper uniform code must be followed by all food service employees.
Outline specific duties of food service employees and schedule their hours of work within the staffing formula.
Cooperate with the principal, school faculty and supervisory staff in furthering food service as an educational asset in the school.
Assist other school personnel in interpreting the school food service program, its goals and objectives, for the teachers, pupils, parents and community.
A helpful pleasant attitude should be encouraged throughout the food service
department. This should extend to students, school staff, and other food service personnel.
Attendance
The attendance of the food service manager is critical since substitutes are not available. Pre-planning is essential in case an emergency occurs.
When indefinite absences occur, the food service manager must call in each day until other arrangements are made. Unauthorized absences could lead to disciplinary action.
Sanitation
Maintain standards in compliance with the County policies for efficient, safe and sanitary practices in preparation and service of appetizing food.
A cleaning schedule must be posted and followed.
Pest control measures must be maintained and monitored.
Storage areas must be free of clutter.
DFN's Food Service Procedure Number E-2 addresses the subject of "operating procedures for the NCR P[oint].O[f].S[ale]. cash register." It has been in effect since August of 1994 and provides, in part, as follows:
Introduction
The computerized Point-of-Sale (P.O.S.) cash register system is an approved accounting system which standardizes operational procedures, provides an audit trail of cash control, and counts and records meals claimed for reimbursement. The system provides each student with an account which tracks updated meal eligibility status, payments and itemized meal components. . . .
Operation
Following are the procedures for operating the computerized cash register system: . . .
Cashier signs on as usual, with his/her specific password.
Enter payments received into individual student accounts.
Enter breakfast for employees and any visitors.
Set the P.C. in LUNCH MODE
Check the overlay(s) and make sure that all leftover and substitute items are included on the day's menu.
Check all registers to determine if the overlay keys correspond to the menu items.
Each sale is entered separately and itemized as each student or adult passes by the cash register. Students enter their account number on the key pad. Adult meals are entered as account 1. The cashier enters each component of each tray as customer passes the POS.
Enter lunches for employees and any visitors.
Enter Special Programs and Outside Lines.
The food service manager enters the daily deposit at the end of the day and prints the Day End Reports. If there are discrepancies on the deposit screen, the Day End Procedure is aborted. If errors are found in the Event log, the transaction data is printed, the incorrect amount is cancelled, the correct amount entered under the corresponding mealtime and Day End Procedure is completed
. . .
DFN's Food Service Procedure Number E-5 addresses the subject of "cash counting procedures." It has been in effect since August of 1992 and provides, in part, as follows:
Each cashier counts the money in the register drawer and gives it to the head cashier or designee for verification (counting the money again). The Cash for Deposit Report MIS 13286, S [and] D [No.] 878-6259 (see
attached) is filled out, signed by the cashier and head cashier or designee and given to the food service manager.
After all money has been counted, the deposit slip is filled out by the head cashier and co-signed by one other employee. The food service manager should also initial the deposit slip to verify that two people have counted the money. The bag is then sealed and taken to the front office for pick-up.
When the food service manager supervises an operation where less than 300 meals are served for lunch, or in a situation where personnel is limited, the manager may be the second person verifying the money count. The signature of the food service manager would then verify the accuracy for both money count and deposit slip. . . .
DFN's Food and Nutrition Procedure Number G-6 addresses the subject of "uniform and personal hygiene." It has been in effect since August of 1991 and provides, in part, as follows:
To implement high standards of sanitation in school food service programs, the following personal hygiene and dress standards should be observed. It is the responsibility of the food service manager to enforce high standards of personal grooming and sanitation practices in the supervision of employees.
Personal Hygiene . . .
All food service employees should observe the following habits of neatness:
Proper personal hygiene practices.
Clean uniform and undergarments daily.
Clean unpolished fingernails, cut short.
No false fingernails . . .
Jewelry
Necklaces, earrings, bracelets, broaches, hair ornaments, or fancy handkerchiefs should not be worn while on duty.
Plain wedding bands may be worn while on duty.
When an employee has pierced ears, plain earrings may be worn. . . .
VI. Shoes
Professional uniform shoes should be worn. Shoes should be clean, white with a non-skid sole and closed heel and toe, well fitting, and in good repair. Heels should never be run over.
Low heeled shoes give greater support and are more comfortable.
DFN's Food and Nutrition Procedure Number C-12 addresses the subject of "daily cold storage temperature record." It has been in effect since August of 1988 and provides as follows:
A copy of the attached form Daily Cold Storage Temperature Record MIS [No.] 13550 is to be taped on the door of each refrigerator and freezer in the food service department and accurate temperature readings recorded daily. This duty is to be assigned to one employee as a daily responsibility. The food service manager is responsible for proper
training of this procedure.
In the event of loss of commodity foods due to malfunction of a refrigerator or freezer, a copy of the attached Daily Cold Storage Temperature Record Form is to be submitted to the Department of Food and Nutrition with the lost Commodity Report and the Stop Sale Notice. This information must be reported to HRS when a loss of over $100.00 occurs due to refrigeration malfunction.
Each of these reports should be filed along with all other documentation kept for audit purposes. Each refrigerator or freezer should be identified so that trends of malfunctions can be identified.
DFN's Food Service Procedure Number C-15 addresses the subject of "perpetual inventory procedures for commodity foods." It has been in effect since August of 1994 and provides as
follows:
CURRENT STATE POLICY ON PERPETUAL INVENTORY
The Florida Department of Agriculture and Consumer Services has stated that current federal regulations (CFR250) do not require perpetual inventory records for USDA donated foods. The regulations do require accountability of USDA commodity food items from the time they are received until they are served.
DEFINITION
A perpetual inventory is determined by keeping a continuous record of the increase, the decrease, and the balance on hand for each kind of merchandise.
PROCEDURE
Schools are required to follow all established procedures regarding the care and use of USDA commodity foods. See SFS Procedures C-1 through C-13 for further information.
DFN's Food Service Procedure Number C-8 addresses the subject of "inventory of commodity and purchased food and non- food" items. It has been in effect since August of 1989 and provides as follows:
Inventory Procedures
A complete physical inventory of all commodity and purchased foods and non-food items must be taken as scheduled by Food Service Accounting. Inventory periods are determined by fiscal month rather than calendar month; therefore the physical inventory schedule provided by Food Service Accounting must be consulted to determine the dates for reporting inventory.
A preprinted inventory report with price averages will be sent to each school each month.
This inventory report will include all items ordered by that school for the past five weeks through the Automated Ordering System, with correct inventory units listed.
It is necessary to record only the month and year of receipt on each can or case; the price is not required.
All paper goods are part of the cost-of- goods-sold and must be included in the inventory.
DIRECTIONS:
Two people must take and sign inventory
Record physical counts on inventory report
Extend amount using prices given
Total each page and total each section
Obtain a grand total for each category
Purchased Food (Dry, Frozen and Refrigerated, Bread and Perishables)
Commodity Food (Dry, Frozen and Refrigerated)
Paper Goods
Make a copy to keep on file at school
Send original to Vince Dawkins, Food Service Accounting, mail code 9999-652
Items on hand not pre-printed on the report must be hand-written in and priced from previous inventory or on-line screen. The item number assigned by M.I.S. does not need to be included for these additional items.
Counts recorded on the physical inventory should agree with counts on perpetual inventory cards (See SFS Procedure C-15).
DFN's Food Service Procedure Number B-1 addresses the subject of the "food service program." It has been in effect since August of 1991 and provides, in part, as follows:
PURPOSE
The primary purpose of the child nutrition program is to provide students with nutritionally adequate meals that will contribute to their overall good health. A second purpose is to contribute to the development of good eating habits by permitting students to make wise food choices and to develop positive attitudes toward food. The regular school lunch and breakfast
programs, as well as the total school environment, should provide experiences that reinforce health and nutrition education in the classroom.
DEFINITION
School food service is defined as total food and beverages served to students during school hours on school grounds. All income from food and beverage sale is classified under school food service operating funds, except as specified in Board Rule 6Gx13-3B- 1.061.
SERVICE AND OFFERINGS
In accordance with the Florida Department of Education regulations, Board Rule 6Gx13-3B- 1.061, and the Boards's contractual agreement for the maximum amount of federal cash reimbursements, donated commodities and the state reimbursement, all schools are to limit food and beverages available to students on the school campus during the school hours to:
Reimbursable Breakfast priced as a unit Reimbursable Lunch priced as a unit Individually-priced items
for students to purchase with or without a lunch
for students to purchase in addition to a lunch
senior high students.
Only one breakfast and one lunch per student is reimbursed. Second meals purchased must be at the adult price and recorded as student item at adult price.
Breakfast programs may be closed in secondary schools when daily participation warrants. .
. .
LUNCH PATTERNS
Students are to have available unit priced lunches, low fat and whole milk and full strength fruit or vegetable juices. The reimbursable lunch must meet the nutritional requirements set forth by law and regulations of federal and state governments. Schools are to provide lunches in accordance with the menu published by the Department of Food and Nutrition. Lunch menus should be expanded to provide wider choices.
Variations of the unit-priced lunch includes: Chef salads
Salad Bars Cold plates
Box or bag Lunches
Milk served as part of a meal, that has not been opened, may be recycled. . .
The Secondary Reimbursable Lunch Includes:
Meat or Meat Alternate . . . . 2 Ounces Vegetables and/or Fruits. . . 3/4 Cup
(Two Items of 3/8 Cup Each, or Two [No.] 12 Scoops)
Bread or Bread Alternate . . . . 1 1/2 Serving
Milk . . . 1/2 Pint (Any Flavor)
C. Offer Versus Serve- Lunch
The National School Lunch Act permits students the opportunity to select three of the five offered components of the reimbursable lunch and still obtain the benefits of the complete unit priced reimbursed lunch rather than paying the price of individual components.
Following are accepted component combinations:
Meat or meat alternate, vegetable or fruit,
vegetable or fruit
Meat or meat alternate, vegetable or fruit, bread
Meat or meat alternate, vegetable or fruit, milk
Vegetable or fruit, vegetable or fruit, bread Vegetable or fruit, vegetable or fruit, milk Meat or meat alternate, bread, milk
Vegetable or fruit, bread, milk
The above combinations are to be counted as a reimbursable lunch and all food service employees are to made aware of these combinations. Students may not choose two of the same component on the day's meal. (Example: A student choosing pizza may not choose two (2) juices, or two (2) servings of corn to complete the day's meal). A student wishing two servings of the same item must pay the a la carte price for the second repeated item. A sign must be posted to make students aware of the Offer versus Serve option. . .
DFN's Food and Nutrition Procedure Number F-3 addresses the subject of "equipment maintenance." It has been in effect since August of 1991 and provides, in part, as follows:
MAINTENANCE SERVICES are those which pertain to the actual "Repair" of equipment items.
The food service manager assumes the responsibility for the use and care of the food service equipment. . . .
ROUTINE REPAIR PROCEDURE
Food service manager responsibilities:
Prepare for the principal's signature a Maintenance Support Request Form (MIS-10400) describing the services required and send the form to the Maintenance Department via school mail.
Refer to the work order number previously assigned when making call regarding a routine maintenance request. These maintenance work order numbers will appear on a weekly "print- out" from Maintenance Systems listing all work orders for individual schools.
EMERGENCY MAINTENANCE
Situations that require immediate action by the Maintenance Department to correct problems that involve the safety, health and welfare of the Food Service Program are considered emergencies, e.g. a freezer breakdown.
EMERGENCY REPAIR PROCEDURE
The food service manager should:
contact the zone mechanic, if possible.
telephone the appropriate Maintenance Department location directly: . .
during the telephone request, record the work order number assigned by the Maintenance Department for future reference.
when necessary to make subsequent calls regarding an emergency request, refer to the previously assigned work order number.
Food service managers must obey the reasonable work- related directives of their supervisors.
The principal of the school to which a food service manager is assigned has supervisory authority over the food service manager.
The principal, however, may delegate such authority to
another administrator at the school.
In exercising supervisory authority over the food service manager, the principal (or the principal's designee) is assisted by a DFN food service coordinator.
The food service coordinator monitors the school's food service program to determine if there is compliance with School Board (DFN) procedures and requirements and brings to the attention of the principal (or the principal's designee) and the food service manager any deficiencies that are found. Respondent's Early Years at Nautilus
From the time that she became Nautilus' food service manager in the fall of 1987, until August of 1993, Respondent worked under the supervision of Elsie O'Dell, an assistant principal at the school who had been delegated (by the principal) the authority to oversee the school's food service program.
In O'Dell's opinion, Respondent was, overall, an "efficient manager."
Although Respondent discharged her duties and responsibilities in a manner that satisfied O'Dell, there were occasions when others evaluating her performance found it to be deficient in certain areas.
In July of 1993, Freddie Pittman, Sr., became the principal of Nautilus, a position he still holds today.
Following O'Dell's retirement in August of 1993, Pittman assigned another assistant principal to be responsible for oversight of the school's food service program.
In the months that followed, Pittman received complaints regarding the school's food service operations.
On March 7, 1994, Jeanne Ober, a food service coordinator, visited Nautilus to conduct a compliance review of the school's food service program.
There were deficiencies that Ober noted.
Ober recorded her findings in a Compliance Visitation Criteria report, which she furnished to, and discussed with, Respondent.
The report reflected that there was a need for improvement (NI) in meeting the following requirements relating to "cash control and accountability/NCR:"
Each sale is entered separately and itemized as each student or adult passes by cash register. Exceptions may be made with approval. (SFS E-2)
Money is counted by cashier and one other employee other than the manager. Exceptions:
participation at or under 300, and
limited staff. (SFS E-5)
The report also contained the following "recommendations/comments" concerning these matters:
1) Cashier must ring up each student as they pass register. Cashiers should count their own drawers and check each other's cash drawer.
Ober's report further reflected that there was a need for improvement (NI) in meeting the following requirements relating to "inventory control," "personnel," and "sanitation and safety:"
INVENTORY CONTROL . . .
4. A perpetual inventory is maintained for each commodity food item. (SFS C-8). . .
PERSONNEL
1. All personnel are informed of their job descriptions and work schedules are planned. (SFS G-12) . . .
4. Work Hours Used Report is completed according to procedure. (SFS G-8) . . .
IV[sic]. SANITATION AND SAFETY . . .
7. Temperature readings are recorded daily for each refrigerator, freezer, milkbox and dry storage area. (SFS C-12)
The report also contained the following "recommendations/comments" regarding these matters:
* no fingernail or false fingernails; all employees must wear proper footwear (white- not canvas non-skid); temperature charts must be kept on a daily basis; job descriptions and schedules to be posted; inventory cards (commodity) and work hours used to be current.
After the end of the 1993-1994 regular school year, the assistant principal who had replaced O'Dell as the on-site administrator responsible for supervision of Nautilus' food service program was reassigned to another middle school.
At the beginning of the 1994 summer term, Pittman assigned the food service supervisory duties that had been performed by O'Dell's successor to Charlene Olicker, an assistant principal at Nautilus since August of 1993. Pittman told Olicker, when he advised her of the assignment, that "there were some problems in the cafeteria" and that he wanted her "to get a handle on them and turn them around."
Olicker was a demanding and vigilant supervisor.
Within a week after her assignment, Olicker met with Respondent to explain what she expected of Respondent. She told Respondent that it was her expectation that students would receive the meals to which they were entitled, that the meals would be prepared appropriately, and that they would be delivered in a timely manner. Respondent was further advised that if she had any work-related problems or need for assistance, she should discuss these matters with Olicker before "she went anyplace else" inasmuch as Olicker was "the first step in the administrative chain." In addition, during her meeting with
Respondent, Olicker emphasized that Respondent needed to timely contact Olicker if Respondent was going to be late or absent.
On July 7, 1994, Jacqueline Ruybali, a DFN summer school feeding monitor, visited Nautilus to conduct a compliance review of the school's summer feeding program. Respondent was absent from work that day.
There were deficiencies that Ruybali noted.
Ruybali recorded her findings on a Monitor's Site Review form. She left the completed form on Respondent's desk. Ruybali subsequently telephoned Respondent and discussed her findings with Respondent.
Ruybali's report reflected that the meal (lunch) did not "follow the day's menu plan" and that students were not given required food options and choices. The report further reflected that improper entries were being made by the cashiers.
Ruybali also visited Nautilus on several subsequent occasions to speak with Respondent concerning Respondent's failure to comply with School Board (DFN) procedures and requirements regarding inventory and accounting.
On July 12, 1994, Respondent reported late to work without having given any advance notification of her late arrival. Her tardiness caused the serving of breakfast to be delayed. Following Respondent's arrival at work, Olicker spoke
with her and reminded her that she was required to telephone the school if she would not be present at work by 8:00 a.m.
That same day, July 12, 1994, Respondent made changes to the lunch menu without following the School Board (DFN)- prescribed procedure for making such changes. Upon learning that Respondent had made these changes, Olicker spoke with Respondent and reminded her what she needed to do in order to comply with the School Board (DFN)-prescribed procedure for making menu changes.
On July 14, 1994, inappropriately prepared grilled cheese sandwiches were served for lunch in the Nautilus cafeteria. On July 15, 1994, Olicker sent Respondent a memorandum concerning the incident, which read as follows:
The main course for the above referenced lunch was grilled cheese. The students experienced considerable difficulty biting into the sandwiches, which looked over-cooked and/or rewarmed from the previous day. I observed students futilely attempting to eat the sandwiches by softening the card-like bread with milk, breaking off the crusts, and breaking the bread into bite-size pieces. One student told me that she could not eat her lunch because she was afraid she would break her braces if she bit into the sandwich. Many students simply did not eat the main course.
Obviously, it is unacceptable to serve food which is inappropriately prepared. Please arrange to meet with me to discuss this situation.
Olicker subsequently met with Respondent and discussed the contents of the memorandum with Respondent. Respondent blamed the substandard quality of the grilled cheese sandwiches on the head cook.
On July 19, 1994, Olicker made arrangements to meet with Respondent on July 21, 1994, to discuss several issues related to cafeteria management and operations, including Respondent's continuing failure to comply with School Board (DFN) procedures and requirements regarding menu changes and Respondent's continuing failure to report to work on time. Respondent did not show up for the scheduled meeting. Thereafter, the meeting was rescheduled for July 22, 1994. Once again, Respondent did not make an appearance at the meeting. Olicker subsequently sent Respondent a memorandum expressing her concerns regarding Respondent's failure to meet with her as planned. In the memorandum, Olicker advised that she was "referring the matter to Mr. Pittman for further consideration."
On August 4, 1994, Respondent met with Olicker and Pittman. Later that same day, following the meeting, Olicker prepared, and furnished to Respondent, a memorandum (Olicker's August 4, 1994, memorandum) in which she summarized what had transpired at the meeting. The memorandum read as follows:
A conference was held at 2:30 p.m. this afternoon [August 4, 1994] to address several issues that have been pending. Present and
participatory at this ninety minute meeting were Mr. Pittman, this administrator, and you. The following is a summary of professional concerns that were addressed, with agreed upon resolutions:
Effective immediately, responsibility for administrative oversight of cafeteria operations has been transferred from Mr. Bowen [O'Dell's successor] to this administrator. You are reminded, and have agreed, that all concerns regarding cafeteria operations which require administrative assistance will be brought directly to this administrator, rather than to the principal.
All aspects of cafeteria operations are the direct, immediate responsibility of the Food Services (Cafeteria) Manager. The scope of responsibility includes (but is not limited to) on-si[te] management of the entire process of food preparation and delivery of meals. You have agreed to be in the kitchen during the entire lunch period to ensure appropriate preparation of food, and
to back up the cook, the baker and the lines for efficient, time-effective delivery of individual meals. You have agreed to dispose of inappropriately prepared foods in accordance with district procedures.
You have agreed that students who inadvertently receive inappropriately prepared food have the absolute right to exchange it. This administrator will advise the faculty that our students must be informed of their right of a replacement meal upon presentation of their tray to the Food Services Manager or designee.
Students who refuse meals or portions of meals based upon a food-specific allergy will receive alternate items which do not contain the allergen. If you do not have medical documentation in your file, you have agreed to request clarification of student status from this administrator. Under no
circumstances will a student who verbally reports an allergy be required to accept any food item containing the alleged allergen. You have agreed to accept the word of the student until the situation is administratively resolved.
You have agreed to supply Ms. Brenda Taylor, Clerk, with a complete list of student names and Personal Identification Numbers (PINS). Students who forget their PINS will be required to report to the Attendance Office to receive them from Ms. Taylor. You have agreed to continually update Ms. Taylor's list.
Effective immediately, you have agreed to the follow the published district food menus for breakfast and lunch. Changes in the menu will not be routine. If a menu change is required, you have agreed to notify this administrator and Ms. Joanne Br[ew]ton, Food Services Coordinator, of the compelling circumstances in writing. If menu changes are dictated by the district, a copy of the E-mail will be forwarded to this administrator. In either event, you have agreed that your written notification will include details of the change.
You have agreed to utilize ordering cycles to ensure timely delivery of supplies. You have also agreed to request early delivery of items to be served on Mondays to ensure that the district menus will be followed.
Leftover foods may be served the next day (only), in accordance with district procedures. If the rewarmed food is not appropriate for delivery to our students, then you have agreed to dispose of it in accordance with district procedures (disposal or donation.)
In accordance with your request, this administrator has recommended and the
principal has approved your on-line access to PARIS.
You have agreed to submit the following documentation to the administrator on a continuing basis: Portions Planned (weekly); End of Day Cashier Report (daily); current district memorandum regarding vendor bids (August 5, 1994), 1994-95 district memorandum regarding vendor bids (August 25, 1994).
Your eight-hour workday has been established as commencing at 7:30 a.m. and ending at 4:00 p.m., including a 30 minute lunch period which you have agreed to take at 11:30 a.m. You may not "skip lunch" and leave for the day at 3:30 p.m. If you are going to be late, or if you are going to be absent, you have agreed to page me on my beeper with a "22" code at 7:00 a.m., and follow up by calling the school at 7:30 a.m. to leave the appropriate message for this administrator.
If you have scheduled an appointment which will require you to leave the school during the workday, you have agreed to submit your request for mid-day or early leave to this administrator at least 24 hours in advance.
Respondent did not fully comply with the directives given to her on August 4, 1994.
On August 5, 1994, Respondent failed to report to work on time and did not comply with the notification requirements described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum. Olicker responded to such noncompliance by preparing, and furnishing to Respondent, another memorandum (dated August 5, 1994), which read as follows:
Yesterday afternoon, a conference was held. In attendance were Mr. Pittman, this administrator, and you. Among the issues discussed were the hours of your workday and procedures for reporting lateness and absence. (Please refer to memorandum CLO/1994-95/M09, August 4, 1994, "Summary of
Conference, August 4, 1994," page 3, item
11.)
This morning you did not report to work on time, and you agreed that you had failed to comply [with] procedures set forth and agreed upon at the above referenced meeting as follows: you did not page me at 7:00 a.m.; and, you did not call the school at 7:30 a.m. to leave the appropriate message for me. The exact time of your arrival has not been satisfactorily determined, however, you had not yet arrived at 8:15 a.m., and you were present in your office, at 9:10 a.m. I questioned you in your office as to your time of arrival, and informed you that your estimate of 8:10 a.m. was incorrect. In any event, you were at least 45 minutes late for work this morning.
Article XI, Section 1.A of the Contract between the Dade County Public Schools and the American Federation of State, County, and Municipal Employees, Local 1184, July 1, 1991 through June 30, 1994 (referred to herein as "the Contract"), states:
"Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency of rule, regulation or policy violated."03
0 3 The successor collective bargaining between
Please be reminded that you have agreed to comply with the outcomes of our meeting yesterday afternoon. It is anticipated that there will be no recurrences of the incident this morning, and the terms of our accords will be respected.
On August 22, 1994, Respondent again failed to report to work on time and did not comply with the notification requirements described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum. Olicker responded to such noncompliance by preparing, and furnishing to Respondent, yet another memorandum (dated August 22, 1994), which read as follows:
This morning you did not report to work on time. You failed to comply with procedures set forth and agreed upon at our meeting of August 4, 1994 (please refer to memorandum CLO/1994-95/M09, August 4, 1994, "Summary of
Conference, August 4, 1994," page 3, item 11) as follows: you did not page me at 7:00 a.m.; and, you did not call the school at 7:30 a.m. as required. Ms. Taylor received and logged a call from you at 7:55 a.m. to leave a message for me that you would be late. The exact time of your arrival has not been satisfactorily determined, however, I observed your presence in the front office at approximately 9:10 a.m. It may be surmised, therefore, that you were at least 90 minutes late for work this morning.
You are again reminded that Article XI, Section 1.A of the Contract between the Dade County Public Schools and the American
the School Board and AFSCME (which became effective July 1, 1994) contains an identical provision.
Federation of State, County, and Municipal Employees, Local 1184, July 1, 1991 through June 30, 1994 (referred to herein as "the Contract"), states:
"Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency of rule, regulation or policy violated."
This is the second such incident since the above-mentioned conference was held. This incident also represents the second occurrence of undocumented time of arrival at work. In order to accurately document your time of arrival for payroll purposes, you are asked to report directly to Ms. Taylor or me whenever you enter the building past 7:30
a.m. You may not call the attendance office from the cafeteria in lieu of a personal appearance. Once again please be reminded that you have agreed to respect school board and site procedures, and, further, that your compliance is required. The purpose of this memorandum is to comply with the above-cited section of the Contract by rendering notice of violation to you.
The following day, August 23, 1994, Respondent again reported to work late and failed to comply with the requirement, described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum, that she "beep" Olicker at 7:00 a.m. to let Olicker know that she would not be on time.
Following Respondent's arrival at work on August 23,
1994, she reported to Pittman and Olicker that food that had been stored in the freezers in the school's kitchen had spoiled due to a power outage. Olicker directed Respondent to take various measures to address the situation. These directives were subsequently reduced to writing in the following memorandum, dated August 24, 1994, that Olicker sent to Respondent:
Yesterday you reported to Mr. Pittman and to this administrator that the food in the freezers had spoiled because the electrical supply to the freezers had failed. You also reported to this administrator that you had already ordered a new supply of food. This situation raises several concerns which need to be addressed immediately.
Although there were intermittent power failures during the last several weeks, none were for an extended period of time. The insulation in the freezers should have kept the food unspoiled until the electrical power was restored. The restoration of power should have caused the freezers to immediately resume normal operation. Since this did not occur, it is obvious that a serious situation exists. I will ask Mr. Simms to immediately investigate the power supply to the freezer, from the main breaker to the outlet, to ensure that it is not defective. It is also requested that you immediately investigate the procedure for diagnosing and remediating the faulty operation of freezers (if you have not already done so). Please be assured that the appropriate repairs will be authorized as soon as you and Mr. Simms have provided me with your findings. These reports are due to me on or before Friday, September 2, 1994.
Please provide me with the serial and Property Control (PC) numbers of all affected freezers, and an itemized inventory of all
the food that was spoiled and had to be discarded. This is also due by Friday, September 2, 1994.
Please attach to the above-mentioned inventory written procedures (district and internal) for discarding large amounts of spoiled food.
Please attach to the above-mentioned inventory the procedure you will employ for deodorizing the affected freezers (if that can be done).
I trust that you have complied with all relevant items of our agreement (please refer to Memorandum [No.] 09, "Summary of Conference, August 4, 1994," items 6, 7 and 10).
Your cooperation is required and greatly appreciated.
Respondent did not timely furnish Olicker with the required documentation (described in Olicker's August 24, 1994, memorandum).
On August 24, 1994, Respondent was absent from work and failed to provide advance notification of her absence in accordance with the procedure described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum.
On August 25 and 26, 1994, Respondent failed to report to work on time and did not comply with the notification requirements described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum.
On Friday, August 26, 1994, Joanne Brewton, a food
service coordinator, visited Nautilus to ascertain the readiness of the school's food service program for the start of classes for the 1994-95 regular school year (on Monday, August 29, 1994). Brewton discovered that Respondent had yet to make the necessary preparations for the upcoming school year. As of this date, Respondent had not contacted any of her staff, prepared job descriptions or had the kitchen cleaned.
During her August 26, 1994, visit, Brewton participated in a meeting that Respondent had with Olicker and Pittman. At the meeting, Respondent was reminded that she needed to address any work-related concerns or requests for administrative support to Olicker before raising them with anyone else in the chain of command, including Pittman and Brewton. Respondent was given this reminder because she was continuing to attempt to speak to Pittman and Brewton about work-related matters without first discussing them with Olicker.
In addition, at this August 26, 1994, meeting, the general procedures for the issuance of PIN numbers to students,04 and those specific procedures that would be followed the first day of the new school year, were reviewed with Respondent. As the food service manager, Respondent was ultimately responsible
04 Each student is supposed to be assigned a separate, four-digit PIN number, which enables the student to obtain meals in the school cafeteria.
for ensuring that each student at the school was issued a PIN number.
Brewton paid a return visit to Nautilus on Monday, August 29, 1994, the first day of the 1994-95 regular school year, with the intention of providing Respondent with assistance.
Respondent still had not taken the necessary measures to prepare for the opening of school. She was instructed to correct these deficiencies.
Furthermore, on this first day of school, Respondent did not comply with the procedures regarding PIN numbers that had been reviewed with her during the August 26, 1994, meeting she had with Olicker, Pittman and Brewton.
On this day, Respondent had another meeting with Olicker and Pittman at which the subjects of PIN numbers and the chain of command were discussed. Following the meeting, Olicker sent Respondent two separate memoranda, each dated August 30, 1994, concerning these subjects.
The memorandum concerning PIN numbers read as follows:
On Friday, August 26, 1994, a meeting was held in Mr. Pittman's office. In attendance were the principal, this administrator, Mrs. Joanne Brewton, Food Services Coordinator, and you. Another meeting was held in Mr. Pittman's office on Monday, August 29, 1994. In attendance were the principal, this administrator, and you. The procedure for issuing lunches to students who did not have
lunch PINs (Personal Identification Numbers) was designed as follows:
All students who receive meal cards are responsible for memorizing their PINs. If they forget their PINs, or lose their cards, they may see Ms. Brenda Taylor, who will give them their numbers again.
You are responsible for updating Ms. Taylor's computerized list at the end of every day.
All students who do not have lunch numbers will receive them from you. This includes new registrants, and returning students who have not been issued lunch cards.
Students for whom there is no PIN by lunchtime will receive a full lunch. Your responsibility is to ensure that the names of those students do not appear on the computerized list, and to record their names on a running list.
The list of students fed without PINs is to be submitted at the end of each day to Ms. Judith Coldros-Williams, Treasurer, for reconciliation. Ms. Coldros will then issue a check to the cafeteria. . . .
This memorandum is to direct you to follow the procedure as it was designed and reiterated herein. Ms. Coldros has been instructed to reconcile the lists when you resubmit them and to issue a check to the cafeteria for those students who meet criterion [No.] 4 as described above.
The memorandum concerning the chain of command read as follows:
On Friday, August 26, 1994, a meeting was held in Mr. Pittman's office. In attendance were the principal, Mrs. Brewton, this
administrator and you. Yesterday, another meeting was held in my office, with you, Mr. Pittman and this administrator in attendance. A topic of discussion at both the above- referenced conferences was the internal administrative chain available to you for program support. In accordance with the consensus of yesterday that you receive written reiteration of information to facilitate communication, the appropriate administrative chain of command is delineated as follows:
This administrator has been delegated the responsibility of oversight of the Food Services program, including kitchen and cafeteria operations. Issues related to this program which require administrative assistance are appropriately brought to this office.
The principal is available to assist in matters that cannot be resolved at the level of delegated responsibility. It is requested that you inform this administrator of your intention to request the assistance of the principal.
Mrs. Brewton assumes that you have notified this office prior to requesting her assistance.
It is hoped that this memorandum provides the requested clarification.
During her August 29, 1994, visit to Nautilus, Brewton went with Olicker to Respondent's office, where they observed six signs on the walls which contained the following statements: first sign- "When I woke up this morning I had one nerve left, and damned if you ain't got 'on it;'" second sign- "In case of fire awaken sleeping employees slowly to prevent nervous shock
and leave as fast as you do at closing time;" third sign- "Doing a good job here is like wetting your pants in a dark suit: you get a warm feeling but no one else notices;" fourth sign- "I'm surrounded by idiots;" fifth sign- "All employees here love their Jobs. Its just the work they hate;" and sixth sign- "I've been beaten, kicked, lied to, cussed at, swindled, taken advantage of and laughed at, but the only reason I hang around this crazy place is to see what will happen next!!!" Olicker believed that the signs were inappropriate for the workplace inasmuch as they did not foster a positive work environment. She ordered Respondent to remove the signs by the end of the workday.
Respondent failed to comply with this reasonable directive. When Olicker visited Respondent's office the following morning (August 30, 1994), the signs that Olicker had ordered Respondent to remove were still on the walls. Olicker confiscated the signs. Later that same day, she sent the following memorandum to Respondent:
Yesterday morning, Mrs. Joanne Brewton, Coordinator, Department of Food and Nutrition, was accompanied by this administrator to the cafeteria. We observed six inappropriate signs hanging on your office wall which we judged to be highly inappropriate to the workplace, and certainly oppositional to our endeavor to instill and maintain pride in our school. I instructed you to remove them by the end of the school day. This morning, I visited your office at 7:40 a.m., and observed that the signs were still in place. As you were at that point
preoccupied by a telephone call, I removed the offensive material, and exited the cafeteria with it.
You are again reminded that Article XI, Section 1.A of the Contract between the Dade County Public Schools and the American Federation of State, County, and Municipal Employees, Local 1184, July 1, 1991 through June 30, 1994 (referred to herein as "the Contract"), states:
"Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency of rule, regulation or policy violated."
The purpose of this memorandum is to comply with the requirements of the above-cited section of the Contract.
Enclosed with this memorandum are the above- referenced signs. You are instructed to refrain from displaying them in the school. It is also highly recommended that you scan your office for any remaining material which may be interpreted as inappropriate to the workplace, and remove said items in the interests of professional pride.
Brewton returned to Nautilus on August 31, 1994. The deficiencies that she had noted during her previous visits had not been corrected. Brewton again directed Respondent to take the necessary corrective action to eliminate these deficiencies. Such action was to be taken by September 2, 1994. Brewton
prepared a written report of her August 31, 1994, visit, which she provided to Respondent. The report read as follows:
Manager has not followed recommendations and directives given to her on Friday, Aug. 26. As of today, the following directives were given again to her.
Personnel- All employees are to receive their job descriptions including work hours and lunch time. Post an organizational chart and work schedule. Following hiring procedure, as per Ms. Olicker, assistant principal. Staff kitchen using food service work hour procedures. (Kitchen is understaffed!) Schedule three (3) employees at three (3) hours each to clean all kitchen equipment and serving lines. Remember employees must be trained to operate cash register and food service equipment!
Accounting- Print student pin number lists for all cashiers and front office when needed. Follow food service procedures for filing and storing all food service records and reports.
On September 2, 1994, Respondent failed to act in accordance with the procedures set forth in Olicker's August 30, 1994, memorandum concerning PIN numbers and, as a result, some students did not receive lunch.
On that same date, September 2, 1994, Respondent informed Olicker that she would be not able to serve an item on the lunch menu for that day because the item (sausage pizza) had not been delivered. While it was true that the item had not been delivered, the reason it had not been delivered was because
Respondent had not ordered the item in accordance with School Board (DFN) procedures.
On September 7, 1994, Respondent attempted to circumvent the chain of command when, without first discussing the matter with Olicker, she wrote a note to Pittman in which she inquired of him whether "food service employees (part-time) need to sign out/in if they want to go out of the building."
On September 12, 1994, Respondent left her cafeteria keys in a manila envelope for one of her subordinates, Julia Bing. On the envelope, Respondent wrote a note in which she instructed Bing, in Respondent's absence, to "not give [Respondent's cafeteria] keys to any one not even the principal or the other one."
On September 13, 1994, Brewton paid another visit to Nautilus. As of this date, there were still deficiencies in the school's food service program. Brewton prepared, and subsequently provided to Respondent, a written report describing these deficiencies. The report read as follows:
On Aug. 29 during site visit the following deficiencies were identified and a corrective action plan was developed with the manager:
Personnel- job descriptions, work schedule, organizational charts and hiring procedures Accounting- student pin numbers and food service records and reports
On Aug 31 corrective action directives were monitored and no actions were taken by the manager.
On Sept. 2 manager was to provide food service personnel with job descriptions and work schedule. Subsequently information was faxed on Sept 9 to my office.
On Sept. 13 during another site visit, the manager was (on an excused) absen[ce] but did not leave an on-site person in charge of managing the food service operation. The breakfast service was incompliant and because I was present on the site, the lunch service was supervised by myself and was compliant. The following deficiencies were noted:
-Bread order had to be placed/emergency food order phoned in
-Staff needed directions
-Breakfast menu not posted.
-Storeroom issue sheet not posted.
-Accurate reports and records not filed
-Student pin numbers had to be issued
On September 14, 1994, Respondent reported to work late and failed to comply with the requirement, described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum, that she "beep" Olicker at 7:00 a.m. to let Olicker know that she would not be on time.
On September 16 and 19, 1994, Respondent made changes to the lunch menu without following the notification requirements described in numbered paragraph 6. of Olicker's August 4, 1994, memorandum.
On September 19, 1994, Respondent attempted to discuss with Pittman a work-related matter that she should have (in
accordance with previous directives given her), but which she did not, first discuss with Olicker.
On September 20, 1994, Pittman directed Respondent (in writing) to report to Pittman's office on September 22, 1994, for a conference-for-the-record concerning:
[He]r level of productivity.
The implementation of duties applicable to the position of Food Service manager.
Effective delivery of services and support.
The conference-for-the-record was held, as scheduled, on September 22, 1994, with Respondent, Pittman and Olicker in attendance. Respondent's deficiencies were addressed at the conference. Respondent was advised that, following the conference, she would receive a written "list of directives" and that her failure to comply with these directives would "negatively impact [her] future employment."
On September 22 and 23, 1994, Respondent made changes to the lunch menu without following the notification requirements described in numbered paragraph 6. of Olicker's August 4, 1994, memorandum.
On September 23, 1994, Olicker met with Respondent to discuss Respondent's failure to fulfill her responsibility to monitor and confirm the personnel status of two individuals who
had received offers of employment to work on a part-time basis in the Nautilus cafeteria.
On that same date, September 23, 1994, Respondent sent Olicker a note advising Olicker that the "menus may be change[d] for next week" because "items [were] not available." In response to the note, Olicker sent Respondent the following memorandum, dated September 23, 1994 (Olicker's September 23, 1994, memorandum):
The information you provided to me this morning regarding proposed changes in the lunch schedule for the above-referenced week [September 26-30, 1994] is insufficient. As you are aware, you are required to provide three- to four- day advance notification of the specific menu item changes, the reason for every proposed change, and pertinent supportive documentation. At this time, no menu changes will be anticipated by this administrator inasmuch as the required information has not been submitted.
On September 30, 1994, Respondent was absent from work and failed to provide advance notification of her absence in accordance with the procedure described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum.
On October 3, 4, and 5, 1994, Respondent made changes to the lunch menu without following the notification requirements described in numbered paragraph 6. of Olicker's August 4, 1994, memorandum, as clarified and supplemented by Olicker's September 23, 1994, memorandum.
On October 5, 1994, Brewton's supervisor, Pauline Ferris, DFN's director of program operations, visited Nautilus to observe the school's food service operation and to speak with Respondent. The visit was made in response to complaints that Ferris had received from Olicker. During her visit, Ferris noted, among other things, the following: Respondent's inventory report for September, 1994, was overdue; the serving line had most, but not all, of the items on the menu; there were insufficient quantities of certain items on the serving line; Respondent's office was in disarray, with papers "scattered all over;" and the kitchen "could use a thorough cleaning." Ferris discussed these matters with Respondent. During her discussion with Respondent, Ferris stressed the importance of Respondent attending "scheduled inservice workshops" offered by the School Board (DFN). Ferris came away from her visit with the view that, although Respondent was a "capable and knowledgeable Food Service Manager," she was "not providing the type of service a middle school such as Nautilus require[d] and deserve[d]." Ferris advised Pittman of her opinion in a memorandum that she sent to him describing what occurred during her October 5, 1994, visit to Nautilus.
On October 6, 1994, Respondent failed to report to work on time and did not comply with the notification requirements
described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum.
That same day, October 6, 1994, Respondent made changes to the lunch menu without following the notification requirements described in numbered paragraph 6. of Olicker's August 4, 1994, memorandum, as clarified and supplemented by Olicker's September 23, 1994, memorandum.
Also on October 6, 1994, Respondent received the written "list of directives" she had been promised at the September 22, 1994, conference-for-the-record. The list was contained in a memorandum, dated October 4, 1994, from Pittman (Pittman's October 4, 1994, memorandum), which read as follows:
A Conference for the Record was held on September 22, 1994. The summary memorandum of the Conference, dated September 23, 1994, was given to you on October 3, 1994. The purpose of the Conference for the Record and the subsequent summary memorandum was to review your individual level of productivity, the implementation of your duties in your position as Food Services Manager, and the effectiveness of your delivery of services and [s]upport to Food Services. Several significant deficiencies in your performance were identified at the Conference and reiterated in the summary memorandum. The purpose of this memorandum is to explicitly enumerate those deficiencies and to provide timelines for remediation. You are again reminded that failure to remediate the deficiencies in your performance will have an impact upon your continued employment at Nautilus Middle School and the Dade County Public Schools.
You will respect and follow the internal administrative chain as it has been delineated to you. (immediate remediation)
You will comply with all directives and requests from your supervising administrator. (immediate remediation for all new requests; October 17, 1994 for all previously issued requests)
You will follow district breakfast and lunch menus exactly as they are written and disseminated. There will be no substitutions of menu items without advance approval from your supervising administrator. Leftover menu items from the previous day may be scheduled items. (by October 17, 1994)
Food orders will be placed utilizing routine departmental procedures, including the option for early delivery. (by October 17, 1994)
You will include your supervising administrator in the hiring process for all prospective employees. (immediate remediation)
You will comply with all district directives and remediate all district- identified deficiencies relative to food inventory reports, kitchen procedures, accounting procedures, and all other items listed on Program Visitation and Report Supplements of August 31, 1994 and September 13, 1994. (by October 17, 1994)
You will comply with established internal procedures for reporting absences and lateness to work. (immediate remediation)
You will arrange for the cashiers to have the required district training. (schedule of appointment dates by October 24, 1994)
You will back up the serving lines during breakfast and lunch periods except when assisting students who cannot be assisted by Ms. Taylor. (immediate remediation)
Please be reminded that you remain free to contact Mrs. Brewton and/or the Help Desk for assistance. You may also contact Ms. Helen Viviand at the Employee Assistance Program, 995-7111, to address any personal concerns.
On October 7, 11, and 12, 1994, Respondent made changes to the lunch menu without following the notification requirements described in numbered paragraph 6. of Olicker's August 4, 1994, memorandum, as clarified and supplemented by Olicker's September 23, 1994, memorandum.
On October 18 and 19, 1994, Respondent failed to report to work on time and did not comply with the notification requirements described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum.
On October 19, 1994, Respondent made changes to the lunch menu without obtaining advance approval from Olicker, as required by numbered paragraph 3. of Pittman's October 4, 1994, memorandum.
On October 20, 1994, the glass shield on one of the serving tables in the cafeteria broke. Respondent continued to use this serving table for the delivery of food to students, notwithstanding the safety hazard that the broken glass shield
posed. She reported the incident to neither Olicker nor the zone mechanic.
On October 21, 1994, Respondent was absent and did not comply with the requirement, described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum, that she "beep" Olicker at 7:00 a.m. to let Olicker know that she would not be at work that day.
Brewton conducted another on-site review of the Nautilus food service program on October 21, 1994. The review revealed continuing deficiencies. Brewton prepared a written report of her October 21, 1994, visit, in which described these deficiencies. The report, which she provided to Respondent, read as follows:
Food service manager not in compliance with directives given to her on August 26, 29 and
31. Manager still continues not to follow food service department policies and procedures when managing kitchen operation.
To this date, the following items have not been done:
Set-up (schedule) cashier training for employees.
Food service accounting records/reports not filed and stored away.
Kitchen facility not clean and maintenance problems not reported. (broken glass on steam table line.)
Employees performing managerial duties not trained.
I recommend that the manager apply/transfer to a school site classified at a Manager II level (850 or less meal participation).
Respondent declined to follow Brewton's suggestion that she seek a transfer to a smaller05 school.
On October 25, 26, 27 and 28, 1994, Respondent was either tardy (October 25 and 27) or absent (October 26 and 28) and did not comply with the notification requirements described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum.
On October 31, 1994, Respondent made changes to the lunch menu without obtaining advance approval from Olicker, as required by numbered paragraph 3. of Pittman's October 4, 1994, memorandum.
On November 3, 1994, Respondent failed to report to work on time and did not comply with the notification requirements described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum.
Respondent felt as if she was under a considerable amount of stress at work. To make matters worse, she was
05 Approximately 1200 students participate in Nautilus' food service program.
experiencing problems in her personal life that made her feel depressed.
Following a confrontation that she had with Olicker in or about mid-November of 1994, Respondent requested that, in the interests of her emotional health, she be allowed to go on extended sick leave.
Respondent's request was approved. She went on extended sick leave effective November 17, 1994. She received approval to remain on such leave until May 30, 1995.06
On March 30, 1995, in anticipation of the expiration of Respondent's extended sick leave, a conference-for-the-record was held to clarify Respondent's future employment with the School Board in light of her deficient pre-leave job performance and her noncompliant pre-leave conduct. Present at the conference were Respondent, Pittman, Olicker, Brewton, A. Louise Harms (the executive director of the School Board's Office of Professional Standards), Dr. Joseph Burke (the director of the School Board's Region II Operations), and Alvaro de los Santos (an AFSCME representative). Following a discussion about Respondent's pre-leave job performance and conduct, Respondent was advised that, in light of her deficient performance and
06 The approval of Respondent's leave request did not serve to excuse Respondent for her pre-leave performance deficiencies and noncompliant conduct, nor did it constitute an acknowledgment that her pre-leave performance deficiencies and noncompliant
noncompliant conduct, Pittman had recommended her dismissal and that the Region II Superintendent had "endorsed this recommendation."
Harms prepared, and provided to Respondent, a summary of the March 30, 1995, conference-for-the-record.
Effective upon her return from leave on May 31, 1995, Respondent was temporarily reassigned to work in the DFN test kitchen under the supervision of Margaret Bowersox, DFN's senior executive director, pending School Board action on the recommendation that Respondent be terminated.
On June 16, 1995, Bowersox sent Harms the following memorandum concerning Respondent's attendance:
Ms. Carmen Arroyo was assigned to the Department of Food and Nutrition, May 31, 1995. Mrs. Arroyo reported to work two (2) days, May 31 and June 1, 1995. After that she called in to report that she would not be to work four times.
Dates Caller Staff Contacted 6/2/95 Carmen's son Nita Shelton 6/5/95 Carmen Nita Shelton
6/6/95 Carmen Mary Lou Pitts 6/7/95 Carmen's daughter Nita Shelton
The last time the department heard from her was June 7 when she reported she had ingrown toenails on both feet and would not be to work. Since this date the department has not heard from her.
conduct were the product of poor health.
On June 19, 1995, Harms sent the following letter to Respondent:
The Office of Professional Standards has been advised that you have been absent without authority from your duties as an employee in the Dade County Public Schools. During this period you did not notify your supervisor (Ms. Madeline Bowersox, Executive Director, Department of Food and Nutrition) regarding your absence.
Article XI, Section 4, of the AFSCME Contract states: . . .
Your absence has been termed abandonment of position by your supervisor, and as a result you [are] deemed to have voluntarily terminated your employment with the Dade County Public Schools.
With regard to the above-indicated contractual rights, please be advised that unless you provide a written notification to the Office of Professional Standards . . . or you[] request . . . a review of the facts concerning your termination within ten (10) workdays from the receipt of this letter, your termination will be submitted to the School Board for final action at a Board meeting subsequent to this letter.
Respondent requested a review conference regarding the matter. Grievances were also filed (under the provisions of the AFSCME Contract) on her behalf.
A decision was made by School Board administrative staff not to pursue the abandonment issue. The matter was therefore never considered by the School Board.
Respondent was advised of the "withdrawal" of the "abandonment action" by memorandum, dated November 28, 1995, from Dr. D. Patrick Gray, Jr., a School Board associate superintendent. The memorandum provided, in part, as follows:
DETERMINATION
In meeting with Associate Superintendent Michael McNeal, I have been advised that his support for the processing of the abandonment action has been withdrawn. This negates th[e] need to review the facts concerning the unauthorized leave, but only if the active grievances corresponding to the abandonment action are also withdrawn.
EMPLOYMENT STATUS
Pursuant to consideration of all the evidence, the employment status from June 8, 1995 to date will be leave without pay- authorized. The region office will immediately review the dismissal for cause determination which was actively pending at the initiation of the abandonment of position action.
You will be advised accordingly.
On January 24, 1996, the School Board took action to "suspend [Respondent] and initiate dismissal proceedings against [her] from all employment by the Dade County Public Schools, effective at the close of the workday, January 24, 1996, for incompetency and insubordination."
Respondent was informed of the School Board's action by letter, dated January 25, 1996, from Gray.
At no time during Respondent's employment with the School Board prior to her suspension had the School Board ever taken any "disciplinary action" (as that term is used in Article XI of the AFSCME Contract) against her, although (as the food service manager at Nautilus, before going on extended sick leave) she had received "warnings" (as that term is used in Article XI of the AFSCME Contract) from her supervisors, both verbal (during informal discussions, as well as at conferences-for-the-record) and in writing, concerning performance deficiencies and noncompliant conduct.07 Notwithstanding these supervisory "warnings," Respondent's deficient performance and noncompliant conduct (which adversely impacted the school's food service program and those who depended on the delivery its services) continued up until the time that Respondent went on extended sick leave.08
"In accordance with the provisions of s. 4(b) of Art.
IX of the State Constitution, district school boards [have the authority to] operate, control, and supervise all free public
07 These "warnings" were intended, not to punish Respondent, but to help her avoid "disciplinary action."
08 While Respondent may have experienced personal and health problems during this period of time, she nonetheless was given a fair and reasonable opportunity, before she went on leave, to eliminate the shortcomings in her work performance and conduct of which her supervisors had made her aware.
schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law." Section 230.03(2), Fla. Stat.
Such authority extends to personnel matters. Section 231.001, Fla. Stat.("[e]xcept as otherwise provided by law or the State Constitution, district school boards are authorized to prescribe rules governing personnel matters, including the assignment of duties and responsibilities for all district employees"09).
A district school board is deemed to be the "public employer," as that term is used in Chapter 447, Part II, Florida Statutes, "with respect to all employees of the school district." Section 447.203(2), Fla. Stat.
As such, it has the right "to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons." Section 447.209, Fla. Stat.
It, however, must exercise these powers in a manner that is consistent with the requirements of law.
"Under Florida law, a school board's decision to terminate an employee is one affecting the employee's substantial
09 The School Board's Rule 6Gx13-4A-1.21 is such a rule.
interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute."010 Sublett v. District School Board of Sumter County,
617 So.2d 374, 377 (Fla. 5th DCA 1993).
A district school board employee against whom a dismissal proceeding has been initiated must be given a notice of specific charges prior to the Section 120.57(1) hearing. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule[, regulation, policy, or collective bargaining provision] the [district school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. School Board of Dade County, 426 So.2d 1149, 1151 (Fla. 3d DCA 1983)(concurring opinion of Judge Jorgenson).
Any disciplinary action taken against the employee may be based only upon the conduct specifically alleged in the notice of specific charges. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).
010 "A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So.2d 374, 377 (Fla. 5th DCA 1993).
At the Section 120.57(1) hearing, the burden is on the district school board to prove the allegations contained in the notice. Inasmuch as it is a disciplinary proceeding that does not involve licensure, the district school board's proof need only meet the preponderance of the evidence standard. See
Section 120.57(1)(h), Fla. Stat. (Supp. 1996)("[f]indings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute"); see also Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990)("[w]e . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in [School Board employee] dismissal proceedings was a preponderance of the evidence;" "[t]he instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard"); Dileo v. School Board of Dade County, 569 So.2d 883, 884 (Fla. 3d DCA 1990)("[w]e disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent and substantial evidence to support both charges by a preponderance of the evidence standard").
Where the employee sought to be terminated is an "educational support employee," the district school board must also act in accordance with the provisions of Section 231.3605, Florida Statutes,011 which provides, in part, as follows:
011 Contrary to the suggestion made in Count III of the Notice of
11 Cont. Specific Charges (as finally amended) served on Respondent, and notwithstanding the holding in Rosario v. Burke, 605 So.2d 523, 524 n.1 (Fla. 2d DCA 1992), the case cited in paragraph 54 of the Notice in support of this suggestion, the termination of a non-certified School Board employee is not governed by the provisions of Section 231.36(6)(b), Florida Statutes. In Rosario, the Second District Court of Appeal provided the following explanation for its holding that the provisions of Section 231.36(6)(b), Florida Statutes, were applicable to non- certified district school board personnel:
We are not completely convinced that the legislature initially intended the narrow grounds for dismissal described in section 231.36(6)(b) to apply to nonprofessional supervisory staff, as compared to principals, assistant superintendents and other certified positions. Nevertheless, the statute was interpreted to include such public employees in 1981, after the enactment of section 447.201-.609, which applies generally to public employees. See Smith v. School Bd.
of Leon County, 405 So.2d 183 (Fla. 1st
DCA 1981). Section 231.36 was amended after the Smith decision without any disapproval of that decision. If the statute requires modification or clarification concerning
nonprofessional supervisory school personnel, that change should occur in the legislature.
Subsequent to the Second District's decision in Rosario, the 1994 Florida Legislature enacted Section 231.3605, Florida Statutes, which provides that an "educational support employee" may be terminated "for reasons stated in the collective bargaining agreement, or in school board rule in cases where a collective bargaining does not exist" and further prescribes the procedure that must be followed "[i]n the event a superintendent seeks termination of an [educational support] employee." In view of
As used in this section:
"Educational support employee" means any person employed by a district school system who is so employed as . . . a member of food service . . ., 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 school board pursuant to s. 231.1725. This section does not apply to persons employed in confidential or management positions. This section applies to all employees who are not temporary or casual and whose duties require
20 or more hours in each normal working week.
"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 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 school board rule in cases where a collective bargaining agreement does not exist, or reduces the number or employees on a districtwide basis for financial reasons.
the enactment of Section 231.3605, Florida Statutes, the provisions of Section 231.36(6)(b), Florida Statutes, can no longer be reasonably construed as being directly applicable to non-certified school board personnel.
In the event the superintendent seeks termination of an employee, the 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 school board rule in the event there is no collective bargaining agreement.
Respondent is an "educational support employee," within the meaning of Section 231.3605, Florida Statutes, who is covered by a collective bargaining agreement (the AFSCME Contract).
Pursuant to Section 231.3605, Florida Statutes, her employment may be terminated only "for reasons stated in the collective bargaining agreement."
An examination of the AFSCME Contract (and Article XI thereof in particular) reveals that a bargaining unit member covered by the agreement may be disciplined for "deficient performance," "non-performance of job responsibilities," "violation of federal statutes [and] State Statutes," "violat[ion of] any rule, regulation or policy," or "defiance of the administrator's authority,"012 provided that the disciplinary action taken is "consistent with the concept and practice of
012 "Defiance of the administrator's authority" includes acts which constitute "gross insubordination or willful neglect of duty," as defined in Rule 6B-4.009(4), Florida Administrative Code ("a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper
progressive or corrective discipline" (as described in the agreement).
The Notice of Specific Charges (as finally amended) served on Respondent alleges that Respondent's dismissal is warranted under the provisions of the AFSCME Contract because of her: (Count I) "deficient performance . . . including her failure to comply with administrative directives, her non- compliance with procedures of the Department of Food and Nutrition, her failure to remediate identified deficiencies, and her violations of the responsibilities for the School Food Service Program, [which] constitute non performance of job responsibilities in violation of Article XI, Section 4C of the AFSCME Contract;" (Count II) violation of School Board Rule 6Gx- 13-4A-1.21; and (Count III) "gross insubordination or willful neglect of duty."
The record clearly and convincingly establishes: Respondent's guilt of the offenses alleged in Counts I, II and III of the Notice; that these are offenses for which a bargaining unit member may be disciplined under the AFSCME Contract; and that Respondent's "deficient performance," violation of School Board Rule 6Gx-13-4A-1.21, and "gross insubordination[/]willful neglect of duty" continued notwithstanding that she had been provided the notice and
authority").
"warnings" required by Article XI, Section 1, of the AFSCME Contract.
Taking into consideration (as Article XI, Section 1.B., of the AFSCME Contract mandates) the seriousness of Respondent's offenses (including the circumstances surrounding their commission) and her employment record with the School Board, it is the recommendation of the undersigned that the School Board exercise its authority to terminate Respondent's employment. Given the very serious nature of Respondent's offenses,013 the mitigating circumstances present in the instant case are insufficient to justify the imposition of "disciplinary action" less severe than termination.014
The affirmative defenses raised by Respondent in
013 Respondent's offenses are more serious than the employee misconduct at issue in either Centellas v. School Board of Dade County, 21 Fla. L. Weekly D2559 (Fla. 3d DCA December 4, 1996), Bell v. School Board of Dade County, 21 Fla. L. Weekly D2223 (Fla. 3d DCA October 16, 1996), or Collins v. School Board of Dade County, 676 So.2d 1052 (Fla. 3d DCA 1996), three Third District Court of Appeal cases (cited by Respondent in her proposed recommended order) in which the "disciplinary action" taken against an employee covered by the AFSCME Contract was held, on appeal, to be excessive. These cases therefore do not support the position that "disciplinary action" less severe than
13 Cont. termination should be taken against Respondent in the instant case.
014 Of particular concern is Respondent's repeated refusal to obey reasonable supervisory directives. Such conduct cannot be tolerated from any School Board employee, regardless of the position occupied. There is no reason to believe that if Respondent was allowed to remain in the employ of the School Board (either in her current position or a less responsible and lower paying one) that her defiant behavior would not continue.
support of her contention that she should not be terminated are without merit.
With respect to Respondent's affirmative defense I, her reliance on "the doctrine of fairness as announced in the opinion of the court in Rosenfelder v. Huttoe, 24 So.2d 108 (Fla.
1947)" is misplaced. The School Board's reappointment of Respondent effective July 1, 1994, unlike the City of Miami's promotion of Huttoe in Rosenfelder, did not necessarily
constitute "approval of . . . past conduct" inasmuch as Respondent, as a five-year School Board employee," pursuant to Article XI, Section 4.D., of the AFSCME Contract, was not "subject to non-reappointment." In any event, even if such "past conduct" is ignored, there are still sufficient grounds (based upon Respondent's post-reappointment performance and conduct) for disciplinary action.015
Contrary to the argument made by Respondent in her affirmative defense II, the School Board is not seeking to terminate her for conduct for which she has already received "disciplinary action" (as that term is used in Article XI of the AFSCME Contract). The facts of the instant case are therefore
015 Article XI, Section 1.B., of the AFSCME Contract mandates that, once it is determined that "disciplinary action" should be taken against a bargaining unit member, the totality of the employee's "past conduct" (as reflected in the "employee's record"), including pre-reappointment conduct, be considered in determining the "degree of discipline" that should be imposed.
distinguishable from those in Department of Transportation v.
Career Service Commission, 366 So.2d 473 (Fla. 1st DCA 1979), where the employee was suspended and then subsequently dismissed for the same offense.016
"Laches is based upon an unreasonable delay in asserting a known right which causes undue prejudice to the party against whom the claim is asserted." Appalachian, Inc., v.
Olson, 468 So.2d 266, 269 (Fla. 2d DCA 1985). "It is well established that mere lapse of time does not in itself constitute laches," and "applicability of the doctrine depends on the facts of the particular case." Wiggins v. Lykes Bros., Inc., 97 So.2d 273, 275 (Fla. 1957). Although she claimed in her affirmative defense III that her termination is "barred by the Doctrine of Laches," Respondent has failed to establish that the School
016 In a later case, Department of Corrections v. Duncan, 382 So.2d 135 (Fla. 1st DCA 1980), the First District Court of Appeal clarified its holding in Department of Transportation as follows:
An agency may suspend an employee for a period of time necessary for the agency's investigation, deliberation and disposition of the charges against him. The public interest would be ill served by a rule requiring the employing agency either keep the employee on the job pending investigation and determination of disciplinary charges or discharge him outright in a precipitous fashion. It is only where suspension is used as a disciplinary measure in itself and followed by discharge or other separate discipline, based on the same incident, that the prohibition of DOT v. Career Service
Board's delay in initiating the instant dismissal proceedings against her was unreasonable or has caused her undue prejudice.017
Terminating Respondent's employment would not, to use the language employed in Respondent's affirmative defense IV, "ignore[] the doctrine of progressive discipline" described in Article XI of the AFSCME Contract. As noted above, the "steps" that Article XI, Section 1.A., provides "should be followed" (before a bargaining unit member is terminated) have been followed in Respondent's case and, furthermore, as required by Article XI, Section 1.B., the "disciplinary penalty" of termination is "reasonably related to the seriousness of [her] offense[s] and [her] record" and it is not excessive.
Respondent's remaining affirmative defenses (V through
IX) are based upon the erroneous premise that "the School Board separated Respondent from her position of employment by reason of abandonment on June 16, 1995." At no time did the School Board take action to effectuate such a separation. A recommendation
was made by School Board administrative staff to pursue Respondent's termination (under Article XI, Section 4.B., of the AFSCME Contract) on an "abandonment of position" theory based
Commission, supra, applies.
017 The delay, it appears, if anything, has been to Respondent's advantage inasmuch as it has enabled her to enjoy the benefits of School Board employment for a longer period of time than she would have had the School Board acted sooner to begin the process to terminate her employment.
upon her "unauthorized absence for three consecutive workdays." This recommendation, however, was subsequently withdrawn and it was never acted upon by the School Board. Respondent therefore remained a School Board employee subject to separation for "disciplinary cause."
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing her as an employee of the School Board.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of February, 1997.
STUART M. LERNER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1997.
Pursuant to Chapter 96-159, Laws of Florida, the title of the undersigned (and of all other Hearing Officers of the Division of Administrative Hearings) was changed to Administrative Law Judge, effective October 1, 1996.
Seven other exhibits, Respondent's Exhibits 14 through 20, were offered into evidence, but rejected.
The successor collective bargaining agreement between the School Board and AFSCME (which became effective July 1, 1994) contains an identical provision.
Each student is supposed to be assigned a separate, four-digit PIN number, which enables the student to obtain meals in the school cafeteria.
Approximately 1200 students participate in Nautilus' food service program.
The approval of Respondent's leave request did not serve to excuse Respondent for her pre-leave performance deficiencies and noncompliant conduct, nor did it constitute an acknowledgment that her pre-leave performance deficiencies and noncompliant conduct were the product of poor health.
These "warnings" were intended, not to punish Respondent, but to help her avoid "disciplinary action."
While Respondent may have experienced personal and health problems during this period of time, she nonetheless was given a fair and reasonable opportunity, before she went on leave, to eliminate the shortcomings in her work performance and conduct of which her supervisors had made her aware.
The School Board's Rule 6Gx13-4A-1.21 is such a rule.
"A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So.2d 374, 377 (Fla. 5th DCA 1993).
Contrary to the suggestion made in Count III of the Notice of Specific Charges (as finally amended) served on Respondent, and
notwithstanding the holding in Rosario v. Burke, 605 So.2d 523,
524 n.1 (Fla. 2d DCA 1992), the case cited in paragraph 54 of the Notice in support of this suggestion, the termination of a non- certified School Board employee is not governed by the provisions of Section 231.36(6)(b), Florida Statutes. In Rosario, the Second District Court of Appeal provided the following explanation for its holding that the provisions of Section 231.36(6)(b), Florida Statutes, were applicable to non-certified district school board personnel:
We are not completely convinced that the legislature initially intended the narrow grounds for dismissal described in section 231.36(6)(b) to apply to nonprofessional supervisory staff, as compared to principals, assistant superintendents and other certified positions. Nevertheless, the statute was interpreted to include such public employees in 1981, after the enactment of section 447.201-.609, which applies generally to public employees. See Smith v. School Bd. of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981). Section 231.36 was amended after the Smith decision without any disapproval of that decision. If the statute requires modification or clarification concerning nonprofessional supervisory school personnel, that change should occur in the legislature.
Subsequent to the Second District's decision in Rosario, the 1994 Florida Legislature enacted Section 231.3605, Florida Statutes, which provides that an "educational support employee" may be terminated "for reasons stated in the collective bargaining agreement, or in school board rule in cases where a collective bargaining does not exist" and further prescribes the procedure that must be followed "[i]n the event a superintendent seeks termination of an [educational support] employee." In view of the enactment of Section 231.3605, Florida Statutes, the provisions of Section 231.36(6)(b), Florida Statutes, can no longer be reasonably construed as being directly applicable to non-certified school board personnel.
"Defiance of the administrator's authority" includes acts which constitute "gross insubordination or willful neglect of duty," as defined in Rule 6B-4.009(4), Florida Administrative Code ("a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority").
Respondent's offenses are more serious than the employee misconduct at issue in either Centellas v. School Board of Dade County, 21 Fla. L. Weekly D2559 (Fla. 3d DCA December 4, 1996), Bell v. School Board of Dade County, 21 Fla. L. Weekly D2223 (Fla. 3d DCA October 16, 1996), or Collins v. School Board of Dade County, 676 So.2d 1052 (Fla. 3d DCA 1996), three Third District Court of Appeal cases (cited by Respondent in her proposed recommended order) in which the "disciplinary action" taken against an employee covered by the AFSCME Contract was held, on appeal, to be excessive. These cases therefore do not support the position that "disciplinary action" less severe than termination should be taken against Respondent in the instant case.
Of particular concern is Respondent's repeated refusal to obey reasonable supervisory directives. Such conduct cannot be tolerated from any School Board employee, regardless of the position occupied. There is no reason to believe that if Respondent was allowed to remain in the employ of the School Board (either in her current position or a less responsible and lower paying one) that her defiant behavior would not continue.
Article XI, Section 1.B., of the AFSCME Contract mandates that, once it is determined that "disciplinary action" should be taken against a bargaining unit member, the totality of the employee's "past conduct" (as reflected in the "employee's record"), including pre-reappointment conduct, be considered in determining the "degree of discipline" that should be imposed.
In a later case, Department of Corrections v. Duncan, 382 So.2d 135 (Fla. 1st DCA 1980), the First District Court of Appeal clarified its holding in Department of Transportation as follows:
An agency may suspend an employee for a period of time necessary for the agency's investigation, deliberation and disposition of the charges against him. The public interest would be ill served by a rule requiring the employing agency either keep the employee on the job pending investigation and determination of disciplinary charges or discharge him outright in a precipitous fashion. It is only where suspension is used as a disciplinary measure in itself and followed by discharge or other separate discipline, based on the same incident, that
the prohibition of DOT v. Career Service Commission, supra, applies.
The delay, it appears, if anything, has been to Respondent's advantage inasmuch as it has enabled her to enjoy the benefits of School Board employment for a longer period of time than she would have had the School Board acted sooner to begin the process to terminate her employment.
COPIES FURNISHED:
Heidi N. Shulman-Pereira, Esquire Kimberly Gossett, Certified Legal Intern The School Board of Dade County, Florida 1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
Ben R. Patterson, Esquire Patterson and Traynham Post Office Box 4289
Tallahassee, Florida 32315-4289
Roger O. Cuevas Superintendent of Schools
The School Board of Dade County, Florida 1450 Northeast 2nd Avenue, Suite 403
Miami, Florida 33132
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.
| Issue Date | Proceedings |
|---|---|
| Jul. 12, 2004 | Final Order filed. |
| Jan. 08, 1998 | Third DCA Opinion and Mandate (AFFIRMED) filed. |
| Jul. 07, 1997 | (from the third DCA, Appellant`s Motion for an extension of time is Granted until 07/11/97) filed. |
| Jun. 23, 1997 | Notice of Appeal filed. |
| May 30, 1997 | Third DCA case no. 97-1437, Appellant is to pay the $250.00 filing fee are case will be dismissed filed. |
| Feb. 19, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held September 19 and 20, October 22 and November 1, 1996 by video teleconference at sites in Miami and Tallahassee, Florida and on November 12, 1996 by telephone conference call. |
| Jan. 31, 1997 | Respondent`s Proposed Findings of Fact and Post-Hearing Memorandum; Opinion (Third DCA) filed. |
| Jan. 31, 1997 | Petitioner School Board`s Proposed Recommended Order (for Judge signature) filed. |
| Dec. 17, 1996 | Order Granting Extension of Time sent out. (PRO's due by 1/31/97) |
| Dec. 17, 1996 | Joint Motion for Continuance of Due Date for Proposed Recommended Orders (filed via facsimile). |
| Dec. 17, 1996 | (Volume VI) Transcript filed. |
| Dec. 11, 1996 | (5 Volumes) Transcript filed. |
| Nov. 12, 1996 | Final Telephone Hearing Held; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk's Office case file. |
| Nov. 12, 1996 | Letter to SML from H. Shulman-Pereira Re: Enclosing Petitioner`s exhibit 79 filed. |
| Nov. 06, 1996 | Letter to SML from H. Shulman-Pereira Re: Enclosing Petitioner`s Exhibits 77 and 78; Exhibits filed. |
| Nov. 04, 1996 | Notice of Resumption of Final Hearing (By Telephone Conference Call) sent out. (hearing set for 11/12/96; 10:00am) |
| Nov. 01, 1996 | CASE STATUS: Hearing Partially Held, continued to 11/6/96. |
| Oct. 25, 1996 | Notice of Resumption of Final Hearing by Video Teleconference sent out. (Video Final Hearing set for 11/1/96; 9:15am; Miami & Tallahassee) |
| Oct. 22, 1996 | CASE STATUS DOCKETED: Video Teleconference Hearing Partially Held, continued to date not certain. |
| Oct. 21, 1996 | (Respondent) Motion to Amend Prehearing Stipulation (filed via facsimile). |
| Oct. 21, 1996 | Petitioner`s Motion to Strike Respondent`s Notice of Filing Exhibits A-L (filed via facsimile). |
| Oct. 21, 1996 | Petitioner`s Motion to Strike Respondent`s Notice of Filing Exhibits A-L (filed via facsimile). |
| Oct. 15, 1996 | Petitioner`s Motion to Amend Notice of Specific Charges; Petitioner`s Amended Notice of Specific Charges filed. |
| Oct. 10, 1996 | (Respondent) Notice of Filing; Exhibits A through L filed. |
| Oct. 03, 1996 | Notice of Resumption of Final Hearing by Video Teleconference sent out. (Video Final Hearing set for 10/22/96; 9:15am; Miami & Tallahassee) |
| Oct. 01, 1996 | Order sent out. (hearing continued to 10/22/96) |
| Sep. 19, 1996 | CASE STATUS: Hearing Held. |
| Sep. 18, 1996 | (Respondent) Notice of Additional Witnesses (filed via facsimile). |
| Sep. 18, 1996 | Petitioner`s Motion to Strike Respondent`s Affirmative Defenses (filed via facsimile). |
| Sep. 17, 1996 | Petitioner`s Amended Notice of Specific Charges (filed via facsimile)filed. |
| Sep. 17, 1996 | Petitioner`s Motion to Amend Notice of Specific Charges (filed via facsimile). |
| Sep. 16, 1996 | Petitioner`s Notice of Supplemental Exhibits (filed via facsimile). |
| Sep. 09, 1996 | (Joint) Prehearing Stipulation (filed via facsimile). |
| Sep. 05, 1996 | Petitioner`s Request for Official Recognition (filed via facsimile). |
| Sep. 04, 1996 | (Respondent) Answer to Petition and Affirmative Defenses; Respondent`s Response to Motion to Strike Response to Request for Admissions; Respondent`s Response to Petitioner`s First Request for Admissions; Petitioner`s First Request for Admissions by Respo |
| Aug. 21, 1996 | Petitioner`s Motion to Strike Respondent`s Response to Petitioner`s Request for Admissions (filed via facsimile). |
| Aug. 19, 1996 | Petitioner`s Notice of Specific Charges filed. |
| Jul. 22, 1996 | Letter to SBK from Heidi N. Shulman-Pereira (RE: Request for Subpoenas) filed. |
| Jul. 09, 1996 | Notice of Hearing sent out. (hearing set for Sept. 19-20, 1996; 9:00am; Miami) |
| Jul. 09, 1996 | Order of Prehearing Instructions sent out. |
| Jul. 08, 1996 | Petitioner`s Response to Initial Order filed. |
| Jun. 26, 1996 | Initial Order issued. |
| Jun. 20, 1996 | Agency referral letter; Request for Hearing, letter form; Agency Action letter; Agreed Motion to Relinquish Jurisdiction; Order Relinquishing Jurisdiction filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 08, 1998 | Mandate | |
| Dec. 17, 1997 | Opinion | |
| Apr. 17, 1997 | Agency Final Order | |
| Feb. 19, 1997 | Recommended Order | Food service manager's dismissal warranted based on her deficient performance and noncompliant conduct. The dismissal was consistent with terms of collective bargaining agreement. |
