STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OKALOOSA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 00-1180

)

RICKEY JOE HENDERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing on May 17, 2000, in Fort Walton Beach, Florida, before P. Michael Ruff, duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

Hammons & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501-3125

For Respondent: Glenn M. Swiatek, Esquire

315 "B" Northeast Racetrack Road Fort Walton Beach, Florida 32547

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether there is just cause to terminate the employment of the Respondent based upon purported misconduct involving failing to complete a work assignment, absence from work without

authorization, providing untruthful information to his employer and directing a racial epithet toward a school district official.

PRELIMINARY STATEMENT

This cause arose when the Respondent Rickey Joe Henderson, was advised by the Okaloosa County School Board (Board) of a recommendation by the Superintendent, and the Board's decision, to terminate his employment. He was advised of his right to request an administrative proceeding to contest that initial decision. A Petition was filed by the Respondent on February 25, 2000, requesting a formal proceeding to challenge his termination.

The cause came on for hearing as noticed. During the hearing the Petitioner had six exhibits admitted into evidence. The Respondent had nine exhibits admitted into evidence. The Petitioner called witnesses Phillip Hutcheson, Amy Holloway and Dale Walker as witnesses. The Respondent called Fred Hurlburt, Lloyd Lanier, Steve Rowley and Rickey Joe Henderson, the Respondent, as witnesses. After the hearing the testimony thereof was transcribed and the parties elected to submit proposed recommended orders. Those Proposed Recommended Orders have been timely submitted and are considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Respondent, Rickey Joe Henderson, is a non- instructional employee of the Okaloosa County School Board. He has been employed by the Petitioner as an electrician in the maintenance department. Board facilities in the north-end of Okaloosa County are maintained through a maintenance facility located in Crestview, Florida. Phillip Hutcheson serves as the Supervisor of the "north end maintenance facility." Typically maintenance workers under the supervision of Mr. Hutcheson report to the maintenance building in Crestview around 7:00 a.m., each work day to receive their maintenance assignments. They then depart to the particular school locations where they have repair work assigned to be performed.

2. When a maintenance worker receives a directive or work order to go to a school to perform maintenance work, that employee typically reports to the administration of that school. They are required to report or "check in" with that school's administration, as are any adults who visit public schools.

   When maintenance work is completed at a particular location, usually a school, the maintenance worker responsible for the job will complete a form reflecting that the work is done, the time that was expended and that the work has been completed.

3. The Respondent reported to work at 7:00 a.m., on January 14, 2000, in accordance with his normal assigned duties. Mr. Henderson, and co-worker Lloyd Lanier, thereupon received a work order and were directed to go to the Laurel Hill School to fix a commode in the girls' restroom in the gymnasium. Mr. Lanier and Mr. Henderson therefore left the maintenance building bound for the Laurel Hill School at approximately 7:25 a.m., that day. The normal driving time to Laurel Hill School is approximately 15 minutes.

4. Amy Holloway is the secretary to the maintenance supervisor, Phillip Hutcheson. She reviews work orders and receives phone calls from maintenance department employees and sometimes distributes work orders to maintenance workers. She received a telephone call from Mr. Henderson at approximately 9:28 a.m., that day. Mr. Henderson informed her that they were on their way back from Laurel Hill. Ms. Holloway noted, however, on the "caller I.D." feature on her telephone system, that the phone number from which Mr. Henderson was calling was that of co-worker Lloyd Lanier at his residence. He resides just north of Baker, Florida. That location is several miles from the Laurel Hill School and is not on the route between Laurel Hill School and the maintenance department in Crestview. Ms. Holloway reported that information to Mr. Hutcheson who also

   observed the caller I.D. indication showing that Mr. Henderson was not enroute from Laurel Hill back to the maintenance department location, but in fact was calling from Lanier's home north of Baker, Florida.

5. Ms. Holloway was therefore directed by Mr. Hutcheson to check with the Laurel Hill School personnel to see if Mr. Henderson and Mr. Lanier had been there to complete the required repairs. She did so, and was informed that no one at the school had seen them. It was also determined that the work had not been completed at that time.

6. Upon learning this information Dale Walker, the foreman, was directed by Mr. Hutcheson to go to Laurel Hill School and inquire further. Mr. Walker determined that the work had not been completed and that no one at the school had seen Mr. Lanier or Mr. Henderson thus far that day.

7. On Wednesday, January 19, 2000, Mr. Hutcheson requested foreman Dale Walker to send the Respondent to his office for a meeting. Mr. Hutcheson asked Mr. Henderson, at the meeting, if he had made the phone call on Friday from Laurel Hill School and Mr. Henderson stated that he had. He was then asked the same question in the presence of Ms. Holloway, and again admitted that he had made the phone call.

8. Thereafter on that same afternoon Wednesday, January 19, 2000, the Respondent came back to Mr. Hutcheson's office and apologized on his own volition, stating that he should not have lied about the location he was calling from on the morning in question. He did continue to insist that he had been to the Laurel Hill School that morning and had been seen by Dale Willis, the principal, as well as a school employee, Marilyn Coon.

9. Mr. Hutcheson therefore investigated Mr. Henderson's story to see if it could be corroborated and learned that Mr. Willis had not seen Mr. Henderson on January 14, 2000. Mr. Hutcheson also checked with Ms. Coon and learned that she could not have seen Mr. Henderson on Friday, January 14, 2000, because she had a doctor's appointment in Pensacola, Florida and was not at school at all on that date.

10. On January 25, 2000, Mr. Hutcheson met with Mr.

    
    

    Henderson, Mr. Lanier, Dale Walker the foreman and Mike DelPozo, a supervisor. Ms. Holloway took notes of the meeting. Mr.

    Hutcheson gave Mr. Henderson and Mr. Lanier a copy of a memo documenting the chain of events that occurred on January 14, 2000, as Mr. Hutcheson then understood them. Mr. Hutcheson advised both Mr. Henderson and Mr. Lanier that they should meet with Arden Farley, the school district's equity coordinator.

    This would provide him an opportunity to discuss their side of the situation and whether they had been treated properly with regard to any proposed discipline.

11. Upon being told that he should meet with Mr. Farley, who is a black, the Respondent uttered a racial epithet. as part of a statement spontaneously uttered by him, to the general effect that he thought it would be of little use to meet with Mr. Farley.

12. Mr. Hutcheson had apparently determined to recommend a suspension of Mr. Henderson for a period of one to three days without pay as a disciplinary measure based upon Mr. Henderson's misconduct involving failure to complete the assigned work at Laurel Hill School on the day in question, and then lying about having been on the job when he was at Mr. Lanier's home. After Mr. Henderson made the statement containing the racially derogatory reference to Mr. Farley (who was not present at that meeting), Mr. Hutcheson concluded that termination was the appropriate discipline.

13. On February 1, 2000, Mr. Hutcheson met with the Respondent again for the purpose of apprising him of his recommendation for discipline based upon the events that began occurring January 14, 2000. Mr. Henderson admitted that he had lied about where he had called from but still contended that he

    and Mr. Lanier were told to go to Laurel Hill School and fix a commode in the gymnasium and that they had done so.

14. The Respondent maintained that he and Mr. Lanier did in fact go to the school that day but were unable to repair the commode in question because they did not have the appropriate parts. In fact, Board records introduced by the Petitioner do show that parts were later purchased for the commode. The testimony of Coach Hurlburt corroborates that they did actually go to the school for the purpose of making the repairs. The Coach could not remember which specific day, but it was within a three or four-day period in the week in question that he recalled seeing the Respondent and "his partner" in the gym early in the morning for the purpose of making repairs. Whether or not the Respondent went to Laurel Hill School the day in question to make the repairs, the evidence shows that he could not make them on that day because the parts were not available. Thus, the evidence does not preponderantly show that he failed to perform or complete a job through any fault of his own. The evidence just as readily would show that he did not complete the job that day for lack of parts.

15. Be that as it may, the fact remains that the Respondent admittedly misrepresented his whereabouts upon deviating from the route between Laurel Hill School and the

    maintenance shop in Crestview. Indeed he was at the residence of Mr. Lanier and misrepresented that fact to his supervisor. In fairness to the Respondent, it must be also found that the stop at Mr. Lanier's residence was of an emergency nature because Mr. Lanier had soiled his clothes due to his being ill at the time with an intestinal virus.

16. The Respondent had had a previous experience with Mr.

    
    

    Farley. He was referred to Mr. Farley when he received a reprimand following an altercation with another employee. The Respondent was apparently little at fault in that altercation and the other employee was responsible for an assault on the Respondent with a chair. That employee apparently had a problem with uncontrolled violence and was placed on medical retirement after another incident later. The Respondent had an unsatisfactory experience, in his view, with Mr. Farley's purported assistance with regard to that past disciplinary matter and did not feel that Mr. Farley had helped him. When he made the racially derogatory comment concerning Mr. Farley, Mr. Farley was 40 miles away. Thus the epithet involved was not directed at him, in person or otherwise. The Respondent was very angry because he had just learned that he was about to be disciplined or that his job was in jeopardy and he had had a previous unsatisfactory experience with Mr. Farley. It is clear

    from the circumstances that, unfortunate, and inappropriate as its utterance was, the racial epithet used in question was uttered in the heat of the moment when the Respondent was very angry, having just learned from his supervisor that his job was at risk. The Respondent, regretted that incident and went on his own volition to Mr. Farley, in person, and, apologized to him because he was remorseful about such a mistake and wanted to rectify it.

17. The Petitioner took the position that the Respondent was recommended for termination for not following his work assignment he had been given; lying about it and his whereabouts; and lastly making the racially derogatory statement about another school district employee. Mr. Henderson's supervisor conceded that he would not have been fired for using the racial epithet alone, and the charged misconduct involving not following his work assignment and then lying about it standing alone would have warranted up to a three-day suspension. These offenses, taken together, when balanced with the showing by the Respondent, through Coach Hurlburt's testimony, that indeed he did go to the work assignment that day but could not complete it because he did not have the necessary parts; that the utterance of the racial epithet in question was in a moment of heated anger and that he later voluntarily and

    remorsefully apologized directly to Mr. Farley for uttering it, render the offensive conduct committed by the Respondent to be less than that which would justify termination. In making this recommendation, an additional circumstance the undersigned takes into account is that in essence the Respondent had an unblemished work record prior to the occasion in question.

    Thus, under all of the above-found circumstances, termination is too severe a penalty.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1999).

19. The issue to be resolved in this proceeding concerns whether just cause has been demonstrated to terminate the employment of the Respondent, whether some other discipline is appropriate or whether the Petitioner's complaint against him should be dismissed.

20. The Respondent received proper notice concerning the proceeding against him and the termination of his employment. The just cause that the Petitioner asserts as applying to the termination of the Respondent may be summarized as his not reporting to and completing a work assignment at Laurel Hill School on January 14, 2000, as directed; his absence from work

    without authorization; his lying to his supervisor when questioned regarding his activities away from work on that day and using vulgar, racial epithets directed toward a school board employee when referred to that person for assistance. The Board considers the totality of the conduct as just cause for his termination.

21. In consideration of the above Findings of Fact and the preponderant evidence of record, it is determined that the Respondent should be exonerated from the portion of the charged misconduct involving not reporting to a work assignment and failing to complete a work assignment. The evidence shows that he did report to the school for the work assignment in question but could not complete it because the parts were not yet available. He admittedly was absent from work without authorization and lied about his whereabouts and about the time that he deviated from the course of his employment when he took the side trip with Mr. Lanier. Indeed he used a vulgar, racial epithet on the one occasion referenced in the above Findings of Fact but the totality of the circumstances found above show that the incident, while regrettable, was soon thereafter apologized for by the Respondent on his own volition. Under those circumstances, in consideration of the Respondent's prior

    essentially unblemished employment record, his transgressions should not justify his termination.

22. The fact remains, however, that there were at least two hours during which Mr. Henderson and Mr. Lanier were not accountable for their whereabouts and Mr. Henderson, although admitting reluctantly, that he had so deviated from the course of his employment, still maintained that it was only for about one hour. There is no question that he was untruthful about his activities on the morning in question and no question that he uttered the racially derogatory statement referenced above. Parenthetically, it is also obvious that his utterance of the derogatory statement does not constitute, by any stretch of the imagination, an element of condonation of a racially discriminatory, hostile environment by the Petitioner as an employer. The reasons for that are adequately delineated in the Proposed Recommended Order submitted by the Respondent and is not an issue directly bearing on this case in any event, other than as a possible justification for the Petitioner's desire to terminate the Respondent for the utterance. In any event, for his deceitful conduct, the Respondent should be answerable.

That deceitful conduct referenced above together with the racially derogatory statement do not, however, justify termination.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties it is, therefore,

Recommended that a final order be entered by the Okaloosa County School Board suspending the Respondent from February 15, 2000, through the date of the hearing herein and that effective the day following the hearing date in this case that he be reinstated to his employment and that his pay and attendant benefits, if any, be commenced effective that date, with his suspension being co-extensive with the time from the date of his termination by the Board through the date of the hearing.

DONE AND ENTERED this 8th day of September, 2000, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2000.

COPIES FURNISHED:

Joseph L. Hammons, Esquire Hammons & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

Glenn M. Swiatek, Esquire

315 "B" Northeast Racetrack Road Fort Walton Beach, Florida 32547

Walter Gordon, Superintendent Okaloosa County School Board

120 Lowery Place, Southeast

Fort Walton Beach, Florida 32548

Honorable Tom Gallagher Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 232399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 00-001180

Orders for Case No: 00-001180