vs. )
Respondent. )
Case No. 01-4839
Pursuant to notice, a final hearing was conducted in this case April 22 and 23, 2003, at West Palm Beach, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.
School District of Palm Beach County 3318 Forest Hill Boulevard, Suite C302 West Palm Beach, Florida 33407
Chamblee, Johnson, Haynes P.A.
The issues in this case are whether the Respondent committed violations alleged in an Administrative Complaint and, if so, what disciplinary action should be taken.
By means of an Administrative Complaint signed on October 2, 2001, Petitioner, Palm Beach County School Board,
notified Respondent, Dr. Leonard Laakso, that the School Board intended to terminate Respondent's employment on the basis of several acts of misconduct alleged in the Administrative Complaint.1 Respondent timely requested an evidentiary hearing and in due course the case was forwarded to the Division of Administrative Hearings. After being continued and rescheduled several times at the request of the parties, a final hearing was conducted on April 22 and 23, 2003. At the final hearing Petitioner offered Petitioner's Exhibits 2 through 21, all of which were received in evidence. Respondent offered Respondent Exhibits 1, 1a, 2, 2a, 3, 4, 4a, 4b, 5-7, 7a, 7b, and 8-13, all of which were received in evidence. The parties also offered Joint Exhibit 1, which was received in evidence.
Petitioner presented the testimony of Respondent, Mary Kate Boyle, Richard Mains, Henry Sayre, and Raymond Miller.
Respondent testified further on his own behalf, but did not call any additional witnesses at the final hearing.2
At the conclusion of the final hearing, the parties were allowed 45 days from the filing of the transcript of the hearing within which to file their respective proposed recommended orders. The transcript was filed with the Division of
Administrative Hearings on May 23, 2003. Thereafter, the parties requested and were granted extensions of the deadline for filing their proposed recommended orders. Ultimately, on August 12, 2003, both parties filed Proposed Recommended Orders containing proposed findings of fact and conclusions of law.
The proposals of the parties have been carefully considered during the preparation of this Recommended Order.3
At all times material to this case, Respondent was employed by Petitioner as a school psychologist. At all times material to this case, Respondent was a member of the Classroom Teachers Association (CTA) Bargaining Unit. At all times material to this case, Respondent was receiving benefits under a valid claim for Workers' Compensation benefits arising from an accident on January 7, 2000. In conjunction with investigations as to Respondent's eligibility for Workers' Compensation benefits, video surveillance of Respondent's activities was conducted on several occasions.
At the beginning of the 1999-2000 school year,
Dr. Laakso worked for Petitioner as a school psychologist in Area 3, and was assigned to Palm Beach Lakes High School, Forest Hill High School, and Conniston Middle School. His immediate supervisor was Mary Kate Boyle, the Area 3 Exceptional Student Education (ESE) Team Leader.
On January 7, 2000, Dr. Laakso was working in his car while parked in the Palm Beach Lakes High School parking lot, and when exiting the car, hit his head on the door jamb causing a compression of his spine. He then received a second injury to his back while pulling psychological testing kits out of his car.
Dr. Laakso submitted this injury to Petitioner as a workers' compensation injury, and it was covered as such. Christopher Brown, M.D., an orthopedic surgeon and one of Dr. Laakso's workers' compensation physicians, treated
Dr. Laakso. On February 8, 2000, Dr. Brown placed Dr. Laakso on a "no-work" status.
Dr. Laakso suffers from cervical spinal stenosis, which is a narrowing of the spinal canal. Because Dr. Laakso had underlying spinal stenosis secondary to arthritis, combined with disc herniations, his orthopedic surgeon, Dr. Brown, diagnosed Dr. Laakso's stenosis as severe.
Also on February 8, 2000, Ms. Boyle held an investigative meeting with Respondent and his then-attorney, Stephen Fried, to discuss Respondent's continued absences since January 7, 2000 (the date of Respondent's workers' compensation injury) and his work status. In a letter to Dr. Laakso dated February 9, 2000, Ms. Boyle explained what her expectations were with regard to Respondent's absence and work status.
On February 9, 2000, Dr. Laakso requested unpaid sick leave for January 11, 2000 to May 31, 2000, which the School Board granted.
In March of 2000, Dr. Laakso was released back to light duty work, with restrictions. Some of the physical restrictions placed on Dr. Laakso's activities included no overhead use of the right upper extremity and no heavy use of the right upper extremity greater than 5 pounds. In addition, Dr. Laakso was told to be careful and to try not to hurt himself.
Dr. Brown also imposed a 10 mile driving restriction on Dr. Laakso because Dr. Brown believed Dr. Laakso's spinal stenosis placed him at increased risk if he hit his head or was in a car accident. Dr. Laakso argued against the driving restriction because he was capable of driving and believed that the restriction would "mess things up" if he was unable to use his car. Dr. Laakso neither asked for the driving restriction nor represented that he needed the restriction.4
Dr. Laakso conveyed the driving restrictions to both Ms. Boyle and Linda Meyers in Risk Management.
On March 21, 2000, Dr. Laakso was given a light duty placement in which he was assigned to Atlantic High School watching the school's security cameras. This assignment was for Dr. Laakso's regularly scheduled 7.5 hours a day, and was within the physical and driving restrictions imposed by Dr. Brown.
While on light duty assignment at Atlantic High School, Dr. Laakso reported to Assistant Principal, Marshall Bellin. Dr. Laakso also submitted his time sheets to Mr. Bellin for Mr. Bellin's verification and signature. After Mr. Bellin signed the light duty time sheets, Dr. Laakso faxed them to
Ms. Boyle for payroll purposes.
Around this time period, in approximately April of 2000, the third party administrator, FARA, who handles the School Board's Workers' Compensation claims, hired private investigator Richard Mains to conduct surveillance of
Dr. Laakso. Mains observed Dr. Laakso at various times from April 3, 2000 through October 2, 2000. Mains documented Respondent's driving to and from his Matlacha home and the activities in which he engaged while there. Mains did not know whether Dr. Laakso was taking pain or anti-inflammatory medication, or whether Dr. Laakso was under the influence of these types of medications at the times Mains observed him.
On May 17, 2000, Ms. Boyle held another investigative meeting regarding Respondent's absences while on light duty. The minutes from that meeting indicate that Ms. Boyle expressed her concern to Dr. Laakso regarding his absences, discussed his light duty assignment at Atlantic High School, and directed him to call her beeper if he was going to be absent. He was also directed to provide a doctor's note if he was absent.
Dr. Laakso remained in the light duty assignment at Atlantic High School for the remainder of the 1999-2000 school year.
On Wednesday, August 9, 2000, the first day of the 2000-2001 school year, Dr. Laakso again reported to Atlantic High School to resume his light duty placement.
On August 15, 2000, Marshall Bellin signed Respondent's light duty sign-in sheet, which covered
Dr. Laakso's work attendance for August 9, 10, 11, and 14, 2000.
Around August 14 or 15, 2000, Dr. Laakso received verbal notification that because his driving restriction had been lifted, he was being taken off light duty assignment and was to report to Area 3.
Prior to this verbal notification, Dr. Laakso had not been advised by his physicians that his driving restriction had been lifted. However, he subsequently learned through someone at the Risk Management Department that, in fact, the driving restriction had been lifted. Upon hearing the news, Dr. Laakso contacted Dr. Brown.
When he went to see Dr. Brown, Dr. Brown explained to Respondent that the Board had sent him a questionnaire asking whether he believed that Dr. Laakso could drive a car as opposed to whether he should drive a car. Dr. Brown further explained that he responded that Dr. Laakso could drive a car, but felt he
had made a mistake as he felt it was still dangerous for
Dr. Laakso to drive. Accordingly, on August 17, 2000, Dr. Brown reinstated Dr. Laakso's driving restriction of no more than 10 minutes.
On August 17, 2000, Dr. Laakso sent a memo to Ms. Boyle indicating that his driving restriction had been
reinstated. A copy of the note from Dr. Brown was attached to this memo.
Because of her continuing concern regarding Respondent's absences, on October 2, 2000, Ms. Boyle held another "investigative meeting" regarding Dr. Laakso's absences. This meeting resulted in Boyle's issuing Dr. Laakso a written reprimand for unacceptable and unexcused absences, failure to call in intended absences as required, and insubordination. The written reprimand specifically addressed Dr. Laakso's absences on August 9, 10, 11, 22, and September 20, 27, 28, and 29.
Ms. Boyle believed her issuance of the written reprimand dated October 2, 2000, was consistent with the progressive discipline policy.
At the time that Ms. Boyle wrote the reprimand, she also notified the District's Professional Standards Department and requested a formal investigation of Respondent's absences. Ms. Boyle then contacted Ray Miller in Professional Standards to be sure that she was following appropriate procedure.
In October of 2000, Ray Miller received Respondent's case for investigation, and the investigation was assigned case number 101. Specifically, Miller investigated allegations involving Respondent's misuse of leave, unauthorized absence, failure to call in and report absences as required, and insubordination for the time period of January 2000 through December 2000.
At the time of his interview with Respondent, Miller had a surveillance video and a report of Respondent's activities for April of 2000. Respondent neither denied that he was the subject of the video nor that he failed to report and call in his absences.
Shortly before December 4, 2000, Miller signed off on the investigative report for case number 101, and on December 4, 2000, Paul Lachance issued a letter to Dr. Laakso indicating that the investigation was complete, and that a determination of probable cause had been made.
The investigative report was then reviewed by the Case Management Review Committee to determine whether there was just cause to recommend discipline and, if so, provide a discipline recommendation. The Committee found just cause and recommended Dr. Laakso's termination.
A number of meetings were held in December 2000 with representatives of Petitioner, Dr. Laakso, and his then-
attorney, Mr. Fried. As a result of these meetings, an informal settlement was reached; Dr. Laakso's employment was not terminated, but rather he was transferred to the Area 1 ESE office. By a letter to the file dated January 8, 2001, Paul Lachance, Director of Professional Standards, administratively closed case number 01-101 against Dr. Laakso with "no action."
While assigned to Area 1, Dr. Laakso was under the supervision of Area 1 ESE Team Leader, Paul Sayrs. As supervisor, Mr. Sayrs was responsible for keeping track of Respondent's attendance. Accordingly, Sayrs directed Respondent to call and notify secretary Judy Fabris if he was going to be absent, who in turn would notify Mr. Sayrs.
While assigned to Area 1, Dr. Laakso missed work for several days in January and February 2001, and was also out for most of March and April 2001. On April 4, 2001, Mr. Sayrs sent Dr. Laakso a letter listing the dates of his absences and directing him to submit a doctor's note for the dates listed, as well as for any future absences. The next day, April 5, 2001, Mr. Sayrs sent another letter to Dr. Laakso advising him he was currently absent without approved leave. Mr. Sayrs advised Respondent further that due to an absence of correspondence from Respondent, Mr. Sayrs would assume Respondent had decided to discontinue working for Petitioner and Respondent's name would
be submitted to the School Board for acceptance of Respondent's resignation.
Dr. Laakso immediately contacted Dr. Sachs regarding Mr. Sayrs' request for medical documentation, but was unable to get an appointment with Dr. Sachs until April 20th. However, prior to his April 20th appointment, Dr. Laakso forwarded to Dr. Sachs a copy of the District's letter, which indicated he would be terminated if he did not provide the requested documentation prior to his appointment on April 20th. In response, Dr. Sachs accounted for Dr. Laakso's absences, noting they were due to his symptoms and cervical condition.
Additionally, Dr. Laakso followed through by faxing his Request for Leave of Absence without Pay form with his signature, dated April 18, 2001, directly to Dr. Sachs for his signature. The leave was ultimately granted retroactive to March 8, 2001, prior to Dr. Laakso's being terminated by the District.
On April 18, 2001, Dr. Laakso sent a handwritten note to Dan McGrath explaining his absences. Dr. Laakso attached to his note to Mr. McGrath two documents from Dr. Sachs, one dated April 15, 2001, and the other dated April 6, 2000.
On May 18, 2001, Paul Sayrs evaluated Dr. Laakso's performance. The evaluation sheet indicated that Dr. Laakso was "presently on a medical leave of absence."
Dr. Laakso has a second home in Matlacha, located on the other side of Cape Coral. Matlacha is located in the Fort Myers area and is approximately 150 miles from the West Palm Beach area, roughly a three-hour trip using country roads.
Because he had not been feeling well, Dr. Laakso had not been taking care of his property in Matlacha. As a result, he received notices from the county telling him he needed to clear up the property or face a potential daily fine of $225. Specifically, the county informed Dr. Laakso that he needed to mow the grass, move a boat, register a pickup truck, and park the truck somewhere where it was not in open view. He asked for an extension in which to do these things, which was granted. However, the county advised Dr. Laakso that if he did not get the work done by the date established, the daily fine would be imposed.
Although while at his Matlacha home Dr. Laakso did work outside of the restrictions imposed on him by his physician, he could work for 20 or 30 minutes and then go inside and rest, unlike when he was at work for the School Board, which required he work a full eight-hour day.
While he was on his Matlacha property, he continued his daily swimming as part of his physical therapy, which he had discussed with, and received approval for, from Dr. Brown.
At no time did Dr. Laakso attempt to hide the fact that he drove to the Matlacha property or that he worked in his yard while there. In fact, he disclosed this information when deposed in his workers' compensation case, and he discussed it with his doctor. While the doctor did not give Dr. Laakso permission for this type of conduct, Dr. Laakso did discuss it with him.5
Following the closing of the first investigation numbered 101, the office of Professional Standards received a memo from Diane Howard, Director of Risk Management, dated January 9, 2001. Ms. Howard was requesting a reinvestigation of Dr. Laakso's absences.
In response to this memo, Miller did not interview Respondent, but instead viewed surveillance videotapes from August 11 through October 1 or 2, 2000. In addition to the videos, Miller reviewed memos from Nancy Patrick, Mary Kate Boyle, and Paul Sayrs.
Miller testified that the difference between this investigation and the previous one was that it involved a different period of time, both for the videos and regarding issues of Respondent's attendance in January, February, and March of 2001.
The allegations against Respondent for this investigation were that he was obtaining leave due to sickness
or illness and that he was performing actions that were inconsistent with his alleged illness or sickness.
This second investigation followed the same pattern as the first and was sent to the Committee for review. The Committee again recommended Dr. Laakso's termination.
Dr. Laakso timely requested an administrative hearing, and these proceedings followed.
The collective bargaining agreement describes procedures for discipline of employees, including this:
Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action.
The collective bargaining agreement also requires progressive discipline (reprimand through dismissal)
. . . [e]xcept in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. See § 120.57(1), Fla. Stat.
Any disciplinary action taken against an employee may be based only upon the conduct specifically alleged in the
written notice of specific charges or the administrative complaint. See Lusskin v. Agy. for Health Care Admin., 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Dept. of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Dept. of Bus. and Prof. Reg., 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993);
Delk v. Dept. of Prof. Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992); Willner v. Dept. of Prof. Reg., Bd. of Med., 563 So. 2d 805, 806 (Fla. 1st DCA 1992).
An employee of the School Board under a professional services contract such as Respondent may be suspended or dismissed only if the charges are based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. §§ 1013.33(1)(a) and 1012.33(4)(c), Fla. Stat.
Long-standing case law establishes that in a teacher employment discipline case, the school district has the burden of proving its charges by a preponderance of the evidence. See, for example, Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990); Ferris v. Austin, 487 So. 2d 1163 (Fla. 5th DCA 1986). However, in this case, the District must comply with the terms of the collective bargaining agreement, which, as noted in the Findings of Fact, requires the more stringent standard of proof: clear and convincing evidence. By
agreement, in collective bargaining, a School Board may limit or abridge its authority to discipline teachers. School Board of
Seminole County v. Morgan, 582 So. 2d 787 (Fla. 5th DCA 1991); Palm Beach County School Board v. Aurbach, DOAH Case No. 96-3683 (1997).
Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . . the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v.
Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
In determining whether Petitioner has met its burden of proof, it is necessary to evaluate Petitioner's evidentiary presentation in light of the specific factual allegations made in the charging instrument. Due process prohibits an agency from taking disciplinary action against a licensee based upon conduct not specifically alleged in the charging instrument. See Hamilton v. Department of Business and Professional Regulation, 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); and Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).
Furthermore, "the conduct proved must legally fall within the statute or rule claimed [in the charging instrument] to have been violated." Delk v. Department of Professional
Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In deciding whether "the statute or rule claimed [in the charging instrument] to have been violated" was in fact violated, as alleged by Petitioner, if there is any reasonable doubt, that doubt must be resolved in favor of the licensee. See Whitaker v. Department of Insurance and Treasurer, 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah v. Department of Professional Regulation, Board of Medicine, 574 So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).
School Board Policy 1.013, at 1., provides: "It shall be the responsibility of the personnel employed by the district school board to carry out their assigned duties in accordance with federal laws, rules, state statutes, state board of education rules, school board policy, superintendence's administrative directives and local school and area rules."
School Board Policy 3.80 provides in relevant part:
c. Sick Leave
The Superintendent may require a doctor's statement of verification of illness. A request to the Superintendent for a verification of claim may be initiated by the principal or supervisor.
A false claim for sick leave shall be grounds for dismissal by the School Board.
Florida Administrative Code, Rule 6B-1.001(2), provides: "The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity."
Florida Administrative Code, Rule 6B-1.001(3), provides: "Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct."
Florida Administrative Code, Rule 6B-1.001, which contains the aspirational Code of Ethics, is not easily applied as a disciplinary standard. See Pinellas County School Board v. Lemiesz, DOAH Case No. 96-3253 (1997); Pinellas County School Board v. Snyder, DOAH Case No. 93-4972 (1993)(finding Code of Ethics generally aspirational in nature and in most cases not susceptible as a basis for suspension or dismissal); see also Sarasota County School Board v. Simmons, DOAH Case No. 92-7278 (1993).
Florida Administrative Code, Rule 6B-1.006, provides
in part:
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
* * *
(h) Shall not submit fraudulent information on any document in connection with professional activities.
Florida Administrative Code, Rule 6B-1.006(5)(h), is similar to the tort of fraudulent misrepresentation. See Brogan
v. Narvaez, DOAH Case No. 97-3845 (1998). As such, in order to establish a violation of Rule 6B-1.006(5)(h), Petitioner must show that Dr. Laakso not only provided false or misleading information, but that he did so knowingly, and with the intent to deceive. See Blake v. Munce, 426 So. 2d 1175, 1177 (Fla. 5th
DCA 1983); see also Charter Air Center, Inc. v. Miller, 348 So. 2d 614, 616 (Fla. 2d DCA 1977)("The elements of fraudulent representation are a false statement pertaining to a material fact, knowledge that it is false, intent to induce another to act on it, and injury by acting on the statement."); Gentry v. Department of Professional and Occupational Regulations, 293 So. 2d 95, 97 (Fla. 1st DCA 1974)(statutory provision prohibiting licensed physicians from "[m]aking misleading, deceptive and untrue representations in the practice of medicine" held not to apply to "representations which are honestly made but happen to be untrue. To constitute a violation, . . . the legislature intended that the misleading, deceptive, and untrue representations must be made willfully (intentionally).").
Petitioner's allegations against Respondent include that he was willfully absent from work without leave, insubordinate for refusing to return to work when directed, and failed to report his absences. As a corollary to this allegation, Petitioner also alleges that Respondent's stated reasons for his absences were untruthful. Petitioner has failed to carry its burden of proving these allegations by clear and convincing evidence. Respondent further asserts that Petitioner not only failed to follow progressive discipline regarding these allegations, but is also attempting to discipline Respondent
twice for the same conduct, in violation of double jeopardy principles.
Article II, Section M, of the collective bargaining agreement between the CTA and the School District provides that unless an employee's actions constitute a clear and present danger or a clearly flagrant and purposeful violation of reasonable school rules and regulations. Petitioner must follow the four steps of progressive discipline outlined in the contract. Pursuant to this agreement, the first step in disciplining an employee is to issue him a verbal warning with a written notation. The second step is the issuance of a written reprimand. The third step is to suspend the employee without pay. The final step in progressive discipline is termination.
In Seminole County Public Schools v. Dorothy Mack, DOAH Case No. 02-2309 (2003), the School District alleged the respondent food service employee was absent without leave. Pursuant to the terms of the collective bargaining agreement between the parties, the respondent could not be terminated absent just cause. In addition, if an employee was alleged to be absent without leave, the agreement mandated the use of progressive discipline. Believing the respondent in that case was absent without leave for multiple days, the School Board terminated the respondent's employment. In reversing the termination and ordering that the respondent be put back to
work, the administrative law judge found that the School District failed to follow the progressive discipline outlined in, and mandated by, the contract between the parties. Rather, the judge found that after the respondent's first absence, the School District should have issued a written reprimand and one- day suspension without pay, as opposed to allowing the respondent to be absent for a month before recommending her termination. In addition, it was noted in the Dorothy Mack case that the purpose of progressive discipline is to put the employees on notice of the consequences of their actions, which allows the employees an opportunity to correct inappropriate conduct before suffering the drastic sanction of dismissal.
The facts in the Dorothy Mack are strikingly similar to those in the case at bar. Like the School District in Dorothy Mack, Petitioner has failed to follow the required steps of progressive discipline mandated by the contract between the parties. On October 2, 2000, Petitioner issued Dr. Laakso a written reprimand for unacceptable and unexcused absence, for failure to call in absences, and for insubordination. However, when Dr. Laakso was again absent in the beginning of 2001 due to his spinal stenosis, Petitioner terminated his employment instead of implementing step two of progressive discipline, which mandated a suspension without pay, if Respondent was to have been absent without leave.
Petitioner's stated reasons for failing to follow progressive discipline are not persuasive. Specifically, Petitioner argues that just cause exists for Respondent's termination in that his absences constituted a clearly flagrant and purposeful violation of reasonable school rules and regulations. In this regard, Petitioner relies on Miami-Dade
County School Board v. Lidia Ann Gonzalez, DOAH Case No. 01-2414 (2002) and Miami-Dade County School Board v. Patricia A. Young, DOAH Case No. 01-1130 (2001). The conclusions reached in the Gonzalez case and the Young case are not applicable here because the facts in those cases are distinguishable from the facts in this case.
Respondent complied with, or made reasonable efforts to comply with, each of the District's requests for medical documentation for his absences. There is no clear and convincing evidence that Respondent purposely disregarded the District's rules and policies. In addition, Respondent obtained, or made reasonable efforts to obtain, leave for his absences, as well as to obtain physicians' verification of his medical condition when required by his supervisors.
Petitioner has failed to show by clear and convincing evidence that Respondent's actions were "clearly flagrant and purposeful violations of reasonable school rules and regulations." As a result, Petitioner was required to follow
the progressive disciplining provision of the CTA contract in disciplining Respondent. Because it did not, the charges against Respondent should be dismissed.
The record does not contain clear and convincing evidence of Petitioner's contention that Respondent was untruthful in his stated reasons for his absences, which the District construed as a violation of School Board Policy 1.013. Respondent's condition and subsequent pain following his January 7, 2000, workers' compensation injury is well documented by his physicians. It is also clear that during the long period from the accident on January 7, 2000, until Respondent was notified on October 2, 2001, of his proposed suspension and termination, that the extent of Respondent's pain, discomfort, and ability to work changed from time to time. During some periods Respondent was relatively comfortable. At other times he was very uncomfortable. During some periods Respondent could perform his work duties, as modified to accommodate his injuries. During other periods he could not. During some periods Respondent could engage in moderate physical activity more or less all day. At other times he could engage in such activities for only a few minutes at a time before needing to rest. And while the record supports a suspicion that from time to time Respondent claimed to be more incapacitated than he really was on one or more occasions when he failed to report to
work or when he called in and reported that he was in too much pain to work, there is no clear and convincing evidence that he ever did so.
The District has not shown by clear and convincing evidence that Respondent was untruthful about the reasons for his absences. Thus, it has fallen far short of presenting clear and convincing evidence that Respondent violated School Board Policy 1.013, and Florida Administrative Code, Rules 6B-1.0001 and 6B-1.006. In addition, for the reasons discussed above, Petitioner has also failed to justify its failure to follow progressive discipline, as required by the CTA contract.
The findings of fact also demonstrate that Petitioner has previously issued a written reprimand to Respondent for some of the same conduct for which it now seeks his termination. Specifically, the District has already disciplined Respondent for unacceptable and unexcused absence, failure to call in intended absences, and insubordination for the time period of January 2000 to October 2000. The District cannot properly discipline an employee twice for the same conduct. See School Board of Pinellas County v. James E. Wilkins, Jr., DOAH Case No. 85-2267 (1985). As in Wilkins, the charges against Respondent that are based on the conduct for which he received a written reprimand should be dismissed. Anything less exposes Respondent to duplicate punishment for the same conduct.
Finally, Petitioner alleges that Respondent was insubordinate for refusing to return to work between August and late October of 2000. Like the other allegations, Petitioner failed to prove this allegation by clear and convincing evidence. Further, this allegation involves conduct for which Respondent has previously been disciplined. Accordingly, this allegation against Respondent should be dismissed.
As Respondent's time sheets show, in August 2000, he reported back to his light duty assignment at Atlantic High School, and additionally worked from home. And while Respondent was out for four days in September 2000, Petitioner's own records demonstrate that Respondent called on September 26, 2000, and advised he was out on leave, and further, consistently called throughout the month of October 2000 to report his
absences.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered in this case dismissing all charges in the Administrative Compliant, reinstating Respondent to his position of employment with the School Board, and providing Respondent with such back pay and attendant benefits as are authorized by law.
DONE AND ENTERED this 21st day of November, 2003, in Tallahassee, Leon County, Florida.
MICHAEL M. PARRISH
Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2003.
1/ The factual issues raised in the Administrative Complaint that require resolution are, essentially: (1) whether
Dr. Laakso engaged in willful absence without leave; (2) whether Dr. Laakso was excessively absent from work; (3) whether
Dr. Laakso repeatedly failed to properly report absences from work; and (4) whether Dr. Laakso was insubordinate for failing to follow direct and reasonable orders from his superiors. An additional allegation in the Administrative Complaint regarding workers' compensation fraud was abandoned by Petitioner in the early moments of the final hearing. (See page 17 of the transcript of the final hearing.)
2/ The exhibits received in evidence included transcripts of the deposition testimony of two witnesses who did not appear at the final hearing. Joint Exhibit 1 is a transcript of the deposition testimony of Christopher Brown, M.D. Petitioner's Exhibit 13 is a transcript of the deposition testimony of Judy Fabris.
3/ The Proposed Recommended Order submitted by Respondent is, in many respects, consistent with the findings and conclusions reached by the administrative law judge. Substantial portions of Respondent's Proposed Recommended Order have been incorporated into this Recommended Order.
4/ The need for and the nature of the restrictions on Respondent's driving restrictions was not very well explained on the record in this case. One unexplained detail concerns why at one point Respondent's driving was restricted to ten miles and at another point his driving was restricted to ten minutes. It is also unclear as to the extent to which Respondent's spinal stenosis was or was not caused by or exacerbated by the injury of January 7, 2000.
Matthew Haynes, Esquire Chamblee, Johnson, Haynes P.A.
School District of Palm Beach County 3318 Forest Hill Boulevard, Suite C302 West Palm Beach, Florida 33407
Dr. Arthur C. Johnson, Superintendent School District of Palm Beach County 3340 Forest Hill Boulevard, Suite C316 West Palm Beach, Florida 33406-5869
Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514
Daniel J. Woodring, General Counsel Department of Education
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.
