STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02-0075

)

DONALD ROBINSON, )

)

Respondent. )

_ )

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on March 19, 2002, in Sanford, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Sandra J. Pomerantz, Esquire

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

For Respondent: Mark S. Herdman, Esquire

Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

STATEMENT OF THE ISSUES

The issue presented is whether Petitioner should terminate Respondent from his position of employment with the School Board of Seminole County, Florida (School Board) for just cause within the meaning of Article VII, Sections 5 and 8, Collective Bargaining Agreement Between the Non-

Instructional Personnel of Seminole County School Board of Public Instruction Association, Inc. and The School Board of Seminole County Sanford, Florida-

July 1, 1997 (Collective Bargaining Agreement).

PRELIMINARY STATEMENT

On December 13, 2001, Petitioner advised Respondent that Petitioner intended to recommend that the School Board suspend Respondent without pay from his position of employment.

Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of eight witnesses and submitted 13 exhibits for admission in evidence. Respondent testified in his own behalf, presented the testimony of one other witness, and submitted one exhibit for admission in evidence. The identity of the witnesses and exhibits, and any rulings regarding each, are set forth in the Transcript of the hearing filed on April 12, 2002.

The ALJ granted the parties' joint request for an extension of time in which to file their respective proposed recommended orders (PROs). The parties timely filed their respective PROs on May 13, 2002.

FINDINGS OF FACT

1. The School Board employed Respondent during the 2000- 2001 school year as a security officer at Millennium Middle School, formerly Lakeview Middle School (Millennium), pursuant

   to the Collective Bargaining Agreement and Section 231.36, Florida Statutes (1999). (All section references are to Florida Statutes (1999) unless otherwise stated.) Respondent worked at Millennium for approximately eight years.

2. On November 12, 2001, Respondent was performing his regular work assignment in the cafeteria at Millennium.

   Ms. Patricia Adamson, a teacher at Millennium, and Mr. Gregory Robinson and Ms. Kate Eglof, both assistant principals, were supervising students in the cafeteria at the time.

3. B.W. was an 11 year-old sixth grade student at Millennium on November 12, 2001. B.W. entered the cafeteria along with other students during their regular lunch schedule.

4. After entering the cafeteria, B.W. put his backpack under a seat at his assigned table and went through the lunch line. Another male student sat in B.W.'s seat while B.W. was in line. When B.W. returned to his seat, he asked the other student three times to please get out of his seat. Each time, the other student refused to leave his seat. B.W. yelled at the other student, put his lunch tray down to free his hands, and moved toward the other student.

5. Respondent intervened. Respondent approached B.W. and asked him what was going on. When B.W. told Respondent that another student was sitting in B.W.'s seat, Respondent told B.W. to find another seat.

6. B.W. refused to follow Respondent's instructions.

   
   

   Respondent attempted to usher B.W. away from the other student, but B.W. turned and started back toward the other student. Respondent had a good-faith belief that B.W. and the other student were in imminent danger of a physical confrontation. Physical intervention by Respondent was reasonably necessary to prevent imminent danger to B.W. and the other student.

7. Respondent did not call Mr. Robinson, Ms. Eglof, or another member of the staff for assistance. Respondent used excessive force and unprofessional conduct to prevent imminent danger to B.W. and the other student.

8. Respondent grabbed the middle finger on one of B.W.'s hands and bent the finger back toward the back of the student's hand. Respondent then forced B.W. to walk backward toward the detention table at the back of the cafeteria.

9. Ms. Adamson was standing near the detention table at the back of the room and observed the incident from that point forward. While holding B.W.'s middle finger back toward the back of B.W.'s hand, Respondent forced B.W. to walk backwards approximately 30 feet toward Ms. Adamson and the detention table. Respondent forced B.W. to sit down at the detention table and yelled at B.W.

10. B.W. was unable to extricate himself from Respondent's grip. Respondent inflicted pain on B.W. After

    B.W. sat at the detention table, B.W. wept.

    
    

11. Ms. Adamson walked to where B.W. was sitting at the detention table. B.W. was still crying and told her that his fingers hurt. Ms. Adamson reported the incident to Mr. Robinson and Ms. Eglof.

12. Ms. Eglof reported the incident to Ms. Madeleine Zimmerman, who was the assistant principal at Millennium responsible for supervising Respondent. Ms. Zimmerman investigated the report.

13. During the investigation, Ms. Zimmerman interviewed Respondent. Respondent denied hurting B.W. and offered to demonstrate his hold on B.W. to Ms. Zimmerman. Respondent bent Ms. Zimmerman's finger backward, and "it hurt."

14. Ms. Zimmerman provided the results of her investigation to Mr. Walt Griffin, the principal at Millennium. Ms. Zimmerman did not recommend any consequences for Respondent.

15. Mr. Griffin considered Respondent's past history.

    
    

    That history included previous directives for Respondent to refrain from using excessive force on students.

16. Respondent had been previously reprimanded for touching students. By letter dated January 6, 1997, Mr. Jim

    Shupe, a former principal at Millennium, reprimanded Respondent for physically confronting a student. Mr. Shupe directed Respondent to contact an administrator if a student is uncooperative.

17. On April 10, 2000, Mr. Griffin directed Respondent not to touch students unless the student is in danger of hurting himself or of bringing harm to someone else. By memorandum dated April 12, 2001, Mr. Robinson discussed with Respondent complaints by parents on three occasions that Respondent had been physical and aggressive and put his hands on their children. In a written memorandum, Mr. Robinson directed Respondent not to grab, hold, hit, push, or touch students in any similar manner when students did not respond to Respondent's requests. The memorandum directed Respondent to contact an administrator in such situations. Mr. Robinson also evaluated Respondent as "needs improvement" performing "assignments in accordance with established rules, regulations and Board policies."

18. On August 27, 2001, Ms. Zimmerman evaluated Respondent. Ms. Zimmerman rated Respondent as "Unsatisfactory" in performing "assignments in accordance with established rules, regulations and Board policies." Ms. Zimmerman directed Respondent to treat students with respect and not to touch students.

19. Mr. Griffin decided to call the District office and request an investigation. The investigator completed his report and submitted it to Mr. John Reichert, the Executive Director of Human Resources and Professional Standards. Mr. Reichert asked Mr. Griffin if he had any recommendation as to consequences. Mr. Griffin concluded that Respondent's conduct was of a serious nature and that he used excessive force. Mr. Griffin suggested termination of Respondent's employment.

20. Mr. Reichert convened the professional standards committee, which is comprised of seven Executive Directors and the School Board Attorney. The committee recommended that Respondent's employment should be terminated. The recommendation was presented to Dr. Paul J. Hagerty, the Superintendent of Public Schools for Seminole County, Florida. The Superintendent accepted the recommendation of the committee.

21. Respondent was notified by letter dated December 13, 2001, that the Superintendent was recommending that Respondent be terminated. The letter states, in pertinent part:

    You are hereby notified that I have determined that you: have been insubordinate by not following previous directives given to you regarding your interaction with students under your supervision; have endangered the health, safety, and welfare of students under your supervision; have failed to perform your assigned duties in a satisfactory manner and have demonstrated conduct that is

    unbecoming of a School Board employee. My determination is based upon the findings of an investigation conducted by the District's Office of Professional Standards and supported by the Expanded Professional Standards Review Committee. Your actions surrounding this matter constitute misconduct in office and conduct unbecoming an employee of the School Board, and are grounds for suspension and termination under Article VII and Article VIII of the collective bargaining agreement between

    Non-Instructional Personnel of Seminole

    County Board of Public Instruction Association, Inc., and the School Board of Seminole County, Florida.

    
    

22. Respondent was insubordinate on November 12, 2001.

    
    

    Respondent violated the policy of the School Board and that of Millennium that prohibits: the use of excessive force in preventing imminent danger to another person, and the humiliation of a student.

23. Respondent also violated the policy of the School Board and Millennium that allows reasonable force to prevent imminent danger to another. Respondent did not call for assistance, used excessive force, and did not avoid unprofessional conduct. Bending a student's finger backward and walking the student approximately 30 feet is not reasonable force that is necessary to maintain a safe and orderly environment. Nor is such conduct professional conduct that treats the student with respect. Respondent had adequate notice of the relevant policies through official publications, face-to-face instruction, and previous disciplinary history.

24. On November 12, 2001, Respondent engaged in misconduct and conduct unbecoming a School Board employee. The act of bending a student's finger back, walking him approximately 30 feet in front of the other students, and forcing him to sit, is unprofessional, disrespectful, and excessive. It endangered the health, safety, and welfare of the student. Respondent did not treat the student with

    respect and subjected the student to humiliation and ridicule. Respondent's conduct falls below the reasonable standard of conduct that the School Board has prescribed and has a right to expect from an employee.

25. Just cause exists to terminate Respondent from his employment. The conduct of Respondent on November 12, 2001, is rationally and logically related to the performance of Respondent's job duties and involves misconduct. Respondent's conduct on November 12, 2001, is consistent with previous misconduct for which Respondent has been previously disciplined.

    CONCLUSIONS OF LAW

    
    

26. DOAH has jurisdiction over the parties and subject matter of this case. Sections 120.57(1) and 120.569. DOAH provided the parties with adequate notice of the administrative hearing.

27. Petitioner has the burden of proof in this proceeding. Petitioner must show by a preponderance of the evidence that Respondent committed the alleged acts and the reasonableness of any proposed disciplinary action. McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990). Petitioner satisfied its burden of proof.

28. Article VII, Sections 5 and 8, in the Collective Bargaining Agreement authorizes the School Board to terminate Respondent's employment for conduct unbecoming a school board employee or for insubordination. However, Petitioner must show that just cause exists for terminating Respondent's employment.

29. Florida Administrative Code Rule 6B-4.009 defines the term "gross insubordination" for instructional personnel. Gross insubordination means:

    constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

30. Insubordination is a lower level of misconduct than gross insubordination and need not satisfy the elements of gross insubordination in Rule 6B-4.009. Muldrow v. Board of Instruction of Duval County, Florida, 189 So. 2d 414, 415

    (Fla. 1st DCA 1966). However, even gross insubordination may arise from a single act which constitutes a violation of a previously given order to refrain from identified conduct.

    Johnson v. School Board of Dade County, Florida, 578 So. 2d

    
    

    387 (Fla. 3d DCA 1991). Gross insubordination may also arise from a single act of disrespect for the authority of supervisors. Jacker v. School Board of Dade County, 426 So. 2d 1149 (Fla. 3d DCA 1983). Conduct that is gross insubordination necessarily satisfies the less stringent requirements of insubordination.

31. Conduct unbecoming a public employee is a ground for termination of employment. Seminole County Board of County Commissioners v. Long, 422 So. 2d 938, 940 (Fla. 5th DCA 1982). Conduct unbecoming a public employee is conduct that falls below a reasonable standard of conduct prescribed by the employer. Id.

32. Just cause for discipline exists when the acts or conduct of an employee involve misconduct and are rationally and logically related to the employee's job duties. Just cause is not limited to items enumerated in a list of offensive conduct in applicable rules or the Collective Bargaining Agreement. Dietz v. Lee County School Board, 647 So. 2d 217 (Fla. 2d DCA 1994). Respondent's prior acts of misconduct may be considered in determining the existence of

    just cause for termination. C.F. Industries, Inc., v. Long, 364 So. 2d 864 (Fla. 2d DCA 1978); Johnson, 578 So. 2d at 387.

33. Respondent testified at the hearing that physical intervention was necessary to prevent imminent danger to B.W. and the other student. Respondent also testified that he did not bend B.W.'s finger back but simply held B.W. by the hand and escorted him to the detention table.

34. Respondent's testimony regarding the exigent circumstances and need for physical intervention was credible and persuasive. However, the testimony that merely holding

    B.W. gently by the hand was adequate to deter B.W. was inconsistent with Respondent's testimony concerning the imminent physical danger that B.W. presented to the other student, B.W.'s refusal to follow Respondent's verbal instructions, and Respondent's unsuccessful attempt to redirect B.W. away from the scene.

35. Respondent's testimony that he only held B.W. by the hand was internally inconsistent with his other testimony and was neither credible nor persuasive. Even if the fact finder were to disregard the testimony of B.W., Respondent's testimony did not overcome the eyewitness account by Ms. Adamson and the admission that Respondent made during the demonstration to Ms. Zimmerman. The testimony of Ms. Adamson and Ms. Zimmerman was credible and persuasive.

36. Respondent's testimony that this entire proceeding was driven by a dislike for Respondent on the part of

Ms. Zimmerman and others is not probative of the factual issues. Ms. Zimmerman and others may, or may not, possess an ulterior motive for pressing the investigation in this case. However, the alleged tainted motive does not refute the preponderance of evidence concerning the events on November 12, 2001, and Respondent's prior disciplinary history. One does not refute the merits of a message by shooting the messenger.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

Recommended that the School Board enter a Final Order terminating Respondent's employment.

DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida.

_________________________________ DANIEL MANRY

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 24th day of May, 2002.

COPIES FURNISHED:

Mark S. Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

Sandra J. Pomerantz, Esquire

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

Dr. Paul J. Hagerty, Superintendent Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

Honorable Charlie Crist, Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

James A. Robinson, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

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: 02-000075

Orders for Case No: 02-000075