STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI-DADE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 03-3217
)
STEVEN NEWBOLD, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case on April 19, 2004, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner: Melinda L. McNichols, Esquire
School Board of Miami-Dade County 1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
For Respondent: Manny Anon, Jr., Esquire
99 Northwest 183rd Street, Suite 224 North Miami, Florida 33034
STATEMENT OF THE ISSUE
Whether Respondent should be dismissed or otherwise disciplined for the reasons set forth in the Miami-Dade County School Board's Amended Notice of Specific Charges.
PRELIMINARY STATEMENT
On August 20, 2003, the Miami-Dade County School Board (School Board) took action to suspend Respondent from his position as a lead custodian and initiated a dismissal proceeding against him. By letter dated September 8, 2003, Respondent advised the School Board that he desired to appeal the School Board's action. On September 9, 2003, the matter was referred to DOAH for the assignment of an Administrative Law Judge.
The final hearing in this case was originally scheduled for November 17, 2003, but was twice continued at Respondent's request.
On October 23, 2003, the School Board filed its Notice of Specific Charges against Respondent. On March 24, 2004, Petitioner filed a Motion to Amend its Notice of Specific Charges, accompanied by an Amended Notice of Specific Charges. On March 25, 2004, Respondent filed a Response to Petitioner's Motion to Amend its Notice of Specific Charges and also filed a Motion to Strike Pleadings. Oral argument on Petitioner's Motion to Amend its Notice of Specific Charges and Respondent's
Motion to Strike Pleadings was heard by telephone conference call on March 31, 2004. On that same date, March 31, 2004, the undersigned issued an Order on Pending Motions, granting Petitioner's Motion to Amend its Notice of Specific Charges and denying Respondent's Motion to Strike Pleadings.
The School Board's Amended Notice of Specific Charges alleges that there is "just cause" to dismiss Respondent from employment based on: Respondent's "behavior towards co-workers, supervisors and administrators, including threats of violence and intimidating demeanor [in] violat[ion] [of] School Board Rule 6Gx13-4-1.08 which strictly prohibits violence in the workplace" (Count I); his violation of the School Board's "Responsibilities and Duties" rule, School Board Rule 6Gx13-4A-
(Count II); and his insubordination (Count III).
As noted above, the final hearing in this case was held on April 19, 2004. The School Board presented the testimony of ten witnesses (Leaford Harris, Gladys Hudson, Detective Steven Hadley, Kimson Williams, Selma McKeller, Alvin Brooks, Raul Gutierrez, Dr. Carmen Marinelli, Willie Turner, and Isabel Siblesz) and offered 29 exhibits (Petitioner's Exhibits 1 through 3, 5 through 22, 25, 28, 29, 29A, and 30 through 33), all of which were received into evidence. Respondent testified on his own behalf and presented the testimony of two other witnesses (Leslie Forbes and Madelin Gonzalez).
At the close of the taking of evidence, the undersigned established the deadline for the filing of proposed recommended orders at 20 days from the date of the filing of the hearing transcript.
The hearing Transcript (consisting of one volume) was filed on July 16, 2004.
On August 3, 2004, the Respondent filed an Unopposed Motion to Extend Filing [Deadline] for Proposed Recommended Order. By Order issued that same day, the motion was granted and the parties were given until August 9, 2004, to file their proposed recommended orders. On August 9, 2004, the Respondent filed a Second Motion to Extend Filing for Proposed Recommended Order.
By Order issued that same day, the motion was granted and the parties were given until August 10, 2004, to file their proposed recommended orders.
On August 10, 2004, the School Board and Respondent filed their Proposed Recommended Orders. The undersigned has carefully considered these post-hearing submittals.
FINDINGS OF FACT
Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made:
The School Board, Respondent, and his Supervisors
The School Board is responsible for the operation, control and supervision of all public schools (grades K through
12) in Miami-Dade County, Florida, including Gertrude K. Edlelman/Sabal Palm Elementary School (Sabal Palm), Miami Norland Senior High School (Norland), and North Miami Senior High School (North Miami).
The principals of these schools have ultimate supervisory authority over all School Board employees assigned to their schools, including custodial employees.
Raul Gutierrez is now, and has been for the past three years, the principal of Sabal Palm.
Mr. Gutierrez succeeded Gertrude Edelman, after whom the school is now named.
Mr. Gutierrez had served as an assistant principal at the school under Ms. Edelman for five years before he became the school's principal.
Selma McKeller is now, and has been for the past 11 years, the head custodian at Sabal Palm, having supervisory authority over all other members of the school's custodial staff.
Willie Turner is now, and has been for the past four years, the principal of Norland.
Gladys Hudson was an assistant principal at Norland during the 2002-2003 school year. Among her responsibilities was to oversee the school's entire custodial staff, including the head and lead custodians.
Respondent has been employed by the School Board since March of 1989.
Respondent was initially hired as a custodian and assigned to Sabal Palm.
In August 1998, while still assigned to Sabal Palm, Respondent was promoted to his present position, lead custodian, which is a supervisory position.
Respondent remained at Sabal Palm until August 2002, when he was placed on "alternate assignment" at Norland, where he worked under the direct supervision of the school's lead custodian, Leaford Harris.
In December 2002, Respondent was placed on "alternate assignment" at North Miami.
The Collective Bargaining Agreement
As a lead custodian 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, at all times material to the instant case, has been covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract).
Article II of the AFSCME Contract is the contract's "[r]ecognition" article. Section 3 of Article II provides as
follows:
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, Local 1184, 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; and (3) the designation of the organizational structure of the MDCPS and the lines of administrative authority of MDCPS.
It is understood and agreed that management possesses 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;
I. Contract out for goods or services; and
J. 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.
Definitions are set forth in Article V of the AFSCME Contract. They include the following:
* * *
Section 17. Working Hours-- Those specified hours when employees are expected to be present and performing assigned duties.
Section 18. Workday-- The total number of hours an employee is expected to be present and performing assigned duties.
* * *
Section 27. Unauthorized Absence-- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance.
Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent.
Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accrued sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there were extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave.
Section 4A of Article IX of the AFSCME Contract addresses the subject of "[n]ewly-[h]ired [e]mployees." It provides as follows:
Newly-hired employees in the bargaining unit (except temporary, hourly, or substitute employees) shall be considered probationary for the first three calendar months; thereafter, they shall be considered annual employees, subject to annual reappointment. During such probationary
period, employees may be terminated without recourse under this Contract.
If, at any time during the probationary period, the newly-hired employee's performance is considered unacceptable, the probationary employee shall be terminated.
Section 13 of Article IX of the AFSCME Contract discusses the School Board's Employee Assistance Program. It provides as follows:
AFSCME, Local 1184 and the Board recognize that a wide range of problems not directly associated with an employee's job function can have an effect on an employee's job performance and/or attendance.
AFSCME, Local 1184 and the Board agree that assistance will be provided to all employees through the establishment of an Employee Assistance Program.
The Employee Assistance Program is intended to help employees and their families who are suffering from such persistent problems as may tend to jeopardize an employee's health and continued employment. The program goal is to help individuals who develop such problems by providing for consultation, treatment, and rehabilitation to prevent their condition from progressing to a degree which will prevent them from working effectively.
Appropriate measures will be taken to ensure the confidentiality of records for any person admitted to the program, according to established personnel guidelines and federal regulations.
The Guidelines for the Employee Assistance Program, by reference, are made a part of this Contract.
Employee Rights:
Job security will not be jeopardized by referral to the Employee Assistance Program, whether the referral is considered a voluntary referral in which an employee elects to participate in the program, or a supervisory referral in which a supervisor uses adopted guidelines to refer an employee into the program.
An employee has the right to refuse referral into the program and may discontinue participation at any time. Failure by an employee to accept referral or continue treatment will be considered in the same manner as any factor that continues to affect job performance adversely.
Article XI of the AFSCME Contract addresses the subject of "[d]isciplinary [a]ction."
Section 1 of Article XI is entitled, "Due Process," and 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, however in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the
employee[']s record. Therefore, disciplinary steps may include:
verbal warning;
written warning (acknowledged);
Letter of reprimand;
Suspension/demotion; and
Dismissal.
A Conference-for-the-Record shall be held when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated investigation to determine if formal disciplinary action should be taken (i.e., letter of reprimand, suspension, demotion or dismissal). A Conference-for- the-Record in and of itself shall not be considered disciplinary.
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, Local 1184 bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline and that in all instances 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 Union 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. A maximum of two Union representatives may be present at a Conference-for-the Record.
The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notice 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," and it provides as follows:
Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer or through the grievance/arbitration process as set forth in Article VII of the Contract. 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 and to select the method of appeal. If the employee when appealing the Board action, does not select the grievance/arbitration process as set forth in Article VII of the Contract 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. Non-reappointments are not subject to the grievance/arbitration procedures.
Section 3 of Article XI is entitled, "Cause for Suspension," and 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 describes the "[t]ypes of [s]eparation." It provides in pertinent part, as follows:
Dissolution of the employment relationship between a permanent unit member and the Board may occur by any of four [sic] distinct types of separation.
Voluntary-- . . . .
Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling ten 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-- . . . .
AFSCME, Local 1184 bargaining unit members employed by the school district in excess of five years shall not be subject to non- reappointment. Such employee may only be discharged for just cause.
Layoff-- . . . .
Section 6 of Article XI addresses the subject of "[p]ersonnel [f]iles," and it provides as follows:
A. Pursuant to Florida Statutes, Chapter
231.291 Personnel Files - Public school system employee personnel files shall be maintained according to the following provisions:
Except for materials pertaining to work performance or such other matters that may be cause for discipline, suspension, or dismissal under laws of this state, no derogatory materials relating to an employee's conduct, service, character, or personality shall be placed in the personnel file of such employee.
Materials relating to work performance, discipline, suspension, or dismissal must be reduced to writing and signed by a person competent to know the facts or make the judgment.
No such materials may be placed in a personnel file, unless they have been reduced to writing within 45 calendar days, exclusive of the summer vacation period, of the school system's administration becoming
aware of the facts reflected in the materials.
The employee shall have the right to answer any material filed hereafter in his/her personnel file and the answer, if submitted, shall be attached to the file copy. No anonymous letter or material shall be placed in an employee's personnel file. The validity of items of a derogatory nature placed in an employee's personnel file shall be subject to the grievance procedure.
There shall be no statements placed in an employee's personnel file unless the employee has been given a copy.
Upon request, the employee, or any person designated in writing by the employee, shall be permitted to examine the personnel file. The employee shall be permitted, conveniently, to reproduce any materials in the file, at a cost no greater tha[n] five cents per page. Such request should be made to the custodian of a personnel file, who shall permit examination of the records at reasonable times, under reasonable conditions, and under supervision of the custodian of the record.
The custodian of the record shall maintain a record in the file of those persons reviewing the file each time it is reviewed.
"Personnel [i]nvestigations" are the subject of Section 7 of Article XI, which provides as follows:
The Board shall take steps to ascertain the identity of the complainant, prior to authorization of an investigation. No investigation of an allegation against an employee shall be made on the basis of an anonymous complaint.
In the event of allegations and/or complaints being made against any employee, an investigation which may result in information being placed in the employee's personnel file shall not be concluded by the Miami-Dade County Public Schools Police (MDCPSP) or any person prior to the time that the employee receives identification of the complainant and the nature of the complaint.
In all Board investigations which may lead to suspension or dismissal of an employee, only the Superintendent or his/her designee may authorize such an investigation. When a formal investigation has been authorized, all personnel involved will be advised by the MDCPSP investigator of their legal rights, and the procedures available to them for representation. Information that is not substantiated will not be used for disciplinary action against the employee.
In all Board investigations resulting in discipline, the employee shall be provided with a copy of the report. With the permission of the employee, the Union shall also receive a copy. When investigatory reports are provided, said reports shall be transmitted within a timeframe consistent and harmonious with basic due process.
In all cases in which the preliminary investigation is concluded, with the finding that there is no probable cause to proceed further and no disciplinary action taken or charges filed, a statement to that effect signed by the responsible investigation official shall be attached to the complaint and the complaint and all such materials shall be open, thereafter, to inspection. Where allegations have not been proven against an employee, no reprisal or punitive action shall be taken against an employee.
Pertinent School Board Rules
As a School Board employee, Respondent is obligated to act in accordance with School Board rules and regulations,1 including School Board Rules 6Gx13-4-1.08 and 6Gx13-4A-1.21.
School Board Rule 6Gx13-4-1.08 is a "[g]eneral [p]ersonnel [p]olicy [s]tatement" regarding "[v]iolence in the [w]orkplace." It provides as follows:
Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution.
Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but it is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved.
Dade County Public Schools employees have a right to work in a safe environment.
Violence or the threat of violence by or against students and employees will not be tolerated.
School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows:
Permanent Personnel RESPONSIBILITIES AND DUTIES
I. EMPLOYEE CONDUCT
All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, 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.
September 1989 Investigation
In September of 1989, Respondent was the subject of an investigation conducted by what was then referred to as the School Board's Special Investigative Unit (S.I.U.). The investigation culminated in an investigative report being issued on September 27, 1989 (in S.I.U. Case No. T1684). The report was written by Detective Sergeant Miriam McNeil-Green and read as follows:
Allegation: On Wednesday, 09-13-89, Steven
S. Newbold was arrested at Northwest 191 Street and 37 Avenue at 11:50 p.m. for driving with a suspended license, citation #55136-IR.
The above allegation was reported to central
S.I.U. office on September 14, 1989, by Sergeant Rudolf, Metro-Dade Police shift commander.
Mr. Henry Hortsmann, Director, Office of Professional Standards, authorized a records check on September 14, 1989.
I [Detective Sergeant McNeil-Green] responded to Metro-Dade headquarters building on September 20, 1989, in reference to the above offense. However, the traffic offense was not on file.
I went to the Metro-Dade justice building, traffic division and was given a copy of the printout for the arrest of Steven Spencer Newbold. A copy of the printout is attached to this report. The arraignment date will be set.
While at Metro-Dade headquarters building it was discovered that Steven Newbold has a felony and misdemeanor past as follows:
On 02-24-88, Steven Newbold was arrested at Northwest 22 Avenue and 90 Street, Miami, Fl. 33142, for (1) No valid drivers license; (2) Driving with license suspended; (3) Grand theft auto;
(4) Possession of marijuana (11 grams). On March 16, 1988, Newbold pled guilty to possession of marijuana. Adjudication was withheld and Newbold was placed on probation for one year.
On March 16, 1988, Newbold pled nolo contendere to one count of grand theft auto and was placed on one year probation.
Certified copies are attached.
On May 11, 1988, Steven S. Newbold was arrested at 1461 N. W. 60 Street, apt. #5, Miami, Fl. 33141 for trespassing of structure. On July 14, 1988, Newbold pled
guilty and was fined $78.75. Certified copies are attached.
Vault information: Steven Spencer Newbold was hired on 03-22-89 as a custodian at Sabal Palm Elementary. On his application for employment, Mr. Newbold stated he had never been arrested.
Conclusion: The allegation against Steven
S. Newbold is substantiated, [in that] he was arrested on September 13, 1989 for a traffic offense. He also falsified his employment application by stating he had not been arrested.
On October 1, 1990, Henry Horstmann, the director in the School Board's Office of Professional Standards referred to in the investigative report, authored a memorandum concerning the report for placement in Respondent's personnel file. The memorandum read as follows:
SUBJECT: DISPOSITION OF INVESTIGATIVE
REPORT
CASE: T-01684 DATE REPORTED: 9/14/89 SUBJECT: TRAFFIC ARREST
LOCATION: SABAL PALM ELEMENTARY
The Office of Professional Standards has established a final disposition for the above-indicated investigative report, as indicated below:
Allegation substantiated
The employee was arrested for traffic violation
Incident is not job related[2]
Because the report references actions which have been determined to be sufficient to bring closure to the issue, you are notified
that unless otherwise determined, no further post-investigative actions need occur.
1992 Conference-for-the-Record and Reprimand
Respondent's job performance was the subject of a Conference-for-the-Record Sabal Palm Principal Edelman held with Respondent on March 15, 1992. On March 25, 1992, Ms. Edelman prepared a written summary of the conference (in the form of a memorandum to Respondent), which read as follows:
On March 15, 1992, a conference-for-the- record was held in my office to address your job performance of assigned duties, and your future employment status with the Dade County School System.
CONFERENCE DATA REVIEW
Initially this administrator reviewed with you the allegation that on March 12, 1992, you left the school premises without authorization from 5:00 p.m. to 7:00 p.m. The building was not locked and secure which left the school vulnerable to entrance by unauthorized persons, vandalism, arson and other criminal acts.
You admitted to the neglecting of your duties and verbally apologized for your lack of responsibility and flagrant disregard of the position [e]ntrusted in you. This administrator was appalled by the negligence of your duties and violation of the trust and loyalty placed in your ability to oversee the building after school hours.
ACTION TAKEN
Your working hours will remain the same (1:00 p.m. to 9:30 p.m.), your break will take place from 3:30 p.m. to 3:45 p.m. Your supper will be from 6:30 p.m. to 7:00 p.m.
You agreed to sign out when leaving the building and to sign in when you return. A separate sheet will be maintained for this purpose. You will also notify this administrator when and why you need to leave the building.
CONCLUSION
You were informed that as a result of your derel[i]ction of duties a letter of reprimand will be placed in your folder.
You will be expected to make up the two hours at the discretion of the head custodian. You were advised that a recurring violation of this nature would result in a severe disciplinary action against you.
The promised letter of reprimand was issued on March 25, 1992. It was in the form of a memorandum from Ms. Edelman to Respondent, which read as follows:
As a result of the conference-for-the-record held on Wednesday, March 18, 1992 [sic], please consider this memorandum as a letter of reprimand because of your dereliction of duties on March 12, 1992 when you left the school unattended during hours of employment.
Any recurring incident of this nature will result in a severe disciplinary action against you.
On April 1, 1992, Respondent signed both the written summary of the March 15, 1992, Conference-for-the-Record and the letter of reprimand. Immediately above his signature on each document was the following statement:
By affixing my signature to this memorandum, I understand that a copy will be placed in
my personnel file. It is further understood that my signature signifies that I have read this memorandum and does not indicate agreement and that I have a right to respond to materials in my personnel file.
1995 Written Warning
On April 26, 1995, Ms. Edelman presented Respondent with the following written warning concerning "[e]xcessive [a]bsences":
I am concerned about your excessive absence. As lead custodian you are charged with the responsibility of not only carrying out your cleaning duties, but also, supervising the other men on duty, checking the cleanliness of the grounds as well as locking up the school.
I am charged with the responsibility of providing a clean and healthy environment for the welfare of children. I cannot make this provision where key personnel of the custodial staff are constantly absent.
May I also remind you that your hours are 1:00 p.m. to 9:30 p.m. If you intend to leave earlier than 9:30 p.m. or are coming in late, please advise me about it.
Perhaps you should seek another position where your absence would not be so crucial.
Please consider this message as a warning as I have been most tolerant and will pursue further action if necessary.
1999 Investigation, Conference-for-the-Record, and Disciplinary Action
In or around February 1999, the School Board was advised that Respondent was arrested for the aggravated battery of his girlfriend.3
After being notified of Respondent's arrest, the School Board's Division of School Police (School Police) began a "criminal history investigation" of Respondent (in School Police Case No. D-05978).
The results of the investigation were detailed in a memorandum dated March 26, 1999, authored by Sergeant David Quigley, which read as follows:
ALLEGATION: It is alleged that Steven Newbold, Custodian, Sabal Palm Elementary School, was arrested on February 8, 1999.
On February 9, 1999, William Urbina, Lieutenant, Miami-Dade Police, reported the arrest.
On February 10, 1999, the case was approved for a Records Check by Mr. Norman Lindeblad, Executive Director, Office of Professional Standards.
On February 12, 1999, this case was assigned to Detective Ruggerio.
On March 25, 1999, I [Sergeant David Quigley] was reassigned this case.
On the same date, Doug Bressler, Educational Specialist, Office of Professional Standards, informed me Steven Newbold has one previous Records Check.
Case | Offense | Disposition |
T01684 | Arrest | Substantiated |
I conducted a complete criminal history investigation on Steven Newbold, [and] the investigation revealed the following Criminal History.
Arrested: 02/06/99; Miami-Dade County Court Case #M99010771; Charge(s): Battery; Disposition: Arraignment Hearing set, 4/09/99, Judge Mark Leban, Courtroom 6-6
Arrested: 02/06/99; Miami-Dade County Court Case #F99004568; Charge(s): Felony Battery, Domestic; Disposition: No action, Filed Under County Court
Arrested: 07/21/95; Miami-Dade County Court Case #M94035215; Charge(s): Operating a Business Without a License; Disposition: Withheld Adjudication-Community Service
Arrested: 05/07/93; Miami-Dade County Court Case #F93015021; Charge(s): Possession of Cocaine; Disposition: Withheld Adjudication-Community Service
5) Arrested: 01/18/92; Charge(s): (1) Obstruct a Police Officer, (2) Disobey a Police Officer; Disposition: (1) Convicted, Community Service, (2) Acquitted by Jury
Arrested: 11/28/91; Miami-Dade County Court Case #F91042066; Charge(s): (1) Possession of Marijuana With Intent, (2) Carry a Concealed Firearm, (3) Resist Officer Without Violence, (4) Firearm Use by a Convicted Felon; Disposition: No Action, All Charges
Arrested: 03/11/91; Miami-Dade County Court Case #F91006232; Charge(s): Carrying a Concealed Firearm; Disposition: Convicted
Arrested: 5/11/88; Miami-Dade County
Court Case #M88063418; Charge(s): Trespass; Disposition: (1) Convicted, Salvation Army Probation
Arrested: 03/16/88; Miami-Dade County Court Case # F88006324; Charge(s); Possession of Marijuana With Intent; Disposition: Withheld Adjudication, Probation Special Conditions
NO OTHER CRIMINAL ACTIVITY
On March 26, 1999, I verified Mr. Newbold falsified his employment application by answering, "No," to the following question. Have you ever been convicted, fined, imprisoned, or placed on probation in a criminal proceeding[]? Mr. Newbold was placed on probation under Miami-Dade County Court Felony Case #F88006324 and Mr. Newbold was convicted under Miami-Dade County Court Misdemeanor Case # M88063418.
CONCLUSION: Based on the documentation gathered during the investigative process, the allegation that Steven Newbold was arrested, is Confirmed.
On May 21, 1999, after Sergeant Quigley's "investigative findings" had been brought to her attention,
Ms. Edelman presented Respondent with a written reprimand in the form of a memorandum (dated May 17, 1999), which read as
follows:
On February 5, 1999 it was determined that you falsified information on your employment application. This infraction was substantiated by Personnel Investigation and an Administrative Review, Case# D-05978.
Therefore, you are hereby officially reprimanded for the above-stated actions.
Furthermore, you are directed to refrain from any additional falsification regarding information requested of you by this employer. Failure to comply with this directive would lead to further disciplinary action.[4]
On May 21, 1999, Respondent signed the written reprimand, acknowledging that he received it.
October 10, 2001, Memorandum and EAP Referral
On October 10, 2001, Sabal Palm Principal Gutierrez wrote a memorandum to Respondent regarding "[p]rofessional [r]esponsibilities," which read as follows:
On October 8, 2001, you arrived to work one hour and ten minutes late. This infraction was substantiated by my calling you into the office for a meeting. Your outburst followed by your signing out did not allow us to resolve the situation.
It is your responsibility as a Miami-Dade County Public School employee to remain in control at all times, in accordance with school and M-DCPS rules and policies.
Therefore, this memo serves as a written reminder.
Furthermore, you are directed to arrive and leave school grounds at your scheduled work time. You are to sign in immediately upon arriving and sign out when leaving.
Any recurrence of the infraction may lead to further disciplinary action.
Please see the attached supervisor[y] employee assistance referral form.
The "attached supervisor[y] employee assistance referral form," was a memorandum, dated October 10, 2001, from
Mr. Gutierrez to Helen Viviand, the supervisor/clinical coordinator of the School Board's Employee Assistance Program (EAP). In the memorandum, Mr. Gutierrez indicated that he was referring Respondent to the EAP "for the following behavioral/medical concerns observed on the job": "[e]xcessive absences," "[e]xcessive tardiness," "[u]nauthorized disappearances," "[p]rolonged lunch hours," and "[a]ssignment failures."
Upon being presented with both these documents (on October 10, 2001) and asked to sign them (to acknowledge receipt), Respondent refused.
February 14, 2002, Memorandum
On February 14, 2002, Mr. Gutierrez wrote a memorandum to Respondent regarding Respondent's "[l]eaving [s]chool [g]rounds [w]ithout [a]uthorization," which read as follows:
As a follow up to our meeting held today, this memorandum serves as official documentation of proper procedures regarding leaving the building. Effective immediately, all leave time from the building will be documented in order to calculate time away from the building. If you leave the building due to an emergency, doctor visit (over the contracted two hours) or an extended lunch, the amount of time will be accrued up to four hours. Once four hours are accumulated, then a half-day will be taken from your remaining sick o[r] personal payroll days.
During the course of our meeting, the following issues were also discussed:
On February 7, 2002, we discussed the fact that you left work twice within that week, owing me two and half hours of work in order for the time not to be deducted from you[r] payroll. Upon completion of our conversation, I allowed you the chance to make up this time by working Saturday, February 8, 2002. While working on Saturday you were paid overtime for the two and a half hours.
On February 12, 2002, you received an emergency telephone call and had to leave work. Since you were out of the building more than four hours you were docked a half day. It is imperative that the amount of time spent leaving the building not be in excess.
Leave time will be permitted according to contract regarding doctor appointments (two hours). Try to schedule appointments in a timely manner.
I am willing to work with you in cases of emergencies, allowing special projects (if applicable) to make up leave time differences. If additional clarification is needed, please see me. Thank you in advance for your cooperation.
Upon being presented with this memorandum (on February 14, 2002) and asked to sign it (to acknowledge receipt), Respondent refused.
February 20, 2002, Memorandum
In response to complaints Mr. Gutierrez had received from members of Sabal Palm's custodial staff about Respondent's use of insulting and demeaning language in his interaction with them, Mr. Gutierrez, on February 20, 2002, wrote the following
memorandum addressed to all custodial staff members at the school:
SUBJECT: REMINDER OF PROPER PROFESSIONAL BEHAVIOR AT JOB SITE IN DEALING WITH DISCRIMINATION/HARASSMENT
It has come to my attention that one or two custodians are continuously making inflammatory and harassing statements and remarks toward other custodians.
This memorandum serves to remind and warn those individuals who constantly verbally harass others with their comments and remarks that this behavior will not be tolerated. Custodians who call others names are not helping the morale of this school.
Furthermore, let me remind those individuals who harass and torment others by calling them "lap dogs," "brown nosers," and "pets," that they are totally out of line and in violation of discrimination/harassment school board rules.
Overall our custodial staff is professional with outstanding individuals who make this school shine, and I will not tolerate other individuals that harass.
If at anytime I violate the AFSCME contract by asking someone to do something that is not part of their [sic] job description I would like for you personally to inform me. My door is always open and I always strive to make all of my employees feel comfortable and treated fairly.
Let[']s heed this warning as verbal and written notice to the individuals who discriminate/harass their colleagues.
To further promote harmony at this school, I am assigning the following work hours to the
following custodians. If you have a concern or problem with these hours, please see me.
* * *
Steve Newbold Lead Custodian 12:30 P.M- 9:00 P.M.
* * *
These hours are tentative and subject to change.
Upon being presented with a copy of this memorandum and asked to sign it (to acknowledge receipt), Respondent refused. All other members of the custodial staff signed copies of the memorandum, as requested.
February 22, 2002, Memorandum and
On February 22, 2002, Mr. Gutierrez wrote a memorandum to Respondent regarding Respondent's "[r]eporting [a]bsences [t]o [s]chool [s]ite," which read as follows:
On Thursday, February 21, 2002, you called at 12:05 P.M. to report that you would be late or would call back if you would not be able to report to work at all (as per my office attendance clerk- Sabina Basdeo). At 3:30 P.M. [m]y secretary (Mrs. Covington) informed . . . me that you did not report to work nor did you call back as per your conversation with Mrs. Basdeo.
This memorandum serves to remind you that you need to call in all absences ahead of time so that we can schedule coverage for your assigned cleaning section.
Furthermore, your presence is needed at the job site on a regular basis.
Please keep in mind that every time you are absent, it affects the proper maintenance of the building.
Attached you will find a copy of the Supervisory Referral Form to the Employee Assistance Program.
I expect you to follow through with my recommendation for assistance.
The attached "Supervisory Referral Form to the Employee Assistance Program" was a memorandum, dated
February 22, 2002, from Mr. Gutierrez to Ms. Viviand. In the memorandum, Mr. Gutierrez indicated that he was referring Respondent to the EAP "for the following behavioral/medical concerns observed on the job": "[e]xcessive absences," "[e]xcessive tardiness," "[u]nauthorized disappearances," "[a]ltercations-staff (other custodians)," and "[p]oor judgment."
Upon being presented with both of these documents (on February 22, 2002) and asked to sign them (to acknowledge receipt), Respondent refused.
February 25, 2002, Memorandum
Following an incident during which Respondent "stormed into [Mr. Gutierrez's] office demanding to see his [Respondent's] personnel file" and refused to leave until
provided a copy of the file, Mr. Gutierrez, on February 25, 2002, wrote the following memorandum to Respondent:
SUBJECT: UNREASONABLE REQUEST OF COPIES PERSONNEL FILE
On February 22, 2002 at 3:15 P.M., Mr. Steve Newbold, Lead Custodian, walked into my office demanding to see and make copies of his Personnel Records without prior notice. He became indignant and refused to leave when I told him to come back in 5 minutes since I needed to finish what I was doing.
Mr. Newbold repeatedly claimed that his contract stated that he personally could make copies of his records.
I stopped everything I was doing and proceeded to have my secretary, Marge Covington, make copies of his personnel record. I continued by reading him pages 33 and 34 of the AFSCME contract where it states that the request for Personnel Records be made in writing by the employee at reasonable times and under reasonable conditions. However, Mr. Newbold continually insisted that he needed to make all the copies himself and immediately.
I told him that the Personnel files could not leave my office as stated on page 34 of the AFSCME contract. His continued persistence and aggressiveness over wanting to walk out with the files to make copies briefly concerned me.
The meeting ended by my asking Mr. Newbold to attend the Employee Assistance Program which I had asked him previously to attend. He proceeded to tell me that he didn't need any help, that it was me who needed the help and that he would file a grievance.
Mr. Newbold left my office at 4:00 P.M.
.
Upon being presented with this memorandum (on February 25, 2002) and asked to sign it (to acknowledge receipt), Respondent refused.
March 1, 2002, Memorandum
On March 1, 2002, Mr. Gutierrez wrote a memorandum to Respondent regarding Respondent's "[c]ontinuous [l]ate [a]rrivals" to work, which read as follows:
On Thursday, February 28, 2002, you called at 12:00 P. M. and notified the Office Registrar, Sabina Basdeo, that you would be late and you didn't know what time you would be coming in.
You arrived at school at 3:25 P.M. At that time, the Assistant Principal, Mitzi Parlor, and Secretary, Marge Covington, showed you the procedures for signing in on the late arrival time accumulation sheet.
This memorandum serves to remind you that you cannot constantly be arriving past your assigned work schedule time. If you need further clarification, please come in and see me.
Upon being presented with this memorandum (on March 1, 2002) and asked to sign it (to acknowledge receipt), Respondent refused.
March 8, 2002, Memorandum
In an effort increase the productivity of Sabal Palm's custodial staff members, Mr. Gutierrez, on March 8, 2002, wrote them the following memorandum:
SUBJECT: CHANGE IN SHIFT SCHEDULE
In order to maximize the efficiency of our custodial staff, the following change of hours will take place 20 [sic] days from today (March 8, 2002) effective on April 8,
2002.
* * *
S. Newbold LC 1:30 P. M.-10:00 P.M.-Night Shift with differential pay
* * *
Please be advised that you cannot work through your lunch break in order to leave
30 minutes early. This practice will stop for all custodians. Furthermore, if you plan to be away from the building for more than your allowed 30 minute lunch break you need my approval prior to your departure.
Effective immediately, all custodial staff that needs to leave the building for any reason after your arrival at the job site needs to submit in writing (see attached- Request to Leave School Form) 24 hours prior to departure.
Please remember that sign-in time is the actual time that you log in on the payroll attendance sheet, not the time you arrive in the parking lot.
Thank you for your cooperation. If you have any questions or concerns, please see me!
Upon being presented with this memorandum and asked to sign it (to acknowledge receipt), Respondent refused and, in addition, announced that he would "not accept [the] shift change."
March 15, 2002, Conference-for-the-Record
Respondent's attendance and his conduct toward co- workers and supervisors was the subject of a Conference-for-the- Record Mr. Gutierrez held with Respondent on March 15, 2002. On March 18, 2002, Mr. Gutierrez prepared a written summary of the conference (in the form of a memorandum to Respondent), which read as follows:
On March 15, 2002, a conference-for-the- record was held with you in the Principal's office at 3:30 P.M.
In attendance were:
Al Sanders, AFSCME
Steve Newbold, Lead Custodian
Mitzi D. Parlor, Assistant Principal Raul J. Gutierrez, Principal
Officer Suarez, MDC[PS], Region II Officer Wilson, MDC[PS][5]
The purpose of the conference was to address:
Attendance: The discussion of excessive absences and the proper reporting of absences in a timely manner including the long periods of time away from the building during working hours.
Insubordination: Refusing to stop in the participation of continually verbally calling co-workers "lap dogs" and "brown nosers" as stated in the memorandum dated February 20, 2002. Refusing to leave the Principal's office February 22, 2002 when asked to leave and come back later. You continued to persist demanding to make copies yourself of your personnel file.
Refusing to sign memorand[a], regarding
general information and school site job duty acknowledgements.
Review the personnel record file: To discuss future job related compliance issues.
A review of your work history included the following:
Dereliction of your duties by leaving the building unattended for 2 hours on March 12, 1992.
Written warning concerning excessive absences on April 26, 1995.
You were given verbal warnings regarding leaving the building and excessive absences on October 5, 2001, December 27, 2001,
December 28, 2001 and January 4, 2002.
You were given written warnings regarding leaving the building on October 10, 2001, February 14, 2002 and February 22, 2002.
You received supervisory referrals to the District's support agency on October 10, 2001 and February 22, 2002 and you didn't want to go.
You refused to attend the Employee Assistance Program and told the Principal that he was the one who needed help on February 25, 2002.
You participated in a conference-for-the- record regarding your attendance to date, insubordination issues and review of the record on March 15, 2002.
During the conference, you were given the following directives:
Concerning Future Absences:
Regular daily attendance and timeliness.
If you intend to be absent you must communicate directly to Mitzi D. Parlor, Assistant Principal or Marge Covington, Secretary at . . . by 12:00 P.M.
If it is determined that future absences are imminent, leave must be considered and procedures for Board-approved leave implemented or resignation must be tendered if no leave options are available.
Should future absences exceed the number of days accrued, the absences will be considered leave without pay unauthorized.
During the conference you were also given the following directives concerning performance and/or violation of policy/procedure:
Adhere to the new change of shift schedule: 1:30 P.M. to 10:00 P.M. effective April 8, 2002. Memorandum dated March 8, 2002. (Provided at conference)
Adhere to procedures as stipulated in your AFSCME contract.
Refrain from calling co-workers names at all times.
During the conference you were provided with a copy of School Board Rule 6Gx13-4A- 1.21, Responsibilities and Duties.
Family emergencies will be granted.
Planned leave must be approved 24 hours in advance.
You were asked if you had any further comments. You responded "no."
The conference was concluded at 4:30 P. M.
In conclusion, you are apprised of your right to respond to any information recorded in this conference.
It was Mr. Gutierrez's intention to give Respondent a written reprimand for the "attendance" deficiencies and "insubordination" that were discussed at the March 15, 2002, Conference-for-the-Record, but such a "letter of reprimand was [never] drafted."
Respondent's Altercation with Sabal Palm's Head Custodian and its Aftermath
The day before the March 15, 2002, Conference-for-the- Record Respondent had been involved in a verbal and physical altercation with Sabal Palm's head custodian (and Respondent's immediate supervisor), Mr. McKeller, which led to Respondent's removal from Sabal Palm and his reassignment, initially to a regional School Board administrative office and then to Norland (for "temporary duty").
The altercation began outside of Mr. McKeller's office when Respondent approached Mr. McKeller and berated him for telling Mr. Gutierrez that the night before Respondent had not performed his job responsibilities. After exchanging words, the two, at Mr. McKeller's suggestion, went inside Mr. McKeller's office, where they got into a "pushing, shoving match" that ended when Mr. McKeller "fell over." After he "got up,"
Mr. McKeller went to the main office and reported what had
happened. The School Police were contacted and commenced an investigation of the matter (in School Police Case No. G-15208).
The investigation in School Police Case No. G-15208 was completed in or around June of 2002.
The details of the investigation were set forth in a June 24, 2002, memorandum authored by Detective Mindy Gross, which contained the following "conclusion":
Based on statements gathered during the investigative process, there is insufficient evidence to support that on March 14, 2002, Mr. Steven Newbold, Lead Custodian at Sabal Palm Elementary School, slapped and fought with Mr. Selma McKeller, Head Custodian at Sabal Palm Elementary School. Based on the lack of independent witnesses to a physical attack upon Mr. McKeller, the allegation of Violation of School Board Rule 6Gx13-4-1.08, Violence in the Workplace against Mr. Steven Newbold, is Unsubstantiated.
Mr. Newbold, in his anger at Mr. McKeller for having informed school administrators of his alleged deficiencies, confronted Mr.
McKeller in his office. Mr. Newbold's voice was loud and disruptive to the school.
Based on the statement made by a witness as to the unprofessional demeanor displayed by Mr. Newbold, there is sufficient information to verify his behavior. Employees must conduct themselves in a manner that will reflect credit upon themselves and the school system. The allegation of Violation of School Board Rule, 6Gx13-4A-1.21, against Mr. Steven Newbold, Responsibilities and Duties, is Substantiated.
Respondent ultimately received a written reprimand for having committed this "substantiated" violation. The written
reprimand was in the form a memorandum to him, dated
September 23, 2002, from Barbara Moss, a director in the School Board's Office of Professional Standards, which read as follows:
SUBJECT: LETTER OF REPRIMAND
On March 14, 2002, in anger, you confronted the lead custodian at Gertrude Edelman/Sabal Palm Elementary School in an unprofessional demeanor. This infraction was substantiated by Preliminary Personnel Investigation, Case #G-15208.
It is your responsibility as a Miami-Dade County Public School (M-DCPS) employee to remain in control of yourself at all times. This is in keeping with school and M-DCPS rules and policies. Therefore, you are hereby officially reprimanded for the above- stated actions.
Furthermore, you are directed to refrain from displaying unseemly conduct during the course of your employment day.
Any recurrence of the above infraction may lead to further disciplinary action.
On October 17, 2002, Respondent signed the memorandum, acknowledging that he was "in receipt of [it]." Underneath his signature he wrote, "I do not agree to it."
Respondent's Altercation with Norland's "Permanent" Lead Custodian and its Aftermath
Upon his reassignment to Norland (for "temporary duty"), Respondent worked the "night shift."
Mr. Harris, the school's lead custodian, was responsible for "supervising the night shift [custodial workers,
including Respondent] [to] make sure the work [was] done for the next . . . school day."6
Mr. Harris reported to Ms. Hudson, an assistant principal at the school.
On December 4, 2002, Ms. Hudson met with Respondent in her office to admonish him for leaving the worksite during work hours for extended periods of time "without signing out or
Mr. Harris' knowing about it."
Mr. Harris was walking in the hallway outside of Ms. Hudson's office when Respondent left Ms. Hudson's office following the meeting. Respondent appeared "upset" and was "fussing" that "Ms. Hudson [had told] him everything."
Mr. Harris asked Respondent, "What's wrong?" Respondent, in a "very loud" tone of voice, answered, "Ms. Hudson tell me everything and I'm going to whoop your pussy ass." Mr. Harris walked away. When he was "five doors" from Respondent,
Mr. Harris turned around and said to Respondent, "You can't whoop me, because I'm
not a pussy," to which Respondent replied, "I bet I whip your pussy ass when I catch you off campus."7
Understandably "feel[ing] threat[ened]," Mr. Harris went to Ms. Hudson and recounted what Respondent had said to him.
Ms. Hudson brought the matter to the attention of the School Police, which began an investigation of the incident (in School Police Case No. H-07799).
Detective Steven Hadley was assigned the task of conducting the investigation.
Detective Hadley, as part of his investigation, received a signed, written statement from Mr. Harris, which read as follows:
On the 12-4-02 Mr. Steven Newbold threaten me. Tell me that he is going to beat my ass when he see me off school grounds and I am af[r]aid of my life.
Detective Hadley also, among other things, interviewed Respondent, who had been reassigned to North Miami following his December 4, 2002, encounter with Mr. Harris.
During the interview, Respondent falsely claimed that he had not threatened Mr. Harris and that Mr. Harris had "made this allegation up."8
Detective Hadley completed his investigation in or around February of 2003.
The details of his investigation were set forth in a memorandum he authored, dated February 4, 2003, which contained the following "conclusion":
Based on statements gathered during this investigative process, there is sufficient information to support the allegation that on December 4, 2002, Mr. Steven Newbold,
Custodian at Miami Norland Senior High School, told Mr. Leaford Harris, Custodian at Miami Norland Senior High School, he was going to beat his ass whenever he sees him off campus, and made statements implying violence toward staff members.
In addition Mr. Newbold has a prior history and documented pattern of having a violent demeanor.
The allegation of the Violation of School Board Rule 6Gx13-4-1.08, Violence in the Workplace, and 6Gx13-4A-1.21, Responsibilities and Duties, against employee Mr. Steven Newbold, is Substantiated.[9]
Isabel Siblesz, a director in the School Board's Office of Professional Standards, held a Conference-for-the- Record with Respondent on April 14, 2003, to discuss Detective Hadley's "conclusion" in School Police Case No. H-07799 and other issues impacting Respondent's "future employment status" with the School Board.10 On May 13, 2003, Ms. Siblesz prepared a written summary of the conference (in the form of a memorandum to Respondent), which contained the following explanation of the "[a]ction to [b]e [t]aken":
You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Assistant Superintendent and Business Director of ACCESS Center 2, the Principals of Miami Norland Senior High School and Gertrude K. Edelman/Sabal Palm Elementary School.
Upon completion of the conference summary, a legal review by the School Board attorneys will be requested. Receipt of their legal review, with endorsement by the ACCESS Center Assistant Superintendent, will compel formal notification of the recommended action or disciplinary measures to include any of the following: suspension, demotion or dismissal.
All disciplinary action will be consistent with the concept[] and practice of progressive or corrective discipline. The degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record.
By letter dated August 21, 2003, the School Board notified Respondent that, at its meeting the day before, it had taken action to suspend Respondent from his lead custodian position and begun proceedings to dismiss his.
It is this proposed dismissal action that is the subject of the instant case.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto.
"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 schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or
general law." § 1001.32(2), Fla. Stat. (formerly § 230.03(2), Fla. Stat.)
Such authority extends to personnel matters and includes the power to suspend and dismiss employees. See § 1001.42(5), Fla. Stat. (formerly § 230.23(5)(f), Fla. Stat.)("The district school board, acting as a board, shall exercise all powers and perform all duties listed below: PERSONNEL.--. . . provide for the . . . suspension, and dismissal of employees subject to the requirements of chapter 1012"); § 1012.22(1)(f), Fla. Stat. ("The district school board shall suspend, dismiss, or return to annual contract members of the instructional staff and other school employees."); and § 1012.23(1), Fla. Stat. (formerly § 231.001, Fla. Stat.)("Except as otherwise provided by law or the State Constitution, district school boards may adopt rules governing personnel matters, including the assignment of duties and responsibilities for all district employees.").
The "rules governing personnel matters" that have been adopted by the School Board include School Board Rules 6Gx13-4-
1.08 (dealing with "[v]iolence in the [w]orkplace") and 6Gx13- 4A-1.21 (dealing with "[r]esponsibilities and [d]uties").
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." § 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." § 447.209, Fla. Stat.
It, however, must exercise these powers in a manner that is consistent with the requirements of law and the provisions of any collective bargaining agreements into which it has entered with the bargaining unit representatives of its employees. See Chiles v. United Faculty of Florida, 615 So. 2d 671, 672-73 (Fla. 1993)("Once the executive has negotiated and the legislature has accepted and funded an agreement [with its employees' collective bargaining representative], the state and all its organs are bound by that [collective bargaining agreement] under the principles of contract law."); and Hillsborough County Governmental Employees Association v. Hillsborough County Aviation Authority, 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold that a public employer must implement a ratified collective bargaining agreement with respect to wages, hours, or terms or conditions of employment ").
"Under Florida law, a [district] school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is
entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute."11 Sublett v. District School
Board of Sumter County, 617 So. 2d at 377.
The employee must be given written notice of the specific charges prior to the "formal 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)(Jorgenson, J., concurring).
Any adverse action taken against the employee may be based only upon the conduct specifically alleged in the written notice of specific charges. See Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); and Delk v. Department of Professional
Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992).
At the "formal hearing," the burden is on the district school board to prove the allegations contained in the notice.
Unless the collective bargaining agreement covering the bargaining unit of which the employee is a member provides otherwise (which Article XI of the AFSCME Contract does not),
the district school board's proof need only meet the preponderance of the evidence standard.12 See McNeill v.
Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996)("The School Board bears the burden of proving, by a preponderance of the evidence, each element of the charged offense which may warrant dismissal."); Sublett v. Sumter County
School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995)("We agree with the hearing officer that for the School Board to demonstrate just cause for termination, it must prove by a preponderance of the evidence, as required by law, that the allegations of sexual misconduct were true . . . ."); Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990)("We . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in dismissal proceedings was a preponderance of the evidence. . . . The 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)("We 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."); and § 120.57(1)(j), Fla. Stat. ("Findings of fact
shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, ").
Where the employee is an "educational support employee" who has successfully completed his or her probationary period and the adverse action sought to be taken against the employee is termination, the district school board must act in accordance with the provisions of Section 1012.40, Florida Statutes (formerly Section 231.3605, Florida Statutes), which provides as follows:
(1) As used in this section:
"Educational support employee" means any person employed by a district school system who is employed as a teacher assistant, an education paraprofessional, a member of the transportation department, a member of the operations department, a member of the maintenance department, a member of food service, a secretary, or a clerical employee, 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 district school board pursuant to s. 1012.39. 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.
(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 district 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 district school superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist, or reduces the number of employees on a districtwide basis for financial reasons.
In the event a district school superintendent seeks termination of an employee, the district 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 district school board rule in the event there is no collective bargaining agreement.
Respondent is an "educational support employee," within the meaning of Section 1012.40, Florida Statutes, who is covered by a collective bargaining agreement (the AFSCME Contract).
Pursuant to Section 1012.40, Florida Statutes, Respondent's employment may be terminated only "for reasons stated in the collective bargaining agreement."
An examination of the provisions of the AFSCME Contract reveals that it allows the School Board, among other
things, to take disciplinary action, including discharge, against a bargaining unit member where the bargaining unit member is guilty of "deficient performance," "non-performance of job responsibilities," or "violat[ion of] any rule, regulation or policy,"13 provided the disciplinary action is "reasonably related to the seriousness of the offense and the employee's record."
The School Board may not unreasonably delay in taking disciplinary action against a wayward employee. Pursuant to Section 1 of Article XI of the AFSCME Contract, the employee must be notified of his or her transgression "as soon as possible."
Furthermore, a covered bargaining unit member may not be disciplined twice for the same offense. See State,
Department of Transportation v. State, Career Service Commission, 366 So. 2d 473, 474 (Fla. 1st DCA 1979)("Although the Commission may have inartfully used the term 'double jeopardy,' its reversal was based on sound reasoning. D.O.T. not only lacked authority to discipline Woodard twice for the same offense but its action was fundamentally unfair. The same offense may be a proper ground for either a suspension or a dismissal but the statute and rules contemplate that these are mutually exclusive disciplinary alternatives. Otherwise, an agency could repeatedly punish an employee and the employee
would never be secure in his employment. [H]aving
concluded its investigation and reached its decision as to the disciplinary action it will administer to an employee, the disciplinary action administered may not be increased at a later date nor may an agency discipline an employee twice for the same offense."). The School Board, however, in determining what disciplinary action it should take against a bargaining unit member for having committed a previously unpunished offense, must, in accordance with Section 1 of Article XI of the AFSCME Contract, take into consideration the "employee's record" of prior offenses for which the bargaining unit member was previously disciplined. Cf. Tillman v. State, 609 So. 2d 1295, 1298 (Fla. 1992)(habitual offender statute which "allow[ed] enhanced penalties for those defendants who me[t] objective guidelines indicating recidivism" not violative of constitutional protection against double jeopardy); Castaldi v. U.S., 783 F.2d 119, 123 n.3 (8th Cir. 1986)("Petitioner also contends that the District Court's consideration of his prior criminal record in sentencing him violated several of his constitutional rights (e.g., Fifth Amendment double jeopardy and Fourteenth Amendment equal protection and due process) since Petitioner has fully completed the sentences imposed on those prior convictions. We dismiss this contention as totally without merit. In sentencing, the district court may conduct a
broad inquiry into the defendant's background and generally is unlimited as to the kind and source of information it may consider."); and Ross v. State, 413 N.E.2d 252, 258 (Ind.
1980)("It is clear that the appellant was not given double punishment for two specific felonies, but that his history of criminal activity, which dated from 1968, was but one factor the trial court considered in sentencing, as is proper under the statute. The habitual criminal proceeding and sentencing does not violate the prohibition against double jeopardy.").
The Amended Notice of Specific Charges served on Respondent in the instant case alleges that Respondent's termination is warranted because of his "behavior towards co- workers, supervisors and administrators, including threats of violence and intimidating demeanor [in] violat[ion] [of] School Board Rule 6Gx13-4-1.08 which strictly prohibits violence in the workplace" (Count I); his violation of the School Board's "Responsibilities and Duties" rule, School Board Rule 6Gx13-4A-
1.21 (Count II); and his insubordination (Count III).
The preponderance of the record evidence establishes that, as charged, Respondent violated School Board Rules 6Gx13- 4-1.08 and 6Gx13-4A-1.21 and engaged in insubordination when, on December 4, 2002, in contravention of reasonable supervisory instructions he had previously been given, he threatened his immediate supervisor, Mr. Harris, with physical violence,14 as
alleged in numbered paragraph 13 of the Amended Notice of Specific Charges.15
This heretofore unpunished act of misconduct, standing alone, constitutes "just cause" to take disciplinary action against Respondent.
Taking into consideration (as Section 1 of Article XI of the AFSCME Contract mandates) the serious nature of this act of misconduct,16 along with Respondent's less than stellar employment "record"17 with the School Board, it is the recommendation of the undersigned that the School Board exercise its authority to terminate Respondent's employment for having engaged in this misconduct.18 While termination is the "extreme disciplinary penalty" (as is observed in Section 1 of Article XI of the AFSCME Contract), it is not, in the instant case, an excessive "disciplinary penalty" given the seriousness of Respondent's misconduct, his blemished employment record,19 and the apparent absence of any mitigating circumstances justifying a less severe punishment.20
RECOMMENDATION
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 terminating his
employment with the School Board pursuant Article XI of the AFSCME Contract.
DONE AND ENTERED this 13th day of August, 2004, in Tallahassee, Leon County, Florida.
S
STUART M. LERNER
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 13th day of August, 2004.
ENDNOTES
1 These rules and regulations are referred to in Article XI of the AFSCME Contract. Pursuant to Article XI, violation of these rules and regulations can lead to disciplinary action.
2 Standing alone, an arrest, whether "job related" or not, does not provide the School Board with "just cause" to take disciplinary action against a bargaining unit member under the AFSCME Contract. See Clark v. School Board of Lake County, 596 So. 2d 735, 739 (Fla. 5th DCA 1992)("The charge of abuse is certainly not evidence of the commission of the act in our system of justice"); Baker v. School Board of Marion County, 450 So.2d 1194, 1195 (Fla. 5th DCA 1984)("The School Board argues that the record establishes that Baker's effectiveness as a teacher has been impaired at the elementary school where he taught and that this alone justifies his dismissal. While it is true that the school principal testified as to the impairment of Baker's teaching effectiveness, we must reject this argument, otherwise whenever a teacher is accused of a crime and is
subsequently exonerated with no evidence being presented to tie the teacher to the crime, the school board could, nevertheless, dismiss the teacher because the attendant publicity has impaired the teacher's effectiveness. Such a rule would be improper."); Cook County Police and Corrections Merit Board v. Illinois Fair Employment Practices Commission, 376 N.E.2d 11, 14 (Ill. App.
1978)("There is an important distinction between an arrest and a conviction. An arrest record alone does not indicate guilt or disrespect for the law."); and Costanzo v. New Jersey Racing Commission, 313 A.2d 618, 621 (N.J. Super. Ct. App. Div.
1974)("It has long been settled that arrest and indictment of a person, without conviction, is not an acceptable index of character. This, on the theory that an accusation of misconduct is 'quite consistent with innocence, and * * * is merely * * * somebody's hearsay assertion as to the * * * guilt' of the person accused . . . . Consequently, we conclude that the arrest record of the appellant could not be properly considered by the Commission as a factor in its assessment of the moral character of the appellant as it affected the 'best interest of racing in this State.'").
3 The only evidence that Respondent committed this offense is hearsay evidence (contained in police reports) that the School Board has not been established would be admissible over objection in a civil proceeding. Such evidence is insufficient to support a finding of guilt in this administrative proceeding. See § 120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.").
4 A conscious decision was made at the time not to take any disciplinary action against Respondent for what Sergeant Quigley's investigation revealed was Respondent's post-hire "criminal history." For the School Board to first take disciplinary action now against Respondent based on this information Sergeant Quigley uncovered in 1999 would be contrary to Section 1 of Article XI of the AFSCME Contract, which prohibits unreasonable delays in disciplining bargaining unit members.
5 Mr. Gutierrez requested the two police officers to attend the conference because he was "concerned for [his] safety" based upon Mr. Newbold's previous dealings with him.
6 At no time did Mr. Harris feel that Respondent, who was also a lead custodian, "was trying to take over [Mr. Harris'] job."
7 Respondent did not, nor did he attempt to, physically attack Mr. Harris during this verbal exchange or at any time thereafter, either on or off campus (although at the time Respondent threatened Mr. Harris with violence, Mr. Harris had no apparent reason to believe that Respondent would not carry out his threat).
8 Given Mr. Harris' apparent candor, sincerity, and honesty and his lack of interest in the outcome of this case, the undersigned has credited Mr. Harris' testimony as to what happened during his run-in with Respondent outside of Ms. Hudson's office on December 4, 2002, over Respondent's self- serving testimony to the contrary. See Martuccio v. Department of Professional Regulation, Board of Optometry, 622 So. 2d 607, 609 (Fla. 1st DCA 1993)(although self-serving nature of testimony given by "[p]ersons having a pecuniary or proprietary interest in the outcome of litigation" does not render testimony inadmissible, interest of person in outcome of case may be considered in evaluating credibility of testimony).
9 Detective Hadley, in his investigation, did not consider whether Respondent's conduct also constituted insubordination. Only if Detective Hadley had done so and found "no probable cause to proceed further" against Respondent on a charge of insubordination would the School Board be barred, by Section 7E of Article XI of the AFSCME Contract, from pursuing such a charge.
10 Among these other issues was Respondent's "noncompliance with site directives regarding professional responsibilities."
11 "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).
12 Where the district school board, through the collective bargaining process, has agreed to bear a more demanding standard, it must honor, and act in accordance with, its agreement. See Palm Beach County School Board v. Auerbach, Case No. 96-3683, 1997 WL 1052595 *5 (Fla. DOAH February 20, 1997)(Recommended Order)("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. . . . However, in this case, the district must comply with the terms of the collective bargaining agreement, which, as found in paragraph 27, above, requires the more stringent standard of proof: clear and convincing evidence.").
13 This conduct for which a bargaining unit member may be disciplined under the AFSCME Contract includes insubordination, which "may be as simple as an act which constitutes a violation of a previously given [reasonable] order to refrain from identified conduct." School Board of Seminole County v. Clark, Case No. 99-1159, 1999 WL 1486530 *3 (Fla. DOAH August 3, 1999)(Recommended Order), citing Johnson v. School Board of Dade County, Fla., 578 So. 2d 387 (Fla. 3d DCA 1991)("We have examined those parts of the record referred to by the School Board, and find competent and substantial evidence that the teacher had been instructed, following previous incidents of improper physical contact, to refrain from touching or publicly demeaning students, even as a disciplinary measure. The specific incident for which Johnson was charged not only supported the misconduct charge, but was also a violation of direct orders previously given to refrain from such conduct. In light of our agreement with the School Board that the facts as found by the hearing examiner will support the gross insubordination charge as a matter of law, the Final Order appealed from must stand."); see also Seminole County School Board v. Robinson, Case No. 02-0075, 2002 WL 1592329 *4 (Fla. DOAH May 24, 2002)(Recommended Order)("Insubordination is a lower level of misconduct than gross insubordination and need not satisfy the elements of gross insubordination . . . .
However, even gross insubordination may arise from a single act which constitutes a violation of a previously given order to refrain from identified conduct.").
14 The undersigned disagrees with the assertion made by Respondent in his Proposed Recommended Order that to find him guilty of and punish him for insubordination would be in violation of his due process rights as well as Section 6A2 of Article XI of the AFSCME Contract; however, even if the undersigned did not take into consideration the insubordination charge against Respondent, the undersigned's recommendation as to the punishment Respondent should receive for threatening
Mr. Harris on December 4, 2002, would be the same.
15 The School Board also alleged, in paragraph 14 of the Amended Notice of Specific Charges, that, "[o]n the same date
[December 4, 2002], [Respondent] telephoned Mr. Henry Barrow, another custodian at Miami Norland Senior High School, and stated that he knew where Ms. Hudson lived and threatened that he 'would get his boys to take care of her.'" This allegation, however, the School Board failed to prove.
Another allegation made in the Amended Notice of Specific Charges not shown to have merit is that "misdemeanor and felony charges [that have been lodged against Respondent] do not reflect credit upon himself or the community and therefore [for this additional reason, he is in] violat[ion] [of] School Board Rule 6Gx13-4A-1.21." (This allegation is found in paragraph 27 of the Amended Notice of Specific Charges.) Even if the School Board had submitted proof sufficient to establish that Respondent was convicted of these "misdemeanor and felony charges," absent adequate competent substantial evidence to find that these convictions were the result of guilty pleas entered by Respondent, the evidentiary record would still be insufficient to establish that Respondent actually engaged in the criminal conduct upon which the convictions were based. See Boshnack v. World Wide Rent-A-Car, 195 So. 2d 216, 218 (Fla.
1967)("[A] judgment of conviction in a criminal prosecution cannot be given in evidence in a civil action to establish the truth of the facts on which it is rendered, but . . . a judgment entered in a criminal prosecution on a plea of guilty may be introduced in a civil action to establish an admission against interest"); Kelly v. Department of Health and Rehabilitative Services, 610 So. 2d 1375, 1377 (Fla. 2d DCA 1992)("As a general rule, a judgment of conviction, in and of itself, is not conclusive proof of the facts upon which it is based. An exception to that rule exists, however, where a judgment of conviction is based upon a guilty plea. In that instance, a defendant is estopped from denying his guilt of the subject offense in a subsequent civil suit. That exception operates even in the absence of an adjudication of guilt. A no contest plea, on the other hand, represents only an accused's unwillingness to contest charges against him, and does not constitute an admission of guilt and may not be used as direct evidence of guilt in a civil suit or in an administrative proceeding.")(citations omitted); Nunez v. Gonzalez, 456 So. 2d 1336, 1338 (Fla. 2d DCA 1984)("It is well settled that a judgment of conviction in a criminal prosecution cannot be introduced into evidence in a civil action to establish the truth of the facts upon which it was rendered. However, a
judgment entered in a criminal prosecution on a plea of guilty may be introduced in a civil action to establish an admission against interest."). Not having proven that Respondent in fact committed the "misdemeanor[s] and felon[ies]" referenced in paragraph 27 of the Amended Notice of Specific Charges, the School Board cannot find that, based upon these "misdemeanor[s] and felon[ies]," Respondent violated School Board Rule 6Gx13-4A-
1.21 (which proscribes employee conduct of an "unseemly" nature not "reflect[ing] credit upon [the employee] and the school system" and does not address an employee's status within the criminal justice system). Compare with Walton v. Turlington,
444 So. 2d 1082, 1084 (Fla. 1st DCA 1984)("[W]e agree that it is appellant's conduct, not the criminal charge of conviction nor the records thereof, which forms the basis of the administrative complaint."); and Rubin v. Sanford, 168 So. 2d 774, 776 (Fla. 3d DCA 1964)(Carroll, J., concurring)("The difficulty encountered by the city resulted from the fact that removal of the employee was not sought on a direct charge that he had been convicted of the crime involving moral turpitude. Had the charge been so laid, it could have been proved by introducing a certified copy of the judgment of the criminal court disclosing such conviction. Neither of the charges before the board alleged the employee had been convicted or found guilty of a crime involving turpitude. The first of the two charges was that he had been guilty of conduct unbecoming an employee. That was a separate ground from the prescribed ground of conviction of a crime involving turpitude. The fact that it was supported by a 'specification' dealing with the conviction did not alter the nature of the charge, which was one alleging misconduct. The personnel rules did not provide that the charge of 'conduct unbecoming an employee of the city' could be proved by showing conviction of a crime. Therefore, when the city charged misconduct, it was obliged to present evidence to establish the misconduct; . . . .")(citations omitted). Moreover, to the extent that the School Board is seeking to now punish Respondent based merely upon what Sergeant Quigley's 1999 investigation revealed was Respondent's post-hire "criminal history" as of the date of the investigation, it is foreclosed from doing so by Section 1 of Article XI of the AFSCME Contract, which protects bargaining unit members against the School Board delaying unreasonably in meting out discipline.
The further allegation is made in paragraph 27 of the Amended Notice of Specific Charges that Respondent violated School Board Rule 6Gx13-4A-1.21 by "falsif[ying] his employment application." Respondent, however, has already been punished for having
committed this rule violation and may not receive any additional punishment for such wrongdoing.
16 The School Board, in School Board Rule 6Gx13-4-1.08, has made clear its intention to treat a threat made against a co-worker as a serious breach of acceptable employee conduct that "will not be tolerated." To react to threatening workplace behavior in such a manner is entirely reasonable, particularly where the threatened co-worker is a supervisor. Cf. Bamawo v. Department of Corrections, 785 So. 2d 610, 611 (Fla. 3d DCA 2001)("no abuse of discretion in PERC's decision to deny mitigation" where "hearing officer found that the seriousness of the conduct [threatening supervisors] outweighed the fact that the employee had a seven-year record of employment without prior discipline"); Seminole County Board of County Commissioners v. Long, 422 So. 2d 938, 940 (Fla. 5th DCA 1982)("The threatening telephone call could constitute proper grounds for discharge."); N.L.R.B. v. R. C. Can Co., 340 F.2d 433, 436 (5th Cir. 1965)("[W]e find that there is not substantial evidence warranting the Board's finding that Scott's threat 'to kick hell out of' Smith [the plant manager] was not such 'aggravated and gross misconduct' as to 'render him unfit for further employment.'"); and Hanna v. Brown, 1997 WL 305317 *3 (N.D. Ill. 1997)("Insubordination can cause serious conflicts in the workplace. Threatening a supervisor undermines the supervisor's ability to do his job. Allowing an employee to get away with such behavior would have an adverse impact on the other employees as well as on the general performance of the entity. The Seventh Circuit has consistently held that insubordination or threatening a supervisor are valid reasons for terminating an employee.").
17 In evaluating Respondent's employment "record," the undersigned has kept in mind the mandate of Section 1A of Article XI of the AFSCME Contract that "[a] Conference-for-the- Record shall not be considered disciplinary."
18 In his Proposed Recommended Order, Respondent points out that there have been other School Board employees "charged with violence in the workplace, but they were not terminated" and instead received less severe punishment (in the form of suspensions). The record evidence, however, does not reveal that these other School Board employees may be considered to have been, at the time of their punishment, similarly situated to Respondent in all material respects, including their employment "records." Considering the punishment they received,
therefore, is not helpful in determining the appropriate punishment in the instant case. Cf. Duncan v. Moore, 754 So. 2d 708, 712 (Fla. 2000)("[I]nmates subject to Conditional Release are those which, due to their prior criminal history, have been deemed by the Legislature to need additional supervision after release from prison. Accordingly, they are not similarly situated to inmates who do not have similar criminal histories and are not subject to Conditional Release."); and Guerrero v.
Connecticut Department of Children and Families, 315 F. Supp. 2d 202, 212 (D. Conn. 2004)("The only evidence that Guerrero cites to is the alleged 'uneven application of DCF's disciplinary policy.' The court has previously concluded, however, that there was no such uneven application of the disciplinary policy because Guerrero was not similarly situated to the comparators.").
19 In making his recommendation, the undersigned has not taken into consideration any evidence concerning Respondent's post- hire criminal history record. The only "record" the undersigned has considered is Respondent's record as an employee of the School Board.
20 Respondent contends in his Proposed Recommended Order that, in taking action to terminate him, the School Board has failed to follow the "progressive discipline steps" set forth in Section 1A of Article XI of the AFSCME Contract inasmuch as he "has never [before] been disciplined for violence in the workplace." The argument is unpersuasive. A reading of Section 1A of Article XI of the AFSCME Contract reveals that it does not require the School Board, when taking disciplinary action against a bargaining unit member, to follow the particular "progressive discipline steps" therein enumerated. See Palm Beach County Canvassing Board v. Harris, 772 So. 2d 1273, 1287 (Fla. 2000)("Whereas section 102.11 is mandatory (i.e., the Department 'shall' ignore late returns), section 102.112 is permissive (i.e., the Department 'may' ignore late returns, or the Department 'may' certify late returns and fine tardy Board members."); Dooley v. State, 789 So. 2d 1082, 1084 (Fla. 1st DCA 2001)("[R]ule 3.170(1) is clearly permissive in that it states a defendant 'may file a motion to withdraw.'"); State v. Thomas,
528 So. 2d 1274, 1275 (Fla. 3d DCA 1988)("As we perceive it, the State's argument is that 'should' is the equivalent of 'shall' and that 'shall' is mandatory. While we acknowledge that 'should' retains its arcane, schoolmarm meaning as a past tense of 'shall,' its modern usage is as the weaker companion to the obligatory 'ought.' Thus, it is said that '[o]ught should be
reserved for expressions of necessity, duty, or obligation; should, the weaker word, expresses mere appropriateness, suitability or fittingness.'"); Massey Builders Supply Corp. v. Colgan, 553 S.E. 2d 146, 150 (Va. App. 2001)("The word 'shall' is primarily mandatory, whereas the word 'should' ordinarily implies no more than expediency and is directory only."); and Magnuson v. Grand Forks County, 97 N.W.2d 622, 624 (N.D.
1959)("It does not seem that the word 'should' was used inadvertently. Other instructions on the back of the order contain the more compulsive word 'must,' as for example 'the original of this order must be signed by the recipient or person acting in his behalf and by the vendor.' We construe the word 'should' as used here to be persuasive rather than mandatory."). The School Board, under this provision of the AFSCME Contract, may terminate a bargaining unit member for a first time rule violation, provided that (as in the instant case) such action is consistent with "the seriousness of the offense and the employee's record." (It should further be noted that the conduct warranting the taking of disciplinary action against Respondent constituted a violation, not only of the School Board's "violence in the workplace" rule, but also of its "Responsibilities and Duties" rule, School Board Rule 6Gx13-4A- 1.21, a rule that Respondent, prior to committing this rule violation, had been disciplined for violating and warned not to violate again.)
COPIES FURNISHED:
Melinda L. McNichols, Esquire School Board of Miami-Dade County 1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
Manny Anon, Jr., Esquire
99 Northwest 183rd Street, Suite 224 North Miami, Florida 33034
Dr. Rudolph E. Crew, Superintendent School Board of Miami-Dade County 1450 Northeast 2nd Avenue
Miami, Florida 33132
Daniel J. Woodring, General Counsel Department of Education
1244 Turlington Building
325 West Gaines Street 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.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 13, 2004 | Recommended Order | The termination of a custodial worker who threatened his supervisor with violence is warranted. |
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