vs.
MICHAEL P. BEGENY,
Respondent.
) Case No. 05-1305
Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on May 20, 2005, in Largo, Florida, on behalf of the Division of Administrative Hearings (DOAH).
For Petitioner: Thomas L. Wittmer, Esquire
For Respondent: Michael P. Begeny, pro se
The issue in this proceeding is whether Petitioner should dismiss Respondent as an educational support employee for alleged inappropriate interactions with colleagues, including
physical and verbal altercations, failure to correct performance deficiencies, and insubordination.
On December 14, 2004, Petitioner suspended Respondent without pay from his position of employment with the Pinellas County School Board (School Board). Respondent timely requested an administrative hearing.
At the hearing, Petitioner presented the testimony of five witnesses and submitted 63 exhibits for admission into evidence. Respondent presented the testimony of two witnesses and submitted no exhibits for admission into evidence.
The identity of the witnesses and exhibits, and any attendant rulings, are set forth in the one-volume Transcript of the hearing filed with DOAH on June 27, 2005. Petitioner timely filed its Proposed Recommended Order (PRO) on June 24, 2005.
Respondent did not file a PRO.
Petitioner employed Respondent as a plant operator from August 17, 1998, until the date of suspension without pay on December 14, 2004. A plant operator is a non-instructional employee responsible for housekeeping and janitorial tasks at the school to which the operator is assigned.
From sometime shortly after Respondent began his employment with Petitioner in 1998 through November 2, 2004,
Respondent engaged in repeated acts of inappropriate interactions with colleagues, including physical and verbal altercations, failure to correct performance deficiencies, and insubordination. Respondent has a long history of discipline, and efforts to correct his deficiencies have been unsuccessful.
Petitioner first assigned Respondent to Forest Lake Elementary School (Forest Lake) and, sometime in November 2004, transferred Respondent to the Palm Harbor University High School (Palm Harbor). The attitude and job performance of Respondent at Forest Lake were inadequate. The principal at Forest Lake issued a letter of reprimand to Respondent in November 2004, and transferred Respondent to Palm Harbor later in the same month.
At Palm Harbor, Respondent worked the "evening shift" from 2:30 p.m. until 11:00 p.m. The work performance was satisfactory, and Respondent earned a satisfactory annual appraisal on January 20, 1999, for the 1998-1999 school year.
The work performance of Respondent declined through June 1999. Respondent lost productivity, lacked teamwork, complained, and cursed.
The night foreman discussed the decline in performance with Respondent and, in an attempt to assist improvement, changed the area of the school for which Respondent was responsible. The night foreman noted in the personnel record that Respondent had lost productivity, lacked teamwork,
complained, and cursed. The annual appraisal issued in
June 2000, for the 1999-2000 school year indicated a rating of "needs improvement" in quality of work, quantity of work, and attitude.
During the 2000-2001 school year, Respondent filed a complaint against the night foreman and unsuccessfully attempted to enlist other plant operators to file similar complaints. Petitioner investigated the complaint, found insufficient evidence to substantiate the complaint, and Respondent did not pursue the complaint.
The job performance of Respondent continued to decline.
Respondent failed to adequately clean the gym lobby, sometimes left work early, and ignored directions for improvement. The annual appraisal issued in January 2001, for the 2001-2002 school year, rated Respondent as "unsatisfactory" in the quality of work, quantity work, and attitude. The appraisal further indicated that Respondent "needs to improve" in his relations with others, initiative, and judgment.
Respondent did not improve his job performance. A teacher complained to the administration about the condition of her classroom, and another plant operator reported that Respondent described the night crew as a "bunch of pussies." Other plant operators requested that they not be assigned to a
crew with Respondent. Between February and May 2001, the night foreman counseled Respondent on a number of occasions.
Sometime in August 2001, the Head Plant Operator (HPO) reassigned Respondent from Buildings 6 and 8 to Buildings 3 and
11 in an effort to assist Respondent in the improvement of his job performance. Respondent refused alternatives for reassignment to portable classrooms at Palm Harbor or reassignment to a nearby middle school.
On September 13, 2001, Respondent smoked on campus during his shift. Respondent also watched television during his shift.
Deficiencies in performance continued through September of that year. On October 8, 2001, the principal counseled Respondent about smoking on campus and poor job performance and issued a letter of caution to Respondent. In relevant part, the letter required Respondent to improve his job performance and to refrain from smoking on campus.
The annual appraisal issued in January 2002, for the 2002-2003 school year, rated Respondent as "needs to improve" in punctuality. The appraisal rated Respondent as "unsatisfactory" in quality of work, quantity work, relations with others, initiative, judgment, and attitude.
The annual appraisal issued in January 2003, for the 2003-2004 school year, rated Respondent as "needs to improve" in
quality of work, quantity of work, relations with others, initiative, and judgment. Several areas in job performance showed improvement or were "getting better." The appraisal did not rate Respondent as "unsatisfactory" in any category.
In May 2003, Respondent was watching television during work, not staying on task, not adequately cleaning the areas of his responsibility, and not properly stocking restrooms. Respondent exhibited hostility and disdain in response to efforts to assist him in improving his deficiencies. On May 19, 2003, the HPO counseled Respondent and notified Respondent that it was the last verbal warning for Respondent to improve his job performance.
On May 27, 2003, the assistant principal at Palm Harbor conducted a meeting with Respondent, the night foreman, and the HPO. The assistant principal created a Success Plan that included guidance for Respondent to improve his job performance. Respondent signed the Success Plan.
In July 2003, Respondent was absent from his work on one occasion for several hours. During the month, Respondent cleaned little and took excessive breaks.
By July 16, 2003, Respondent had made no progress toward the goals outlined in the Success Plan. The assistant principal again met Respondent and notified Respondent that excessive breaks and absences from his assigned work areas
constituted insubordination and misconduct. The assistant principal directed Respondent not to make threatening comments to the night foreman and issued a letter of reprimand that Respondent signed. Respondent continued to work inadequately and to take excessive breaks.
On September 4, 2003, Respondent angrily confronted a plant operator who had criticized Respondent for leaving a building door open. Respondent uttered profanities, took several steps toward the co-worker, and made physical contact in a threatening manner. Respondent subsequently returned to his work area.
On September 4 and 11, 2003, Respondent failed to empty the trash in a classroom and failed to vacuum the classroom for several days. The condition attracted roaches, and the classroom teacher complained to school administrators. Respondent persisted in failing to add soap to restrooms that Respondent cleaned.
In October 2003, Respondent engaged in another angry exchange with a second plant operator. Respondent cursed at his peer and accused the peer of unfair treatment.
On October 23, 2003, the assistant principal again met with Respondent, the night foreman, and the HPO to review the progress of Respondent toward the goals in the Success Plan. The assistant principal notified Respondent that the incidents
involving profanity, defiance, and insubordination were unacceptable violations of the Success Plan. The assistant principal also discussed other instances of failure to complete tasks on time or not at all.
On November 3, 2003, the assistant principal issued a letter of reprimand to Respondent. Respondent refused to sign the letter.
On January 7, 2004, the assistant principal again met with Respondent, the night foreman, and the HPO. They focused on three violations of the Success Plan involving Respondent's interactions with others, insubordination, and failure to perform daily tasks. The assistant principal issued another letter of reprimand to Respondent that Respondent signed.
On January 8, 2004, Respondent slapped the hand of second plant operator during a confrontation between the two. During the same month, Respondent did not adequately clean and stock restrooms. Respondent also failed to use plastic bags for trash cans in one classroom.
The annual appraisal issued in January 2004, for the 2004-2005 school year, rated Respondent as "needs to improve" in areas of job knowledge and punctuality. The appraisal rated Respondent as "unsatisfactory" in the areas of quality of work, quantity of work, relations with others, initiative, judgment, and attitude.
Between February 9 and 12, 2004, Respondent failed to clean a men's restroom after repeated instructions to do so by the HPO. Respondent eventually cleaned the restroom, but did so inadequately.
In March 2004, Respondent repeatedly failed to lock a classroom he cleaned. In April 2004, Respondent failed to clean tables in another classroom. Respondent continued to clean other areas of responsibility in a deficient manner.
In March 2004, Petitioner referred the matter to its Office of Professional Standards (OPS). The OPS administrator offered Respondent a three-day suspension without pay, and Respondent accepted the offer. Respondent served the suspension from April 14 through April 16, 2004.
During Respondent's work shift on April 30, 2004, Respondent took breaks early, sat in a plant operations closet, and watched television. During Respondent's work shift on
May 4, 2004, Respondent began lunch 35 minutes before the scheduled lunchtime in a dark room and watched television. The night foreman instructed Respondent to work until the normal lunch break. Approximately 20 minutes after the instruction, Respondent was viewing television and not working. Later that evening, Respondent sat in a closet doing nothing.
By May 5, 2004, Respondent continued to perform unsatisfactorily. The unsatisfactory job performance continued through May 18, 2004.
On May 19, 2004, the assistant principal again met with Respondent, the night foreman, and the HPO. The level of performance by Respondent continued to be unsatisfactory. Respondent refused to vacuum a hallway carpet or to sweep a floor in his area and stated that he had "other work to do." Respondent did not complete assigned tasks. Respondent continued to ignore instructions not to store a vacuum cleaner in a particular room. The assistant principal issued another letter of reprimand to Respondent.
On September 8, 2004, Respondent failed to vacuum eight of 17 portable classrooms in a timely manner. Respondent failed to assist another worker in an assigned task.
On October 21, 2004, Respondent angrily confronted a third plant operator. On November 2, 2004, Respondent called a fourth plant operator a liar and made physical contact with the worker. It required three attempts by the night foreman before he could separate the two workers.
The night foreman reported the incident to the HPO. The HPO directed the foreman to instruct Respondent to go home. Respondent called the foreman a "lying SOB," and Respondent declared that he would "get even."
Petitioner placed Respondent on administrative leave with pay during an investigation of the incident. By letter dated November 19, 2004, the Superintendent of the Pinellas County School District (Superintendent) suspended Respondent with pay from November 11 until the next School Board meeting on December 14, 2004. At the meeting, Petitioner adopted the recommendation of dismissal.
Petitioner has adopted as a rule "Policy 8:25 Disciplinary Guidelines for Employees" (Policy 8:25) in accordance with Sections 1012.22 and 1012.23, Florida Statutes (2004). The rule provides relevant standards for employee discipline.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and the subject matter. § 120.57(1), Fla. Stat. (2004). The parties received adequate notice of the administrative hearing.
Respondent is an "educational support employee."
§ 1012.40, Fla. Stat. (2004). The Superintendent has authority to recommend dismissal of Respondent, and Petitioner has authority to dismiss Respondent from his employment.
§§ 1012.27(5) and 1012.22(1)(f), Fla. Stat. (2004).
Petitioner has the burden of proof in this case.
Petitioner must show by a preponderance of the evidence that Respondent committed the offenses with which he is charged and
the reasonableness of any proposed penalty. MacNeill v. Pinellas County School Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996). Petitioner satisfied its burden of proof by more than a preponderance of evidence.
Petitioner showed that Respondent engaged in inappropriate interactions, including physical and verbal altercations; failed to correct performance deficiencies; and committed insubordination. Policy 8.25(1)(p), (t), and (u). Petitioner also showed that the proposed penalty of dismissal is reasonable.
During six years of employment, Respondent has engaged in repeated violations for which Respondent has received repeated discipline. The prior discipline includes verbal and written cautions, a Success Plan, at least four written reprimands, and one suspension without pay.
The historical effort by Petitioner to assist Respondent in the improvement of his job performance has been Sisyphean. For six years, Petitioner has repeatedly counseled Respondent, reassigned Respondent, transferred Respondent, offered Respondent a choice of responsibilities, and otherwise assisted Respondent in numerous ways. Respondent consistently failed to improve the areas of deficiency.
Petitioner has exhausted all other reasonable alternatives under its progressive discipline policy.
Respondent has left Petitioner with no alternative but to dismiss Respondent from his employment.
RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the alleged violations and dismissing Respondent from his employment.
DONE AND ENTERED this 20th day of July, 2005, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2005.
Michael P. Begeny 62046 Polly Drive
Thomas L. Wittmer, Esquire Pinellas County School Board
Dr. Clayton M. Wilcox, Superintendent Pinellas County School Board
Daniel J. Woodring, General Counsel Department of Education
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
