vs.
KIN F. CHAN,
Respondent.
) Case No. 05-3370
Pursuant to notice, a formal hearing was conducted in this case on December 6 and 7, 2005, in Fort Myers, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
For Respondent: Robert J. Coleman, Esquire
The issue is whether Petitioner may terminate Respondent's employment as a custodian based upon the conduct alleged in the Petition for Termination of Employment.
On August 23, 2005, Petitioner, Lee County School Board (the "School Board"), served a Petition for Termination of Employment (the "Petition") on Respondent, setting forth the allegations justifying the termination of Respondent's employment as a custodian. On August 17, 2005, prior to service, counsel for Respondent sent a letter to counsel for the School Board to contest the charges and request a hearing. On September 19, 2005, the School Board referred the matter to the Division of Administrative Hearings ("DOAH") for the assignment of an administrative law judge and the conduct of a formal hearing.
This matter was scheduled for final hearing on November 30 and December 1, 2005. On November 18, 2005, the parties filed a joint motion for continuance, due to a schedule conflict involving counsel for both parties. The motion was granted by Order dated November 23, 2005, and the matter was re-scheduled for hearing on December 6 and 7, 2005.
At the hearing, the School Board presented the testimony of William Lane, principal of Gulf Middle School; James Allison, building supervisor at Gulf Middle School during the period relevant to this proceeding; and Armando de Leon, the School Board's director of plant management during the period relevant to this proceeding. The School Board's Exhibits 1 through 12
were admitted into evidence. Respondent testified on his own behalf and presented the testimony of Octavio Navarro, a custodian at Gulf Middle School, as well as former head custodian at the same school. Respondent's Exhibits 1 through 6 were admitted into evidence.
A Transcript of the hearing was filed at DOAH on January 9, 2006. On January 12, 2006, the School Board filed an unopposed motion for extension of the time for filing proposed recommended orders, which was granted by Order dated January 17, 2006. In compliance with the Order Granting Extension, both parties filed their Proposed Recommended Orders on February 20, 2006.
Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made:
The School Board is the governing body of the local school district in and for Lee County, Florida.
Since September 4, 2001, Respondent has been employed by the School Board as a custodian, working at Gulf Middle School in Cape Coral. Respondent's employment with the School Board is governed by a collective bargaining agreement between the Support Personnel Association of Lee County and the School Board (the "SPALC Agreement").
Since commencing full-time employment with the School Board in September 2001, Respondent received one probationary and four annual performance assessments. Until his fourth and final annual performance assessment for the 2004-2005 school year, Respondent always scored an "effective level of performance" in all areas targeted for assessment. Gulf Middle School principal, William Lane, recommended that Respondent's contract be renewed for each of the school years 2002-2003, 2003-2004, and 2004-2005.
In Respondent's 90-day probationary assessment during the 2001-2002 school year, building supervisor Robert VanDeventer wrote that "Mr. Chan has proven to be a team player. He never questions any job given to him and does his very best to complete all assignments in a timely and professional [manner]." Mr. Lane signed this assessment, indicating his concurrence with Mr. VanDeventer's assessment.
Respondent's annual assessment for the full 2001-2002 school year contains the following comment from Mr. VanDeventer: "Kin has proven to be a very good addition to our staff and does extremely well on all jobs assigned to him." Mr. Lane concurred with this assessment.
In the 2002-2003 school year, James Allison replaced Robert VanDeventer as building supervisor and completed the annual performance assessment for Respondent. Mr. Allison
scored Respondent as performing at an "effective level" in each of the 28 areas targeted for assessment and wrote that Respondent "work[s] with others very well, knows how to run all equipment, very dependable." Mr. Lane signed this assessment to indicate his concurrence.
In Respondent's annual performance assessment for the 2003-2004 school year, Mr. Allison again scored Respondent as performing at an "effective level" in each of the 28 targeted areas. Mr. Allison wrote that "Kin is very helpful to all the other custodians. He is always here on time." Mr. Lane signed this assessment and testified at the hearing that Respondent was doing a very satisfactory job at that time. Mr. Lane emphasized that his teachers are "very vocal" and would let him know if their areas were not clean.
Respondent's first and only poor annual performance assessment was that for the 2004-2005 school year. This assessment was completed by Mr. Lane himself and found Respondent to have displayed an "unacceptable level of performance" in ten specific areas under the four general headings of Job Skills, Interpersonal Skills, Dependability, and Personal Qualities and to have "inconsistently practiced" his responsibilities in one area under the general heading of Job Knowledge and one area under Interpersonal Skills. Respondent was graded as effective in all other targeted assessment areas,
including all four sub-headings under the general heading of Safety.
The Job Skills heading contains five sub-headings:
Effectively plans, schedules and controls work.
Completes a reasonable amount of work in a timely manner.
Achieves expected results with few errors.
Follows prescribed clean-up techniques.
Understands and responds to new procedures.
Mr. Lane graded Respondent's performance as unacceptable under each of the five Job Skills sub-headings.
The Interpersonal Skills heading contains seven sub-headings:
Exhibits positive attitudes.
Cooperates with and supports coworkers.
Responds appropriately to praise and constructive criticism.
Communicates effectively with coworkers, supervisors, and school-based staff.
Dresses in an appropriate manner.
Is clean and neat in appearance.
Demonstrates flexibility in responding to stressful situations and changes in the work environment.
Mr. Lane graded Respondent's performance as unacceptable under sub-headings C and G, and graded Respondent's performance as inconsistent under sub-heading A. Respondent's performance was graded as effective under the remaining four sub-headings for Interpersonal Skills.
The Dependability heading contains three sub-headings:
Utilizes leave only when necessary.
Is punctual.
Completes requests and directives in a timely manner.
Mr. Lane graded Respondent's performance as unacceptable under sub-heading C. Respondent's performance was graded as effective under the other two sub-headings for Dependability.
The Personal Qualities heading contains four sub-headings:
Begins tasks with a minimum of direction.
Maintains continuous workflow.
Takes advantage of available training opportunities.
Seeks to improve quality and efficiency of work.
Mr. Lane graded Respondent's performance as unacceptable under sub-headings A and D. Respondent's performance was graded as effective under the other two sub-headings for Personal Qualities.
Mr. Lane testified that during the 2004-2005 school year, during the December/January time frame, he began receiving e-mails from four members of the physical education staff complaining about the cleanliness of their wing off the school gymnasium, the rest rooms, and the gymnasium itself. Respondent was responsible for cleaning those areas. Mr. Lane had also received some complaints about the cleanliness of some of the classrooms for which Respondent was responsible.
Given Mr. Chan's performance history, Mr. Lane found these complaints puzzling and wanted to give Respondent another chance. Mr. Lane reasoned that perhaps the gymnasium area was too much for Respondent and, therefore, reassigned Respondent in February 2005 to the "G Section" of the school, which consisted only of classrooms. However, Mr. Lane immediately began receiving complaints from teachers in that area.
One of the teachers in the G Section sent a complaint to the School Board regarding the cleanliness of her classroom. This complaint resulted in a walk-through of the G Section by Armando de Leon, the School Board's director of plant management, on April 26, 2005. Mr. de Leon had been involved with Gulf Middle School throughout the 2004-2005 school year in the effort to address the school's air quality issues and, thus, was very familiar with the school's physical plant. Mr. Lane accompanied Mr. de Leon on this walk-through.
On April 27, 2005, Mr. de Leon sent a memorandum to Mr. Lane, which stated, in relevant part:
While we have addressed all of the air quality concerns that revolve around potential mold issues, and our visit confirmed that all areas in your building were within the District's criterion for relative humidity, dust and cleanliness remain a significant concern for us.
We visited yesterday and randomly reviewed several classrooms and common areas in your building. The classroom area where we are most concerned is in the "G" pod. We started in room 22, where we found the following:
A Clorox based cleaner that is not authorized for use by the District.
Wall paint that is smudged, dirty, and full of pencil marks.
Drooping, dusty ceiling tiles.
A serious collection of dust on the top of all surfaces, including cabinets, computers, furniture, ledges, top ledge of chalk boards.
In several classrooms we found that wax from work in the hallways had worked itself into the classroom under the doors, and remained there, staining the floors.
Cob webs, rubbish and dirt on the floor between file cabinets and storage units.
Dusty light reflectors.
Significant collections of dust on the television sets.
Generally speaking, this area shows a general lack of care and attention and creates an environment that is not at the standards we accept in our District.
These are just a few examples of our findings. This situation is unsightly, promotes further lack of care for District property by students, and can contribute to
sneezing, watery eyes, and sinus problems for people who have allergies. While we do not consider it a dangerous situation at this time, this problem merits immediate and focused attention.
On April 29, 2005, Mr. Lane wrote a memorandum to Respondent which stated, in relevant part:
I am attaching a summary letter of a walk through conducted by Mr. Armando Deleon [sic], Director of Plant Management. As the letter states, Room 22 and the "G" pod have not been cleaned properly. I accompanied the walk through and saw for myself the deplorable conditions of the above area assigned to you to clean.
I am also attaching documentation that shows we have been working with you since January 2005 to properly clean your assigned area.
As of April 27th you have not followed proper procedures.
At the hearing, it was established that Respondent was not responsible for all of the eight items of concern listed by Mr. de Leon in his April 27, 2005, memorandum. The drooping ceiling tiles and dusty light reflectors were the responsibility of Mr. Allison, the building supervisor. The presence of the Clorox-based cleaner could not be definitely tied to Respondent. However, the items related to the general dirty, dusty condition of Room 22 were the responsibility of Respondent.
In the April 29th memorandum, Mr. Lane's statement regarding "documentation that shows we have been working with you since January 2005" referred to a series of actions taken by
Mr. Allison in early 2005 in an attempt to improve Respondent's performance.
Mr. Allison testified that Respondent was a "good employee," but a "bad custodian." He explained that Respondent "was a wonderful guy to work with, but he was lousy at cleaning. He just couldn't clean good."
Mr. Allison liked Respondent and liked the fact that Respondent was dependable in his attendance and attitude. Because of Respondent's good qualities, Mr. Allison would "carry" Respondent, meaning that he would go behind Respondent in the mornings and clean the problem areas that Respondent was supposed to have cleaned the night before during his 2:00 p.m. to 10:00 p.m. work shift. Mr. Allison testified that he wanted to make sure Respondent received good evaluations because Respondent wanted to retire in a few years.
As noted above, Respondent was already working at the school at the time Mr. Allison took over as building supervisor during the 2002-2003 school year. Mr. Allison testified that he received complaints about Respondent's work "from day one."
At the hearing, Mr. Allison explained the general responsibilities of the school's custodians, which included dusting, mopping, sweeping, emptying trash, wiping dust off of television sets and counters, cleaning the bathrooms, and
removing graffiti from the bathrooms. All custodians were sent for mandatory training prior to the 2004-2005 school year.
Each custodian was responsible for approximately
15 classrooms. The custodian was required to disinfect all of the desks and sweep the floors of each classroom every night, to completely mop the floors of three or four of the classrooms on a rotating basis, and to spot mop for spills in all rooms. In addition, all custodians participated in cleaning the school cafeteria.
On January 14, 2005, Mr. Allison provided an explicit list of job duties to Respondent, in an effort to assist him in understanding his responsibilities.
On January 20, 2005, Mr. Allison and the head custodian, Diane Andrews, met with Respondent to discuss the complaints they had received regarding the cleanliness of the rooms for which Respondent was responsible. After the meeting, Mr. Allison wrote the following memorandum, reproduced here verbatim:
Kin, Diane and I set down in my office and we talked about the complaints we had about Kin's rooms, that was not being cleaned that he needed to dust the desk, counters, and that he had to all the dusting, sweeping and mopping the floors in all his rooms, I had been telling him every week that his rooms was not clean and the teachers had too many complaints, I gave him another duty work list that shows what is to be done every night. I told him that we had to write him
up and all he said is I don't care. I told him that he could lose his job over this and again he said I don't care. I ask him if he would like me to show him how I wanted it cleaned and he said yes when I tried to show him he stop me and said he knew how to do it and that I did not need to show him. I told him that we can not have anymore complaints, that he is the only one that has too many and none of the other custodians are not getting any complaints.
Respondent is Chinese. He has lived in the United States since 1969, but his command of spoken English is limited. Mr. Allison testified that Respondent came to him later and assured him that he did not mean to say "I don't care" when confronted with the prospect of losing his job. Mr. Allison believed that Respondent was able to understand what was said to him. At the hearing, the undersigned observed that Respondent appeared to have more difficulty expressing himself in English than he did understanding the English that was spoken to him.
Mr. Allison testified that when Respondent told him that he did not need to be shown how to clean, that was good enough for him. Mr. Allison was confident that Respondent was going to take care of the problem.
However, Mr. Allison continued to receive complaints from teachers. On February 28, 2005, Mr. Allison again met with Respondent regarding the need to clean graffiti off the bathroom walls, to do a better job of sweeping and mopping the floors, to dust the counters, and wash the classroom desks. Mr. Allison
testified that after such meetings, Respondent would perform his job properly for a few days, or even two weeks, but then would slack off, causing the teacher complaints to resume and necessitating another meeting.
The matter that most concerned Mr. Allison was Respondent's practice of cleaning the toilets and urinals with the same mop he was using for the floors. Custodians were supplied with a special "Johnny mop" and disinfectant for cleaning the toilets and urinals and were under no circumstances to use their floor mops to swab the toilets.
At their February 28, 2005, meeting, Mr. Allison told Respondent not to use a mop to clean the toilets and warned Respondent that he would not be told again to clean the bathrooms in the proper way. Nonetheless, on March 10, 2005, Mr. Allison personally witnessed Respondent cleaning the toilets and urinals with the same mop he used on the floors. After
Mr. Allison caught Respondent using the mop, Respondent pulled out his Johnny mop and disinfectant and proceeded to clean the toilets in the correct manner.
During the 2004-2005 school year, Ms. Andrews suffered a heart attack and missed a long period of work. For about one month, Mr. Allison hired his brother-in-law as a substitute for Ms. Andrews. After Ms. Andrews returned to work, she was placed on light duty, as was a second female custodian who took leave
during the 2004-2005 school year. Octavio Navarro, a former head custodian at Gulf Middle School, who was working as a custodian during the 2004-2005 school year, testified that these light duty assignments placed more work on the other custodians, including Respondent, than they were able to perform.
Mr. Navarro also put forth the theory that Respondent was "framed" by Mr. Allison, who was scheming to fire Respondent in order to secure a full-time custodian position for his brother-in-law. Mr. Navarro testified that Mr. Allison told him that he intended to have the teachers complain to Mr. Lane about Respondent's performance.
Mr. Navarro was not a credible witness. He clearly carried a grudge against Mr. Lane, whom he called an "evil man" and a "manipulator." He strongly asserted that all the allegations regarding Respondent's failures on the job were fabrications or exaggerations, even though Mr. Navarro worked a different shift during the period in question and thus could not have had first-hand knowledge of Respondent's job performance.
Mr. Allison credibly denied the accusation that he was seeking to hire his brother-in-law for a full-time position at Gulf Middle School. He stated that when Ms. Andrews fell ill, he needed a substitute "real quick," and, therefore, hired his brother-in-law "to get some work done." However, Mr. Allison would not have recommended his brother-in-law for a full-time
position at Gulf Middle School, because of the appearance of favoritism and because of his uncertainty as to how his brother- in-law would perform if Mr. Allison were not personally watching over him. Mr. Lane testified that he rejected the brother-in- law's application for a full-time position at Gulf Middle School because he was not the best candidate for the position.
Mr. Allison's brother-in-law was eventually hired as a custodian for the School Board, but at a different school.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to and subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1) and 1012.40(2)(c), Florida Statutes (2005).
The School Board has the burden to establish by a preponderance of the evidence the grounds for disciplining Respondent. See, e.g., McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen
v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990).
Subsection 1012.40(2)(b), Florida Statutes (2005), provides that educational support employees such as Respondent
may be terminated only "for reasons stated in the collective bargaining agreement."
The SPALC Agreement provides that any discipline "that constitutes a reprimand, suspension, demotion or termination shall be for just cause." SPALC Agreement at Section 7.09. The SPALC Agreement does not define "just cause" or provide for a plan of progressive discipline.
In a previous case, the School Board adopted the following conclusions of law, which is hereby adopted as the rule for the instant case:
27. The School Board construes "just cause" in [then] Section 7.094 of the SPALC Agreement in the same manner as that phrase is used in Section 1012.33 relating to instructional staff. That statute provides in pertinent part that:
Just cause includes, but is not limited to, the following instances, as defined by rule
of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
Section 1012.33(1)(a). See also Rule
6B-4.009 (defining the terms used in Section 1012.33(1)(a)).
Lee County School Board v. Simmons, Case No. 03-1498 (DOAH
July 15, 2003) (adopted in toto by Final Order dated August 12, 2003).
See also Lee County School Board v. Kehn, Case No. 04-1912 (DOAH February 21, 2005) (adopted in toto by Final Order dated
March 10, 2005).
Florida Administrative Code Rule 6B-4.009(1) defines "incompetency" as "inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity." This definition recognizes that "incompetency" is a relative term and offers an option for obtaining testimony from a panel of educational experts to determine whether instructional personnel have demonstrated inefficiency or incapacity in a given classroom or administrative setting.
In the instant case, no expert testimony is required to determine Respondent's incompetence as a custodian. Respondent failed to carry out his clearly defined duties, as demonstrated by the condition of the rooms he was supposed to clean and by his unwillingness or inability to follow the directives of his supervisor even when he was placed on notice that his job was in jeopardy. The evidence established that Respondent knew the proper way to clean the urinals and toilets, but continued to swab them with the floor mop when he was not being observed by his supervisor. The claim that Respondent was given too much work by virtue of the light duty assignments to other custodians is belied by the fact that there were no complaints about the work of the other custodians so burdened.
Based upon the foregoing, the School Board has established by a preponderance of the evidence that Respondent was unable or unwilling to carry out his duties as a custodian and, therefore, has just cause to terminate Respondent's employment.
It should be noted that this recommendation is based upon Respondent's poor performance during the 2004-2005 school year, as well as the repeated warnings and efforts to improve Respondent's performance engaged in by Gulf Middle School employees during that school year. This recommendation in no way credits Mr. Allison's contention that Respondent did not truly earn some of the positive annual performance assessments he received for the 2001-2002, 2002-2003, and 2003-2004 school years. Respondent was entitled to rely on those assessments, which have been taken at face value in the preparation of this Recommended Order.
RECOMMENDED that Petitioner, Lee County School Board, issue a final order that terminates Respondent's, Kin F. Chan, employment.
DONE AND ENTERED this 16th day of June, 2006, in Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2006.
Robert J. Coleman, Esquire Coleman & Coleman
Daniel J. Woodring, General Counsel Department of Education
Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514
Dr. James W. Browder, III, Superintendent Lee County School Board
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.
