STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY SCHOOL BOARD,

Petitioner,

vs.

SCHERRY MIXON,

Respondent.

)

)

)

)

) Case No. 06-0780

)

)

)

)

)

RECOMMENDED ORDER

This cause came on for formal proceeding and hearing before

1. Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. The formal hearing was conducted in Pensacola, Florida, on May 25, 2006. The appearances were as follows:

   APPEARANCES

   
   

   Petitioner: Joseph L. Hammons, Esquire

   Hammons, Longoria & Whittaker, P.A.

   17 West Cervantes Street Pensacola, Florida 32501-3125

   
   

   Respondent: No appearance

   
   

   STATEMENT OF THE ISSUE

   
   

   The issue to be resolved in this proceeding concerns whether the Respondent, Sherry Mixon, should be terminated for cause by the Petitioner, the Escambia County School Board (Board).

   PRELIMINARY STATEMENT

   
   

   This cause arose when the Respondent Sherry Mixon exercised her right to a Chapter 120 proceeding and hearing to contest the intended action of the Board to terminate her. The termination was based upon what the Board perceived as misconduct, which was specifically identified in the "notice letter" sent to

   Ms. Mixon. Specifically, the Board contends that the Respondent made a material misrepresentation on her employment application when she failed to disclose a prior workers' compensation claim and injury. This was germane to the question of whether to hire the Respondent for the position of teacher's aide, working with disabled and handicapped students. An injury, particularly a back injury, may impair the ability of an employee physically, and appropriately, to manage special needs students, especially those prone to violent behaviors. The Board deems that the offer of employment was conditioned on both the Respondent's physical and mental abilities to perform the job duties which had been described to her. Because she had not disclosed the prior injury and workers' compensation claim, the Board determined that a material qualification for the Respondent's employment had not actually been established, and that the Respondent had committed an act of dishonesty. It thus determined that it would terminate her from employment as a teacher's aide for misconduct in office.

   The cause came on for hearing as noticed. At the hearing the Petitioner Board presented six exhibits, which were admitted into evidence. Additionally, the Board presented the testimony of Kevin Windham, the Director of Risk Management for the Board. The Respondent, Sherry Mixon, failed to appear at the outset of the hearing, and after waiting a substantial period of time, in excess of one-half hour, the Petitioner was permitted to proceed to present its prima facie case. After it presented its prima facie case, and before adjournment, it was determined that the Respondent, Ms. Mixon, still had not appeared. There has been no contact with the Respondent by this Administrative Law Judge's office, nor by the Board, or counsel for the Board, essentially since the request for hearing was filed.

   Accordingly, upon conclusion of the Petitioner's evidentiary presentation, the hearing was adjourned. Because the Respondent failed to appear and present evidence, the following facts are found based on Petitioner's evidence.

   FINDINGS OF FACT

   
   

   1. The Respondent was employed, by the Board, as a teacher's assistant for special needs or handicapped students. In obtaining such employment the Respondent had to complete employment application documents which contained a question concerning her prior medical or physical history as to whether she had any injuries or a debilitating condition. She failed to

      disclose that she had a prior back injury and associated workers' compensation claim and that therefore she had some degree of physical disability.

   2. The job duties of teacher's assistant for special needs students require a teacher's assistant to be in relatively good physical condition. It is a condition and necessary part of the consideration of whether to hire such a teacher's assistant. If he or she has any prior injury or physical condition, such might reflect on his or her ability to physically handle students in appropriate ways, protecting herself or others from injury. A certain physical ability is required for this employment position because, in working with handicapped students, the teacher's assistant needs to be able to physically and safely intervene between violent handicapped students. Thus, the inquiry on the employment application documents concerning prior physical conditions or injuries is directly relevant to the decision of whether or not to hire such a person.

   3. The testimony of Kevin Windham as well as the evidence gleaned from the Petitioner's Exhibits one through six, established that the Respondent was hired as a teacher's assistant. After she experienced an accident or injury on a bus, and while delving into her health situation, the Board learned of her prior workers' compensation back injury. It therefore also learned that she had failed to disclose that

      prior injury on her employment application. The Board needs to know of any prior injuries in order to know whether an applicant for a position meets the physical qualifications for that position and is thus fit for duty. The safety of the job applicant or students or other persons might be placed at risk if an injured or physically unfit person is hired for certain positions such as teacher's assistant for special needs or handicapped students. The facts requested in the question on her application, which she failed to answer, therefore amounted to a condition on the offer of employment to the Respondent.

   4. The Respondent thus failed to establish that she was truly physically qualified for the job position in question, by not disclosing her prior injury. Moreover, by knowingly failing to answer this inquiry on her job application documents, the Respondent committed an act of dishonesty, both of which facts constitute misconduct in office. Thus, good cause for termination has been established.

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2005).

   6. The evidence adduced by the Petitioner Board is obviously unrefuted. The Respondent, after being served with appropriate notice at her last known address of record, failed

to appear at the hearing and present evidence. Moreover, the testimony adduced by the Board and the evidence contained in the Exhibits is deemed credible and worthy of belief. Accordingly, the evidence established the above findings of fact. Those facts demonstrate that the Board's termination of the Respondent for the reasons asserted by the Board, and found above, was for good cause for misconduct in office.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the party, it is, therefore,

RECOMMENDED: That a final order be entered by the School Board of Escambia County terminating the Respondent, Sherry Mixon, for good cause.

DONE AND ENTERED this 11th day of July, 2006, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF 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 11th day of July, 2006.

COPIES FURNISHED:

Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501-3125

Scherry Mixon

222 Ruby Avenue Pensacola, Florida 32505

Jim Paul, Superintendent Escambia County School Board

215 West Garden Street Pensacola, Florida 32502-5728

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 06-000780

Orders for Case No: 06-000780