STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
POLK COUNTY SCHOOL BOARD, | ) | |||
) | ||||
Petitioner, | ) | |||
) | ||||
vs. | ) ) | Case | No. | 08-0535 |
DAVID MCCALL, | ) ) | |||
Respondent. | ) | |||
) |
RECOMMENDED ORDER
On March 26, 2008, an administrative hearing in this case was held in Bartow, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Donald H. Wilson, Jr., Esquire
Boswell & Dunlap, LLP
245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831
For Respondent: David McCall, pro se
3036 Spirit Lake Drive Winter Haven, Florida 33880
STATEMENT OF THE ISSUE
The issue in the case is whether the Polk County School Board (Petitioner) has just cause for terminating the employment of Respondent, David McCall.
PRELIMINARY STATEMENT
By letter dated January 2, 2008, the Petitioner notified the Respondent that the Petitioner intended to terminate the Respondent's employment. The Respondent filed a request for hearing. The Petitioner forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceeding.
At the hearing, the Petitioner presented the testimony of two witnesses and had Exhibits numbered 1 through 16 admitted into evidence. The Respondent testified on his own behalf, presented the testimony of seven witnesses, and had Exhibits numbered 1, 2, 4 through 19, 22 through 24, and 28 through 32 admitted into evidence.
A Transcript of the hearing was filed on April 7, 2008. Both parties filed Proposed Recommended Orders on April 22, 2008, pursuant to the deadline established at the hearing.
FINDINGS OF FACT
At all times material to this case, the Respondent was employed by the Petitioner under a professional services contract as a classroom teacher at Lake Region High School, a unit of the Polk County Public School System.
On Wednesday, October 3, 2007, a student entered the Respondent’s classroom approximately ten minutes after class had commenced.
The student’s tardiness was apparently related to her participation as a donor in a blood drive occurring at the school on that date.
At the time the student entered the classroom, the Respondent was engaged in administering a standard quiz, and the time allotted for the quiz was about to end.
The Respondent directed the student to remain outside the classroom and take the quiz.
The student advised the Respondent that she donated blood and, feeling dizzy, had hit her foot on a doorway. She told the Respondent that she injured her toe and requested that she be allowed to go to the school clinic.
The Petitioner presented a statement allegedly written by the student asserting that her toe was bleeding at the time the Respondent observed the toe. The student did not testify, and the written statement is insufficient to establish that the toe was bleeding at the time she entered the classroom.
The Respondent testified that he observed the toe and saw perhaps a minor abrasion but saw no evidence of serious injury.
The Respondent declined to refer the student to the clinic and again instructed the student to remain outside the classroom and complete the quiz. The student remained outside the classroom and presumably began taking the quiz.
Shortly thereafter, another teacher walking in the hallway observed the student sitting outside the Respondent’s classroom with a paper towel under her foot. The teacher observed the student shaking and blood on the towel and asked the student about the situation.
The student advised the teacher of the circumstances, stating that she felt like she was going to “pass out.” The teacher, with the assistance of a third teacher, obtained a wheelchair, retrieved the student’s belongings from the Respondent’s classroom, and advised the Respondent that the student was being taken to the clinic.
After the student was transported to the clinic, her mother was called. The mother came to the school and retrieved her daughter, observing that the toe was bloody and swollen. The mother subsequently took her daughter to a doctor and testified that the student was referred for x-rays of the injured toe.
Later on October 3, 2007, the student’s mother contacted the school principal, Joel McGuire, to inquire as to the manner in which the matter had been handled by the Respondent. The principal advised the mother he would follow up on her inquiry.
On Thursday morning, October 4, 2007, Principal McGuire sent an email to the Respondent and asked him to come to
Principal McGuire’s office during a planning period or after 2:30 p.m. “to confirm some information” about the student.
The Respondent did not respond to the email and did not comply with Principal McGuire’s request to meet at that
time.
After receiving no response from the Respondent,
Principal McGuire left a copy of the email in the Respondent’s mailbox at approximately 2:30 p.m. on Thursday, October 4, 2007, with a handwritten note asking the Respondent to come to the principal’s office on the following Friday morning “before school.”
The Respondent did not respond to the note left in the mailbox and did not appear at the principal’s office prior to the start of Friday classes.
Based on the lack of response, Principal McGuire sent another email to the Respondent on Friday, October 5, 2007, and asked him to come to the principal’s office at 6:30 a.m. on Monday. The email advised that the meeting was “to discuss the situation which occurred on Wednesday, October 3rd” so that the principal could respond to the mother’s inquiry.
Although the Respondent was routinely present on the school campus by 6:30 a.m. on school days, the Respondent replied to the principal and declined to meet at that time,
stating that the “proposed meeting time is not within my contracted hours.”
The principal thereafter emailed the Respondent and requested that he come to the principal’s office at 10:30 a.m. on Monday, October 8, 2007. The email stated as follows:
Mother is really needing information concerning the situation which took place in your class. I do need to meet with you and provide a response to her. I believe
10:30 a.m. is during your planning period. Thanks for coming by my office.
The principal received no response to this email and the October 8, 2007, meeting did not occur.
The principal thereafter sent a letter to the Respondent dated October 12, 2007, which stated as follows:
I am requesting a meeting with you Monday, October 15, 2007, at 8:00 a.m. I will provide a substitute in your classroom in order for you to meet with me. The meeting will be very brief. I need some information about [student], a student you had in 2nd period geometry, in order to inform her mother. This is the sixth request for a meeting. Failure to comply with my request will be deemed insubordination and will require additional actions.
The Respondent attended the meeting, but refused to provide any information, stating, “I am not going to respond to you.”
By letter dated October 22, 2007, the Respondent received a written reprimand for his “refusal to assist in the
investigation of an incident involving [student] on October 3, 2007." The letter advised that the first step of progressive discipline, a verbal warning, was being omitted because of the “seriousness of your actions and the possible consequences.”
In relevant part, the letter provided as follows:
Attached to this letter is my memorandum setting forth the events and facts as I have best been able to determine. As indicated, you have been uncooperative in our effort to investigate the facts surrounding this incident. Most significantly, when we were finally able to meet in my office on
October 15, 2007, you refused to discuss the circumstances surrounding [student’s] situation and you stated specifically, “I am not going to respond to you.”
This situation involved an injured student and our school’s response to that incident. Your refusal to assist or participate in the investigation is contrary to your obligation as a teacher to respond suitably to issues of a student’s health and welfare, is adverse to the school’s obligation to address concerns of the parents, and is completely contrary to your obligations as an employee of the Polk County School Board.
Please understand that this letter of reprimand is addressed solely to your refusal to participate, cooperate or assist in the investigation of this incident.
Should the outcome of the investigation indicate that your conduct in dealing with the student was inappropriate, I am reserving the right to request further disciplinary action by the Superintendent. Please note that a suspension without pay is the next step in progressive discipline as set forth in the Collective Bargaining Agreement.
In conclusion, the letter directed the Respondent to prepare a signed “full written report” of the incident, including “your recollections and observation of the events and your justification for your actions you took in response to this incident.” The letter directed the Respondent to deliver the report within five days of the Respondent’s receipt of the letter and, further, stated that “refusal to take such action and to cooperate in the investigation may have serious consequences regarding your employment.”
The memorandum attached to the letter provided a chronology of events identifying all participants and specifically referencing the principal’s multiple attempts to obtain information from the Respondent.
The Respondent failed to provide the written statement as required by the October 22, 2007, letter of reprimand and failed to otherwise provide information to the Petitioner.
By letter dated November 15, 2007, from Principal McGuire to Superintendent Dr. Gail McKinzie, the principal requested that the superintendent issue a five-day suspension without pay to the Respondent for “gross insubordination.” The letter misidentified the date of the incident as October 4, 2007.
By letter dated November 29, 2007, the superintendent suspended the Respondent without pay for five days. The letter,
repeating the misidentification of the date of the incident, stated in relevant part as follows:
On October 4, 2007, you denied a student’s request to go to the school clinic. It was determined that the student had a broken toe. Your administrator, Joel McGuire, has made six verbal requests and two written requests for information on this incident. The last request was made on October 22, 2007, in a formal letter of reprimand which stated “your refusal to take such action and to cooperate in this investigation may have serious consequence for your employment.
This recommendation for a five day suspension without pay is provided for in Article IV section 4.4-1 of the Teacher Collective Bargaining Agreement and is a result of your continued insubordination and refusal to follow the requests of your immediate supervisor. Please be advised that future incidents of this nature may result in additional disciplinary action.
The letter of suspension advised the Respondent that the suspension would be in effect from December 5 through 7, 10, and 11, 2007, and that he should report back to work on
December 12, 2007.
The Respondent served the suspension without pay.
In a letter dated December 13, 2007 (“Subject: October 4, 2007, incident”), from Principal McGuire, the Respondent was advised as follows:
I have made repeated verbal and written requests from you for your explanation of the events in which you participated on October 4, 2007, involving a student requiring medical attention. This is my
final request to you for a written explanation of those events.
You are herby directed to report to my office at 10:30 a.m. on Monday, December 17, 2007, and you are instructed to have with you at that time a written explanation of the events in question. You shall also be prepared to answer any questions regarding what occurred on that day and the actions you took. You should not have any classes at that time, but I will provide coverage for you if for any reason that is required.
Please understand that this is a very serious matter, and you have previously received a five day disciplinary suspension. The next step in progressive discipline is termination, and insubordination can be just cause for termination. I hope that you will conduct yourself appropriately, if you wish to remain an employee of the Polk County School Board.
On December 17, 2007, the Respondent appeared at the principal’s office at the appointed time, but asserted that he had not been involved in any incident on October 4, 2007, and declined to otherwise provide any information.
Although the date of the incident, October 3, 2007, had been misidentified as October 4, 2007, in the referenced series of letters, there is no evidence that the Respondent was unaware of the specific event about which the information was being sought. It is reasonable to presume that the Respondent was fully aware of the matter being reviewed by Principal McGuire.
In response to the December 17, 2007, meeting, Principal McGuire issued a letter dated December 18, 2007 (“Subject: October 3, 2007, incident”), essentially identical in most respects to the December 13, 2007, letter and correcting the referenced date. The letter scheduled another meeting for 10:30 a.m. on December 19, 2007.
On December 19, 2007, the Respondent appeared at the principal’s office at the appointed time and declined to answer any questions, stating that he was invoking his rights under the Constitutions of the State of Florida and the United States of America.
By letter to Superintendent McKinzie dated January 2, 2008, Principal McGuire recommended termination of the Respondent’s employment. Principal McGuire restated the chronology of the October 3, 2007, incident and wrote as follows:
I have made repeated verbal and written requests of Mr. McCall to provide an explanation of the circumstances in order to include them in our investigation of the events. He refused to comply with each of those requests. He received a formal letter of reprimand and a five-day suspension without pay for his gross insubordination.
Since his suspension, I have made written requests of Mr. McCall to provide an explanation of those events, and he has blatantly refused to do so.
By letter also dated January 2, 2008, Superintendent McKinzie notified the Respondent that he was being suspended with pay and that she would recommend to the full school board that his employment be terminated. The letter set forth the grounds for the termination as follows:
Since the incident on October 3, 2007, you have refused repeated verbal and written requests by the school administration to provide an explanation of the events which occurred on that date or to otherwise participate in the investigation of those events. As a result of your refusal to provide an explanation or participate in the investigation, you have received a formal written reprimand and a five-day suspension without pay. Since your suspension, you have again refused specific requests by your principal to provide an explanation of these events.
Based on these facts, it is my opinion that you have intentionally violated the Principles of Professional Conduct of the Education in Florida by failing to make reasonable efforts to protect a student from conditions harmful to learning and/or the student's mental and/or physical health and/or safety (Rule 6B-1.006 FAC). Further you have engaged in ongoing, gross insubordination by repeatedly refusing to take certain actions which are a necessary and essential function of your position as a School Board employee. Progressive discipline, as specified in the applicable Collective Bargaining Agreement, has been followed in this case, and the next step of progressive discipline is termination.
Therefore, it is my conclusion that "just cause" exists for your termination as an employee of the Polk County School Board.
The Respondent requested a formal administrative hearing to challenge the termination, and the Petitioner referred the matter to the Division of Administrative Hearings.
Prior to the instant hearing, the Respondent made no effort to provide any information to the Petitioner regarding the events of October 3, 2007.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2007).
The Petitioner has the burden of establishing the facts of the case by a preponderance of the evidence sufficient to warrant termination of the Respondent's employment. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).
As set forth herein, the burden has not been met as to a violation of the Principles of Professional Conduct for the Education Profession in Florida.
Florida Administrative Code Rule 6B-1.006 provides in relevant part as follows:
6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.
The following disciplinary rule shall constitute the Principles of Professional
Conduct for the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law.
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.
The evidence fails to establish that the Respondent “intentionally violated the Principles of Professional Conduct of the Education in Florida by failing to make reasonable efforts to protect a student from conditions harmful to learning and/or the student's mental and/or physical health and/or safety” as asserted in the termination letter.
The evidence establishes that although the student reported injuring the toe to the Respondent upon entering the classroom, the Respondent observed the toe and saw no significant evidence of injury. He directed the student to take the quiz outside the classroom and then returned to teaching.
The teacher who saw the student sitting outside the classroom with a bloody toe and who transported the student to the clinic testified at the hearing and provided the first reliable report of visible injury.
The student did not testify at the hearing. The statement allegedly written by the student wherein the writer asserts that the toe was bleeding upon entering the classroom is insufficient to establish that the toe was visibly injured when the Respondent observed the student.
It is reasonable to presume that, as time passed, the injury to the toe became more apparent as bruising and swelling occurred. There is no credible evidence that the Respondent observed the toe after the injury became apparent on sight.
As to the alleged gross insubordination, the burden has clearly been met and just cause exists for the termination of his employment on that basis.
In relevant part, Section 1012.33, Florida Statutes (2007), provides as follows:
(1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certified pursuant to s. 1012.56 or s. 1012.57 or employed pursuant to s. 1012.39 and shall be entitled to and shall receive a written contract as specified in this section. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause.
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. (Emphasis supplied)
"Gross insubordination" is defined at Florida Administrative Code Rule 6B-4.009(4) to be a "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority."
The evidence establishes that the Respondent engaged in a continuing refusal to respond to Principal McGuire’s direct inquiries regarding the Respondent’s actions of October 3, 2007. The inquiries were intended to respond to the questions raised by the student’s mother, were reasonable in nature, and were clearly within the authority of the principal’s responsibility to determine what occurred on the date in question.
The Respondent’s behavior regarding the principal’s requests for information constitutes gross insubordination as defined at Florida Administrative Code Rule 6B-4.009(4) and is sufficient to warrant termination of his employment.
The Petitioner complied with the applicable requirements of the operative Collective Bargaining Agreement, which in relevant part provides as follows:
Progressive discipline shall be followed, except in cases where the course of conduct or the severity of the offense justifies otherwise. Unusual circumstances may justify suspension without pay. Progressive discipline shall be administered in the following steps: (1) verbal warning in a conference with a teacher. (A written confirmation of a verbal warning is not a written reprimand); (2) dated written reprimand following a conference;
suspension without pay for up to five days by the Superintendent; and
termination.
The Respondent asserted at hearing that he refused to provide information to the principal because the principal failed to provide copies of various “complaints” made by other participants to the Respondent. There is no evidence that any participant filed any “complaint” against the Respondent. The documents sought by the Respondent were the written chronological accounts provided by the various persons involved in the incident.
The writers prepared the chronologies at the request of Principal McGuire, who requested the same from the Respondent. It was reasonable for Principal McGuire to request that the Respondent provide an account of his actions on the date in question, as he did with the other participants.
The Respondent declined for a variety of reasons to provide any information, despite the repeated and reasonable requests of the Principal. The Respondent's conduct clearly meets the definition of gross insubordination and constitutes just cause for termination of his employment.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of David McCall.
DONE AND ENTERED this 20th day of May, 2008, in Tallahassee, Leon County, Florida.
S
WILLIAM F. QUATTLEBAUM
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 20th day of May, 2008.
COPIES FURNISHED:
Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP
245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831
David McCall
3036 Spirit Lake Drive Winter Haven, Florida 33880
Dr. Gail McKinzie, Superintendent Polk County School Board
Post Office Box 391
Bartow, Florida 33831-0391
Deborah K. Kearney, General Counsel Department of Education
Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Dr. Eric J. Smith, Commissioner of Education Department of Education
Turlington Building, Suite 1514
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 |
|---|---|---|
| Apr. 14, 2009 | Mandate | |
| Feb. 11, 2009 | Opinion | |
| Jul. 21, 2008 | Agency Final Order | |
| May 20, 2008 | Recommended Order | Respondent`s refusal to provide information to the principal related to student`s injury is basis for progressive discipline and eventual termination. |
SEMINOLE COUNTY SCHOOL BOARD vs DOUGLAS PORTER, 08-000535TTS (2008)
MIAMI-DADE COUNTY SCHOOL BOARD vs GREGORY E. PAYNE, 08-000535TTS (2008)
MIAMI-DADE FHEA vs. MIAMI-DADE COMMUNITY COLLEGE, DISTRICT BOARD OF TRUSTEES, 08-000535TTS (2008)
PALM BEACH COUNTY SCHOOL BOARD vs CASSANDRE LAWRENCE, 08-000535TTS (2008)
JACKSON COUNTY EDUCATION ASSOCIATION vs. SCHOOL BOARD OF JACKSON COUNTY, 08-000535TTS (2008)
