M. Kilbride, a duly-designated Administrative Law Judge of the Division of Administrative Hearings on November 19, 2008, in
For Respondent: Robert J. Coleman, Esquire
Whether Petitioner has just cause to terminate Respondent's employment as an educational support employee, on the basis that Respondent failed to satisfactorily and efficiently perform his
assigned job duties, and/or he committed gross insubordination and willful neglect of duties.
On August 7, 2008, the Lee County School Board superintendent issued a Petition for Termination of Employment for Respondent. On September 9, 2008, Petitioner suspended Respondent without pay and benefits. Respondent timely requested an administrative hearing, and Petitioner referred the matter to the Division of Administrative Hearings (DOAH) to conduct an administrative hearing.
A Notice of Hearing was issued on September 22, 2008. Following discovery, the parties filed a Joint Pre-hearing Stipulation on November 6, 2008. This matter was heard on November 18, 2008.
At hearing, the facts stipulated in the Joint Pre-hearing Stipulation were adopted. Petitioner presented the testimony of four witnesses: Gerald Demming, principal; Carl Steve Adams, assistant principal; Nancy Bell, Social Studies teacher; and Craig Baker, coordinator for the Department of Professional Standards and Equity, all of Riverdale High School. Petitioner had 12 exhibits admitted into evidence. Respondent testified in his own behalf and presented the testimony of five witnesses: Charles Drayton, custodian; Leaford Walker, custodian; Christy Danielson, teacher; and Michael Scocik, teacher, all of
Riverdale High School. Respondent had ten exhibits admitted into evidence.
December 5, 2008. Respondent was granted a 30-day extension to file his proposed recommended order. Petitioner and Respondent timely filed their respective Proposed Recommended Orders on January 15, 2009. Each parties' proposal has been given careful consideration in the preparation of this Recommended Order.
The allegations against Respondent are set forth in the Petition for Termination of Employment (the Petition), dated August 7, 2008, and filed with DOAH on September 12, 2008.
Respondent was employed as a custodian with the Lee County School Board (Petitioner) since January 12, 2000. He currently is assigned to Riverdale High School. The position of custodian is an educational support employee.
Carl Steven Adams (Adams) is assistant principal for administration at Riverdale High School. He was responsible for all matters relating to the school maintenance, including supervision of custodians. Adams prepared Respondent's annual performance assessment for each of the 2005-2006, 2006-2007, and 2007-2008 school years.
Adams scored Respondent's performance in the
2005-2006 year as achieving an effective level of performance,
the highest possible score, in all 28 areas targeted for assessment.
For the 2006-2007 and 2007-2008 school years, Respondent worked the evening shift and was assigned to clean the gym, the boys' locker rooms, the band room, the chorus room, three portable classrooms, the agricultural hallway, the football restrooms, and a portion of the cafeteria. During the 2007-2008 school year, after Respondent requested assistance, he was relieved of cleaning the boys' locker rooms and was assigned eight additional portable classrooms.
For the 2006-2007 school year, Adams scored Respondent as achieving an effective level of performance in 18 of the
28 areas targeted for assessment, including "completes requests and directives in a timely manner," "begins tasks with minimum of direction," "maintains continuous workflow," and "takes advantage of available training opportunities." Respondent received a lower score of "focus for development/feedback" in ten areas targeted for assessment. Those areas that needed improvement included "effectively plans, schedules and controls work"; "completes a reasonable amount of work in a timely manner"; and "seeks to improve quality and efficiency of work." Adams testified that he did not score Respondent as performing at an "unacceptable level of performance observed," because he did not have any written documentation to that effect.
On September 4, 2007, Respondent was issued a "letter of warning regarding allegations of incompetence in reference to your job," which "directed [him] to pay closer attention to [his] assigned job duties, ask for assistance when needed, and ask for instructions and guidance in defining [his] job duties."
No evidence of documented performance deficiencies relating to Respondent was offered in evidence for the first semester of the 2007-2008 school year. The Petition and Joint Pre-hearing Stipulation listed only alleged performance deficiencies commencing on or after January 7, 2008.
On January 7, 2008, Respondent was charged with failing to perform his duties as instructed after allegedly being instructed by his supervisor to clean the restrooms at the football field. Respondent's immediate supervisors were the building supervisor and head custodian, neither of whom testified at the hearing. Respondent testified that he indeed had cleaned the restrooms twice that day, but the attendees at a swimming meet on that date used the facilities and "messed" them up. Respondent's testimony was credible.
On January 10, 2008, Respondent is alleged to have been instructed to clean the cafeteria, in preparation for an open house that evening, and failed to perform the duties as instructed. Upon entering the main building after cleaning his assigned portable classrooms, Respondent was notified of the
open house. Respondent testified that he and the other custodians were informed of the open house only one hour before the commencement of the event. The lunch tables had been pushed into his designated area so the other custodians could complete cleaning their respective sections of the cafeteria. He therefore had to wait for the removal of the tables before he could attend to his section. He hurriedly attempted to clean his area, but was not afforded sufficient time to properly clean the area before the entry of the public.
On January 25, 2008, Respondent was charged with failing to perform his duties as instructed after the school athletic director allegedly instructed Respondent to clean the gymnasium, locker rooms, and lobby restrooms in preparation for a wrestling tournament. As with the building supervisor and head custodian, the athletic director did not testify at the hearing. Respondent, however, testified that he had cleaned the gym, locker rooms, and lobby restrooms. However, participants and others at a dance and/or choir event remained past the end of Respondent's shift at 11:00 p.m. and left the lobby and restrooms a mess. This resulted in the restrooms not being presentable to the public.
On March 18, 2008, Respondent was charged with having failed to clean one of his regularly assigned areas: the agricultural hallway. Respondent testified that it is difficult
to keep this hallway clean, because it has a door at the end that opens to the outdoors and leaves and debris blow into the hallway when there is a draft. The hallway also is located by the varsity athletes' locker room; foot traffic from the locker room to and from the playing fields can contribute to the hallway appearing messy even after its been cleaned. Respondent testified that he was only responsible for the tiled section of the hallway and that he regularly cleaned it. Adams conceded that he was only told of Respondent's alleged failure to clean the hallway and did not independently verify the charge. Adams also acknowledged that March 18, 2008, was a Tuesday night.
Tuesday nights are usually very active at the school, during that time of year. It was entirely possible that Respondent had cleaned the hallway and that foot traffic from the varsity athletes' locker room could have caused it to become dirty.
On March 19, 2008, Adams personally found the restrooms on the south end of the football field "too disgusting to be opened for the lacrosse game." Respondent testified that these restrooms are supposed to remain locked and be cleaned only as needed. However, periodically people access them and leave the facilities dirty. Respondent discussed the problem with Adams, and he was assured the restrooms would remain locked. On March 19, 2008, Respondent had not been informed that there was a scheduled lacrosse game, and, thus, was unaware
of the need to check on the condition of the restrooms. Adams did not know whether anyone had, in fact, notified Respondent of the scheduled lacrosse game.
On March 24, 2008, Respondent received a letter of reprimand from Adams recounting the foregoing alleged performance deficiencies on January 7, 10, and 25; and
March 18 and 19, 2008. The following day, Adams presented Respondent with his 2007-2008 annual performance assessment, scoring Respondent as unacceptable in four areas targeted for assessment. It included: "begins tasks with minimum direction," "seeks to improve quality and efficiency of work," and "inconsistently practiced" in ten areas targeted for assessment. It also included: "completes a reasonable amount of work in a timely manner," "achieves expected results with few errors," and "completes requests and directives in a timely manner." The letter of reprimand, issued the previous day, furnished the requisite documentation for Adams to give Respondent a poor performance assessment for the year.
Adams' testified that Respondent's letter of reprimand, delivered to Respondent one day before the negative performance assessment, was "coincidental."
The letter of reprimand Respondent received March 24, 2008, cautioned Respondent that "[f]rom this point forward, you are to follow all directives given to you by your supervisors.
Failure to comply with these directives will result in disciplinary action up to and including dismissal."
Adams failed to contemporaneously notify Respondent of the now documented performance deficiencies, thus, preventing Respondent a timely opportunity to rebut the charges or remediate his performance.
In the second semester of the 2007-2008 school year, Nancy Bell (Bell) sent Adams a total of six e-mails complaining about Respondent's work performance in her room, two of which were on successive days regarding the same complaint and three of which were in the course of one week in March. Bell directed her e-mail complaints about Respondent's performance solely to Adams and did not notify Respondent or his immediate supervisors about her complaints. Bell testified that she was instructed by Adams to follow this protocol.
On April 24, 2008, Respondent was provided a letter of reprimand dated April 23, 2008, that outlined the following issues with his performance: Bell's classroom was not cleaned; Respondent was sleeping in the custodial room on April 16, 2008, at 9:15 a.m.; and Respondent's job performance has been below the standards required by the school and Petitioner. In this letter of reprimand, Adams wrote that he had "received six
e-mails from one of the teachers in a classroom in your area of
responsibility that describe unclean conditions and unsatisfactory work being done by you."
Adams previously instructed the teachers at the school that if they had any concerns regarding the cleanliness of their room, they were to e-mail him. Bell is the only teacher to register a complaint with Adams about Respondent's work performance in her classroom, even though Respondent had the responsibility for cleaning three classrooms initially during the 2007-2008 school year and eight additional classrooms when he was relieved of cleaning the boys' locker rooms.
Adams never spoke with Respondent about Bell's complaints until he presented the letter to Respondent on
April 24, 2008. Although two of Bell's complaints predated his delivery of the first letter of reprimand to Respondent, Adams neglected to reference either of those complaints in the initial letter of reprimand. At the time, Adams simply referred Bell's complaints to the building supervisor and head custodian and relied on those individuals to address the matter with Respondent. Adams does not know when, or if, they did so; nor does he know whether Respondent was ever shown the e-mails prior to April 24, 2008, and, thus, had an opportunity to address her concerns.
The evidence presented by Respondent satisfactorily explained the complaints received by Adams in regard to
Respondent's performance of his duties on February 12, March 24, March 26, March 28, and April 10, 2008.
The April 23, 2008, letter of reprimand also accused Respondent of having been discovered by his supervisor sleeping at 9:15 a.m. during spring break in 2008 when he was working daytime hours. Petitioner did not present any evidence to substantiate this charge, and Respondent vehemently denied ever sleeping on the job. Petitioner failed to prove this charge.
There were occasions when upwards of three custodians would be absent from work. The custodians reporting for duty would have to clean the absent custodians' areas. Consequently, they would have less time to devote to their regularly assigned areas. Petitioner did not establish whether the custodial staff was always at full strength on the occasions when Respondent is accused of performing less than an adequate job of cleaning.
Petitioner's investigator, Craig Baker (Baker), conducted a tour of the areas assigned to Respondent. He testified that he performed his inspection on Tuesday, May 20, 2008, at approximately 5:30 a.m., when the school was first opened and there had not been any activity in the school following the conclusion of the custodians' shift from the night before. He documented Respondent's alleged performance deficiencies with a digital camera. Due to his unfamiliarity with the operation of the camera, the photographs were of poor
quality, and Petitioner elected not to introduce them into evidence.
Baker detailed the results of Respondent's assigned work area. Baker testified that there was loose dirt and paper along the baseboard in the gym and that "it appeared that it had not been swept or cleaned from the evening or the day before." In the restrooms adjacent to the gym he noted "there was one toilet that had unflushed feces. It had not been flushed from the night before." Baker testified that, although the band room "looked adequately clean," he observed that in Bell's classroom there was "paper underneath one of the desks," "old gum stuck on the back of a desk," and "dust along the area adjacent to a computer that had not been dusted in some time, it appeared to me." Baker testified that, in the lunchroom, he observed "[s]everal trash cans that had not been emptied from the day before. They had trash in it, paper from food goods, things like that." Finally, Baker testified that he saw, "primarily in the hallway where the lockers were, one particular area there was [sic] loose screws where a maintenance worker had been doing some work that had not been cleaned for several hours, students could trip on them." Based on this inspection, Baker concluded that Respondent's work performance had not improved from the year before.
However, Baker admitted on cross-examination that, based on the date stamped on the photographs he took while conducting his tour of Respondent's areas, the actual date of his inspection was Monday, May 19, 2008, at 5:30 a.m. He acknowledged that Respondent's last work shift preceeding the inspection was Friday, May 16, 2008. Baker did not know what athletic events or activities occurred at the school over the weekend. He admitted that the feces in the toilet could have been placed there after Respondent completed his shift on Friday and before Baker conducted his tour. He was unable to state whether the other deficiencies he noted were the consequence of people being in the building or activities occurring over the weekend.
Charles Drayton, a custodian at the school for six or seven years, testified that, during the 2007-2008 school year, he stood in as acting head custodian when Floyd Davison, the head custodian, was absent. He explained that when he was acting head custodian, and it was necessary to clean the area of another custodian who was sick or absent, he would have all the custodians assemble at the absent custodian's assigned area and clean it en masse before returning to their individual job assignments. He testified that on those occasions Respondent did a good job and that he performed with the same level of
professionalism as every other custodian. Charles Drayton's testimony was credible.
Respondent was assigned to clean the large areas in the school that had a lot of foot traffic. In regard to the difficulties Respondent experienced cleaning the boys' locker rooms, it is not uncommon for a custodian to clean the locker room, complete his shift, and leave only to have the athletes return from a game and "make a mess of it" resulting in his supervisor accusing him of not cleaning the area.
There are a number of athletic events and other activities at the school that extend past the 11:00 p.m. termination of the custodians' shift.
For both the 2006-2007 and 2007-2008 school years, Respondent was responsible for cleaning the agricultural hallway, cleaning the bleachers, as well as cleaning the locker rooms. These are high foot traffic areas. With athletic events not concluding until 10:00 p.m. or later, and athletes returning from away games following the conclusion of Respondent's shift, Respondent would be pressed for time to thoroughly clean those areas or would have already cleaned them only to have them appear to be messy, even after they have been cleaned.
Since Respondent commenced working for Petitioner, he received one probationary performance assessment and nine annual performance assessments. With the exception of his last two
years at Riverdale High School, i.e., the 2006-2007 and
2007-2008 school years and one year at Franklin Park Elementary School in the 2004-2005 school year, Respondent scored at an "effective level of performance" in all areas targeted for assessment.
There was no probable cause for disciplinary action against Respondent for alleged incompetence in the
2004-2005 school year at Franklin Park Elementary School. Petitioner rescinded Respondent's dismissal and placed Respondent at Riverdale High School for the 2005-2006 school year.
In Respondent's probationary and 1999-2000 annual performance assessments, Respondent's supervisor wrote favorable comments in the comments section regarding Respondent's performance. In his succeeding three years at Bayshore Elementary, his supervisor also wrote favorable comments on his 2000-2001, 2001-2002, and 2002-2003 annual assessments.
Two classroom teachers at Riverdale High School, Michael Skocik and Christy Danielson, testified that they were very satisfied with Respondent's work performance during the 2006-2007 and 2007-2008 school years, and that he kept their classrooms clean.
The evidence is insufficient to constitute just cause to terminate Respondent's employment. Petitioner did not call
as witnesses Respondent's supervisors, the building supervisor, and head custodian, nor did it call the athletic director, to refute Respondent's testimony that he complied with their directives and satisfactorily performed his assigned job duties within the constraints presented by the unique nature of his job assignment.
The greater weight of evidence established that Respondent satisfactorily and efficiently performed the large majority of his assigned job duties and that Respondent had a reasonable explanation and justification for those of his admitted deficiencies.
Petitioner did not prove by a preponderance of evidence its charge that Respondent committed gross insubordination and willful neglect of duties, as those terms are defined in Florida Administrative Code Rule 6B-4.009(4), by continuously refusing to perform the custodial tasks assigned to him.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to and the subject matter of these proceedings, pursuant to Section 120.569 and Subsections 120.57(1) and 1012.33(6)(a), Florida
Statutes (2008).
As a custodian, Respondent is an "educational support employee," as defined by Subsection 1012.40(1)(a), Florida Statutes (2007).
The superintendent of the Lee County School District has the authority to recommend to the Petitioner that educational support employees be suspended and/or dismissed from employment. § 1012.27, Fla. Stat. (2007).
Petitioner has the authority to terminate and/or suspend without pay educational support employees.
§§ 1012.222(1)(f) and 1012.40(2)(c), Fla. Stat. (2007).
An educational support employee can only be terminated for the reasons set forth in the 2006-2009 Collective Bargaining Agreement between the Lee County School Board and the Support Personnel Association of Lee County (SPALC Contract), which governs these employees. The SPALC Contract provides that support employees can only be terminated for "just cause."
§ 1012.40(2)(b), Fla. Stat.; SPALC Contract 7.10.
"Just cause" is not defined in the SPALC Contract nor does it provide for a progressive discipline plan per se. However, the SPALC Contract requires "that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record."
SPALC at 7.11.
In the absence of some rule defining "just cause," the Petitioner has discretion in setting standards which subject an employee to discipline. See Deitz v. Lee County School Board, 647 So. 2d 217 (Fla. 2d DCA 1994). However, just cause for discipline must rationally and logically relate to an employee's conduct in the performance of the employee's job duties, and which is concerned with inefficiency, delinquency, poor leadership, lack of role modeling or misconduct. State ex rel Hathaway v. Smith, 35 So. 2d 650 (Fla. 1948).
School Board Policy 5.02 Professional Standards states "A high performing learning community committed to student achievement must seek and retain a fully qualified and high- performing workforce."
Prior cases before DOAH involving support personnel have held that Petitioner can construe by analogy "just cause" in the same manner as it is used in Section 1012.33, Florida Statutes, and Florida Administrative Code Rule 6B-4.009 for instructional staff. Recently, in Lee County School Board v. Denson, Case No. 06-4995 (DOAH April 17, 2007) (support employee recommended for termination for striking lawn maintenance worker), this tribunal held that misconduct, as defined by Florida Administrative Code Rule 6B-4.009, can be applied to support personnel. See also Lee County School Board v. Gary T. Gianinoto, Case No. 06-0938 (DOAH August 18, 2006).
Florida Administrative Code Rule 6B-4.009(4) defines gross insubordination or willful neglect of duty as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
Incompetency is defined in Florida Administrative Code Rule 6B-4.009(1) as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.
Petitioner alleged that despite repeated efforts by Respondent's supervisors to improve his performance, Respondent "committed gross insubordination and willful neglect of duties, as those terms are defined in Florida Administrative Code
Rule 64B-4.009(4), by continuously refusing to perform the custodial tasks assigned to him."
Petitioner failed to prove by a preponderance of evidence that Respondent failed to satisfactorily and efficiently perform his assigned job duties, despite repeated efforts by his supervisors to improve his performance.
The definition for gross insubordination and willful neglect of duty, contained in Florida Administrative Code
Rule 6B-4.009(3), may be applied by analogy to educational support employees.
However, there was insufficient evidence to establish that Respondent committed gross insubordination or willful neglect of duty as those terms are defined in the Rule.
Petitioner did not call as witnesses the school building supervisor or the head custodian, Respondent's immediate supervisors. It did not present persuasive evidence proving that Respondent constantly or continually intentionally refused to obey the direct orders of those individuals, or any other supervisors for that matter. Finally, Respondent's explanations in regard to these incidents are credible.
RECOMMENDED that Petitioner enter a final order dismissing the Petition for Termination of Employment, reinstating the employment of Respondent, and awarding Respondent full back pay and benefits to September 10, 2008.
DONE AND ENTERED this 13th day of February, 2009, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2009.
James W. Browder, Ed.D. Superintendent of Schools
Deborah K. Kearney, General Counsel Department of Education
Eric J. Smith Commissioner of Education Department of Education
Robert J. Coleman, Esquire Coleman & Coleman
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.
