STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BROWARD COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 08-5799
)
DIANE GRANATELLI, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on May 8, 2009, by video teleconference with connecting sites in Lauderdale Lakes and Tallahassee, Florida, before Errol H. Powell, an Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Eugene K. Pettis, Esquire
Haliczer, Pettis & Schwamm, P.A. One Financial Plaza
100 Southeast Third Avenue, Seventh Floor Fort Lauderdale, Florida 33394
For Respondent: Steve Rossi, Esquire
Law Offices of Steve Rossi, P.A.
533 Northeast Third Avenue, Suite 2 Fort Lauderdale, Florida 33301
STATEMENT OF THE ISSUE
The issue for determination is whether Respondent should be terminated from employment with Petitioner for abandonment of position.
PRELIMINARY STATEMENT
On September 23, 2008, the Broward County School Board (School Board) approved at its meeting, among other things, the recommendation for the termination of Diane Granatelli, an instructional employee, from employment with it for abandonment of position. By letter dated October 10, 2008, the Broward Teachers Union (BTU), on behalf of Ms. Granatelli, requested a hearing regarding the School Board’s action. On November 19, 2008, this matter was referred to the Division of Administrative Hearings.
The parties agreed that the final hearing should be conducted beyond the 60-day time period, and the hearing was originally scheduled on the date agreed to by the parties. A continuance of the hearing was granted twice. Subsequently, Petitioner filed a Motion for Summary Final Order, which was denied.
At hearing, the School Board presented the testimony of three witnesses and entered 23 exhibits (Petitioner's Exhibits numbered 1-4, 6, 7, 9-16, and 18-26) into evidence.
Ms. Granatelli testified in her own behalf and entered no exhibits into evidence.
A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The Transcript, consisting of one volume, was filed on June 10, 2009. An extension of time was granted for the parties to file their post-hearing submissions. The parties timely filed post-hearing submissions, which have been considered in the preparation of this Recommended Order.
Subsequently, the School Board filed its exhibits which were entered into evidence at hearing.
FINDINGS OF FACT
No dispute exists that, at all times material hereto, the School Board was a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Broward County, Florida.
No dispute exists that, at all times material hereto, Ms. Granatelli was an instructional employee with the School Board. At the time of hearing, Ms. Granatelli had been an instructional employee with the School Board since 2005.
Ms. Granatelli moved from Illinois to Florida in 2005, having been recruited to be a teacher with the School Board. She obtained a teaching certificate in Florida, certifying her
to teach Exceptional Student Education (ESE) for grades K through 12. Her teaching certificate was valid July 1, 2005 through June 30, 2010.
The ESE certification authorizes and permits the holder to teach autistic children, as well as others with developmental and emotional delays.
Ms. Granatelli’s first position with the School Board was at Cooper City High School for the 2005-2006 school year, as a support facilitator within the ESE program.
On May 1, 2006, Ms. Granatelli received a letter from the principal of Cooper City High School, Wendy Doll, regarding excessive absenteeism by Ms. Granatelli. Ms. Doll’s letter, among other things, specified the absent days, the status of Ms. Granatelli’s balance of sick and personal leave, and the
applicable Florida statutory provisions regarding sick leave and absence without leave; and indicated that Ms. Doll was bringing the excessive absenteeism to Ms. Granatelli’s attention.
By letter dated May 2, 2006, Ms. Granatelli responded to the letter of excessive absenteeism providing, among other things, an explanation as to why she was absent. In her explanation, Ms. Granatelli indicated, among other things, that she had unfinished moving, family, and divorce circumstances to occur.
For the 2006-2007 school year, Ms. Granatelli was re- assigned to Cooper City High School.
However, by letter dated August 7, 2006, Ms. Granatelli resigned from her employment and indicated, among other things, that she would not return to Cooper City High School.
By letter dated August 17, 2006, Ms. Granatelli rescinded her resignation letter. She was permitted to rescind her resignation letter.
Ms. Granatelli requested a transfer and indicated on the request that she be assigned to Attucks Middle School. For the 2006-2007 school year, she was assigned to Attucks Middle School, as a support facilitator within the ESE program for the eighth grade.
Ms. Granatelli desired to move to a high school for the 2007-2008 school year and requested a transfer to a high school, providing a list of high schools to which she desired to be transferred; but she was re-assigned to Attucks Middle School.
However, in the Fall of 2007, Ms. Granatelli was notified by the principal at Attucks Middle School that, due to the decrease in student enrollment, some teachers would be surplused, that Ms. Granatelli would be one of the surplused teachers, and that she (Ms. Granatelli) would need to complete a surplus form.
When the School Board has a decrease in student enrollment, either through the loss of students or the movement of students to a charter school, the principals lose budgeted monies and, therefore, must “surplus” their excess employees. Surplus is referred to as an “Involuntary Transfer.” The school that loses budgeted monies can no longer support the employees on its budget and must, therefore, reduce the number of employees who have been appointed to that school; the employees are involuntarily transferred from the school that has suffered a lost of budgeted monies to another school. The teachers with the least seniority are the employees who are transferred.
Ms. Granatelli refused to complete the surplus form and failed to identify schools to which she wished to be assigned.
Ms. Granatelli was surplused, for the 2007-2008 school year, to Fairway Elementary School, where she was an ESE teacher in the areas of math and reading.
Ms.Granatelli continued to have the desire to teach at a high school. She requested a transfer from Fairway Elementary School.
At the end of the 2007-2008 school year, instead of being transferred, Ms. Granatelli was surplused from Fairway Elementary School to Wilton Manors Elementary School for the 2008-2009 school year.
By letter dated July 15, 2008, Ms. Granatelli was notified by the School Board’s Supervisor of Instructional Staffing that she was being assigned to Wilton Manors Elementary School for the 2008-2009 school year. Further, the letter advised her, among other things, that she may request to be transferred from Wilton Manors Elementary School and the process for such a request; that she was expected to report to the school on August 11, 2008, unless she secured her own transfer; and that her failure to report would result in a recommendation to the School Board for her termination.
On July 21, 2008, Ms. Granatelli met with the principal of Wilton Manors Elementary School, Mark Narkier. During their meeting, he notified her that she had been assigned to teach second grade in the autistic program, as an autistic teacher. Ms. Granatelli expressed her concern to him that she was not comfortable teaching in the second grade autistic program and notified him that she would seek a transfer. Also, at that meeting, Mr. Narkier signed her request for transfer.
Further, during that meeting, Mr. Narkier attempted to alleviate her concern and reassure her that she could be a successful second grade autistic teacher. He advised
Ms. Granatelli that he would provide her with all of the resources that were available to assist her in getting comfortable and more familiar with teaching autism. He informed
her that paraprofessionals would be available to provide assistance as needed and the same paraprofessionals who had worked with the students the previous school year would be available; and that full-time autism coaches and other School Board employees would be available to provide assistance.
Furthermore, on August 8, 2008, he sent her an e-mail providing her with a list of workshops that were available for training on autism, including the dates and registration information for the workshops.
Additionally, Mr. Narkier attempted to reassure
Ms. Granatelli that he would provide her with all of the support that she would need to be a successful teacher in the position.
Eventually, Ms. Granatelli decided that she did not want to take advantage of the workshops because they were time- consuming and because they were being offered after the beginning of the school year.
Teachers were to report to Wilton Manors Elementary School on August 11, 2008.
On August 10, 2008, the day before she was to report, Ms. Granatelli sent an e-mail to Mr. Narkier at approximately 11:29 p.m. notifying and indicating to him, among other things, that the time had come for her “to sever [her] career path with [the School Board]. . . Although your office has sent me with [sic] information on all the trainings I would need to become a
successful Autism teacher, It [sic] is not something I chose or would choose for my career aspirations. . . Please know that I want to continue being the excellent teacher and team player I am, but unless an appropriate assignment is given to me, [the School Board] is going to lose a highly qualified, experienced, caring individual. Any suggestions would be appreciated at this time.”
Ms. Granatelli did not report to Wilton Manors Elementary School on August 11, 2008. At hearing, she testified that she failed to report because she had the belief that her being in the position of an autistic teacher in the second grade was putting the health and safety of the autistic children and herself in jeopardy.
Ms. Granatelli did not review the records of the autistic children who were assigned to her class. She did not observe or have any contact with the children who were assigned to her class. She did not access the abilities of the children who were assigned to her class. Further, no evidence was presented to indicate that attending the training after the beginning of the school year would be detrimental to the children who were assigned to her class or to her.
The evidence fails to support Ms. Granatelli’s belief that the health and safety of the autistic children and herself were in jeopardy as a result of her being in the position of an
autistic teacher in the second grade at Wilton Manors Elementary School.
By letter dated August 11, 2008, Mr. Narkier directed Ms. Granatelli to report to Wilton Manors Elementary School on August 15, 2008. He further advised her in the letter that her contract began that day; that she neither reported for work nor called in sick nor requested leave; and that, if she failed to report to work by August 15, 2008, her employment with the School Board would be terminated based upon job abandonment.
Furthermore, out of concern for Ms. Granatelli and the possibility of her losing her employment, Mr. Narkier telephoned her and spoke with her regarding the same matters in the letter. During the telephone conversation, he suggested to her that, if she was not going to report, it would be better to resign than be terminated because termination would look worse than resignation; and she indicated that she would resign.
The letter from Mr. Narkier dated August 11, 2008, was sent by certified mail, return receipt. The return receipt indicates that Ms. Granatelli received the letter on August 15, 2008.
An inference is drawn and a finding of fact is made that Ms. Granatelli intentionally did not retrieve the letter
until the day that she was required to report, i.e., August 15, 2008; and that she did not contact Mr. Narkier to notify him that she had received the notice that same day.
As a result, a finding of fact is made that
Ms. Granatelli intentionally refused to report to Wilton Manors Elementary School on August 15, 2008, as directed by
Mr. Narkier.
The evidence demonstrates that Mr. Narkier, as principal of Wilton Manors Elementary School, had the proper authority to give Ms. Granatelli a direct order.
Furthermore, the evidence demonstrates that the directive given by Mr. Narkier to Ms. Granatelli was reasonable in nature.
Ms. Granatelli did not report to work on August 15, 2008, or thereafter. Also, no letter of resignation from her was received by Mr. Narkier.
On August 22, 2008, Ms. Granatelli contacted her BTU representative, George Segna, by e-mail relating to him the circumstances of her refusal to accept the assignment at Wilton Manors Elementary School. She indicated, among other things, that she was not resigning and was not abandoning her assignment.
Subsequently, on that same date, Mr. Segna e-mailed Ms. Granatelli. He advised her, among other things, that she
would be considered to have abandoned her position if she was absent from work for more than three days without approved leave.
Ms. Granatelli does not dispute that, at the time of the e-mail, she was absent from work for more than three days without approved leave.
No dispute exists that being absent from work for more than three days without approved leave constitutes abandonment under School Board policy.
Also, in the e-mail, Mr. Segna advised Ms. Granatelli, among other things, that, as a general rule, even if the School Board violates her rights, she must comply with her assignment unless it endangered her health or safety; and that, absent a violation of her rights, the School Board has the right to assign her within her area of certification and to assign her outside her area of certification involuntarily for one year.
Additionally, in the e-mail, Mr. Segna advised
Ms. Granatelli, among other things, that her only options were either to apply for leave for which she qualified; or to report to work for the assignment which she had been given; or to resign; or to be terminated for abandonment.
Moreover, in the e-mail, Mr. Segna recommended to Ms. Granatelli that, if she chose not to accept the assignment, she should resign to not mar her employment record and to allow
a permanent replacement to be hired, without delay, for the class.
Ms. Granatelli did not follow any of the advice provided by Mr. Segna or his recommendation.
By another letter dated August 21, 2008, Mr. Narkier directed Ms. Granatelli to report to his office on August 28, 2008, at 2:00 p.m., for a pre-termination meeting to discuss her abandonment of her job on August 11, 2008. He also advised her in the letter that she had the right to have a representative of her choosing present and that her failure to attend would result in her name being forwarded to the School Board for termination.
The letter dated August 21, 2008, was sent certified mail, return receipt. The return receipt indicates that
Ms. Granatelli received the letter nine days later on August 30, 2008.
An inference is drawn and a finding of fact is made that that Ms. Granatelli intentionally did not retrieve the letter until after the date that she was directed to attend the pre-termination meeting, i.e., August 28, 2008; and that she did not contact Mr. Narkier to notify him that she had not received the letter until August 30, 2008.
As a result, a finding of fact is made that Ms. Granatelli intentionally refused to attend the pre-
termination meeting on August 28, 2008, as directed by Mr. Narkier.
The evidence demonstrates that the directive given by Mr. Narkier to Ms. Granatelli was reasonable in nature.
Mr. Narkier had intended, at the pre-termination meeting, to inquire of Ms. Granatelli as to why she failed to report and to discuss whether termination was appropriate. However, she failed to attend the pre-termination meeting and, therefore, there was no discussion.
With Ms. Granatelli having failed to attend the pre- termination meeting, by letter dated August 28, 2008,
Mr. Narkier notified her that he would be submitting her name to the School Board with a recommendation for termination on the basis of abandoning her job by failing to report to work. He indicated to her, among other things, that her failure to report to work adversely affected Wilton Manors Elementary School.
Also, by letter dated September 8, 2008, the School Board’s Director of Instructional Staffing, Rebeca Brito, informed Ms. Granatelli that, on September 23, 2008, her name would be submitted to the School Board with a recommendation for termination of her employment.
Subsequently, by letter dated September 24, 2008, Ms. Brito advised Ms. Granatelli that, at its meeting on
September 23, 2008, the School Board had approved the recommendation to terminate her employment.
Ms. Granatelli timely requested a hearing on the decision to terminate her employment.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2009).
No dispute exists that the School Board has the burden of proof to show by a preponderance of the evidence that
Ms. Granatelli should be terminated. McNeil 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).
Section 1012.01, Florida Statutes (2008), provides in pertinent part:
INSTRUCTIONAL PERSONNEL. – ‘Instructional personnel’ means any K-12 staff member whose function includes the provision of direct instructional services to students. Instructional personnel also includes K-12 personnel whose functions provide direct support in the learning process of students. Included in the classification of instructional personnel are the following K-12 personnel:
Classroom teachers. --Classroom teachers are staff members assigned the professional activity of instructing students in courses in classroom situations,
including basic instruction, exceptional student education, career education, and adult education, including substitute teachers.
Section 1012.33, Florida Statutes (2008), titled “Contracts with instructional staff, supervisors, and school principals,” provides in pertinent part1:
(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: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.
* * *
(4) (a) An employee who had continuing contract status prior to July 1, 1984
. . . .
* * *
(c) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any school principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him or
her must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude, as these terms are defined by rule of the State Board of Education. Whenever such charges are made against an employee of the district school board, the district school board may suspend such person without pay; but, if the charges are not sustained, he or she shall be immediately reinstated, and his or her back salary shall be paid. In cases of suspension by the district school board or by the district school superintendent, the district school board shall determine upon the evidence submitted whether the charges have been sustained and, if the charges are sustained, shall determine either to dismiss the employee or fix the terms under which he or she may be reinstated. If such charges are sustained by a majority vote of the full membership of the district school board and the employee is discharged, his or her contract of employment shall be canceled.
Any decision adverse to the employee may be appealed by the employee pursuant to s.
120.68, provided the appeal is filed within
30 days after the decision of the district school board.
Section 1012.67, Florida Statutes (2008), titled “Absence without leave,” provides:
Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his or her employment shall be subject to termination by the district school board.
Florida Administrative Code Rule 6B-4.009 provides in pertinent part:
(4) Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
The evidence demonstrates that Mr. Narkier, was the person given the authority and had the proper authority to give Ms. Granatelli a direct order.
Also, the evidence demonstrates that Mr. Narkier’s direct orders to Ms. Granatelli in the letters dated August 11, 2008, and August 21, 2008, were reasonable in nature.
Further, the evidence demonstrates that Ms. Granatelli intentionally refused to obey Mr. Narkier’s direct order to report to Wilton Manors Elementary School on August 15, 2008, and his direct order to report to the pre-termination meeting on August 15, 2008.
Ms. Granatelli argues in her post-hearing submission that the notice that she received for both directives was inadequate. This Administrative Law Judge is not persuaded in that the evidence demonstrates that she intentionally did not obtain the letter dated August 11, 2008, until August 15, 2008, the date that she was directed to report to school and that she intentionally did not obtain the letter dated August 21, 2008, until August 30, 2008, after the date that she was directed to report to the pre-termination meeting, i.e., August 28, 2008.
Consequently, the evidence demonstrates that Ms. Granatelli committed gross insubordination or willful neglect of duties.
Hence, the evidence demonstrates that the School Board established just cause for the termination of Ms. Granatelli from employment.
Furthermore, the School Board has established by a preponderance of the evidence that Ms. Granatelli was willfully absent from her school assignment for more than three days from her reporting date of August 11, 2008, and failed to request leave for the days of absence.
Additionally, the evidence demonstrates that her leave of absences were unexplained. Ms. Granatelli failed to report to or contact Mr. Narkier.
Moreover, the evidence demonstrates that neither the autistic children’s nor Ms. Granatelli’s health and safety were in jeopardy due to her assignment at Wilton Manors Elementary School to teach second grade autistic children.
Hence, the School Board demonstrated that
Ms. Granatelli abandoned her assignment at Wilton Manors
Elementary School.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Broward County School Board enter a final order terminating the employment of Diane Granatelli for abandonment of position.
DONE AND ENTERED this 1st day of October 2009, in Tallahassee, Leon County, Florida.
ERROL H. POWELL
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 1st day of October, 2009.
ENDNOTE
1/ Both parties cited to the statutory provisions regarding suspension, dismissal, and just cause and argument was presented in their post-hearing submissions.
COPIES FURNISHED:
Eugene K. Pettis, Esquire Haliczer, Pettis & Schwamm, P.A. One Financial Plaza
100 Southeast Third Avenue, Seventh Floor Fort Lauderdale, Florida 33394
Steve Rossi, Esquire
Law Offices of Steve Rossi, P.A.
533 Northeast Third Avenue, Suite 2 Fort Lauderdale, Florida 33301
Dr. Eric J. Smith, Commissioner Department of Education Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
Deborah K. Kearney, General Counsel Department of Education
Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Mr. James F. Notter, Superintendent Broward County School District
600 Southeast Third Avenue
Fort Lauderdale, Florida 33301-3125
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 |
|---|---|---|
| Nov. 10, 2009 | Agency Final Order | |
| Oct. 01, 2009 | Recommended Order | Petitioner demonstrated that Respondent abandoned her position. Recommend termination of employment. |
BROWARD COUNTY SCHOOL BOARD vs. WILLIAM B. BAILEY, 08-005799TTS (2008)
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GENE A. STARR vs. HAMILTON COUNTY SCHOOL BOARD, 08-005799TTS (2008)
BROWARD COUNTY SCHOOL BOARD vs CLOVERLY CAMERON, 08-005799TTS (2008)
SCHOOL BOARD OF DADE COUNTY vs. LEO A. WILLIAMS, 08-005799TTS (2008)
