STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF ALACHUA COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5144

)

KEVIN M. WRIGHT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing in this case was held on February 29, 1988, in Gainesville, Florida, before William F. Quattlebaum, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas L. Wittmer, Esquire

620 East University Avenue Gainesville, Florida 32601

For Respondent: William E. Whitley, Esquire

719 N.E. 1st Street Gainesville, Florida 32601

BACKGROUND

By letter from Wilford A. Griffin, supervisor of career service personnel for the School Board of Alachua County, Respondent, Kevin Wright, was notified that he was being suspended from employment and that the superintendent of Alachua County Schools would recommend to the School Board that he be dismissed from employment.

Mr. Wright timely requested a hearing on the matter. The School Board referred this matter to the Division for hearing.

At the hearing, the School Board presented the testimony of seven witnesses and had seven exhibits admitted into evidence. Respondent presented the testimony of four witnesses.

Prior to the hearing, the parties submitted a prehearing stipulation pursuant to the Hearing Officer's Order of January 11, 1988. The stipulation has been identified as Hearing Officer's Exhibit 1.

Following the hearing, both parties submitted proposed recommended orders with proposed findings of fact. The proposed findings of fact are ruled upon in the Appendix to this Order.

Through a post-hearing joint telephone conference held on March 24, 1988, the Hearing Officer took official notice of Alachua County School Board Policy GDPD which provides dismissal procedure related to this case. The parties also stipulated to additional facts as follows:

1. In August 1987, the Respondent began employment as an Aide I for the 1987-88 school year, a period of approximately ten months. The School Board refers to such employees as "ten month employees" in that they are normally hired to work during the ten months which constitute the regular school term.

   
   

2. The School Board of Alachua County does not enter into a formal written contract with "ten month employees." The practice of the School Board is to provide a "ten month employee" with an administrative hearing if the employment is dismissed or terminated prior to the end of the ten month period.

FINDINGS OF FACT

1. In January, 1987, Respondent became employed with the School Board of Alachua County as an Aide I at the Alachua County Regional Juvenile Detention Center in Gainesville, Florida. Said employment was for the duration of the 1986-87 school year.

   
   

2. The Detention Center is a custodial facility designed for the temporary placement of youth ordered there by juvenile court, while awaiting adjudication or other placement. The facility is staffed and operated by the Florida Department of Health and Rehabilitative Services which contracts with the School Board for instructional services. The School Board provides educational services for juveniles detained in the facility and employs teachers and teachers' aides to carry out instructional responsibilities HRS maintains custodial supervision of the juveniles in the center. Pursuant to the agreement between the School Board and the Department of Health and Rehabilitative Services, HRS staff are responsible for handling aggressive behavior exhibited by juveniles in the center.

   
   

3. An Aide I is a noninstructional employee who assists the teacher in general clerical and administrative tasks and in certain daily classroom activities. (Petitioner's Exhibit

   
   

4. The respondent performed his duties in an acceptable manner during the period from January to April, 1987. On April 27, 1987, the Respondent was evaluated on a number of factors, with an evaluation scale of 1 (low) to 5 (high). On this evaluation, the Respondent received a 5 for "personal appearance," a 4 for "knowledge of job," "quality of work," and "ability to adjust to change." He received a 2 for "punctuality." In all other categories, the Respondent received a 3. (Petitioner's Exhibit 2).

   
   

5. At some point following the evaluation of April, 1987, Respondent was counseled regarding his tardiness in arriving for work.

   
   

6. Respondent was employed as an Aide I during the summer of 1987 at the detention center, had good attendance, and generally arrived at the time scheduled for his work day to begin.

   
   

7. Beginning in August of 1987, Respondent was employed for the 1987-88 school year and was assigned to work with Floretta V. Allen, a teacher at the detention center.

8. As an aide to Ms. Allen, the Respondent was to assist the teacher in general clerical and administrative tasks and certain classroom activities. Among the clerical tasks within the Respondent's responsibilities were the completion of various forms. In addition to the responsibilities of assisting Ms. Allen, Mr. Wright was assigned by the director of the school program at the detention center to administer the Wide Range Achievement Test to new students, which he did two days each week.

   
   

9. During the fall of 1987, Ms. Allen indicated to the director of the school program at the detention center that she was dissatisfied with Mr. Wright's job performance. She expressed her concern that Mr. Wright was frequently tardy or altogether absent and was not calling the center to notify her of his status. She also expressed her concern that he was not completing administration of the WRAT test in a timely manner. She also indicated that Mr. Wright was not fulfilling his responsibilities in regard to the completion of various forms.

   
   

10. No specific instances of Mr. Wright's tardiness or absences without phone notification were documented. No specific occasions on which Mr. Wright did not complete the WRAT test in a timely manner were documented. No specific instances of the alleged mishandling of various forms were documented.

    
    

11. Although Ms. Allen expressed her concern to the director of the center regarding Mr. Wright's job performance on more than one occasion, no written records of these conversations were made prior to October 9, 1987.

    
    

12. On the morning of September 29, 1987, the students in Ms. Allen's class were lining up to leave the classroom. Ms. Allen directed one student, D.C., to go to the back of the boy's line. Shortly thereafter, the Respondent became involved in a verbal and physical altercation with said student.

    
    

13. At some point during the altercation between the Respondent and the student, the Respondent held the student in a headlock. The student's neck was held in the bent arm of the Respondent, with the Respondent's other arm placed across the back of the student's neck to maintain the hold.

    
    

14. While the student testified that he was unable to breathe while in the headlock, the student was uninjured and required no treatment.

    
    

15. The cause of the altercation is unclear. No eye witnesses, other than the Respondent and the student, testified as to what caused the physical altercation. There is considerable conflict between the accounts of both parties.

    
    

16. Shortly after the altercation began, two members of the HRS staff entered the classroom and removed the student from the Respondent's hold. The student did not attempt to continue any involvement with Mr. Wright. Mr. Wright was somewhat upset and disturbed following the incident.

    
    

17. On the morning of October 5, 1987, Ms. Allen was outside of the classroom, in an office adjacent to the classroom. Mr. Wright was responsible for supervising the students while Ms. Allen was occupied with other educational duties. Upon looking into the classroom, Ms. Allen became aware that the student, D.C., had been removed from the classroom and was sitting in the hallway outside of the classroom.

18. There is considerable conflict between the student's and the Respondent's accounts of the incident. The student claims that Mr. Wright ejected him from the classroom for reasons which are unclear. The Respondent claims that the student was disruptive and was removed from the classroom by an HRS worker according to appropriate procedure. No other eye witnesses testified regarding the October 5, 1987 event. They are the only eye witnesses who testified to the event.

    
    

19. HRS staff members at the detention center receive training in how to handle youth who are assigned to the regional detention center, including specific training for situations which may require the use of physical force on the part of the staff member.

    
    

20. A headlock is considered to be an inappropriate hold to use on a minor child and is not included as part of HRS staff training in how to respond to difficult situations.

    
    

21. On October 13, 1987, the Respondent was Suspended with pay pending the outcome of an investigation into the Respondent's job performance. By letter of November 5, 1987 (Petitioner's Exhibit 6), Respondent was informed by Wilford A. Griffin, Supervisor of Career Service Personnel for the Petitioner, of Mr. Griffin's recommendation to the Superintendent of Schools that the Respondent's employment be terminated. As grounds for termination, Mr. Griffin alleged that the Respondent was frequently tardy or absent without providing appropriate notification to the teacher; that the Respondent was involved in two altercations with a student, one on September 29, 1987 and one on October "4" (sic), 1987; 1/ that the Respondent did not provide assistance to the teacher; that the Respondent was not able to complete the administration of tests or to complete various clerical duties in a timely manner; and that the Respondent had lost or misplaced teaching materials and student assignments. Griffin's letter stated that the Superintendent would recommend to the School Board that the Respondent be suspended without pay on November 18, 1987, and terminated effective December 2, 1987.

    
    

22. By agreement between the School Board and HRS, at the time of the alleged instances between the Respondent and D.C., members of the HRS staff were not stationed inside the classroom but were instructed to remain outside the classroom in the hallway.

    
    

23. Maintenance of discipline in the classroom is the responsibility of the teacher. The Respondent's role in maintaining discipline is to assist the teacher. (Petitioner's Exhibit 1).

    
    

24. The handbook prepared by the School Board for use by teachers and aides in alternative education for residential programs (Petitioner's Exhibit 4) identifies methods for handling student aggression. Specific methods for responding to physical aggression are stated on page 26 of the handbook. The alternatives listed are non-physical responses to the aggression, and are designed to lower the level of the confrontation while protecting School Board personnel and other students. The handbook was available to the Respondent and was discussed with the Respondent but was not distributed or delivered to him.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this case. Section 120.57, Florida Statutes.

26. The School Board of Alachua County has statutory authority to suspend and dismiss instructional staff and other school employees, Section 230.23(5)(f), Florida Statutes.

    
    

27. The grounds for which Mr. Wright could be dismissed are those which would exist in a normal employer-employee relationship. He is not represented by a labor organization, and is not a party to a collective bargaining agreement. Accordingly, contrary to the School Board's assertion in its proposed recommended order, Chapter 447, Florida Statutes, is not applicable. Further, while Section 230.33(5), Florida Statutes, suggests that suspension and dismissal of School Board personnel is subject to the requirements of Chapter 231, Florida Statutes, which provides grounds for dismissal, Section 230.33(5)(f) clarifies that Chapter 231 Standards are applicable to action against an administrative assistant, supervisor, principal, teacher, or other member of an instructional staff. Mr. Wright does not come within any of those classifications. 2/ In Mr. Wright's case, as in any employer-employee relationship where the employment is to continue for a specified period of time, the employment may not be terminated prior to the expiration of the period unless such termination is for good cause. 3/ In order to justify the termination of employment, the employer must show a breach on the employee's part of an express or implied provision of the employment agreement. 2 Fla. Jur 2d, Agency and Employment Section 132.

    
    

28. The standard by which the employee's job performance is to be measured is that of a "reasonable man." Video Electronics, Inc. v. Tedder, 470 So.2d 4 (Fla. 1st DCA 1985).

    
    

29. The applicable burden of proof requires that the School Board show, by a preponderance of the evidence, the facts which led to the initiation of dismissal proceedings against the Respondent. South Florida Water Management District v. Caluwe, 459 So.2d 390 (Fla. 4th DCA 1984).

    
    

30. The School Board cites as grounds for the proposed dismissal, Mr. Wright's excessive tardiness and absence, his inefficient use of time, his inability to handle various clerical responsibilities, and the alleged lack of assistance provided to the teacher. Appropriately documented or otherwise proven, such factors could justify the dismissal of an employee. However, such proof is not available in this case. No specific occurrences which would demonstrate a pattern of poor performance were proven. The School Board has not met its burden of proof in establishing these allegations.

    
    

31. The School Board also cites two alleged incidents between a student, D.C., and Mr. Wright, as grounds for the dismissal. One allegation involved the removal on October 5, 1987, of the student, D.C., from the classroom by the Respondent without obtaining the permission of the class teacher. The other allegation involved a physical altercation between the same student and the Respondent on September 29, 1987.

    
    

32. The problem in both instances is that the accounts of the witnesses are in direct disagreement, and none of the witnesses are entirely credible. The student claims that incidents between himself and the Respondent are the result of a personal conflict, yet no reason for the personal conflict seems to exist. The Respondent's account places responsibility for one incident on the student and for the other incident on another detention center employee. Mr. Wright's desire to maintain his innocence is attributable to his desire to maintain his job. The teacher's accounts are generally hearsay since she

    witnessed nothing until the actual confrontations were in progress or completed.

    She was not satisfied with Mr. Wright's job performance but maintained no records and filed no reports prior to the September 29 incident. Her testimony regarding the incidents is likely colored by her desire to have Mr. Wright removed as her aide.

    
    

33. As to the October 5, 1987 incident, the testimony of the student and the Respondent demonstrated direct conflicts between the accounts of the parties. There was no testimony by any other person who personally witnessed how the incident occurred or who was actually involved in the student's removal from the classroom. The student testified that Mr. Wright removed him from the classroom for reasons which are not clear. Mr. Wright testified that the student was disruptive and was removed from the classroom by an HRS employee whose responsibility included such action when warranted.

    
    

34. Basing a finding of fact on the account of either party would require that one of the parties' testimony be regarded as totally false. Neither the testimony of the student nor that of the Respondent was persuasive. The only other testimony about the specific incident leading to the student's removal was that of the teacher. She did not see the incident and was not aware that a problem was occurring until after the incident of removal had concluded. In light of the nature of her testimony and her general dissatisfaction with Mr. Wright's performance, her account is not credible. The School Board did not establish by a preponderance of the evidence that Mr. Wright removed the student from the classroom.

    
    

35. Regarding the incident of September 29, 1987, the accounts of the parties again demonstrate considerable conflict. The student claims that Mr. Wright's action followed a remark by the student directed towards Mr. Wright. The Respondent on the other hand claims the student "lunged" towards the Respondent, who proceeded to defend himself. Again, the testimony regarding the origination of the confrontation is not credible. However, other witnesses testified relative to the actual "headlock" incident. The School Board has met its burden as to the September 29, 1987 use of force by the Respondent against the student.

    
    

36. The Respondent's claim of self defense is not believable. The student was not of such size as to lead to the belief that he would have been capable of inflicting physical injury upon the Respondent. There is no reasonable justification for the use of a potentially dangerous method of physical restraint.

    
    

37. While the Respondent's version of the story was that he "contained" the student by holding him momentarily in a headlock- type hold and then moved into a position where the student was held by his arms while bent over at the waist, the Respondent admitted that it did not require force to hold the student by the arms. It is difficult to reconcile the need to defend one's person against a student who may be held without force.

    
    

38. Even if a confrontation involving physical aggression had occurred, a headlock is an inappropriate method of responding to the aggression. The information available to school personnel which explains the proper way to respond to such situations does not encourage or permit any physical contact between a teacher or an aide and a student.

    
    

39. Respondent alleges that the reason he took physical action against the student was that the HRS worker who should have been nearby had left his post

    and was unavailable. However, other HRS employees were close enough to respond on a timely basis and in fact did so.

    
    

40. According to the HRS employees, a headlock is not proper procedure for such situations pursuant to their training. Respondent, a School Board employee, had not received such training, because HRS employees are responsible for responding to physically confrontational situations.

    
    

41. Under the circumstances, the Respondent's action on September 29, 1987 was entirely inappropriate, beyond the scope of his duties as an aide, and an unreasonable use of physical force. Such action constitutes good cause for the discharge of the employee.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Alachua County enter a Final Order

terminating the employment of Kevin M. Wright, effective November 18, 1987.

DONE and ORDERED this 29th day of March, 1988, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 29th day of March, 1988.

ENDNOTES

1/ Although the letter states that the classroom ejection incident occurred on October 4, 1987, at hearing it was clearly established that the date was October 4, 1987. The October 4th date falls on a Sunday.

2/ The Standards in Section 231.36, the pertinent section in Chapter 231, specifically apply to instructional staff, supervisors, and principals, who are employed pursuant to a required written contract. This section clearly does not apply to Mr. Wright. Although there are cases wherein Section 231.36 has been applied to noninstructional, administrative personnel, Smith v. School Bd. of Leon County, (Fla. App., 405 So.2d 183); Reddick v. Leon County School Bd., (Fla. App., 405 So.2d 757), by definition at Section 228.041(10), Mr. Wright's position as an Aide is not classified as administrative.

3/ The existence of a contract for employment in this case is not at issue. Although there was no written contract, there was a verbal agreement between the Respondent and the School Board that the Respondent, as a "ten month employee," would be employed for a specified period of time as an Aide I, and would

perform, as instructed by the teacher and the director of the center, the duties of an Aide I. In exchange, the School Board would provide defined compensation and benefits.

APPENDIX TO RECOMMENDED ORDER CASE NO. 87-5144

The following constitute specific rulings on the Proposed Findings of Fact filed by the parties in this matter.

Petitioner

1. Accepted.

2. Accepted, except for last sentence which is not supported by the weight of the evidence.

3-6. Accepted.

7. Rejected, not supported by the weight of the evidence.

8 & 8A. Accepted.

8B. Rejected, evidence was unclear as to which individual was cursing.

8C. Rejected, evidence was not clear whether student provoked incident.

8D & 8E. Accepted.

9. Rejected, the issue of who caused the student's removal was not clearly established. Otherwise accepted.

10 & 11. Accepted.

12. Rejected, unnecessary.

Respondent

1-4. Accepted.

1. Rejected, the exhibit (Petitioner's 3) accounts for leave time, does not reflect minor lateness. However, no finding was made regarding allegations of excessive tardiness or absenteeism.

2. Accepted as to considerable conflict. Rejected as to believability of witnesses, does not constitute a finding of fact.

3. Accepted, except as to date which was apparently October 5, 1987.

4. Accepted.

9 & 10. Rejected, conclusion.

COPIES FURNISHED:

Thomas L. Wittmer, Esquire 620 East University Avenue Gainesville, Florida 32601

William E. Whitley, Esquire 719 N.E. 1st Street Gainesville, Florida 32601

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Douglas P. Magann, Ed.D. Superintendent of Schools School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601

Docket for Case No: 87-005144

Orders for Case No: 87-005144