STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF VOLUSIA COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6360

)

JOHN FLORIO, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on June 14 and 15, 1990, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Harrison C. Thompson, Esquire

THOMPSON, SIZEMORE & GONZALEZ

P.O. Box 639

Tampa, Florida 33601

For Respondent: Ben Patterson, Esquire

P.O. Box 4289

Tallahassee, Florida 32315 STATEMENT OF THE ISSUES

1. The ultimate issue is whether the Board has just cause to discharge the Respondent.

   
   

2. The factual issue is whether the Respondent committed the several acts referenced in the letter recommending his discharge.

PRELIMINARY STATEMENT

The Respondent was discharged from his position as a painter-mechanic on November 14, 1989, pursuant to School Board action and has not received compensation since that time. To challenge this disciplinary action, the Respondent invoked his right to a Chapter 120 hearing, pursuant to Section 1(A) of Article VI of the collective bargaining agreement between the School Board of Volusia County and the American Federation of State, County and Municipal Employees, Council 79, Local 850 ("Union") dated 1989-1991.

Both parties called witnesses and introduced exhibits. The Petitioner called Clifton Robertson, Terry Ellis, Joe Isaac, Larry Brazil, Kenneth Griswold, Joseph Perry, Glen Doyle, and Don Jenkins; and introduced Petitioner's Exhibits 1-7. The Respondent called George Pallai, L. W. Summerlin, Manly Harrison and Robert DeLoach; and introduced Respondent's Exhibits 1-13,

excluding Exhibit 11. Through an error in numbering, there was no Exhibit 11. The parties agreed to the introduction of the contract between the Board and AFSME as Joint Exhibit 1.

References to the official transcript of these proceedings are denoted by the letter "T" followed first by the transcript volume number ("I" or "II"), then followed by the appropriate page number. Such references are for the convenience of the Hearing Officer only and do not necessarily reflect the sole record support for any proposed findings of fact.

Both parties submitted proposed findings of fact which were read and considered. The Appendix, attached hereto and incorporated by reference herein, contains a listing of those findings which were adopted and those which were rejected and why.

FINDINGS OF FACT

1. The Respondent was employed by the School Board of Volusia County from September 1, 1981 until November 14, 1989 as a painter or painter mechanic. T- II-39,40.

   
   

2. The terms and conditions of the Respondent's employment was governed by the contract between the Petitioner and the American Federation of State, County, and Municipal Employees, Council 79, Local 850. This contract provides that employees can be disciplined, to include discharge for just cause. Joint Exhibit 1.

   
   

3. The Respondent was employed as a painter within the Board's facilities support operations department. This department employs approximately 130 craftsmen and 20 clerical and supervisory staff. T-I-38.

   
   

4. The Respondent's immediate superior was foreman of the painters, Joe Isaac, who has held that position for the past 18 years. T-I-38,64

   
   

5. The chain-of-command from the top of the facilities support department is Charles Lambeth, who is Director of Facilities Operation; Terry Ellis, who is Assistant Director in charge of the crafts area; and Clifton Robertson, who is the Director of Facilities Support Operations or the personnel administrator for the facilities support department.

   
   

6. Clifton Robertson investigated the allegations against the Respondent, counseled with the Respondent, and issued the disciplinary letters and reprimands given to the Respondent.

   
   

7. On October 24, 1989, Mr. Florio engaged in a loud, profane, and inappropriate shouting match with a coworker, Larry Brazil, while on the job scraping paint outside a classroom at Seville School. Their conduct was such that a teacher left her classroom, outside of which they were working, and cautioned them about the disturbance they were causing. The acting foreman, Don Jenkins, overheard the exchange between the Respondent and Brazil in which the Respondent used obscene or profane language. The acting foreman did not hear Brazil use such language, and other witnesses testified that they had never heard Brazil use such language on the job.

   
   

8. On October 25, 1989, the Respondent got into another argument with another coworker, Ken Griswold. During this argument, the Respondent threw his paint scraper at Griswold, who had made no threat to the Respondent. With only

   the verbal provocation, the Respondent threw the scraper at Griswold and would have struck him had Griswold not jumped back out of the way.

   
   

9. There was dissatisfaction among the Respondent's coworkers about the way he did his job. The Respondent had been injured in 1987 and was restricted from working on ladders over six feet tall, lifting regular ladders, and spray painting. Sometime later, the Respondent's restrictions were altered to permit him to work on a six-foot aluminum ladder. His refusal to do any type of work which was covered by his medical restrictions was a source of contention with his coworkers. In addition, he had a history of not following regulations and requirements which the other men were required to follow.

   
   

10. On October 24 and 25, 1989, the Respondent was assigned to a team of painters to scrape and paint the exterior of a school. On both days, arguments between the Respondent and coworkers arose over the Respondent's refusal to scrape paint from the ladder. On October 24, 1990, this led to a shouting match with Larry Brazil and to the Respondent throwing a paint scraper at Ken Griswold on October 25, 1990.

    
    

11. On March 21, 1989, the Respondent was directed at 7:00 a.m. to report to work at Seabreeze Senior High School by his foreman, Joe Isaac. The Respondent did not do so and stayed at the main maintenance facility until 8:45 a.m., when he was discovered by the Assistant Maintenance Director, Terry Ellis, who instructed him to report to the high school. The Respondent again refused to go and remained at the main maintenance facility until 8:54 a.m., when the Maintenance Director, Charles Lambeth, arrived.

    
    

12. The Respondent had asked his foreman, Joe Isaac, to see Lambeth; and Isaac had told Florio to report to work at the high school and if Lambeth wanted him, Lambeth would send word through Isaac for Florio to report to Lambeth.

    
    

13. When confronted by Ellis, the Respondent told Ellis he wanted to see Lambeth. Ellis also told Florio to report to the school immediately. Florio remained at the maintenance headquarters until Lambeth arrived. Lambeth asked Florio why he was there, and Florio stated that he had been told Lambeth wanted to see him. Lambeth told Florio that he had not wanted to see him, and Florio blamed the incident on the men lying to him. Florio did not report until told to do so by Lambeth.

    
    

14. The Respondent had his pay docked for two hours and received a letter of reprimand for failure to follow direct instructions. The letter of reprimand described the Respondent's actions as malingering and insubordination.

    
    

15. Painters reported each day to the maintenance headquarters, after which they took School Board vehicles to the job sites. Similarly, after being released at the job site, the painters were supposed to return to the main maintenance facility, where employees were dismissed for the day.

    
    

16. On September 11, 12, 13 and 14, 1989, the Respondent drove his private automobile to the school at which the paint team was working. Although the Respondent had been given permission to drive his car on Monday of that week because his stomach had been giving him problems, he took his car the rest of the week and left directly from the school, not returning to the maintenance headquarters, as required on the dates indicated above. The Respondent received written notice that he was being docked 160 minutes.

17. On or about September 21, 1989, the Respondent told a coworker that he refused to drive. The Respondent did not deny telling the coworker that he would not drive but asserted that he had been kidding.

    
    

18. On September 22, 1989, the Respondent slammed open the door of a School Board truck striking another School Board truck in the door and damaging both trucks. The property damage was $121.63. The Respondent had slammed the door open because he was angered by the remarks of a coworker who chided him about driving.

    
    

19. The letter of reprimand which the Respondent received for his conduct on September 21 and 22 indicated that the Respondent had been encouraged to enter the Employee Assistance Program. The Respondent did not avail himself of the program.

    
    

20. The Respondent frequently complained to his supervisors about what he described as "harassment" and "kidding" by his coworkers although the Respondent engaged in similar behavior with his coworkers. As a result of his complaints, his superiors counseled his coworkers not to tease, harass, or kid the Respondent.

    
    

21. The Respondent is a malingerer. He developed a pattern of avoiding work by failing to report when he was supposed to report; by refusing to perform duties within his ability as requested by his fellow workers; and by asserting he was ill. The Respondent was ill-tempered and acted out inappropriately with increasing frequency and violence. The Respondent refused to acknowledge that there was a problem, that the problem was him, and to seek assistance for it.

    
    

22. The employer counseled with the Respondent and used progressive discipline to attempt to modify the Respondent's behavior to no avail. The employer had just cause to discharge the Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to the collective bargaining agreement executed between the School Board and the Union. This proceeding was conducted and this Recommended Order entered pursuant to Section 120.57, Florida Statutes.

    
    

24. Article VI, Section 1(a) of the collective bargaining agreement provides that the Board may discipline an employee for just cause. The available disciplinary measures range from written reprimands to demotion to suspension without pay and, finally, discharge. The Board must show by a preponderance of evidence that the action was taken for just cause. "Just cause" is defined as: "some substantial shortcoming which renders continuance in ... office or employment in some way detrimental to the discipline and efficiency of the services." Fantozze v Board of Fire and Police Commissions,

    189 N.E. 2d 275 (1963). Rule 22A-7.10(7), Florida Administrative Code, defines "just cause" as: . . . negligence, inefficiency, or inability to perform assigned duties; insubordination; willful violations of the provisions of these or agency rules and regulations; conduct unbecoming a public employee; misconduct; habitual drunkenness; or conviction of any crime involving moral turpitude."

    
    

25. The Respondent argues initially that the judgment in a prior unemployment compensation proceeding between the same parties raises the issue of the Board being estopped by judgment from presenting its case to support its

    decision to terminate the Respondent's employment. This doctrine cannot be applied when there are different standards of proof in the proceedings. In State of Florida, Department of Health, Etc. v. Vernon, 379 So.2d 683 (2nd DCA 1980), the court found that the standard in unemployment compensation cases was higher than the standard applied in determining whether a State Career Service employee had been discharged for just cause. Therefore, the doctrine of estoppel by judgment would not apply in this case in which the standard for disciplinary action, as with Career Service cases, is higher than in unemployment compensation cases.

    
    

26. The letter advising the Respondent of the recommendation to the Board of his discharge mentions the shouting incident of October 24, 1989. The Respondent argues that he was discharged for using profane or obscene language; however, the letter does not mention the use of profane or obscene language. It does indicate that the incident created a disturbance which required a teacher to leave her classroom to quiet the Respondent. The letter also mentions the events of October 25, 1990 when the Respondent threw a paint scraper at a coworker and earlier incidents and disciplinary action taken. The letter concludes:

    
    

    Therefore, because of the similar continued misconduct sited (sic) above you are hereby presented this written notification that a recommendation for your dismissal will be presented to the School Board of Volusia County on November 14, 1989.

    
    

27. The findings above support the statements contained in the letter of intended disciplinary recommendation. The Respondent had a history of acting inappropriately which had become more frequent and more severe. He had refused participation in the Employee Assistance Program because he did not perceive that he had a problem.

    
    

28. The Respondent argues that he has a quick temper and was teased and harassed by his coworkers. The Respondent's temper is irrelevant to his employer and coworkers, and an employee must curb his anger, particularly at minor or imagined slights, and behave within the norm of society. In this case, the Respondent participated in the jokes and teasing of coworkers but exhibited inappropriate behavior when subjected to the same conduct. He was unable to behave within the norm, and adhere to the rules and regulations of the employer.

    
    

29. The Board had just cause to discipline the Respondent and was justified in dismissing the Respondent because of the increasing number and severity of incidents.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore recommended that the Respondent be discharged.

RECOMMENDED this 20th day of August, 1990, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6360

The parties filed proposed findings of fact which were read and considered. The following is a listing by party of the findings which were adopted and those which were rejected and why:

Petitioner's findings by paragraph number which began with paragraph 7: Paragraph 7 Adopted

Paragraph 8 Adopted

Paragraph 9 Adopted and rewritten

Paragraph 10 Rejected; restates exhibit

Paragraph 11 1st sentence adopted; remainder irrelevant

Paragraph 12,13,14 Adopted and rewritten Paragraph 15(a) Irrelevant

Paragraph 15(b) Rejected; restates exhibit

Paragraph 16-20 Adopted and rewritten

Paragraph 21 Irrelevant

Paragraph 22-29 Adopted and rewritten

Respondent's findings by paragraph number beginning with paragraph 1: Paragraph 1-4 Adopted and rewritten

Paragraph 5 Irrelevant

Paragraph 6-10 Adopted and rewritten

Paragraph 11 Whether Brazil was disciplined is unknown

Paragraph 12 Rejected as contrary to fact

Paragraph 13-14 Adopted and rewritten

Paragraph 15 Rejected that Florio did not throw the scraper at Griswold; remainder adopted and rewritten

Paragraph 16 Adopted and rewritten

Paragraph 17 Evidence was received that coworkers were counseled on several occasions; however, it is also irrelevant because the disciplinary records of the other employees were not introduced. Evidence was received that; at least one other employee was discharged for similar types of behavior.

Paragraph 18 Adopted and rewritten

Paragraph 19-24 Irrelevant

Paragraph 25 The statement is true, but gives the erroneous impression that Florio was discharged because he did not participate in the program. The employer's reference of the employee to this program was relevant because it shows the employer had such a program and it was available. The employee's rejection was relevant because it indicates how confused the employee is about his situation and condition.

Paragraph 26 Rejected as contrary to fact

COPIES FURNISHED:

Harrison C. Thompson, Esq. THOMPSON, SIZEMORE & GONZALEZ

P.O. Box 639 Tampa, FL 33601

Ben Patterson, Esq.

P.O. Box 4289 Tallahassee, FL 32315

Dr. Jame D. Surratt, Superintendent Volusia County School Board

P.O. Box 2118 Deland, FL 32720

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, FL 32399-0400

Docket for Case No: 89-006360

Orders for Case No: 89-006360