STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5607

)

RONALD LONG, JR., )

)

Respondent. )

) PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5608

)

ARTHUR McALEENAN, )

)

Respondent. )

)

RECOMMENDED ORDER

On December 2, 1992, a formal administrative hearing was held in this case in St. Petersburg, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: M. Teresa Harris, Esquire

Assistant School Board Attorney Pinellas County School Board

301 4th Street S.W. Largo, Florida 34649

For Respondent: John E. Tuthill, Esquire

3300 49th Street North

St. Petersburg, Florida 33710 STATEMENT OF THE ISSUES

The issues in this case are whether the Petitioner, the Pinellas County School Board, should dismiss either, or both, of the Respondents, Ronald Long, Jr., and Arthur McAleenan, from their employment as automotive paint and body mechanics, or otherwise discipline them, on charges contained in August 21, 1992, letters to them from the School Superintendent, J. Howard Hinesley. The letters list as charges against both of them: (1) spraying a handicapped employee in the face with a fire extinguisher; (2) making derogatory remarks to the handicapped employee; (3) on several occasions, while in their general work area, firing pieces of metal from a device constructed from an air compressor and tubing; (4) using the device to shoot out a light in the maintenance

compound; (5) using the device to shoot out jalousie windows; and (6) using the device to shoot the windows of a bus that had been involved in an accident and could have been needed as evidence. Long's letter also charges that he made a threatening statement to the handicapped employee. The letters charge that the allegations constitute misconduct and grounds for dismissal under the School Board's Supporting Services Disciplinary Guidelines.

PRELIMINARY STATEMENT

By letters from counsel dated August 26, 1992, the Respondents requested formal administrative proceedings under Section 120.57(1), Fla. Stat. (1991). The matters were referred to the Division of Administrative Hearings on September 15, 1992, and were given DOAH Case Nos. 92-5607 and 92-5608. They were consolidated and scheduled for final hearing on December 2, 1992.

At the final hearing, the School Board called 4 witnesses and had Petitioner's Exhibits 2 through 4 admitted in evidence. The Respondents called two witnesses and testified in their own behalf. Respondents' Exhibit 1 was admitted in evidence. (Custody of Respondents' Exhibit 1 was retained by the School Board after the final hearing.)

At the end of the hearing, the Petitioner ordered the preparation of a transcript of the final hearing. The parties were given ten days after the filing of the transcript in which to file proposed recommended orders. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case Nos. 92-5607 and 92-5608.

FINDINGS OF FACT

1. The Respondent, Ronald Long, Jr., and Arthur McAleenan, worked as automotive paint and body mechanic journeymen at High Point Center, one of the automotive service and repair centers operated by the Petitioner, the School Board of Pinellas County. One of their fellow paint and body mechanics was an individual named Roger Shortemeyer.

   
   

2. Shortemeyer had been employed by the School Board for over 20 years. Despite his experience, Shortemeyer's work product and work habits consistently were judged to be unsatisfactory by his immediate supervisor. Regularly, Shortemeyer disagreed with these evaluations and had conferences with his immediate supervisor regarding them. On occasion, Shortemeyer was represented by a union steward at these conferences.

   
   

3. To the contrary, both Long and McAleenan, who had less experience than Shortemeyer, were rated by the foreman as "above satisfactory" employees. Often, Long and McAleenan would help Shortemeyer to get his work done to the foreman's satisfaction.

   
   

4. The work atmosphere in the shop also included lots of "horseplay." Several of the employees participated from time to time in at least some of the shenanigans. From time to time, the workers would call each other various derogatory names, put lit cigarettes in each other's pockets, glue a worker's shoes to the floor, or tie his shoe laces together, if the worker fell asleep during break, put grease or ink on door knobs, or douse each other with water. Shortemeyer also participated in this "give and take." Generally, this was done when the foreman was not around, and the workers did not report each other for conduct of this kind.

5. It was Shortemeyer's perception that the name-calling got meaner and more regular during the fall of 1991. In addition, he perceived that it came to be directed more at him and that he took more than his share of the brunt of it. Comments directed towards Shortemeyer more frequently took the form of criticism of his work and job skills and of slurs against both him and his wife for lacking intelligence. Shortemeyer perceived that Long and McAleenan were more responsible for these criticisms and slurs than some of the others. But others also continued to participate. In fact, once Shortemeyer and another employee got into a fist fight over name-calling, and Shortemeyer cut the other employee with a putty knife.

   
   

6. Once, apparently during the fall of 1991, Long and McAleenan pulled a prank on Shortemeyer in which McAleenan lured Shortemeyer to the back of the shop so that Long could spray Shortemeyer in the face with a fire extinguisher. The spray made Shortemeyer begin to feel sick, and he had to wash the spray out of his face and eyes. (Long and McAleenan deny that the incident occurred, and there are discrepancies in aspects of the stories of Shortemeyer and another witness. But it is found that the incident occurred essentially as described by Shortemeyer and the other witness.)

   
   

7. On another occasion, also apparently in the fall of 1991, in another prank, an employee named Bauer purposefully sprayed, or poured, a container of chalk dust over Shortemeyer's head. The chalk dust got in Shortemeyer's eyes, and he had to go wash the dust off and clean himself up.

   
   

8. During late fall of 1991, several different employees in the shop began making devices out of hose and tubing connected to air compressors to shoot ball bearings, sheet metal screws, scrap metal, and the like. They would use the devices primarily to shoot at boxes of garbage, but also on occasion would shoot at other targets such as the metal shop walls and old buses about to be dismantled for parts. Long and McAleenan participated in these shenanigans, but so did Shortemeyer, Bauer and others.

   
   

9. One day, the union steward caught Long and McAleenan and others shooting an air gun device. Long and McAleenan were former union members who had discontinued their membership. They perceived that the union steward would welcome a chance to retaliate against them, and they felt threatened. They also knew that the union steward had a history of helping Shortemeyer with his job evaluations. Long and McAleenan feared that the union steward would not hesitate to assist union employees, like Shortemeyer and Bauer, at the expense of Long and McAleenan. In response to this fear, Long threatened Shortemeyer essentially that, if Long lost his job over the incident, he would see to it that Shortemeyer would not last in his job through the end of the year. This upset Shortemeyer, who also interpreted Long's words as a threat to do physical harm to Shortemeyer. (The evidence did not prove that Long actually made a threat of physical harm.)

   
   

10. The union steward complained to the shop foreman, who called a meeting to verbally reprimand the employees for the air gun device shenanigans. Most of the horseplay was discontinued.

    
    

11. At approximately the end of 1991, Shortemeyer was hospitalized under the Baker Act and went on sick leave. He states that he "could not take it any more." At some time after Shortemeyer left work on sick leave, he told his father about some of the things that were happening to him on the job. His father complained to the School Board, which initiated an investigation. From

    the start, the investigation focused on Long and McAleenan. After the conclusion of the investigation, on or about August 21, 1992, Long and McAlleenan were suspended without pay, pending the processing of dismissal charges.

    
    

12. After the investigation, Bauer received only a written reprimand for the chalk incident. Bauer denied that he had done it on purpose. Supposedly, the investigation did not uncover enough clear evidence to contradict Bauer's version that it was an accident. But the testimony of more than one witness at final hearing was clear that Bauer did it on purpose. The witnesses included not only Long and McAleenan, but also Shortemeyer and another witness named Thurman McGuire, who had no apparent bias. The latter witness also testified that he had made a similar statement during the investigation.

    
    

13. During the investigation, Bauer denied any participation in the air gun shooting shenanigans. His testimony at final hearing admitted to some participation, and other witnesses testified that Bauer's participation was extensive and that in fact it was Bauer and another employee who made the first air gun device.

    
    

14. Bauer is in the process of qualifying himself for employment in one of the positions to be vacated by Long and McAleenan if they are dismissed.

    
    

15. No other employees received any discipline for any of the name- calling--not even the employee involved in the fist fight with Shortemeyer. No other employee received any discipline for any of the pranks and shenanigans. The shop foreman was disciplined for poor supervision for not knowing the air gun shenanigans were taking place.

    
    

16. School Board Rule 6Gx52-7.12(2) provides in pertinent part:

    
    

    The school district generally follows a system of progressive discipline in dealing with deficiencies in employee work performance and/or conduct. Progressive disciplilne may include, but is not limited to, verbal or written counseling or warning, written reprimand, suspension without pay and dismissal. The severity of the problem or employee conduct will determine whether all steps will be followed or a recommendation will be made for suspension without pay or dismissal. Employee conduct which may lead

    to a recommendation for suspension and/or dismissal during the term of appointment includes, but is not limited to the following, unless the following is limited by law, regulation, or contract, including collective bargaining agreements.

    * * *

    (f) Misconduct, which is defined as conduct that is serious enough to impair the employee's effectiveness in the school district or which may bring the services of the School Board of Pinellas County into disrepute.

    * * *

    (h) Unauthorized use, theft or vandalism of School Board property, or the property of others, whether or not the incident results in a criminal prosecution.

    
    

    CONCLUSIONS OF LAW

    
    

17. The procedures for termination from employment, or any other discipline, found in Section 231.36, Florida Statutes (1991), do not apply to noninstructional employees such as the Respondents.

    
    

18. The School Board is given the responsibility under Section 230.23(5)(f), Florida Statutes (1992), to provide for the discipline of all employees. The School Board has done so in its Rule 6Gx52-7.12(2).

    
    

19. The School Board is required to prove the charges against the Respondents by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County,

    569 So. 2d 883 (Fla. 3d DCA 1990); South Florida Water Management District v. Caluwe, 459 So. 2d 390 (Fla. 5th DCA 1984).

    
    

20. As reflected in the Findings of Fact, the School Board did not prove that Shortemeyer was handicapped, or that the Respondents knew he was handicapped. Nor was it proven that the Respondents used the air gun device to shoot out lights or jalousie windows, as charged. It was not proven that the bus, at whose windows the Respondents shot the air gun device, could have been needed for evidence. But, under the School Board's Rule 6Gx52-7.12(2)(f) and (h), discipline is warranted for the misconduct that was found. Especially in light of the lenient treatment given to the others, outright dismissal seems too harsh. But Long's and McAleenan's participation in the fire extinguisher incident possibly was the most egregious and potentially dangerous prank shown by the evidence to have occurred. Taken together, the evidence warrants suspension without pay.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order suspending the Respondents, Ronald Long, Jr., and Arthur McAleenan, without pay through the entry of final order, but then reinstating them.

RECOMMENDED this 22nd day of January, 1993, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 92-5607 and 92-5608

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-2. Accepted and incorporated.

1. Shortemeyer attended McAleenan's wedding. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted and incorporated to the extent not subordinate or unnecessary.

3. All of those names may not have been used. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (Some of the words, or words connoting essentially the same messages, were used.)

6.-7. Accepted and incorporated to the extent not subordinate or unnecessary. (Both refer to the same incident.)

1. Rejected as not proven. Also, not within the charges.

2. Accepted and incorporated to the extent not subordinate or unnecessary.

10.-11. Rejected as not proven that there were "near misses." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as not proven that they shot the air gun at windows and lights. (It is not understood what is meant by "walks.") McAleenan and others once shot sling shot- type devices made of rubber bands at a light. The others missed; McAleenan hit it. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. Rejected as not proven.

3. Accepted but subordinate and unnecessary. 15-16. Accepted and incorporated.

17. Accepted that Mr. Barker expressed this rationale; not proven that the rationale is true.

Respondents' Proposed Findings of Fact.

1.-7. Accepted and incorporated to the extent not subordinate or unnecessary.

8. Many were involved; the evidence is not clear whether "almost all" were involved. Otherwise, accepted and incorporated.

9.-10. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Again, many were involved, but the evidence is not clear whether "nearly all" were involved. Otherwise, accepted and incorporated.

2. Rejected as contrary to facts found and to the greater weight of the evidence that Shortemeyer "gave as well as he took." Also, although it was not proven that any supervisor told the employees that Shortemeyer was "handicapped," his limitations were apparent.

   Otherwise, accepted and incorporated to the extent not

   subordinate or unnecessary.

3. Accepted and incorporated.

4. Accepted. First sentence, subordinate to facts found; second sentence, subordinate to facts contrary to those found.

5. Accepted and incorporated.

6. First two sentences, accepted and incorporated. Last sentence, rejected as contrary to the greater weight of the evidence, and to the facts found, that the reprimand was in writing.

7. Accepted and incorporated.

8. Rejected as ambiguous that Shortemeyer was "'Baker- acted' with a firearm." (Rather, he had a firearm in his possession when he was hospitalized.) Otherwise, accepted and incorporated.

9. Accepted and incorporated.

10. Accepted. Largely subordinate to facts found.

11. Accepted and incorporated to the extent not subordinate or unnecessary.

12. Rejected. The word "horseplay" was not used, but some of the conduct fairly could be described as such.

23.-24. Accepted and incorporated.

COPIES FURNISHED:

M. Teresa Harris, Esquire Assistant School Board Attorney Pinellas County School Board Post Office Box 2942

Largo, Florida 34649-2942

John E. Tuthill, Esquire 3300 49th Street North

St. Petersburg, Florida 33710

Howard Hinesley Superintendent of Schools

School Board of Pinellas County Post Office Box 2942

Largo, Florida 34649-2942

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE PINELLAS COUNTY SCHOOL BOARD WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE PINELLAS COUNTY SCHOOL BOARD CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 92-005607

Orders for Case No: 92-005607