STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3344

)

FRANK SEDOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Claude B. Arrington, held a formal hearing in the above-styled case on October 31, 1996, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Darren K. Edwards, Esquire

School District of Palm Beach County Office of General Counsel

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406

For Respondent: Stacy D. Mullins, Esquire

Romano, Eriksen and Cronin Post Office Box 21349

West Palm Beach, Florida 33416-1349 STATEMENT OF THE ISSUE

Whether Petitioner has just cause to terminate Respondent's employment as a teacher's aide.

PRELIMINARY STATEMENT

At the times pertinent to this proceeding, Respondent was employed by the Petitioner as a teacher aide in an exceptional student education class at H. L. Johnson Elementary School. The School Board, acting on the recommendation of the superintendent, voted on February 7, 1996, to suspend Respondent's employment without pay and to terminate his employment, subject to his rights to an administrative hearing. The School Board alleged that Respondent's conduct on January 2, 1996, constituted insubordination and willful neglect of duty, thereby providing grounds for the termination of employment. Respondent timely requested an administrative hearing, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, the Petitioner presented the testimony of Harriet Lurie (the classroom teacher), Penelope Lopez (the principal of Johnson Elementary), Amy Sansbury (the assistant principal of Johnson Elementary) and W.

Paul Lachance (an administrative assistant with Petitioner's Employee Relations Department). Petitioner offered five exhibits, each of which was admitted into evidence. Respondent testified on his own behalf and offered the additional testimony of Karen Kutikoff, a medical doctor. The Respondent offered eight exhibits, six of which were admitted into evidence.

A transcript of the proceedings has been filed. Along with its post- hearing submittal, the Petitioner included a copy of what purports to be the collective bargaining agreement that would include teacher aides. This agreement was not timely submitted as an exhibit and has not been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Between December 6, 1994, and October 15, 1995, Respondent was employed by the Petitioner as a school bus driver and, subsequently, as a materials handling technician who delivered textbooks and supplies. His performance evaluations for that work were satisfactory or better.

   
   

2. Prior to October 15, 1995, a teacher aide position became vacant at H.

   L. Johnson Elementary School, one of the public schools in Palm Beach County. This vacancy was in the special education classroom taught by Harriet Lurie. Although he had no experience or training for this type work, Respondent was hired to fill this vacancy. Respondent began this employment on October 15, 1995.

   
   

3. The students in this classroom require constant supervision and assistance. Ms. Lurie, an experienced ESE teacher, the Respondent, and one other teacher aide were expected to provide the care and supervision required by these students.

   
   

4. Respondent and Ms. Lurie were unable to develop an effective working relationship.

   
   

5. The conflicts between Respondent and Ms. Lurie escalated, despite the efforts of the principal, Penelope Lopez, to encourage them to work together.

   
   

6. December 15, 1995, was the last day of school prior the Christmas holidays. Following an incident between Respondent and Ms. Lurie earlier that day, Respondent appeared in Ms. Lopez's office and requested that he be transferred from Ms. Lurie's class to any other available position. Ms. Lopez explained to Respondent that there were no other available positions. Because he was adamant about not returning to Ms. Lurie's classroom, Ms. Lopez agreed during that meeting to let Respondent perform custodial duties for the remainder of the day.

   
   

7. January 2, 1996, was the first day of school following the Christmas holidays. On that date, Respondent reported to Ms. Lopez's office and met with her prior to the beginning of school. Respondent again asked that he be transferred from Ms. Lurie's classroom. Respondent became upset when Ms. Lopez denied his request for transfer and thereafter gave him a written reprimand. The reprimand, which accurately reflects efforts by Ms. Lopez to resolve the problems between Respondent and Ms. Lurie, provided, in pertinent part, as follows:

   
   

   I have had conferences with you on December 6, 12 and 15, 1995 and numerous other

   impromptu meetings in which we discussed your concerns, my concerns and conflicts you were having with the teacher and the other teacher aide in the K-1B classroom (Ms. Lurie's classroom).

   The students in this classroom need consistent supervision in a warm nurturing environment.

   1. I am very unhappy with the conflict going on between you and the teacher and you and the other aide, at times in front of

      the students . . .

   2. There appears to be no effective working relationship between you and these associates . . .

   * * *

   6. As a teacher-aide (sic), you report to the teacher in the K-1B class and work under her direct supervision. You are expected to follow directions and not argue with her . . .

   I have requested at each meeting with you to work cooperatively with the teacher and your coworker to solve problems or enhance the classroom setting and work as a team.

   I had to remove you from the classroom on December 15, 1995 due to a conflict with the teacher. Since you have not heeded my previous advice, I'm presenting you with

   this written reprimand as disciplinary action.

   I expect your behavior to improve immediately in all of these areas. Should you fail to improve your attendance and abide by established and published rules and duties of your position, you will subject yourself to further discipline.

   
   

8. After Ms. Lopez gave Respondent the written reprimand, on January 2, 1996, she instructed him to return to his duties in Ms. Lurie's classroom. Respondent refused this instruction and left the school campus. Respondent did not return to the school campus on January 2, 1996.

   
   

9. Respondent had seven days of sick leave available for his use as of January 2, 1996. Further, he qualified for additional unpaid leave pursuant to the Family and Medical Leave Act (1993), 29 USC Sections 2611 et seq.

   
   

10. Respondent did not requested nor had he been given any type of authorized leave for January 2, 1996.

    
    

11. Respondent asserts that the School Board has no grounds to terminate his employment for his conduct on January 2, 1996, because he left school to go visit his doctor. The assertion that he left campus on January 2, 1996, because he was sick or in need of a doctor is contrary to the greater weight of the evidence in this proceeding. Based on the greater weight of the evidence, it is found that after he left the school campus on January 2, 1996, Respondent spent the balance of the day attempting to contact district administrators to complain about the letter of reprimand he had received. The greater weight of the

    evidence establishes that Respondent did not seek medical attention on January 2, 1996. 1/

    
    

12. Respondent disobeyed Ms. Lopez's clear and direct instructions on January 2, 1996, and he willfully neglected his official responsibilities. This action was not justified by a need for medical attention.

    
    

13. On January 3, 1996, Respondent reported to Ms. Lopez's office at approximately 7:45 a.m. Ms. Lopez told Respondent that he was needed in Ms. Lurie's class and told him to report to duty. Respondent replied that he was going to the doctor and left school campus. When Ms. Lopez asked why he had not gone to the doctor when he was away from school on January 2, Respondent replied that he had been too busy attempting to do something about the reprimand he had been issued.

    
    

14. Respondent was entitled to use sick leave to visit the doctor on January 3, 1996, and he was entitled to use paid sick leave, to the extent of its availability, between January 3, 1996, and the time of his tests on January 16, 1996.

    
    

15. Good Samaritan Primary Care is a group of doctors who have associated for the practice of medicine. Leonard A. Sukienik, D.O., and Karen Kutikoff, M.D., are employed by that group practice.

    
    

16. On January 3, 1996, Respondent was examined by Dr. Sukienik. Following that examination, Dr. Sukienik scheduled certain medical tests for Respondent to be conducted January 16, 1996. Dr. Sukienik wrote the following note dated January 3, 1996:

    
    

    To whom it may concern, Mr. Frank Sedor is a patient in my office and is noted to have stress related anxiety attacks with chest pain symptoms. This stress may be related to his job and Mr. Sedor may benefit from time off from work.

    
    

17. Respondent returned to Johnson Elementary and met with Ms. Lopez at approximately 1:30 p.m. Respondent gave Ms. Lopez the note written by Dr. Sukienik. When Ms. Lopez asked Respondent to return to work, he informed her that he was not going to return to work until after the tests scheduled for January 16, 1996, had been completed. Respondent thereafter left the school campus.

    
    

18. Respondent did not request any type of leave on January 3, 1996.

    
    

19. Prior to her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez did not intend to recommend that Respondent's employment be terminated because she hoped that the problems between Respondent and Ms. Lurie could be resolved. After her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez sent a memorandum to Louis Haddad, Jr., the coordinator of Petitioner's Employee Relations office in which she requested that further disciplinary action be taken against Respondent for his refusal to report to his classroom as instructed on January 2, 1996, and for thereafter leaving the school site.

    
    

20. The School Board, based on the superintendent's recommendation, voted to terminate Respondent's employment at its meeting of February 7, 1996, on

    grounds of insubordination and willful neglect of duty based on Respondent's conduct on January 2, 1996. 2/

    
    

21. The School Board is not seeking to terminate Respondent's employment for conduct after January 2, 1996.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

23. Petitioner has the burden of proving by a preponderance of the evidence the allegations of insubordination or willful neglect of duty. See, Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981), Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3d DCA 1990), and Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3d DCA 1990).

    
    

24. Respondent was, at the times pertinent to this proceeding, an "educational support employee" as that term is defined by Section 231.3605(1)(a), Florida Statutes.

    
    

25. Section 231.3605(2), Florida Statutes, provides as follows:

    
    

    1. Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by school board rule in cases where a

       collective bargaining agreement does not exist.

    2. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the

       collective bargaining agreement, or in school board rule in cases where a collective bargaining agreement does not exist . . .

       
       

26. In the prehearing stipulation, the parties agree that the issue is "[w]hether the School District has cause to terminate FRANK SEDOR's employment for insubordination and willful neglect of duty."

    
    

27. The evidence established that on January 2, 1996, the Respondent disobeyed Ms. Lopez's clear instructions to him to return to class. That refusal constitutes insubordination. 3/ Respondent then left campus, thereby neglecting his responsibilities to the children in Ms. Lurie's classroom. That conduct constitutes willful neglect of duty as alleged by Petitioner. Insubordination and willful neglect of duty constitute cause for imposing disciplinary action against the Respondent.

    
    

28. In determining the appropriate level of discipline that should be imposed against Respondent for his conduct on January 2, 1996, the undersigned has considered that Ms. Lopez had repeatedly emphasized to Respondent the requirements of the children in this special education class and the need for the Respondent to work with the classroom teacher and the other teacher aide for

    the good of the students. Ms. Lopez's instructions were clear and unequivocal. Respondent's refusal to fulfill his duties in the classroom was in complete disregard of the needs of the students. Consequently, it is concluded that the School Board should terminate Respondent's employment as a teacher aide.

    
    

29. Respondent was an above average School Board employee before he was hired as a teacher aide in a demanding special education class, a position for which he was not qualified by training or experience. In fairness to the Respondent, it is recommended that the order terminating his employment specify that the termination of his employment as a teacher aide shall not preclude his subsequent employment with Petitioner in positions for which he may be qualified.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the

findings of fact and conclusions of law contained herein. The final order

should also terminate Respondent's employment as a teacher aide.

DONE AND ORDERED this 30th day of December, 1996, in Tallahassee, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1996.

ENDNOTES

1/ This finding is based on statements made by Respondent to the principal and assistant principal and on the records of his doctor.

2/ Much of Respondent's case is based on his assertion that he was entitled to leave, whether under the School Board's sick leave policy or under the Family and Medical Leave Act (1993), 29 USC Sections 2611 et seq. January 2, 1996, is the date of the conduct that is at issue in this proceeding. That Respondent was entitled to be absent from his work on days subsequent to January 2, 1996, is irrelevant.

3/ Respondent was not charged with gross insubordination and willful neglect of duty. See, Section 231.36, Florida Statutes, that makes "gross insubordination and willful neglect of duty" grounds for terminating the employment of certificated personnel. Rule 6B-4.009(4), Florida Administrative Code, provides the following definition of the term "gross insubordination or willful neglect of duties":

(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.

COPIES FURNISHED:

Darren K. Edwards, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard

West Palm Beach, Florida 33406

Stacey D. Mullins, Esquire Romano, Eriksen & Cronin 1005 Lake Avenue, Suite 2 Lake Worth, Florida 33460

Mr. Frank Sedor

211 Cranes Roost

Royal Palm Beach, Florida 33411

Dr. Bernard Shulman

Palm Beach County School Board 3318 Forest Hill Boulevard

West Palm Beach, Florida 33406

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.

Docket for Case No: 96-003344

Orders for Case No: 96-003344