STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 97-0329

)

ULLYSES WYNN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on October 9, 1997, in Largo, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: C. Wesley Bridges II, Esquire

Pinellas County School Board

301 4th Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942

For Respondent: Ullyses Wynn, pro se

2242 Lakeview Avenue South

St. Petersburg, Florida 33712 STATEMENT OF THE ISSUES

Whether Respondent, Ullyses Wynn, violated Pinellas County School Board policies related to unsatisfactory performance, misconduct, and insubordination and, if so, whether the violations constitute cause for his termination as a plant operator.

PRELIMINARY STATEMENT

By letter dated December 4, 1996, Dr. J. Howard Hinesley, Superintendent, Pinellas County Schools, notified Respondent, Ullysses Wynn, that he would be recommending to Petitioner, the Pinellas County School Board, that Respondent be suspended without pay for five days, beginning January 15, 1997. According to the letter, the disciplinary action was based on Respondent's failing to correct performance deficiencies, and engaging in acts which constituted misconduct and insubordination, in violation of School Board Policy 6Gx52-5.31(1)(t), (u), and (v). Respondent challenged the proposed action and timely requested a formal hearing.

On January 21, 1997, the matter was forwarded to the Division of Administrative Hearings to conduct a formal hearing. The final hearing was initially set for April 25, 1997, but was continued at the request of Petitioner. The matter was rescheduled and was conducted as noticed. Prior to the final hearing, upon motions by Petitioner, the charges against Respondent were twice amended to include additional violations of the aforementioned school board policy.

At the hearing, Petitioner presented the testimony of ten witnesses, and had seven exhibits admitted into evidence.

Respondent testified on his own behalf and had one exhibit admitted into evidence.

A transcript of the proceeding was filed on October 23,

1997. By agreement of the parties, at the conclusion of the hearing, the time set for filing proposed recommended orders was more than ten days after the transcript was filed. Petitioner timely filed proposed findings of fact and conclusions of law under the extended time frame. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. Beginning July 5, 1994, and at all times pertinent to this proceeding, Respondent, Ullyses Wynn (Respondent), was employed by Petitioner, Pinellas County School Board (School Board), as a plant operator at Gibbs High School.

2. As a plant operator, at Gibbs High School, Respondent was responsible for cleaning designated areas of the school, including Buildings One and Four. In addition to cleaning these buildings, Respondent's duties included helping other crew members on his shift to clean the cafeteria. Respondent was also required to participate in “gang cleaning.” Gang cleaning is a term used when one crew member is absent and the crew members on duty join together to complete the duties of the absent crew member.

3. At all times relevant hereto, Mark Sprecher was the Head Plant Operator at Gibbs High School. In that capacity, Mr. Sprecher was responsible for assigning and supervising the work of all plant operators and the night foreman. When the regularly assigned night foreman was not on duty, Mr. Sprecher assigned or

designated the plant operator who would perform those tasks in his or her absence. 4. At all times relevant hereto, Freddie Fussell was the night foreman at Gibbs High School and was Respondent’s direct supervisor.

1. At all times relevant hereto, Wayne Nundy was the assistant principal at Gibbs High School. In that capacity, Mr. Nundy’s responsibilities included supervising maintenance of the physical facility as well as the plant operators.

2. In order to evaluate the job performance of plant operators, Mr. Sprecher regularly completed quality control sheets after inspecting areas cleaned by plant operators. The form, issued at the district level, is an evaluative tool designed to record areas of satisfactory as well as unsatisfactory performance.

3. When Respondent initially began working at Gibbs High School, problems related to Respondent’s work surfaced, but were not documented. However, after about six months, it soon became evident to Mr. Sprecher that merely talking to Respondent about the problems related to his job performance was not effective and that formal disciplinary action would need to be taken.

4. On May 25, 1995, Mr. Sprecher issued a reprimand to Respondent for excessive absences. Between January 1995 and May 1995, Respondent missed five and one-half days from work. This absentee rate is considered excessive. To the extent that Respondent is absent from work, his areas must be cleaned by

   other crew members, thereby reducing the amount of time that they can spend cleaning their designated areas. Due to his excessive absences, Mr. Sprecher met with Respondent for a summary conference and issued the reprimand.

5. On June 1, 1995, a maintenance man replaced some of the ceiling tiles in the Gibbs High School gym. After completing the job, the maintenance man removed the large pieces of old ceiling tile that were on the floor. However, some debris from tile replacement project remained on the gym floor. Later that day, when Mr. Sprecher observed the debris on the gym floor, he directed Respondent to clean up the debris. The next day, while in the gym, Mr. Sprecher noticed that the debris was still on the gym floor, and again directed Respondent to clean it up. Respondent told Mr. Sprecher that he would not clean up the debris because that was not his job, and, in fact, did not clean it up.

6. On January 8, 1996, Respondent left his assigned area during his shift to watch a basketball game in the Gibbs High School gym. When told to return to work by his supervisor, Night Foreman Fussell, Respondent began to argue with Mr. Fussell. The disagreement became so heated that the school resource officer had to intervene. Following this incident, Respondent received a county-level reprimand for poor job performance and insubordination. This letter of reprimand indicated that further problems in these areas may result in further disciplinary

   action, and that such action "may include suspension or dismissal."

7. On or about March 15, 1996, Mr. Sprecher and Respondent’s direct supervisor, Mr. Fussell, made random inspections of the classrooms to determine if they were cleaned properly. The inspection of classrooms in Respondent’s building revealed that the carpets had not been vacuumed; the pencil sharpeners had not been emptied; and the chalkboards had not been cleaned. These cleaning deficiencies were noted on quality control forms and shared with Respondent during a conference.

8. On or about March 15, 1996, and after the conference, Mr. Sprecher issued a warning letter to Respondent regarding the cleaning deficiencies. During the conference, Respondent did not deny the cited cleaning deficiencies. Rather, Respondent claimed that, because his area was so large, it was impossible for him to clean it during his shift. Thereafter, Mr. Sprecher checked the square footage of Respondent’s area and determined that Respondent’s assigned work area was actually 2800 square feet less than that recommended by the employees' union and the school district.

9. On March 19, 1996, Mr. Nandy, accompanied by

   
   

   Mr. Sprecher, inspected Building One. Mr. Nandy’s observed that Respondent had failed to carry out his assigned cleaning responsibilities. By failing to satisfactorily clean his assigned areas, Respondent had completely disregarded

   instructions given during the previous conference with Mr. Sprecher and in the warning letter.

10. During the March 19, 1996, inspection of Building One, numerous cleaning deficiencies were found. Specifically, the following cleaning deficiencies were observed in classrooms assigned to Respondent: low dusting not done; pencil sharpeners not emptied; chalkboards not cleaned; chalk trays not cleaned; floor not spot-mopped in room where coffee had spilled; furniture not spot-cleaned; graffiti on walls not removed; and window sills and audio visual screen not dusted. As a result of these cleaning deficiencies and the previous warning issued to Respondent, Mr. Nandy issued a school-level reprimand to Respondent on March 22, 1996, for insubordination and poor job performance. The reprimand stated that should similar problems occur in the future, Respondent might be subjected to further disciplinary action.

11. On September 27, 1996, Mr. Sprecher observed several deficiencies in the second floor boys' bathrooms assigned to Respondent. There were cigarette butts and paper towels on the bathroom floor and urine in the toilets. Although the second floor bathrooms are usually locked and not normally used by students, Respondent was responsible for checking and cleaning his entire assigned work area. Later that day, Mr. Sprecher wrote a note to Respondent pointing out the cleaning deficiencies and indicating that Respondent had not cleaned all of his

    assigned areas the previous night.

    
    

12. October 18, 1996, was designated a “Pro-Ed” day in the Pinellas County School District. On these days, students do not attend school. Because students are not in school, all plant operators work from approximately 9:00 a.m. to 5:30 p.m., and are expected to do more extensive cleaning than can be done on days that students are in school.

13. On the morning of October 18, 1996, Mr. Sprecher accompanied Respondent to Building Four to point out several cleaning deficiencies. As a result of deficiencies observed on that day, Mr. Sprecher directed Respondent to clean the graffiti off the wall and paper towel dispenser in the boys' bathroom; clean the stairs and stair treads; pick up the trash on the floor; and vacuum the carpets. These deficiencies required Respondent’s immediate attention and were all tasks that Respondent should have completed the night before.

14. In response to Mr. Sprecher’s directive, Respondent became argumentative with and enraged at Mr. Sprecher. Respondent yelled at and accused Mr. Sprecher of “picking on" him. On October 18, 1996, after this encounter with Respondent, Mr. Sprecher wrote a Foreman’s Complaint to Mr. Nundy, the assistant principal, regarding cleaning deficiencies in

    Respondent’s assigned area in Building Four. In the complaint to Assistant Principal Nundy, Mr. Sprecher stated that he found it impossible to talk to, reason with, or give simple directions to

    Respondent. Mr. Sprecher further stated that he was verbally abused, and given no respect by Respondent.

15. On Monday morning, October 21, 1996, Mr. Sprecher checked the area that had been assigned to Respondent. Upon inspection, Mr. Sprecher found that the cleaning he had directed Respondent to complete on October 18, 1996, had not been done. Also, many of the classrooms in Respondent’s area had not been cleaned. Mr. Sprecher noted these deficiencies on the quality control sheets completed for Respondent’s area.

16. On October 22, 1996, Mr. Sprecher wrote a Foreman’s Complaint to Assistant Principal Nundy stating that the specific items Respondent had been directed to complete on the October 18, 1996, had not been done, Later, on October 22, 1996, Mr. Sprecher and Mr. Fussell met with Respondent and talked with him about his failure to complete the assignments. Respondent offered no reason for his failure to perform his assigned tasks.

17. On November 7, 1996, a Foreman’s Complaint was made to the Gibbs High School principal, Ms. Shorter, indicating that Respondent had been involved in a conflict with one of the plant operators in the cafeteria. This complaint was based on an incident that occurred when the entire twelve-member crew was cleaning the cafeteria. Pursuant to instructions of Foreman Fussell, all crew members were required to simultaneously mop the cafeteria, beginning in the front of the cafeteria and moving to the back. Respondent refused to mop in the same direction as the

    other plant operators, and insisted on mopping in the opposite direction from the other crew members. When Mr. Sprecher requested that Respondent perform the task as directed by Foreman Fussell, Respondent became upset and threw a cup of water and ice into the air and left the cafeteria.

18. It was Respondent’s responsibility to lock all of the classrooms in Building Four. Nonetheless, on November 7, 1996, a complaint was made by the teacher assigned to Room 406, Building Four, that her classroom, had been left open the night before. Respondent’s failure to secure the room was of particular concern to the teacher because there were several new computers in the classroom.

19. On November 12, 1996, while on duty at Gibbs High School, Respondent became engaged in a heated verbal confrontation with Mr. Willie Jones, another plant operator. The verbal exchange took place in the maintenance shop in the presence of other crew members working the night shift. At one point during the argument, Respondent pulled a box cutter from his pocket and moved toward the table where Mr. Jones was sitting. Upon the advice of another plant operator and in an effort to de-escalate the situation, Mr. Jones left the maintenance shop.

20. As the night foreman, one of Mr. Fussell’s responsibilities was to return golf carts used by the school staff to the maintenance shop and to recharge them for the next

    day. On the evening of November 19, 1996, while Mr. Fussell was driving one of the golf carts into the maintenance shop, Respondent intentionally stood in the path of the golf cart.

    After Mr. Fussell asked Respondent to move, Respondent reluctantly moved to the side to let Mr. Fussell pass. However, as Mr. Fussell drove the golf cart past Respondent and into the maintenance shop, Respondent called Mr. Fussell a “mother fucker.” At the time Respondent made this comment to his supervisor, other crew members were in or near the maintenance shop and heard Respondent’s comment.

21. On December 5, 1996, Assistant Principal Nundy received a complaint from a female student that graffiti containing her name had been in the girls' bathroom in Building Four for three weeks. Because Respondent's shift had not begun, Mr. Sprecher enlisted the assistance of a Plant Operator from the day crew to remove the graffiti. The crew member immediately removed the graffiti, using a heavy duty cleaning agent. Later that day, Mr. Nandy had a conference with Respondent regarding the graffiti in the girls' bathroom of Building Four. During the conference, Respondent acknowledged that the graffiti had been on the wall, but said it had been there only two weeks. According to Respondent, he had been unable to remove the graffiti with his cleaning supplies.

22. The cleaning agent used by the day crew member to remove the graffiti from the girls' bathroom was readily

    available to plant operators who requested it from the night foreman. Respondent never informed Foreman Fussell that there was graffiti in the girls' bathroom in Building Four that Respondent was unable to remove. Also, at no time did Respondent ever request from the foreman a cleaner which might remove the graffiti in the girls' bathroom in Building Four.

23. On the following day, December 6, 1996, Mr. Nundy and Mr. Specher checked the bathrooms in Respondent’s assigned areas and found "gang" graffiti in the other three bathrooms.

    Mr. Specher cleaned the graffiti from all three bathrooms in about five minutes, using cleaning supplies from Respondent’s custodial closet.

24. On December 17, 1996, at about 6:30 a.m., after opening one of the buildings Respondent was responsible for cleaning,

    Mr. Sprecher observed obscene graffiti on walls in several different locations. Upon discovering the graffiti, Mr. Sprecher immediately cleaned all the graffiti from the walls.

    Mr. Sprecher was able to remove all the graffiti from the walls in about fifteen minutes with supplies that he obtained from Respondent’s custodial closet.

25. On December 17, 1996, Mr. Specher wrote a note advising Respondent that earlier that day graffiti was again observed in the area assigned to him; that it was Respondent’s responsibility to remove all graffiti nightly; and that Mr. Sprecher had cleaned graffiti off the wall in fifteen minutes with cleaning supplies

    from Respondent’s custodial closet. Mr. Sprecher gave the note to Respondent, but Respondent refused to sign the note acknowledging that he received it.

26. On January 7, 1997, Mr. Sprecher and Mr. Fussell had a conference with Respondent regarding his attendance. Respondent had been absent from work twelve days in the preceding months. That number of absences over the time period in question was considered excessive. Respondent was given a written notice regard the excessive absences, but he refused to sign it.

27. On February 13, 1997, Respondent told Mr. Sprecher that he had heard someone walking through his building the night before. Respondent stated that he would not be held responsible for his actions if someone came into his building unannounced. It was later discovered that Mr. Fussell had entered the Respondent’s building to set a timer.

28. Mr. Sprecher was concerned by the statements made by Respondent, and was fearful that Respondent would harm someone who had innocently entered the building for a legitimate reason. Mr. Sprecher wrote a letter to Respondent expressing these concerns. In the letter, Mr. Sprecher also reminded Respondent that he was an adult employee of the Pinellas School Board, and would be held responsible for his actions. The following day Mr. Sprecher and Foreman Fussell met with Respondent, discussed the context of the letter, and gave the letter to Respondent.

29. A day or so after he received the letter discussed in

    paragraph 32 above, Respondent went to the maintenance shop about 3:15 p.m., and approached Mr. Sprecher. With the letter in hand, Respondent asked Sprecher, “What to you mean by this letter?”

    Mr. Sprecher told Respondent that he had some place to be at 3:30 p.m. and asked if they could discuss the matter the following day. Respondent never answered the question, but instead yelled at Mr. Sprecher and accused him of lying. While Mr. Sprecher was walking away from Respondent to leave the maintenance shop, Mr. Sprecher told Respondent that he would see him later. Respondent replied, “Damn right, you’ll see me later.”

30. On February 14, 1997, Mr. Sprecher wrote a note to Principal Shorter stating that he could no longer supervise Respondent, and that he believed Respondent was a danger to himself and the crew.

31. On February 27, 1997, Respondent complained to Mr. Sprecher that a co-worker was not fulfilling his responsibilities relative to assisting fellow crew members in cleaning the cafeteria. Mr. Sprecher told Respondent that the co-worker would be observed and cautioned if necessary. Respondent immediately became visibly angry, raised his voice, and accused Mr. Sprecher of not reprimanding the plant operator whom Respondent had accused of not helping to clean the cafeteria. Respondent left the cafeteria and did not return to assist other crew members in completing the cafeteria cleanup. As Respondent left the

    cafeteria, Respondent yelled to Mr. Sprecher, "Write me up."

    
    

32. On March 5, 1997, when a crew member was absent, Mr. Sprecher received a complaint that Respondent was not participating in “gang cleaning.” Night Foreman Fussell confirmed that, in fact, Respondent did not participate in the gang cleaning that night and had not done so on several previous occasions.

33. On May 7, 1997, Mr. Sprecher, Mr. Fussell, and Respondent met to discuss and review the quality control sheets detailing recent deficiencies observed in Building Four. Respondent refused to sign the quality control sheets and left the maintenance shop. After this meeting, Respondent was to assist in cleaning the cafeteria. However, Respondent never reported to the cafeteria that day to assist other crew members in cleaning the cafeteria.

34. On three separate days, during the week of May 19, 1997, Respondent was observed sleeping in the auditorium while a play was being rehearsed. At other times during this week, Respondent was in the auditorium watching the rehearsal. Respondent had no duties in connection with the auditorium, and without exception, these incidents occurred when Respondent was on duty and should have been cleaning his assigned area.

35. During the summer, on the morning of June 11, 1997, Respondent was assigned to thoroughly clean a teacher’s small workroom. Completion of this job should have taken approximately

    two hours. Two hours after Respondent was left in the workroom to perform this assignment, Mr. Sprecher returned to the workroom to check on Respondent’s progress. Mr. Sprecher found that Respondent not only had failed to complete the cleaning as expected, but had done very little cleaning in the workroom.

    When questioned on his lack of progress, Respondent became agitated and yelled at Mr. Sprecher and stated that he would not be able to finish cleaning this area in an additional two hours.

36. Mr. Sprecher testified that in his twelve years as a Head Plant Operator, Respondent’s performance was the worst that he has ever observed.

37. The Pinellas County School Policy 6Gx52-5.31, entitled “Disciplinary Guidelines for Employees," states that the school district generally follows a system of progressive discipline with its employees and that the severity of the employee’s conduct will determine if all steps will be followed or a recommendation will be made for 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: (1) failure to correct performance deficiencies, (2) insubordination, and (3) misconduct.

38. On December 5, 1996, Respondent was sent a certified letter by Dr. J. Howard Hinesley, Superintendent of Pinellas County Schools, recommending that he be suspended for five days without pay. The recommendation was based on Respondent’s

    unsatisfactory performance, after receiving reprimands from supervisors; misconduct; and insubordination.

39. On January 10, 1997, Respondent wrote a letter requesting a hearing in response to the superintendent's recommendation for a five-day suspension.

40. After Respondent requested a hearing, but prior to the hearing being conducted, Respondent engaged in additional acts of misconduct and insubordination, by stating to Mr. Sprecher that Respondent would not be responsible for his actions if anyone came into his area without his knowledge, and refusing to perform job-related tasks directly assigned to him by Mr. Sprecher.

41. As a result of Respondent’s further misconduct and insubordination, on April 1, 1997, Respondent was sent a second letter by Dr. Hinesley recommending the Respondent be suspended for a total of seven days, an increase of two days over the original recommendation.

42. Following the recommendation for a seven-day suspension, Respondent engaged in additional acts of misconduct, including occasions when Respondent was observed to be in the auditorium, off-task, sleeping, and watching rehearsals of a play during work time. Respondent also failed to correct performance deficiencies.

43. As a result of Respondent’s further misconduct, Dr. Hinesley sent a letter to Respondent dated August 7, 1997, advising him that Dr. Hinesley would recommend termination of

    Respondent’s employment.

    
    

    CONCLUSIONS OF LAW

    
    

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

45. The Superintendent of the Pinellas County School District has the authority to suspend and recommend the dismissal of school board employees as prescribed in Section 230.33(7)(e), Florida Statutes.

46. Section 230.23(5)(f), Florida Statutes, authorizes school boards to provide for the discipline of their employees. Pursuant to this provision, the Pinellas County School Board has the authority to suspend or terminate Respondent's employment as a plant operator.

47. The Pinellas County School Board is authorized to adopt rules and regulations that will contribute to the more orderly and efficient operation of its district school system. Under this rule-making authority, the Pinellas County School Board promulgated School Board Policy 6Gx52-5.31, entitled "Disciplinary Guidelines for Employees." This policy enumerates the offenses which constitute grounds for which a school board employee may be disciplined, and specifies the penalty range for each infraction.

48. Petitioner has charged Respondent with failure to correct performance deficiencies, insubordination, and misconduct

    in violation of School Board Policy 6Gx52-5.31 (t), (u), and (v), respectively. The penalty for each of these violations may range from a caution or warning to dismissal.

49. In order to prevail, the School Board is required to prove that Respondent committed the alleged offenses by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3rd DCA 1990); Dileo School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990). The School Board has the burden to show that Respondent’s actions were in violation of School Board Policy 6Gx52-5.31.

50. The Pinellas County School Board has met its burden in this case. The preponderance of evidence established that since 1995, Respondent has continuously and repeatedly demonstrated a pattern of misconduct and insubordination toward his supervisors. The evidence is undisputed that Respondent consistently refused to follow the directives of his supervisors and on several occasions made inappropriate, disrespectful, and vulgar comments to his supervisors.

51. With respect to Respondent’s unsatisfactory performance, the evidence demonstrated that despite repeated admonitions, Respondent failed to correct or improve performance deficiencies. Although Respondent was given many opportunities to improve his job performance, Respondent failed to correct or even attempt to correct the deficiencies.

52. The School Board exhausted all progressive measures of

discipline against Respondent. Thus, in light of Respondent’s aforementioned conduct, dismissal is appropriate in this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Pinellas County School Board enter the final order dismissing Respondent, Ullyses Wynn, from his position as a plant operator.

RECOMMENDED this 14th day of January, 1998, at Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(850) 488-9675 SUNCOM 278-9675

Fax (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1998.

COPIES FURNISHED:

C. Wesley Bridges II, Esquire Pinellas County School Board

301 Fourth Street Southwest Post Office Box 33779-2942 Largo, Florida 34649-2942

Ullyses Wynn

2242 Lakeview Avenue South

St. Petersburg, Florida 33712

Dr. J. Howard Hinesley, Superintendent Pinellas County School Board

301 Fourth Street Southwest Post Office Box 2942

Largo, Florida 33779-2942

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Michael H. Olenick General Counsel

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

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: 97-000329

Orders for Case No: 97-000329