STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALACHUA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 97-1680

)

DAVID MOSLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on September 4-5, 1997, in Gainesville, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas L. Wittmer, Esquire

Alachua County School Board 620 East University Avenue Gainesville, Florida 32602

For Respondent: Joan Stewart, Esquire

Florida Education Association/United

118 North Monroe Street Tallahassee, Florida 32399-1700

STATEMENT OF THE ISSUE

Does just or proper cause exist to terminate Respondent- custodian, an educational support (non-instructional) employee for gross insubordination, misconduct in office, violation of the Code of Ethics by attempting to use students for personal gain, and overall unsatisfactory job performance?

PRELIMINARY STATEMENT

At formal hearing, the parties' Collective Bargaining Agreement was admitted as Joint Exhibit A.

Petitioner presented the oral testimony of Synester P. Jones, John C. Williams, Albert Williams, Alexander Bradley, and Virginia Childs and had 22 exhibits admitted in evidence.

Various rules adopted by the Alachua County School Board, together with their interpretive guidelines, were officially recognized.

Respondent testified on his own behalf and presented the oral testimony of Ed James; Kevin Whitaker; William Scott; Samuel Haywood; Franklin Hadley; John Dukes, Jr.; James Williams; Diana Wallace; Jimmy Sweat; Robert Brown; Sandra Yates; Mark Lee; and Willy Townsend and had seven exhibits admitted in evidence.

A transcript was filed in due course and all timely proposed findings of fact and conclusions of law have been considered in preparation of this Recommended Order.1

FINDINGS OF FACT

1. Respondent was first employed as a custodian at Gainesville High School by the Alachua County School Board on August 16, 1993. As such, he qualified as "non-instructional personnel" and as an "educational support employee." He remained continually employed until the termination letter giving rise to

   the instant case. At all times material to this cause, Respondent was employed under a Collective Bargaining Agreement between his union and the School Board. On May 20, 1994, Respondent completed training for and was certified as a "Certified Custodian." He received a "step-up" in pay as a result. Certification attests to competency, not performance or attitude.

2. Samuel D. ("Sam") Haywood, Assistant Principal, supervised and evaluated Respondent through a chain of command during the school years of 1993-1994, 1994-1995, and 1995-1996. Despite an interim evaluation identifying problem areas on March 16, 1995, Respondent was rated overall "satisfactory" annually during those years. Petitioner had a history of being uncooperative and verbally abusive with the Head Custodian and Lead Worker, but these problems were resolved by the subsequent

   annual evaluations and prior to the present charges, so they have not been considered.

3. At the conclusion of the 1995-1996 school year, Sam Haywood was replaced as Assistant Principal by John C. Williams, who continued to supervise Respondent through a chain of command that descended through Albert Williams, Head Custodian, and Alexander Bradley, Lead Worker.

4. As of the 1996-1997 school year, Respondent was the on- site union representative for the Gainesville High School custodians.

5. Assistant Principal John C. Williams holds a master's degree in school psychology and is a certified school psychologist. He had held the position of school psychologist in Sarasota County for ten years prior to his appointment at Gainesville High School. His supervisory experience consists of two years as assistant manager at Eckerd Drugs before becoming a school psychologist. At all times material he was responsible for the maintenance needs of Gainesville High School, making sure maintenance needs were responded to by the central office or the maintenance person on staff. That responsibility covered the upkeep of the grounds and the buildings. He was responsible for the cafeteria as far as being the immediate supervisor of the cafeteria manager and was responsible for the discipline of approximately 1,950 students. He also was responsible for the security of the buildings, responding to fire emergencies and evaluating one-fourth of the instructional staff. In addition, he was the site supervisor of the custodial staff with twelve custodians, plus the Head Custodian.

6. Virginia S. Childs is the Principal of Gainesville High School.

7. James Williams, Mark Lee, and Willie Townsend are custodians at Gainesville High School.

8. On September 4, 1996, the Assistant Principal tried to locate Respondent because he wanted part of Respondent's assigned area raked and mowed for a sports activity that was taking place

   that evening. After searching from approximately 4:30 to 5:15 p.m., the Assistant Principal located Respondent exiting a restroom outside of his assigned area. The Assistant Principal directed Respondent to rake and mow the designated area "for company."

9. By both the Assistant Principal's and Respondent's accounts, the Respondent told the Assistant Principal twice that, since he could not complete the job by 6:00 p.m. quitting time, he would mow or he would rake, but he would not do both. The Assistant Principal repeatedly told Respondent to do both jobs.

10. In the course of arguing with the Assistant Principal, Respondent also appealed to a teacher/coach standing nearby that he should not have to do both jobs.

11. The Respondent did not complete the job as requested.

    
    

12. The Assistant Principal did not cite Respondent for not completing the September 4, 1996, assignment as requested, but, upon proper notice, he held a conference on September 6, 1996, to discuss the incident. Present were the Assistant Principal, the Principal, the Respondent, and the Respondent's union representative.

13. In the conference the Assistant Principal stated that on September 4, he had simply requested the Respondent to do a job, and he did not expect to have to explain or justify the request to the Respondent. The Principal explained to the Respondent that the Assistant Principal was the Respondent's

    supervisor and that Respondent must comply with his work assignments unless they were harmful or unlawful even if Respondent disagreed with them. She explained that Respondent should first comply with the Assistant Principal's request and he could then pursue a grievance, if he felt a grievance were warranted. It was explained that the Respondent needed to be a member of a team and contribute positively and without wasting time instead of being confrontational and argumentative with his supervisor. The Respondent stated that he was a man and that he had the right to disagree with his supervisor about how his job should be done. No progressive discipline form was provided to Respondent.

14. At formal hearing, Respondent maintained he had injured his back in 1994 and later injured his neck and left shoulder in January 1995, but the medical documentation shows an injury on March 3, 1995, to his neck and a September 27, 1996, strain to his trapezius muscle (shoulder). A School Board document references an October 2, 1996, injury. Respondent explained the new date of injury of September 27, 1996, was assigned by his doctor so that workers' compensation would cover an aggravation of the old injury. According to Respondent, the School Board initially denied the claim(s), but a ruling in his favor became final on November 26, 1996.2 In any case, after September 27, 1996, the Assistant Principal put considerable effort into adjusting Respondent's work hours and assigning him

    duties which complied with the evolving physical restrictions placed on him by his doctors.

15. In order to improve general efficiency, the Assistant Principal and Head Custodian Albert Williams revised the work schedules of all the custodians, changing hours of work, lunch times, and even shifts. Albert Williams passed out the revised schedules and told the custodians that there would be a meeting in the conference room on October 3, 1996, to discuss the changes in their schedules and that they could ask questions about their schedules then.

    
    

16. At the October 3, 1996, meeting, Willie Townsend raised questions about his own revised schedule. The Assistant Principal told him that they were there to discuss schedule changes and his priorities generally but not individual situations. He invited all the custodians to discuss individual schedules privately one-on-one in his office immediately after the general meeting.

17. Respondent raised his hand, taking it upon himself as the on-site union representative, to speak on behalf of

    Mr. Townsend. The Assistant Principal recognized Respondent, but again said he would not go over each individual schedule in the meeting. Respondent continued to interrupt, and the Assistant Principal stated his position again. Over continued comments by Respondent, the Assistant Principal asked Respondent to be quiet.

    Respondent persisted in speaking, making rude comments, while the Assistant Principal tried to quiet him and move on with the meeting. The Assistant Principal finally rose from his seat and told Respondent to, "shut up." Respondent then stood up, too.

    Both men's voices were raised. As a result of this exchange, the meeting broke up without accomplishing anything.

18. No credible evidence supports a finding that Respondent used profanity in the October 3, 1996, meeting.3

19. When the meeting broke up, the Assistant Principal led the way to his office. Behind closed doors, the Assistant Principal met with Respondent and Albert Williams.

    
    

20. The Assistant Principal positioned himself behind his desk and told Respondent that his actions in the meeting had been inappropriate and uncooperative.

21. The Respondent stated that he had a right to speak and that the Assistant Principal "could not tell me to do a damn thing." There is no evidence of profanity beyond this remark, which Respondent admits he made.4

22. The Assistant Principal asked Respondent to leave his office. Respondent did not leave. Instead, he asked to use the telephone to call a union representative. The Assistant Principal told him he would have to use the public telephone in the outer office. Respondent replied that the telephone on the Assistant Principal's desk was a public telephone and he had a

    right to use it. He reached for the telephone. The Assistant Principal moved the telephone out of Respondent's reach and stood up, asking Respondent to leave his office.

23. Respondent then "bowed up," clenching his hands into fists at his sides. The Assistant Principal's perception was that Respondent was positioning himself to strike him. By that time, the voices of the two men were loud enough to be heard in an adjacent front office by Dr. Arnold of the school administrative staff, the school receptionist, two students, and a parent volunteer. Their movements were also observed through the office's glass door.

24. Albert Williams felt it necessary to calm Respondent, caution him against any further talk or actions, and cajole him into leaving the Assistant Principal's office. No force was necessary to remove Respondent.

25. The Assistant Principal snapped that Respondent, "was suspended."

26. Respondent left the Assistant Principal's office and began talking to other custodians who had waited outside. Respondent then attempted to involve Dr. Arnold. She told him she would not speak to him at that time. Only then did Respondent and the other custodians disperse.

27. After Respondent left the area where he had been talking with other custodians, Business Manager Judy Warren authorized him to sell tickets at the junior varsity football

    game.

    
    

28. Principal Childs was apprised of the situation, and when she looked for Respondent, Ms. Warren told Ms. Childs where to locate him. The Principal went to Citizens' Field where the varsity game was being played. She told Respondent he was relieved of his duties and on paid administrative leave for October 4, 1996. Respondent had pre-scheduled vacation leave for the next two weeks.

29. Upon appropriate notice, a disciplinary conference was held when the Respondent returned from his vacation on

    October 21, 1996. Present were the Respondent; Ms. Birdsong, Personnel Supervisor; a union representative; the Assistant Principal; and Dr. Jim Scaggs, Assistant Superintendent for Human Resources.

    
    

30. At the conference, Dr. Scaggs reviewed the incident of October 3, 1996, with the Respondent, including written accounts by Dr. Arnold and the Assistant Principal. Dr. Scaggs informed the Respondent that it was not appropriate to challenge his supervisor during a staff meeting. He told Respondent that the Assistant Principal was the Respondent's supervisor and directed Respondent to recognize him as his supervisor. He further directed the Respondent to follow his supervisor's directions, work cooperatively with him in the future, and refrain from challenging him.

31. Dr. Scaggs confirmed his oral instructions in writing, issued a notice of suspension of the Respondent without pay for three days, October 23-25, 1996, for raising his voice in the October 3, 1996, general meeting and afterwards, using mild profanity, attempting to use intimidating body language, insubordination, and a flagrant disrespect for his superior's authority, and Ms. Childs' failure to find Respondent on duty in his assigned workplace.5

32. Progressive discipline is only mentioned when Dr. Scaggs' letter comments on the removal of a progressive

    discipline form from the Respondent's personnel file because Respondent was not given a copy of it at the September 6, 1996, conference. Therefore, the October 23-25, 1996, suspension was Respondent's first discipline other than counseling.

33. On November 18, 1996, Respondent was assigned to light duty (such as dusting) in B wing and scheduled from 2:30 p.m. to 11:00 p.m. The accounts of Respondent, the Assistant Principal, and James Williams concur that when Respondent came on duty he spent about ten minutes talking to James Williams who was supposed to be raking outside B wing. Respondent had no raking duties at that time, due to his medical restrictions.

34. The Assistant Principal asked Respondent what he was doing out of his assigned work area on November 18, 1996, and asked him to go to his assigned indoor work area. At that time, Respondent did not tell the Assistant Principal that he was

    asking James Williams' advice about cleaning up chemicals in his area, which was the reason Respondent offered at formal hearing for being out of his assigned work area on November 18, 1996. By Respondent's, the Assistant Principal's, and James Williams' accounts, Respondent also did not immediately obey the Assistant Principal's directive. Instead, he continued talking to James Williams another 2-3 minutes and briefly spoke with Dean Byrd before following the Assistant Principal's instructions to go back to work on B wing.

35. On November 25 or 26, 1996, Respondent was working the evening shift behind Mark Lee who did the heaviest duties while Respondent was doing light duty. Respondent went to the restroom and to get lightbulbs.

36. That night, the Assistant Principal returned to campus shortly after 7:00 p.m. due to his daughter's volleyball game. He also walked through the school to see what was going on. He saw other custodians but not Respondent. He saw Respondent across courts and corridors twice, but they did not meet. When

    he finally located Respondent, Respondent did not at first give a clear answer where he had been. Then Respondent said he had been helping Mark Lee.

37. The Assistant Principal went to speak to Mark Lee and closed the door behind him. There are three versions of what happened next, related by the Assistant Principal, Respondent, and Mark Lee, respectively. The best reconciliation of the three

    versions is that Respondent opened the door. Thereafter, a sort of tug of war ensued with the Assistant Principal repeatedly closing the door, insisting that he had a right to a private conversation with another employee, and Respondent repeatedly opening the door, insisting he had a right to hear any conversation about himself. This altercation ceased only when the Assistant Principal gave Respondent a direct order to leave the door closed. Respondent obeyed the oral order.

38. When the Assistant Principal exited the room, Respondent asked him why he was harassing Respondent. Respondent then followed the Assistant Principal down the hallway, accusing him of harassing him. The Assistant Principal wrote up his version of the entire incident on November 26, 1996.6

39. Within a short time, Respondent announced to Mark Lee and Alexander Bradley that his neck hurt and his old injury had been aggravated by the Assistant Principal snatching the door away from him.7

40. Respondent next went to the Assistant Principal's office. The Assistant Principal searched for workers' compensation Notice of Accident forms but did not find any. He refused to authorize emergency treatment under the Workers' Compensation Act as a result of the incident with the door, because he viewed Respondent's behavior as insubordination and as not job related. He told Respondent to use his own insurance if he felt he needed emergency treatment.

41. Respondent sought treatment. Respondent was put on three days' bed rest which coincided with the Thanksgiving holiday weekend.

42. Respondent returned to work the Monday following the holiday weekend.

43. On December 19, 1996, the Assistant Principal attempted to deliver to Respondent the mandatory notice of conference form letter, for a scheduled conference the next day. The Respondent walked away, thereby signaling his refusal to sign to acknowledge receipt of the notice.

44. The Assistant Principal asked Respondent to wait there while he went to A wing, about 20 yards away, to get Alexander Bradley to be a witness to the delivery of the form. The Respondent did not wait but continued downstairs and crossed into the administration building. The Assistant Principal followed, requesting that Respondent sign the form.

45. Principal Childs, coming out of her office, was in front of Respondent. The Assistant Principal, following behind, called out to Ms. Childs to ask the Respondent to stop to sign the notice. Only when Principal Childs asked Respondent to sign the form did he do so. She explained he must sign the form and the meeting would be rescheduled to accommodate his union representative.

46. Respondent's defense to the foregoing incident was that he wanted to telephone his union representative to be sure

    she would be available the next day for a conference since that would be the day before a holiday. This explanation is not credible in light of Respondent being the on-site union representative and having been through conferences for the record before. With his familiarity with the procedures, he must have known when he walked away from the Assistant Principal that his signature would only acknowledge receipt of the notice and that the progressive discipline conference would have to be rescheduled to accommodate his union representative. Moreover, prior to this date, Respondent's union representative had explained to Respondent, in Ms. Child's presence, that Respondent's assertion that he had to call his union representative even before he signed accepting a notice was insufficient and that he must contact his union representative on his own time.

47. The conference scheduled for December 20, 1996, did not take place because Respondent's union representative was, in fact, not available. It was rescheduled after the winter holidays, on January 7, 1997.

48. The conference on January 7, 1997, was a progressive discipline meeting. Present were the Respondent, his union representative, the Principal, and the Assistant Principal. The incidents of November 18 and 26 and December 19, 1996, were discussed with the Respondent.

49. The conclusion of the Principal and Assistant Principal was that the behaviors of the Respondent were unacceptable because he continued to show disrespect to the supervisor's authority. He was cited for being out of his assigned work area on November 18, 1996; for insubordination on November 26, 1996; and for refusing to obey a supervisor's direct order on December 19, 1996. As discipline the Principal imposed a two-day suspension of the Respondent without pay for

    January 15-16, 1997.

    
    

50. On January 17, 1997, Bruce A. Mueller, OTR/L.CRT. of Rehab Solutions in Gainesville wrote to Gary Newcomer, M.D., that based on his evaluation, the Respondent was then able to work at the "light-medium" physical demand level for an 8-hour day.

    Mr. Mueller stated that the Respondent should avoid shoulder height and above activities, but he could do shoulder and overhead work on an occasional basis.

51. On January 23, 1997, after required notice, the Assistant Principal gave Respondent an interim evaluation of his job performance. The Respondent was rated "Satisfactory" in the areas of Quality of Work and Appearance and Grooming; "Needs Improvement" in the areas of Productivity, Attendance and Punctuality, and Use of Time; "Not Satisfactory" in the areas of Responsibility and Dependability, Cooperation, Initiative, Personal Relationships, and Acceptance of Constructive Criticism. Overall Performance was rated "Not Satisfactory". The Respondent

    indicated in the meeting and by correspondence on February 5, 1997, that he did not agree with the evaluation.

52. The plan for improving performance was set out in the following memo from the Assistant Principal:

In order to improve overall performance David Mosley will receive directions from Albert Williams [Head Custodian] concerning his productivity, use of time and initiative. His performance as it relates to cooperation, personal relationships, i.e. as it relates to his supervisor, and acceptance of constructive criticism of his supervisor or head custodian can be improved by learning to work cooperatively with John Williams [Assistant Principal]. Efforts will be made to inform him when his behavior is not reflective of the appropriate employee-supervisor relationship.

1. The custodial schedule changes that Respondent received before the interim evaluation directed him to follow the directions of the Head Custodian, Albert Williams. When Respondent asked Albert Williams whether the duty was appropriate under Respondent's medical restrictions, he referred Respondent to the Assistant Principal for clarification. The plan for improvement did not indicate any change in that procedure.

2. On January 29, 1997, the Respondent visited Gary Newcomer, M.D., at Alliance Occupational Medicine in Gainesville. Dr. Newcomer issued a duty status report on that date, indicating that the Respondent had reached maximum medical improvement, and that the "light-medium" restriction was in place, and included a checklist of the activities and weights which the Respondent could operate.

3. The Respondent had been assigned to "light duty" and

   his hours had been 2:30 to 11:00 p.m.

   
   

4. On January 24, 1997, the Assistant Principal had issued a ten-day notice of schedule change to Respondent, requiring him to switch to 4:30 p.m. to 1:00 a.m., effective February 7, 1997, and that Respondent was to assume new duties of locking gates and checking the gym area after students returned from various late events.

5. Respondent communicated with Synester Jones, Assistant Superintendent of Human Resources, and an old family friend, John Dukes, Jr., Assistant Superintendent of Student Support Services, asking them to intervene in what he believed to be harassment by the Assistant Principal.

6. On January 30, 1997, Respondent went to Gainesville High School's main office and sought an interview with Principal Childs. When her secretary told him she was in conference, he asked to wait.

7. While the Respondent was in the main office, the Assistant Principal requested that he return to his work area, the top of B Wing. The Respondent left the office and went around the corner. The Assistant Principal then went into a meeting with administrators Dr. Arnold and Mr. Bishop.

8. The Respondent returned and stood at the reception counter. The Assistant Principal went out and again requested that he go to his work area. The Respondent said that he wanted to speak to the Principal. The Assistant Principal told the

   Respondent the Principal was busy and that he could make an appointment with her later.

9. The Respondent then asked to speak to Dr. Arnold. Dr. Arnold told him she was busy at the time. The Respondent then asked to speak to Mr. Bishop. Mr. Bishop asked the Respondent if he could go to work. The Respondent replied he could. Mr. Bishop said, "You need to go to it." Only at that point did the Respondent leave to go to his work area. Respondent inquired aloud why no one would speak to him.

10. Respondent's behavior at this time clearly evidenced that he would accept direction from other superiors but not his direct supervisor, the Assistant Principal.

11. The custodians had been instructed that if they intended to leave work during their shift, they must first check with either Albert Williams, the Head Custodian, or the Assistant Principal. On January 30, 1997, Alexander Bradley, the Lead Worker, informed the Assistant Principal that the Respondent had left work, saying he was ill. The Respondent had clocked out at 3:27 p.m. but had not first checked with either the Head Custodian or the Assistant Principal.

12. Upon proper notice, on January 31, 1997, a disciplinary conference was held to discuss the behavior of the Respondent on January 30. Present were the Respondent; his union representative; Dr. Arnold; the Assistant Principal; and the Principal. The concern was the unwillingness of the Respondent

    to respond to a request by the Assistant Principal in a cooperative and timely manner. The Principal and Assistant Principal imposed a two-day suspension of the Respondent without pay, February 5-6, 1997, for insubordination, referencing Respondent's willingness to take directions from Dr. Arnold and Mr. Bishop, but not his own supervisor. Nothing was said about security problems.8

    
    

13. In February 1997, the school received an updated report from the Respondent's doctor indicating his work capacities.

14. A few days prior to February 19, 1997, the Assistant Principal revised the Respondent's written work schedule to reflect the doctor's latest report.

15. On February 18 or 19, 1997, Respondent went to see Principal Childs to complain because his schedule was being changed so frequently. He complained that the new schedule called for him to sweep or mop and that sweeping and mopping aggravated his shoulder. Consequently, he was not required to mop or sweep that day. The Principal agreed to have the Assistant Principal review Respondent's restrictions.

16. After consulting medical records and risk management, the Assistant Principal did not further alter the duties assigned Respondent.

17. The Principal, the Assistant Principal, and Alexander

    Bradley went through the schedule with the Respondent to be sure he understood it.

18. The next day, the Respondent again stated to the Lead Worker, Alexander Bradley, that he did not understand the custodial duties to which he was then assigned. Mr. Bradley informed the Assistant Principal, who then went to the Respondent's work area to explain the schedule to the Respondent.

19. The Assistant Principal asked what Respondent did not understand. Respondent's reply was that he did not understand any of it. Clearly, Respondent was not being entirely accurate but was once more objecting to mopping and sweeping each day. However, his words, tone, and the context of his reply was flippant and disrespectful to his supervisor.

20. The Assistant Principal chose to take the Respondent's reply literally and asked what specific duties Respondent did not understand. Respondent stated he did not want to discuss it with the Assistant Principal, and the Assistant Principal persisted in taking Respondent on a walk-through of his area and describing in minutiae each duty Respondent was expected to perform. This was not just mopping but dusting desks, chalkboards, and computers, and scrubbing sinks.

21. The Respondent asked to have a neutral person present. The Assistant Principal stated the walk-through was not discipline requiring a union representative and that he wanted to proceed. The Respondent asked to go to the restroom. The

    Assistant Principal asked Mr. Bradley to go with Respondent so that Respondent would not leave the building.

22. Respondent returned and, as the three men walked along the hall, Respondent stopped a student friend of his who was still on campus and asked him to telephone Respondent's wife and ask her to call Assistant Superintendent Dukes for him. The Assistant Principal told the student to move along and asked Respondent not to involve the students.

23. Respondent repeated this situation with another student who was both Respondent's nephew and godson, and the Assistant Principal threatened Respondent with an insubordination charge.

24. Respondent threatened to go to others about what he perceived as harassment. The Assistant Principal asked, "Are you threatening me?" Respondent responded, "You can take it as you want to, but it's not over yet."

25. The Assistant Principal was called away and, as a result, Respondent and Mr. Bradley were briefly left alone. They got into a verbal dispute when Respondent accused Mr. Bradley of siding with the Assistant Principal. However, Mr. Bradley's testimony regarding Respondent's use of profanity to him is utterly incredible.9

26. When the Assistant Principal returned, he tried to continue walking the Respondent through his duties. The Respondent tried to walk ahead or even leave on occasion and had

    to be ordered by the Assistant Principal to wait or stay. Then, as the others would proceed along, the Respondent would not move and had to be ordered by the Assistant Principal to come with them. A verbal dispute arose over this and escalated into career threats on both sides.

27. Finally, the Assistant Principal stated there was no sense in going through the rest of the school rooms, but he reiterated he wanted the work done that night.

28. Respondent said he was not feeling too good. The Assistant Principal told him that if Respondent were going home, to come by his office first. When Respondent got to the office, the Assistant Principal handed him a notice to attend a disciplinary conference the next morning. Respondent signed the paper and left. He checked out at the time clock.

29. On February 21, 1997, the Assistant Principal wrote up the last incident and recommended five days' suspension without pay as a disciplinary action against Respondent.

30. On February 28, 1997, Assistant Superintendent Synester P. Jones met with the Respondent, his union representative, and the staff attorney to discuss the events of February 19-20. The Respondent brought up some issues that needed further exploration, including schedule changes and whether the schedule was outside the Respondent's work restrictions. The Respondent was also given an opportunity to put into writing his version of what had occurred.

31. Following the meeting on February 28, 1997, Ms. Jones investigated the Respondent's work schedule and his assigned duties, and determined that the proposed work schedule was not outside his current medical restrictions. For example, the Respondent was not to do constant mopping, so his schedule had been arranged for mopping only the restrooms on one floor of B wing each day.

32. By all professional health care accounts, Respondent's minimum physical functioning would permit him to mop 33 percent of his work day; lift 35 pounds occasionally; lift 15 pounds frequently; lift 7 pounds constantly; reach up to 33 percent of his work day; push with a force of 65 pounds occasionally; push with a force of 46 pounds frequently; and push with a force of 21 pounds constantly.

33. On March 11, 1997, a follow-up conference was held with the Respondent. Based on the information she had obtained since February 28, and on the written statement and comments from the Respondent, Ms. Jones recommended to the Superintendent that the Respondent be suspended with pay until the March 18, 1997, meeting of the School Board, when he would be recommended for suspension without pay and termination. The Respondent was so informed on March 11, 1997, and the written termination letter was prepared following the meeting and delivered on March 13, 1997.

34. Principal Childs concurred with Assistant

    Superintendent Jones' recommendation for termination because in each of her conferences with Respondent she had perceived that he had a great deal of difficulty accepting directions and/or following directions given by a legitimate supervisor, the Assistant Principal. She also believed his argumentative, uncooperative, and verbally abusive behavior was inappropriate, disruptive, and dangerous in the workplace, created a hostile work environment, and constituted an ineffective and inefficient use of everyone's time.

35. Respondent presented several witnesses to the effect that he was a good and cooperative worker and two to the effect that the Assistant Principal was more vigilant about checking up on Respondent's work activities than those of any other custodian. However, none of these witnesses had any clear knowledge of changes made in Respondent's schedule and work assignments to accommodate his injury and restrictions, and none of them ever had to direct him as a supervisor.

    
    

    CONCLUSIONS OF LAW

    
    

36. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569(2)(a) and 120.57(1), Florida Statutes.

37. The duty to go forward and the burden of proof by a preponderance of the evidence is upon the School Board. See

    Dileo v. School Board of Dade County, 569 So. 2d 568 (Fla. 3d DCA 1990); Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3d DCA 1990); McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 1996).

38. Respondent is an educational support employee and pursuant to Sections 228.041(39) and 231.3605, Florida Statutes, with the job title of custodian. When, as here, the statute does not state the reason for which a non-instructional employee can be terminated, it can reasonably be assumed that the employee can be terminated for proper or just cause.

39. Pursuant to the collective bargaining agreement, Respondent can not be disciplined except "for cause" and cause must be substantiated by sufficient evidence which supports the recommended disciplinary action. Dismissal, demotion, and suspension of any employee shall be "for proper cause."

40. The Respondent is charged with gross insubordination, misconduct in office, violation of the Code of Ethics by attempting to use students for personal gain, and overall unsatisfactory job performance.

    
    

41. The Alachua County School Board's Policy GBC/GBC-G, Staff Ethics, requires that all of Petitioner's employees, including the Respondent, adhere to the Code of Ethics and the Principles of Professional Conduct for the Education Profession in Florida. See, Rules 6B-1.001, 6B-1.006, Florida

    Administrative Code. The Principles of Professional Conduct at Rule 6B-1.006(3) include, as part of the "obligation to the student" that the individual

    (h) shall not exploit a relationship with a student for personal gain or advantage.

    
    

42. The Principles also require, at Rule 6B-1.006(5), as part of the "obligation to the profession of education" that the individual

    (d) shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance or professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive offensive or oppressive environment; and further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.

43. Since the Respondent's interaction with the two students was after school hours, was very brief, was based on existing close personal relationships, and could not have resulted in any monetary gain to Respondent, he is not guilty of attempting to use students for personal gain as that term is commonly understood.

44. The remainder of Respondent's defense is based on two concepts. First, because the January 23, 1997, interim evaluation was given less than two months before Respondent was suspended without pay pending termination, he argues that the School Board did not comply with the prerequisite procedures designed to help him correct his shortcomings based on unsatisfactory job performance. Second, on the basis of Hines v.

    Department of Labor and Employment Security, 455 So. 2d 1104 (Fla. 3d DCA 1984), he asserts that his insubordination was defensible and excusable because it was in response to the Assistant Principal's provocation/conduct.

45. The Hines case is applicable here because it was determined under Chapter 443, Florida Statutes, and applies federal and state unemployment compensation legislation and case law. Even so, its holding does not support Respondent's position. That case held that

    Hines' insubordinate and offensive challenge of the foreman's authority in the presence of her employees was extremely detrimental to the work atmosphere from which an employer must be able to direct and command his employees. As was stated in Jack v. Board of Review, 377 So. 2d 812, 814 (Fla. 4th DCA 1979):

    
    

    Orderly respect for those in the chain of command is a must in every field of endeavor and very much in every employer's interest.

    
    

    * * *

    
    

    We also find Hines' provocation defense to be without merit. Although we agree that unjustifiable provocation by an employer may in some instances be a valid defense to a charge of employee misconduct, we find the foreman's action in the present case did not amount to such provocation.

    
    

    The cases cited in Hines to demonstrate excusable provocation are not similar to what occurred herein.

46. Herein, Respondent clearly and repetitively refused or failed to follow reasonable directions by the Assistant Principal and Principal. Respondent's constant testing of the Assistant Principal's authority was not always met by the Assistant

    Principal with equanimity, but Respondent's refusal to follow his instructions while obeying instructions from other administrators clearly rendered Respondent the provocateur. Although the last incident on February 20, 1997, evidences escalated personality conflicts and childish behavior by everyone concerned, it was only the culmination of Respondent's repetitive disrespectful retorts and acts of belligerence and insubordination.

47. The record shows that the School Board followed progressive discipline measures and the Respondent was informed of the expectations for conduct in the workplace. On repeated occasions, he was permitted to express all of his concerns, and he was counseled by the Principal.

    1. On September 6, 1996, the Respondent had a conference with the Principal and Assistant Principal, at which he was counseled (without its being recorded as discipline) that his supervisor was the Assistant Principal.

    2. On October 21, 1996, a progressive disciplinary conference was held with the Respondent, an Assistant Superintendent, and Respondent's union representative to address the Respondent's behavior and challenging the Assistant Principal on October 3, 1996. The Respondent received a three-day suspension without pay.

    3. On January 7, 1997, a disciplinary conference was held with the Respondent to review the events of November 18 and

       25 and December 19, 1996. The Principal and Assistant Principal

       
       

       informed the Respondent that his conduct was unacceptable, and he was given a two-day suspension without pay.

    4. On January 23, 1997, the Respondent received an interim evaluation, showing significant performance deficiencies, and that evaluation was reviewed with him in a meeting with the Assistant Principal. All of Respondent's performance deficiencies related directly to his pattern of misconduct and insubordination.

    5. On January 31, 1997, a disciplinary conference was held regarding the Respondent's behavior on the previous day in failing to go to his work area when instructed more than once to do so. The Respondent received a two-day suspension without pay.

48. The Respondent's conduct on February 20, 1997, demonstrated his continued unwillingness to recognize the Assistant Principal as his supervisor and Mr. Bradley as the Lead Worker, to follow reasonable instructions from them and be cooperative as an employee. His prior acts of misconduct may be considered in determining the existence of proper cause for termination or discipline. See C.F. Industries, Inc. v. Long,

    346 So. 2d 864 (Fla. 2d DCA 1978); State v. Wadsworth, 210 So. 3d

    
    

    4 (Fla. 1968); Johnson v. School Board of Dade County, Florida, 578 So. 2d 387 (Fla. 3d DCA 1991).

49. Respondent has repeatedly disrupted the work environment through interrupting, challenging and defying

    remarks, and by behaving in a manner calculated to make other employees feel intimidated and uncomfortable so as to create a

    
    

    hostile work environment. This constitutes just cause for termination for misconduct and insubordination.

50. His refusal to work at assigned tasks clearly equates with poor productivity or quantity of work, even though all the evidence shows that when Respondent chose to work, he was a good worker who turned in a high quality performance, and who generally got along with other custodians and ancillary employees who did not supervise him. Under the circumstances, it is hard to imagine what more could have been done to assist him in bringing his performance up to a satisfactory level.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the School Board terminate Respondent effective upon the dates contained in its termination letter, but only for gross insubordination, misconduct, and overall unsatisfactory job performance.

RECOMMENDED this 3rd day of February, 1998, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1998.

ENDNOTES

1 Due to the number of persons involved in this case who bear the surname, "Williams," job titles will be used as often as necessary to distinguish them.

2 The parties seem to be under the impression that Exhibits R-5 and R-7 clarify these dates through an Order of the workers' compensation judge. There is no such Order in either exhibit. However, if such an Order were entered October 26, 1996, as Respondent testified (TR 368-369), it would have been final, without appeal, November 25, 1996.

3 Lead Worker Alexander Bradley's testimony regarding profanity on each occasion vacillated and expanded according to what was asked him or who was asking him. His testimony was inconsistent with prior statements and internally inconsistent. He evidenced clear bias against Respondent.

4 Alexander Bradley's account of what was said at this time is not credible because, by all other accounts except his own, he was not present inside the office. The three witnesses present, the Assistant Principal, Respondent, and Albert Williams, all agree only "damn" was used by Respondent.

5 On the basis of the Assistant Principal's last oral retort, Respondent asserted that he had left the school grounds believing

he was already suspended. While this explanation is plausible, it does not alter the reasonableness of the discipline based on the remainder of the charges.

6 At formal hearing, the Assistant Principal testified that in the hallway, Respondent called him "a punk ass nigger." This was not written up against Respondent at any time, so he was never disciplined therefor or on notice that he would have to defend against such an allegation. Also, the undersigned does not find it credible that such a comment would have been excluded from written reports if, indeed, Respondent had said it. For these reasons, it is not found as fact in this proceeding.

7 Respondent also variously claimed that the incident with the door occurred on September 26, 1996; October 2, 1996; and October 3, 1996 (TR 362-371). Mark Lee testified it occurred

October 3, 1996 (TR 342-349). Documentary evidence originated by Respondent (P-14) shows the date of the door incident to be November 26, 1996. At formal hearing, Respondent attributed bad faith or harassment by the Assistant Principal on this date due to Respondent's successful prosecution of his workers' compensation claim becoming final November 25, 1996. (See n. 2, supra.) Even if it were final on November 25 or 26, 1996, there is no credible evidence to substantiate his belief it caused harassment.

8 The Assistant Principal and Lead Worker testified at formal hearing that the custodial staff had been instructed that, when they leave work, they must either give their keys to the Head Custodian or the Lead Worker, or place them in a secure locked compartment in the custodial break room, and that when the Respondent left work on January 30, 1997, he placed his keys on top of the time clock, which is in an unsecured custodial room. However, Respondent was not specifically noticed or disciplined for this breach of instructions, and therefore it has not been reckoned against him here.

9 See n. 3, supra.

COPIES FURNISHED:

Thomas L. Wittmer, Esquire Alachua County School Board 620 East University Avenue Gainesville, Florida 32601

Joan Stewart, Esquire

118 North Monroe Street Tallahassee, Florida 32399-1700

Robert W. Hughes, Superintendent Alachua County School Board

620 East University Avenue Gainesville, Florida 32601-5498

Frank T. Brogan Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

Michael H. Olenick, Esquire Department of Education

The Capitol, PL-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: 97-001680

Orders for Case No: 97-001680