STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONROE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-2361

)

WILLIAM MITCHELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 21, 1999, at Key West, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard D. Tuschman, Esquire

Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P.A.

First Union Financial Center, Suite 3600

200 South Biscayne Boulevard Miami, Florida 33131-2338

For Respondent: Francisco M. Negron, Esquire

Florida Education Association/United

118 North Monroe Street Tallahassee, Florida 32399-1700

STATEMENT OF THE ISSUES

Whether Respondent's employment with Petitioner should be terminated.

PRELIMINARY STATEMENT

On April 27, 1998, Monroe County School Board (Petitioner)

took action to terminate the employment of William Mitchell (Respondent) for violation of "School Board Policy GDQD (2)(d), Fighting." Respondent requested a hearing before the Division of Administrative Hearings (DOAH). On May 18, 1998, this matter was referred to DOAH.

As a result of a motion for a more definite statement filed by Respondent, Petitioner filed a Notice of Specific Charges on November 20, 1998. In the Notice, Petitioner charged Respondent with violating "School Board Policy GDQD (2)(D), which prohibits fighting in the workplace, on March 23, 1998."

At hearing, Petitioner presented the testimony of six witnesses, including Respondent, and entered six exhibits (Petitioner's Exhibits numbered 1-6) into evidence. Respondent presented no witnesses and entered two exhibits (Respondent's Exhibits numbered 1 and 2) into evidence. The parties entered three joint exhibits (Joint Exhibits numbered 1-3) into evidence, with two of the exhibits being deposition testimony.

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript.

The Transcript, consisting of one volume, was filed on May 21, 1999. The parties timely filed their post-hearing submissions on June 21, 1999, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. For approximately seven years, William Mitchell (Respondent) was employed as a custodian with the Monroe County School Board (Petitioner). Until 1997, Respondent worked at night at Horace Bryant Middle School, coming to work around 2:00 p.m. Respondent had very little contact with students during the school day at Horace Bryant Middle School. In or about 1997, Respondent voluntarily transferred to Key West High

   School and worked during the school day where he had contact with students on a regular basis. As a custodian, Respondent had no responsibility for student discipline at either school.

2. At the time of the hearing Respondent was 53 years of age. He was described by his supervisor at Key West High School as a good employee. Respondent was considered hardworking and gentlemanly. Respondent was not known to be a violent man and had not exhibited any violent or aggressive behavior.

3. Respondent's duties, as custodian at Key West High School, included replenishing the soda can machine and removing the money from the machine in the mornings. In the early part of March 1998, while Respondent was replenishing the machine with sodas, a student, Jerome Simmons,1 took one of the sodas from the machine. Respondent approached Simmons and questioned him regarding the soda, but Simmons denied taking the soda. Respondent believed that Simmons was not telling the truth. The soda was not in Simmons' possession and could not be found.

4. Respondent was aware that it was appropriate for him to

   report misconduct by a student to the assistant principal or the school resource officer. Respondent reported the incident to the assistant principal, Robert Fletcher. Mr. Fletcher questioned Simmons who again denied taking the soda. Mr. Fletcher determined that nothing could be done because Simmons denied taking the soda and the soda was not in Simmons' possession.

5. Simmons was an eighteen-year-old senior at Key West High School. He was stocky, well built, and muscular, having the appearance of someone who lifts weights.

6. Simmons' tenure at Key West High School had not been without incident. He had been disruptive and been disciplined, which included suspension. John Welsh, an assistant principal, whose responsibilities included discipline of students, was very familiar with Simmons. Mr. Welsh observed, among other things, that Simmons was the kind of person who was likely to get the last word in an argument.

7. A few weeks after the soda incident, on March 23, 1998, Simmons was returning from a meeting with his probation officer at the administrative office of Key West High School when he encountered Respondent who was going to the administrative office to obtain the key for the soda can machine. They were passing one another in a narrow hallway, and Simmons deliberately bumped Respondent; Simmons had sufficient room on his side of the hall to pass Respondent without bumping him. Respondent reacted to the deliberate bump by telling Simmons to look where he was

   going. Simmons mumbled something unintelligible to Respondent, who continued walking to the administrative office and obtained the key for the soda machine.

8. Even though the assistant principal was located in the administrative office, Respondent did not report the incident. Based upon the last encounter with Simmons, Respondent believed that he needed more than an intentional bump and something

   mumbled unintelligible by Simmons to demonstrate misconduct by Simmons.

9. After obtaining the key for the soda machine, Respondent proceeded to the soda machine to replenish it with sodas. While Respondent was filling the soda machine, Simmons approached Respondent from the side, staying approximately ten to fifteen feet away from Respondent, and again mumbled something unintelligible. Respondent did not want to stop his work and stated to Simmons that, if Simmons wanted somebody to play with, he'd better go home and play because he (Respondent) had children older than Simmons. Even though Respondent used the term play, Respondent did not believe that Simmons was playing.

10. Respondent did not report this second encounter to the assistant principal or the school resource officer. Respondent again believed that he needed more than what had happened based upon the previous soda incident involving Simmons that he (Respondent) had reported.

11. Simmons walked away from Respondent toward the gym and again mumbled something unintelligible. However, Simmons did clearly say to Respondent, "come on." Respondent followed Simmons in hopes of being able to decipher what Simmons was mumbling in order to report Simmons if Simmons was saying anything inappropriate, as Respondent believed. It was not inappropriate for Respondent to follow Simmons.

12. When Simmons entered the gym, he approached a physical

    education teacher, Nancy Thiel, and informed her that a janitor wanted to fight him. Very shortly thereafter, Ms. Thiel saw Respondent at the doorway to the gym. Simmons knew that

    Ms. Thiel was conducting class in the gym because, approximately twenty minutes earlier, she had directed Simmons to leave the gym since he was not in her class.

13. A finding of fact is made that Simmons' remark that a janitor wanted to fight him is untrustworthy and not made under the stress of excitement. Simmons was calm, not appearing excited, and was relaxed when he made the remark. A finding of fact is further made that Simmons made the remark to shield himself from any wrongdoing and to make it appear that Respondent was the aggressor.

14. Ms. Thiel was standing next to Simmons when Respondent came to the doorway to the gym. Respondent appeared calm and relaxed, not angry. Respondent again stated to Simmons that, if Simmons wanted somebody to play with, he'd better go home and play because he (Respondent) had children older than Simmons. Simmons removed his shirt and remarked to Respondent, "You want some of this," and proceeded out of the gym to the walkway where Respondent was standing. Respondent knew when Simmons removed his shirt that he (Simmons) was serious and wanted to fight. Respondent remarked, "Let's go."2

15. When Respondent realized that Simmons was serious and wanted to fight, Respondent was presented with an opportunity,

    although of short duration, to remove himself from the confrontation. Respondent failed to leave the immediate area of the confrontation and report the incident to an assistant principal or to a school resource officer.

16. Respondent and Simmons confronted one another. They glared at one another and, almost simultaneously, lunged at one another.3 Simmons grabbed Respondent at the bottom of both Respondent's legs; Respondent lowered his weight so as not to allow Simmons to pick him up and throw him to the ground on the concrete. They wrestled and both of them fell to the ground on the dirt and sand area, avoiding the concrete area, with Simmons landing on top of Respondent and being in control. The struggle was over very quickly. No punches were thrown by either Simmons or Respondent.

17. No criminal charges were filed by either Simmons or Respondent against one another.

18. Petitioner has a policy prohibiting fighting at the workplace. Petitioner's policy does not prevent an employee from acting in self-defense. Moreover, if an employee is defending himself or herself and fighting ensues, the employee would not be terminated for fighting. An employee is considered to have acted in self-defense if a student lunged at the employee and the employee held the student and, while holding the student, both the employee and the student wrestle to the ground.

19. Respondent was not acting in self-defense. When

    Simmons removed his shirt and remarked whether Respondent wanted some of him, Respondent had an opportunity to remove himself from the confrontation and report the situation to an assistant principal or school resource officer. Instead, Respondent chose to continue with the confrontation which led to physical contact between Simmons and Respondent.

20. According to the principal of Key West High School at the time of the incident, teachers receive training related to student behavior/relations as part of their professional training; and educators must adhere to the Florida Code of Ethics, which, among other things, governs their interaction with students. However, no such training and no information is disseminated to support personnel, such as Respondent, regarding standards of behavior between employees and students. Even though custodians are not licensed or trained educators, custodians, according to the principal, are held to the same level of behavior as educators.

21. Furthermore, according to Petitioner's Director of Support Services, Robert Menendez, all school employees, including custodians, are held to a higher standard.

    Mr. Menendez also indicated that there is an implied code, which is a common sense approach, that employees do not confront students on school campus and create problems. This higher standard and implied code were not communicated to the custodians, including Respondent, and the custodians did not

    receive training regarding handling conflicts with students or aggressive students.

22. If an employee is being held to a standard, the employee should be informed of the standard and, if required, receive appropriate training regarding the standard. Where there is an absence of communication or information or an absence of appropriate training regarding the standard, the employee cannot be held to the standard since the employee has no knowledge of the standard or has not received the appropriate training for the standard. However, in the instant case, although the higher standard and implied code were not communicated to Respondent and he did not receive training regarding handling conflicts with students or aggressive students, Respondent knew that he could report misconduct by a student to the assistant principal or school resource officer. Respondent failed to make such a report and, instead, chose to confront Simmons. Consequently, the absence of knowledge of a standard or the absence of training on the standard is of no consequence in the instant case.

23. After an investigation, Mr. Menendez determined that Respondent had violated Petitioner's policy prohibiting fighting at the workplace and recommended to the Superintendent of Monroe County schools that Respondent be terminated from employment with Petitioner.

24. Subsequent to Mr. Menendez's recommendation, a review of the incident was conducted by Petitioner's Director of Human

    Resources, Michael Wheeler, whose role was that of a hearing officer. Mr. Wheeler reviewed the allegations of misconduct against Respondent. Mr. Wheeler determined, based upon his review, that Respondent had violated Petitioner's policy against fighting at the workplace and recommended Respondent's termination.

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the

    parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

26. Petitioner has the burden of proof by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990).

27. Section 231.3605, Florida Statutes (Supp. 1998), provides:

    1. As used in this section:

       1. "Educational support employee" means any person employed by a district school system who is employed as a teacher assistant, an education paraprofessional, a member of the transportation department, a member of the operations department, a member of the maintenance department, a member of food service, a secretary, or a clerical employee, or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or school board pursuant to s. 231.1725.

          This section does not apply to persons employed in confidential or management positions. This section applies to all employees who are not temporary or casual and whose duties require 20 or more hours in each normal working week.

       2. "Employee" means any person employed as an educational support employee.

       3. "Superintendent" means the superintendent of schools or his or her designee.

       (2)(a) 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.

       1. 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, or reduces the number of employees on a districtwide basis for financial reasons.

       2. In the event a superintendent seeks termination of an employee, the school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by school board rule in the event there is no collective bargaining agreement.

28. Article V (Employee Rights), Section 2 (Disciplinary Rights), of the collective bargaining agreement between Petitioner and the United Teachers of Monroe provides in pertinent part:

    A. The discipline, dismissal, demotion, and suspension of any employee shall be for just cause. Where just cause warrants such action(s), an employee may be demoted, suspended, or dismissed upon recommendation of the immediate supervisor to the Superintendent of schools.

    
    

    Consequently, Respondent can only be terminated for just cause.

    
    

29. Petitioner's Policy GDQD, Suspension and Dismissal of Non-Instructional Personnel, provides in pertinent part:

    (2) Cause for dismissal shall include, but not be limited to:

    
    

    * * *

    
    

    1. Interfering with another employee's work or fighting . . . .

    
    

30. It is undisputed that Respondent engaged in fighting with Simmons, a student.

31. Petitioner's policy does not prohibit an employee from engaging in fighting in self-defense. However, self-defense is not available to Respondent because self-defense by Respondent is not supported by the evidence. The evidence demonstrates that Simmons taunted Respondent and eventually provoked Respondent when Simmons removed his shirt and remarked to Respondent, "You want some of this." Respondent knew that he could report misconduct by a student to the assistant principal or the school resource officer. Instead of responding to Simmons' aggressive behavior, when Simmons removed his shirt and made the remark to Respondent, Respondent had an opportunity to remove himself from the confrontation and report Simmons to the assistant principal or to the school resource officer. However, Respondent chose to respond to Simmons with the remark, "Let's go," and to move to an open area where the two of them wrestled to the ground, thereby engaging in fighting. To this Administrative Law Judge, it matters not who pushed whom or who became the aggressor once Respondent and Simmons moved to the open area; Respondent had an opportunity to leave prior to that but did not. The evidence further demonstrates that once Respondent and Simmons moved to the open area and confronted one another, then and only then was Respondent forced to protect himself, for at that time Simmons was ready to fight.

32. Whether Respondent knew of the standard to which he was being held and whether he received appropriate training regarding

the standard is of no consequence in the instant case. As stated before, Respondent knew that he could report misconduct by a student to the assistant principal or to the school resource officer. The evidence demonstrates that Respondent had an opportunity to report Simmons but chose not to, resulting in a fight. If Respondent did not know that he could make such a report and had no opportunity to make the report, the absence of knowledge of the standard and the absence of receiving appropriate training regarding the standard would be sufficient to prevent and prohibit Respondent's termination. In order to hold an employee accountable for compliance with a standard, the employee must know what the standard is and must receive appropriate training associated with the standard. Failure of the employer to provide both or either could be fatal to disciplinary action against the employee by the employer.

RECOMMENDATION

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

RECOMMENDED that Monroe County School Board enter a final order sustaining the dismissal of William Mitchell and terminating his employment.

DONE AND ENTERED this 23rd day of July, 1999, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1999.

ENDNOTES

1/ Jerome Simmons did not testify at hearing and his testimony was not presented by deposition.

2/ This Administrative Law Judge is persuaded that Respondent made the remark "let's go," and, moreover, made the remark after he knew that Simmons was serious and wanted to fight.

3/ The testimony of Ms. Thiel is found to be more credible than the testimony of the students as to whether Respondent was the aggressor in the fight, i.e., initiated the physical contact or lunged at Simmons or pushed Simmons first.

COPIES FURNISHED:

Richard D. Tuschman, Esquire Muller, Mintz, Kornreich, Caldwell,

Casey, Crosland & Bramnick, P.A.

First Union Financial Center, Suite 3600

200 South Biscayne Boulevard Miami, Florida 33131-2338

Francisco M. Negron, Esquire

Florida Education Association/United

118 North Monroe Street Tallahassee, Florida 32399-1700

Mr. Michael Lannon, Superintendent Monroe County Schools

Post Office Box 1788

Key West, Florida 33041-1788

Tom Gallagher, Commissioner of Education Department of Education

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: 98-002361

Orders for Case No: 98-002361