STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-5575

)

RAYNARD W. PASTEUR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 26, 1999, at Miami, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Carlos E. Mustelier, Jr., Esquire

Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

For Respondent: Leslie A. Meek, Esquire

United Teachers of Dade 2929 Southwest Third Avenue Suite One

Miami, Florida 33129 STATEMENT OF THE ISSUES

The issue for determination is whether Respondent's employment with Petitioner should be terminated.

PRELIMINARY STATEMENT

By letter dated December 10, 1998, Miami-Dade County School Board (Petitioner) notified Raynard W. Pasteur (Respondent), among other things, that Petitioner took action on December 9, 1998, to suspend and initiate dismissal proceedings against him from all employment with it, effective December 9, 1998, and that the action taken by Petitioner was for just cause, including, but not limited to, violating "School Board Rule 6Gx13-4A-1.21, Employee Conduct, Conduct Unbecoming a School Board Employee, incompetency, and gross insubordination." By letter dated December 10, 1998, Respondent, by and through his counsel, contested the suspension and dismissal and requested a hearing. On December 23, 1998, this matter was referred to the Division of Administrative Hearings.

On March 29, 1999, Petitioner filed a two-count Notice of Specific Charges. In Count I, Petitioner charged Respondent with conduct unbecoming a School Board employee, warranting dismissal; and in Count II, Petitioner charged Respondent with gross insubordination, comprising just cause for termination from employment.

Prior to hearing, the parties filed a Joint Pre-Hearing Stipulation in which the parties agreed to certain facts which would not require proof at the hearing. The facts agreed to have been incorporated into this Recommended Order.

At hearing, Petitioner presented the testimony of four

witnesses1 and entered twelve exhibits (Petitioner's Exhibits numbered 1-12) into evidence. Respondent presented the testimony of one witness, testified in his own behalf, and offered no exhibits into evidence. Official Recognition was taken of Petitioner's Rule 6Gx13-4A-1.21 and Section 231.291, Florida Statutes.

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for ten days following the filing of the transcript. The Transcript was filed on June 23, 1999.2 The parties timely filed their post-hearing submissions: Petitioner on July 2, 1999, and Respondent on July 6, 1999.3 The parties' post-hearing submissions have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Miami-Dade County School Board (Petitioner) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within Petitioner's district, pursuant to Article IX, Florida Constitution, and Section 230.03, Florida Statutes.

2. At all times material hereto, Raynard W. Pasteur (Respondent) was employed by Petitioner as a school security monitor at Frank C. Martin Elementary School (Martin Elementary).

3. Respondent began his employment with Petitioner on August 31, 1990, at Palmetto Middle School (Palmetto) as a school security monitor and remained at Palmetto until September 29, 1991. On January 27, 1994, Respondent began working as a school security monitor at Martin Elementary.

4. At all times material hereto, Respondent was a member of the United Teachers of Dade (UTD). As a member of the UTD, Respondent was subject to the collective bargaining agreement (UTD Contract) between Petitioner and the UTD, as well as any Memorandum of Understanding between Petitioner and UTD.

5. On February 2, 1998, a conference-for-the-record (CFR) was held with Respondent. In attendance at the CFR were Respondent; two of his union representatives; Isaac Rodriguez, Director of Petitioner's Office of Professional Standards (OPS); Dr. Jose Carbia, Petitioner's Director of Region V; and Pamela Siplin, Principal at Martin Elementary. The purpose of the CFR was to address Respondent's medical fitness to perform his assigned duties, to review Respondent's records, and to address Respondent's future employment status with Petitioner.

6. Prior to the CFR, Jose Garcia, a clinical coordinator with Petitioner's Employee Assistance Program (EAP), performed an assessment of Respondent. After performing the assessment, Mr. Garcia determined that he had a duty-to-warn situation. The circumstances of a duty-to-warn situation demonstrate that

   serious bodily harm or injury may result or that there is a threat of serious bodily harm or injury. Having made such a determination, Mr. Garcia contacted his supervisor and discussed the duty-to-warn situation involving Respondent. Afterwards, Mr. Garcia contacted OPS. Mr. Garcia, his supervisor, and OPS subsequently contacted Dr. Carbia. Mr. Garcia informed

   Dr. Carbia that his (Mr. Garcia's) assessment of Respondent presented a duty-to-warn situation and that potentially bodily harm or injury could be inflicted against certain employees of Region V. Mr. Garcia did not discuss any details with OPS or with Dr. Carbia.

7. An employee's participation in the EAP program is confidential and voluntary. Breach of the confidentiality by a clinical coordinator is permitted when a duty-to-warn situation presents itself in order to warn the affected persons of the threat of serious bodily harm or injury without discussing details of the situation. Under the circumstances, Mr. Garcia was permitted to breach the confidentiality afforded Respondent.

8. A written statement dated February 2, 1998, explaining Petitioner's justification for requiring Respondent to submit to a medical examination, was presented to Respondent. The written statement stated, among other things, the following:

   This employer [Petitioner] has need to determine your fitness to carry out your assigned duties. Because of your exhibited

   behavior at the worksite as well as your self reported medical condition, this employer has reason to seek an immediate medical examination which will be considered relative to your future and continued employment with Miami-Dade County Public Schools.

   
   

9. According to Ms. Siplin, the principal at Martin Elementary, Respondent's attendance was good and, in most instances, he was cooperative. She never reported any erratic or unusual behavior exhibited by Respondent. As observed by Ms. Siplin, Respondent's behavior at the worksite was acceptable and satisfactory. However, the behavior complained of referred to the Respondent's behavior at the work site as assessed by Mr. Garcia. A finding of fact is made that the written statement dated February 2, 1998, is a sufficient written statement justifying Petitioner's requirement for Respondent to submit to a medical examination regarding his fitness to carry out his assigned duties.

   
   

10. At the CFR, a determination was made, among other things, that a medical fitness evaluation, i.e., a fitness-for- duty evaluation, was required. During the CFR, a representation was made to Respondent that Mr. Garcia had spoken to Respondent's psychiatrist because of Mr. Garcia's concern for Respondent and the staff at Martin Elementary; however,

    Mr. Garcia did not reveal any details of Respondent's assessment

    to OPS or the Director of Region V. The representation has no effect on the determination that a fitness-for-duty evaluation was required. A finding of fact is made that, regardless of the representation, a sufficient basis existed for such a determination and that it was reasonable and appropriate to require a fitness-for-duty evaluation of Respondent.

11. A fitness-for-duty evaluation is an assessment by a psychologist or psychiatrist to determine whether an employee is psychologically competent to perform his or her job and whether that employee could potentially be a danger to himself or herself, co-workers, or students. The fitness-for-duty evaluation is designed to identify what it would take to get the employee back to work.

12. The employee chooses the medical practitioner to perform the fitness-for-duty evaluation. According to the UTD Contract, when there has been a written statement of the need for an examination, the employee is to choose the medical practitioner from Petitioner's list of State-licensed physicians, psychologists, and psychiatrists.

    
    

13. Respondent and his union representatives were provided a list of Petitioner approved psychiatrists and psychologists from which Dr. Larry Harmon, Ph.D., was chosen by Respondent.

    An appointment was made by OPS for Respondent with Dr. Harmon

    and was scheduled for February 6, 1998, at 9:00 a.m.

    
    

14. At the CFR, Respondent was also placed in an alternative assignment at home during the process of the fitness-for-duty evaluation.

15. Certain directives were given to Respondent during the CFR. The directives were as follows:

    Keep your scheduled appointment with Larry Harmon, Ph.D.

    
    

    Call Ms. Pamela Siplin at 238-3688, each work day between 7:30-7:40 a.m. and 3:50- 4:00 p.m.

    
    

    Be available at home during work hours for phone calls from your work site.

    
    

    Notify the work site of any appointments that would necessitate your absence from your

    alternative assignment (home) during work hours.

    
    

    Respondent was advised that failure to comply with the directives would necessitate a review by OPS for the imposition of disciplinary measures, including suspension, demotion or dismissal.

16. At the CFR, Respondent was also provided a copy of Petitioner's Rule 6Gx13-4A-1.21, Employee Conduct and Rule 6Gx13-4C-1.02, Non-Instructional Personnel.

17. Dr. Larry Harmon, Ph.D., conducted the fitness-for- duty evaluation which was administered for approximately nine hours over a three-day period, beginning on February 6, 1998.

    The evaluation consisted of Dr. Harmon reviewing background information provided by Mr. Rodriguez of OPS and background memoranda concerning Respondent's prior criminal activity; reviewing Respondent's job description; conducting a clinical interview with Respondent; performing psychological testing of Respondent; consulting with Mr. Garcia of EAP; and conferring with Respondent's parents. Dr. Harmon was unable to consult with Respondent's treating psychiatrist and psychologist.

18. Routinely, Dr. Harmon requests that his patients sign a release and consent for the fitness-for-duty evaluation. The release and consent provides for the exchange and release of information and discussion with OPS, as well as EAP. Respondent signed Dr. Harmon's release and consent and, as a result,

    Dr. Harmon was able to consult with Mr. Garcia of EAP.

    
    

19. Dr. Harmon also attempted to obtain a release from Respondent regarding the exchange of information with Respondent's treating psychologist, Dr. Eve McNanamy, Ph.D., and treating psychiatrist, Dr. Edgar Patino, M.D. In Dr. Harmon's opinion, the outside information from Respondent's treating psychologist and psychiatrist was essential to corroborate Respondent's self-report. However, Respondent refused to sign the release. Respondent did not "like" some of Dr. Harmon's methods or the way Dr. Harmon kept his office. Moreover, Respondent's psychiatrist, Dr. Patino, advised Respondent that

    he (Respondent) was not required to sign the release and that his (Respondent's) failure to sign could not be held against him.

    
    

20. Having reviewed background information provided by Mr. Rodriguez of OPS and background memoranda concerning Respondent's prior criminal activity; having reviewed Respondent's job description; having conducted a clinical interview with Respondent; having performed psychological testing; having consulted with Mr. Garcia of EAP; and having conferred with Respondent's parents, Dr. Harmon formed an opinion as to Respondent's psychological condition. In his report dated March 1, 1998, (Report), Dr. Harmon made the following observations in his "Summary and Recommendations":

    1. With respect to diagnosis -- based on clinical interview, mental status examination, psychological test results, collaborative consultation, and review of related written records -- he [Respondent] presents, according to the Diagnostic and Statistical Manual, Fourth Edition (DSM IV), with a probable as follows:

       
       

       Axis I: Clinical Disorders and Conditions Delusional Disorder

       (297.1), Persecutory Type [emphasis

       in original]

       
       

       Axis II: Personality Disorders

       Deferred. [emphasis in original]

       Axis III: Physical Disorders and Conditions Deferred. [emphasis in

       original]

       
       

    2. Given the information with which this psychologist was able to utilize, there is no clear evidence of any severe cognitive or affective disorder which would absolutely prevent him form currently performing any kind of work at all.

       
       

       However, because he was highly guarded and reluctant to share his current life circumstances, history, and current treatment recommendations, it is difficult to rule out the probability of a potential direct threat, especially to coworkers.

       
       

    3. With respect to his current position as a School Security Monitor II, the job requirements include, but are not limited to, both physical and interpersonal tasks .

       . .

       
       

       He appears to be capable of performing the physical requirements of the job . . . In addition, he is probably able to perform the non-interpersonal responsibilities of his job description . . .

       
       

       However, individuals with Delusional Disorder may have significant difficulties effectively and objectively performing complex interpersonal job tasks . . .

       
       

       His current symptoms -- clearly consistent with Delusional Disorder -- are likely to cause his thinking to be suspicious and potentially impair his judgement. In fact the DSM IV states that "People with persecutory delusions are often resentful and angry, and may resort to violence against those they believe are hurting them."

       
       

    4. Based on the above information, there appears to be a potentially significant risk

       of substantial harm to coworkers based on the following factors:

       
       

       1. The results of this individualized Fitness for Duty assessment . . .

          
          

       2. The results of objective psychological assessment, based on current psychological knowledge and assessment tools and techniques, suggest a potential for unpredictable and highly aggressive behavior.

          
          

       3. A review of prior history [criminal history]. . .

          
          

       4. A review of current information that suggests he is a current risk based in part on this evaluation as well as upon Jose Garcia's (of the M-D.C.P.S. E.A.P.) report that Mr. Pasteur recently called him and stated, among other comments, that "I am going to stop them." And "I'm just telling you that in case I have to do something."

          
          

       5. Finally, Mr. Pasteur reports that his psychiatrist's efforts to treat him with medication are obstructed by his unwillingness to follow his psychiatrist's recommendations and so it appears that efforts to reduce or eliminate his delusional thinking are not fruitful which, therefore, maintain the current level potential of significant risk of substantial harm to others.

          
          

    5. Therefore, because he is considered a potential direct threat and, thus, a significant risk of substantial harm to others, there is insufficient supporting information based on this assessment to clear him to return to work. Therefore, he is considered as the present time not fit for duty. [emphasis in original]

       
       

    6. His Delusional Disorder appears to seriously impair major life functions such

       as his social judgement, an essential requirement for his job which requires significant skills to interact effectively in interpersonal interactions.

       
       

21. In his Report, Dr. Harmon continued with the following recommendations in his "Summary and Recommendations":

    1. In order for Mr. Pasteur [Petitioner] to be eventually cleared to return to work, it is recommended that M-D.C.P.S. support

       Mr. Pasteur's efforts to reduce and, hopefully, eliminate the probability that he will be a potentially direct threat to others. The following accommodations are recommended in order to assist him to get appropriate and effective treatment so that he may return to work:

       
       

       1. Provide Mr. Pasteur with at least one month of medical leave, consistent with medical leave benefits and policies for all other employees in his category, so that he may receive appropriate mental health treatment.

          
          

       2. It is recommended that he follow all of his psychiatrist's recommendations which are designed to reduce the symptoms of his Delusional Disorder to a sufficient extent that he is fit for duty.

       3. Participate in psychotherapeutic treatment with Eve McNanamy, Ph.D., his treating psychologist, and follow all recommendations designed to reduce the symptoms of his Delusional Disorder and improve his social judgement and interpersonal functioning to the extent that he is no longer a potentially direct threat and is able to function adequately in the School Security Monitor II position.

          
          

       4. In order to provide assurance that he is no longer a potentially direct threat and that he is fit for duty, that Mr. Pasteur provide me with a limited Release of

          Information for all of his mental health professionals which restricts the release of information to those symptoms, behavioral patterns, and treatment compliance issues directly relevant to his Fitness for Duty determination.

          
          

    2. . . . Because of his likely resistance [to take prescribed antipsychotic medication], and in order to support that his continuation and increased frequency of psychotherapeutic and psychiatric treatment render him fit for duty, it is recommended that Mr. Pasteur sign a Release of Information which enables the Employee Assistance Program to communicate directly with his psychologist and psychiatrist to assist him in getting additional treatment sessions approved, etc.

       
       

    3. It is recommended that he be re- evaluated for fitness for duty after at least one month to determine the extent to which he is adhering to treatment recommendations, responding to treatment as evidenced by reduced symptoms, displaying symptomoloty which could impair his job performance, and free of symptoms which render him a potentially direct threat to others.

    
    

22. Dr. Harmon's fitness-for-duty evaluation was forwarded to Petitioner.

23. On March 3, 1998, a CFR was conducted to address Respondent's medical fitness for continued employment, to review the record, and to address Respondent's future employment status. In attendance at the CFR was Respondent and his UTD representative; Mr. Rodriguez; a representative for Dr. Carbia; and Ms. Siplin. Respondent's father was allowed to attend but

    only as an observer. Prior to the CFR, Respondent was provided a copy of Dr. Harmon's Report and read it. After reading the Report, Respondent requested, and Mr. Rodriguez complied with the request, that no one at the CFR be allowed to review the Report. Respondent was advised that the focus of the CFR was Dr. Harmon's recommendations contained in the Report.

24. During the CFR held on March 3, 1998, Respondent's father interrupted the CFR several times. Finally, Respondent's father was asked to leave the CFR and, unfortunately, the last interruption by Respondent's father caused the CFR to end.

25. A Summary of the CFR dated April 30, 1998, was sent to Respondent. The Summary included, among other things, directives from Mr. Rodriguez which were that Respondent was required to comply with Dr. Harmon's recommendations and to comply within five (5) days of receipt of the Summary. The Summary also advised Respondent, among other things, that

    Mr. Rodriguez would verify his (Respondent's) compliance with the directives; that, as of March 16, 1998, Respondent's status on Petitioner's payroll record was on leave-without-pay authorized; that Respondent had applied for a medical leave of absence retroactive from March 17, 1998, through May 17, 1998, which complies with one of Dr. Harmon's recommendations; and that Respondent's failure to comply with the directives could lead to suspension or dismissal.

    
    

    
    

26. By memorandum dated May 20, 1998, Respondent was notified by the executive director of OPS that clearance from OPS was required in order for his return to work. Respondent was further advised that a clearance conference was a requirement for his return to work; that he must schedule a clearance conference before May 27, 1998; and that failure to schedule and/or attend the clearance conference would result in disciplinary action.

27. Respondent failed to comply with the directives given him in the Summary of the CFR dated April 30, 1998. As a result, a CFR was held on June 4, 1998, essentially to address his noncompliance with the directives.

28. The attendees of the CFR on June 4, 1998, were Respondent and his UTD representative; Mr. Rodriguez;

    Ms. Siplin; and a representative for Dr. Carbia. One of the directives was for Respondent to comply with Dr. Harmon's recommendations; Respondent had complied with only one of the recommendations which was to obtain extended medical leave. At the CFR, among other things, Respondent was directed to make an appointment with Dr. Harmon by a date certain and to obtain a medical leave extension to cover his present absence and future absence to be recommended by Dr. Harmon.

29. By memorandum dated August 4, 1998, from

    Mr. Rodriguez, Respondent was provided with a written Summary of the CFR held on June 4, 1998. The Summary also contained events that had occurred since the CFR. Mr. Rodriguez indicated in the Summary, among other things, that Respondent had provided notification that he (Respondent) was currently being treated by Dr. Patino; that Dr. Harmon's office had notified OPS that Respondent had scheduled an appointment and had later cancelled the appointment, but had not rescheduled the appointment; that Respondent failed to obtain approved leave and was on non- approved leave status; and that Respondent continued to be in noncompliance with the directives.

30. Mr. Rodriguez again gave Respondent directives in the memorandum of August 4, 1998. The directives were as follows:

    You [Respondent] are advised of the availability of services from the District's [Petitioner's] support referral service.

    
    

    You must comply with Dr. Harmon's recommendations as stated in his report.

    
    

    You must schedule an appointment with

    Dr. Harmon by contacting his office no later than 24 hours from receipt of this letter.

    
    

    You must immediately obtain a Board [Petitioner] approved medical leave of absence to cover the period from 5/19/98 through the necessary recommended time by Dr. Harmon.

    
    

    Mr. Rodriguez further advised Respondent in the memorandum that failure to comply with the directives would compel Petitioner to

    take further disciplinary action including dismissal.

    
    

31. Respondent continued to fail to comply with the directives. As a result, a CFR was held on September 21, 1998. In attendance at the CFR was Respondent and his UTD representative; Mr. Rodriguez; Ms. Siplin; and the personnel director for Petitioner's Region V, Clarence Jones.

32. At the CFR on September 21, 1998, among other things, Respondent indicated that he had not complied with Dr. Harmon's recommendations and had not applied for and obtained an approved medical leave of absence. However, Respondent indicated that he had obtained an appointment with Dr. Harmon which was scheduled for September 25, 1998. Consequently, Respondent requested that he be allowed to keep his appointment with Dr. Harmon, obtain an approved medical leave of absence, and again attempt to resolve the matter after the appointment and a review of his medical evaluation report. Mr. Rodriguez did not agree to Respondent's request, but advised Respondent that his (Respondent's) matter would be forwarded for legal review and possible disciplinary action including suspension or dismissal.

33. Even after the CFR of September 21, 1998, OPS attempted to give Respondent another opportunity to comply with the directives. By letter dated November 9, 1998, the senior executive director of OPS, Dr. Joyce Annunziata, notified Respondent that he was again being provided an opportunity to

    comply with the directives. The directives in the letter were as follows:

    1. You [Respondent] must comply with all of Dr. Harmon's initial recommendations as stated in his March 1, 1998, medical fitness for duty [sic] report.

       
       

    2. You must schedule an appointment with Dr. Harmon by contacting his office no later than 24 hours from receipt of this letter.

       
       

    3. You must immediately obtain a Board [Petitioner] approved medical leaves [sic] of absence to cover absences starting May 19, 1998 through the present. (Leave application attached.)

       
       

       Dr. Annunziata further directed Respondent to comply with the above directives within three (3) working days of receipt of the letter. She advised and notified Respondent that his continued failure to comply would be considered gross insubordination and would lead to disciplinary action including dismissal.

34. Respondent failed to comply with the directives given him by Dr. Annunziata.

35. Because Respondent failed to schedule another appointment with Dr. Harmon to provide Dr. Harmon an opportunity to re-evaluate Respondent, Dr. Harmon's initial evaluation remained valid. Respondent remained unfit to return to work.

36. Respondent had a right not to execute a consent and release of information for Dr. Harmon to contact and exchange information with his (Respondent's) treating psychiatrist and

    psychologist. Such an exchange of information would have immensely assisted Dr. Harmon, and in his Report, Dr. Harmon referred to such exchange of information as essential.

    Respondent had no understanding that his refusal to sign a consent and release would have such serious ramifications, i.e., dismissal proceedings. Even though lack of information from Respondent's treating psychiatrist and psychologist warrant finding Respondent unfit to return to work, Respondent cannot be disciplined for exercising his right to not execute a consent and release of information.

37. Moreover, this Administrative Law Judge is persuaded that Respondent continued to believe that, as long as he was not refusing to be seen by Dr. Harmon and as long as he was being continually treated by his psychiatrist and psychologist, he (Respondent) could and would be permitted to reschedule his appointment with Dr. Harmon. Respondent did not appreciate the serious ramifications, i.e., dismissal proceedings, of not keeping his appointments with Dr. Harmon. Even at the hearing before this Administrative Law Judge, Respondent continued with his disbelief that failure to reschedule and keep the appointment with Dr. Harmon was such a serious course of action on his part.

38. Respondent presented no medical evidence at hearing to contradict Petitioner's medical evidence and to demonstrate that

    he is medically fit to return to work.

    
    

    CONCLUSIONS OF LAW

    
    

39. 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.

40. 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).

    
    

41. 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.

    
    

42. There is no dispute that, in order for Respondent to be terminated, his acts must constitute just cause pursuant to the UTD Contract and Rule 6B-4.009, Florida Administrative Code.4

43. The parties agree that just cause, according to the UTD Contract, includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty,

    immorality, and/or a conviction of a crime involving moral

    turpitude.

    
    

44. Rule 6B-4.009, Florida Administrative Code, provides in pertinent part:

    The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:

    
    

    (1) Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. . . .

    
    

    * * *

    
    

    (b) Incapacity: (1) lack of emotional stability . . .

    
    

    * * *

    
    

    (4) Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

    
    

45. Petitioner's Rule 6Gx13-4A-1.21 provides in pertinent part:

    I. Employee Conduct

    
    

    All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in their community, in a manner that will reflect credit upon themselves and the school system.

46. Section 231.44, Florida Statutes, provides:

    
    

    Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his or her employment shall

    be subject to termination by the school board.

    
    

47. Petitioner has demonstrated by a preponderance of evidence that Respondent committed gross insubordination. Respondent contends that his referral to Dr. Harmon for a fitness-for-duty evaluation was based upon unsubstantiated and unsupported facts. Even though the written statement presenting the basis for the evaluation was not entirely accurate, the essential basis for the referral, as indicated in the written statement, was correct and that was Respondent's behavior at his work site as assessed by Mr. Garcia, the clinical coordinator at EAP. Furthermore, the undersigned is persuaded that Respondent's referral for the fitness-for-duty evaluation was appropriate and proper. The evidence supports the diagnosis of and recommendations by Dr. Harmon in his fitness-for-duty evaluation of Respondent. The undersigned is not persuaded that Dr. Harmon's recommendations were invalid; to the contrary,

    Dr. Harmon's recommendations are valid. The undersigned is persuaded that, if directed by Petitioner, Respondent was bound to follow Dr. Harmon's recommendations, except as pointed out

    below. Petitioner implemented and directed Respondent to follow Dr. Harmon's recommendations.

48. Respondent was directed by Petitioner to follow

    
    

    Dr. Harmon's recommendations, to schedule an appointment with Dr. Harmon and be re-evaluated by Dr. Harmon, and to apply and obtain a medical leave of absence prior to returning to work. The evidence demonstrates that the directives were given by administrators with proper authority, that the directives were direct orders, and that the directives were reasonable.

    Moreover, the evidence demonstrates that Respondent continued to refuse to obey the directives.

49. However, Respondent has a right not to execute a consent and release of medical information, even if limited, if Respondent so chooses. He cannot be disciplined for merely exercising this right. Consequently, even though the directive for Respondent to execute a limited consent and release of medical information was medically reasonable, Respondent was not bound to comply with the directive.

50. Respondent failed to request a medical leave of absence for May 19, 1998, through November 9, 1998, as directed. The evidence demonstrates that Respondent had no approved or authorized leave after May 17, 1998. Consequently, the evidence demonstrates that Respondent was willfully absent without leave. Section 231.44, Florida Statutes. Moreover, the evidence

    demonstrates that Respondent continued to refuse to obey Petitioner's directive to request and obtain a leave of absence from May 17, 1998.

51. Petitioner demonstrated that Respondent lacks emotional stability. Dr. Harmon determined that Respondent was not fit to return to work. No evidence was presented at hearing to contradict the medical opinion that Respondent was not fit to return to work.

52. However, Respondent did not appreciate the serious ramifications, i.e., dismissal proceedings, of his failure to reschedule and keep his appointments with Dr. Harmon. Now, Respondent understands the ramifications, and with this understanding Respondent has indicated, and it is reasonable to assume, that his actions will be different. Dismissal from employment is too harsh a penalty under Respondent's

circumstances.

RECOMMENDATION

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

RECOMMENDED that the Miami-Dade County School Board enter a final order sustaining the suspension of Raynard W. Pasteur without pay, but not dismissing him from employment, and reinstating Raynard W. Pasteur under the terms and conditions deemed appropriate.

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

Hearings

Hearings

ERROL H. POWELL

Administrative Law Judge Division of Administrative

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

this 23rd day of July, 1999.

ENDNOTES

1/ One of Petitioner's witnesses, Dr. Joyce Annunziata, was not called to testify. The parties stipulated as to what her testimony would be had she testified.

2/ The transcript bears Case No. 98-5578, which is incorrect. The correct Case No. is 98-5575.

3/ The tenth day fell on a Saturday, July 3, 1999. The following Monday, July 5, 1999, was a holiday, and the next business day was July 6, 1999.

4/ Both parties argued in their post-hearing submissions that the UTD Contract and Rule 6B-4.009, F.A.C., are applicable.

COPIES FURNISHED:

Carlos E. Mustelier, Jr., Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

Leslie A. Meek, Esquire United Teachers of Dade 2929 Southwest 3rd Avenue Suite One

Miami, Florida 33129

Roger C. Cuevas, Superintendent Miami-Dade County Schools

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132

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: 98-005575

Orders for Case No: 98-005575