STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 00-2867

)

WAYNE GOFF, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Sarasota, Florida, on September 5, 2000.

APPEARANCES

For Petitioner: Charles D. Bailey, III

Bowman George

22 South Tuttle Avenue, Suite 3 Sarasota, Florida 34237

For Respondent: Wayne Goff, pro se

107 20th Street West Palmetto, Florida 34221

STATEMENT OF THE ISSUE

The issue is whether Petitioner has just cause to terminate the employment of Respondent.

PRELIMINARY STATEMENT

By letter dated June 19, 2000, Petitioner advised Respondent that it was terminating his employment due to insubordination.

By letter filed June 27, 2000, Respondent requested a formal hearing.

At the hearing, Petitioner called seven witnesses and offered into evidence 30 exhibits. Respondent called one witnesses and offered into evidence two exhibits. All exhibits were admitted except Petitioner Exhibit 30, which Petitioner proffered.

The parties did not order a transcript.

FINDINGS OF FACT

1. Petitioner first employed Respondent, as a custodian, in late 1991. Respondent's first job was as a substitute custodian, which was a temporary assignment offering few benefits. Petitioner assigned Respondent to Sarasota High School. The substitute position is also known as a non-appointed position.

2. On February 1, 1994, Petitioner changed Respondent's status from non-appointed to appointed. Respondent successfully completed the six-month probationary period.

3. Two years later, Petitioner transferred Respondent from Sarasota High School to the Oak Park School. This transfer resulted from the settlement of a grievance proceeding concerning a matter unrelated to the issues in this case.

4. At the end of the 1996-97 school year, Petitioner transferred Respondent to Sarasota High School. By this time, Respondent had sufficient seniority to be able to bid for a job at a school of his choosing, and Respondent desired to work at Sarasota High School.

5. Respondent began to experience serious job-related problems during the 1997-98 school year. He did a poor job cleaning the classrooms and other assigned areas. His supervisor estimated that Respondent would complete about 60 percent of his assignment. Frequently, Respondent was a "no call, no show," meaning that he neither appeared for work when scheduled nor called in advance of his nonappearance. On at least one occasion in December 1997, Respondent left work early, without permission, so that his supervisor had to have another custodian finish Respondent's job.

6. From the 1997-98 school year until Respondent's departure from employment with Petitioner, he was repeatedly late, absent, or early in departing. On the many occasions on which Respondent was a "no call, no show," Petitioner was required to assign Respondent's work to another custodian working the same shift. This custodian would have to complete his or her own work and Respondent's work in the same shift. This repeated situation undermined the morale of Respondent's coworkers, who resented the extra work for which they received no additional compensation and their inability to do a good job, in the available time, on their assignment and Respondent's assignment.

7. By letter dated April 16, 1998, Petitioner suspended Respondent for one day without pay due to his insubordination.

8. After receiving this discipline, Respondent continued to require reminders from Petitioner about Petitioner's policies for

   requesting leave and documenting sick leave. Respondent's repeated failure to comply with these policies constituted insubordination.

9. In January 1999, another custodian was serving as acting head custodian during the night shift that Respondent worked. A vendor representative visited the high school to examine some equipment. When the acting head custodian asked Respondent to show the representative a piece of equipment normally used by Respondent, Respondent refused. Angry at the persistence of the acting head custodian in repeating the request, Respondent then attacked the acting head custodian, grasping the man's neck so hard as to leave marks.

10. Respondent was again disciplined for his insubordination. By letter dated March 17, 1999, Petitioner suspended Respondent for three days without pay.

11. On March 3, 1999, Petitioner transferred Respondent from Sarasota High School to "Regional," which refers to an area encompassing several schools.

12. During the summer of 1999, Respondent worked at the Sarasota County Technical Institute. On July 13, 1999, the senior head custodian could not find Respondent, who had already displayed the same work habits and attendance problems that had characterized his earlier employment with Petitioner. When the head custodian finally found Respondent, the head custodian accused Respondent of shirking his work. The record does not

    permit a finding as to whether Respondent was really performing his work.

13. However, about an hour after giving Respondent a new assignment of cleaning some windows, the senior head custodian checked up on Respondent. Finding him productively at work, the senior head custodian complimented Respondent by saying, "Good job." Respondent replied, "You don't know who you are messing with." Respondent left the job early, without permission.

14. The next day, Respondent called the regional manager for the Facilities Department, who is the supervisor of the senior head custodians. He warned her that if she sent him back to Sarasota County Technical Institute, he might do something bad to the senior head custodian. The regional manager immediately reassigned Respondent so that he could work at Riverview High School.

15. After initially proposing to terminate Respondent, by letter dated August 18, 1999, Petitioner suspended Respondent for one day with pay for insubordination.

16. As the 1999-00 school year proceeded, Respondent continued his pattern of "no call, no show," tardy appearances, and early departures. For example, from October 11, 1999, through March 24, 2000, Respondent was "no call, no show" on 11 occasions. The other custodians increasingly resented Respondent's unreliability because they had to perform Respondent's work without additional pay.

17. Evidently learning of the dissatisfaction of one custodian, Respondent angrily confronted her by getting in her face, shaking his finger at her, and warning her that if she did not have anything good to say, she should not say anything at all.

18. Despite the exhortations of his supervisors and coworkers, Respondent continued to disregard Petitioner's attendance and notification policies. Finally, on March 24, 2000, Respondent showed up with 15 minutes left in the eight-hour shift that he had specifically requested the night before and explained that he had had car trouble. He did not offer an explanation for why he had failed to call his supervisors and Petitioner's district office to notify them of this claimed problem. This incident effectively ended Respondent's employment with Petitioner.

19. By letter dated June 19, 2000, Petitioner terminated Respondent's employment, effective July 12, 2000, due to insubordination.

20. During his employment with Petitioner, Respondent repeatedly disregarded Respondent's policies regarding notification and documentation of leave, repeatedly disregarded the reasonable requests of his supervisors that he comply with these policies, repeatedly ignored the reasonable requests of his supervisors to perform specific assignments in a competent

    manner, and repeatedly abused coworkers, to the point of grasping one by the throat.

21. In context, these behaviors by Respondent constituted gross insubordination.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

23. No statute confers upon Respondent any status other than that of an at-will employee. See, e.g., Sections 230.23(5)(f) and 231.3605, Florida Statutes.

24. However, Petitioner's Policy 5.110(2) requires that permanent employees, such as Respondent, may be terminated only for "good cause." Policy 5.110(2)(f) provides that "good cause" includes "insubordination or failure to follow supervisory or administrative directions."

25. Petitioner has proved that Respondent was repeatedly and grossly insubordinate and, thus, that good cause supports histermination from employment with Petitioner.

RECOMMENDATION

It is

RECOMMENDED that the Sarasota County School Board enter a final order terminating Respondent's employment with the school board effective July 12, 2000.

DONE AND ENTERED this 18th day of September, 2000, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 18th day of September, 2000.

COPIES FURNISHED:

Dr. David Bennett, Superintendent Sarasota County School Board

1960 Landings Boulevard

Sarasota, Florida 34231

Honorable Tom Gallagher, Commissioner Department of Education

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

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

Charles D. Bailey, III Bowman George

22 South Tuttle Avenue, Suite 3 Sarasota, Florida 34237

Wayne Goff

107 20th Street West Palmetto, Florida 34221

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-002867

Orders for Case No: 00-002867