STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

This cause came on for final hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on December 4, 2008, in Pensacola,

Florida.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501-3125

For Respondent: Annie English, pro se

2504 Gator Lane

Pensacola, Florida 32505 STATEMENT OF THE ISSUE

The issue is whether there was just cause for the termination of Respondent's employment with the Escambia County School Board as a food-service worker.

PRELIMINARY STATEMENT

Respondent, Annie English (Ms. English), was notified by letter dated July 29, 2008, that the superintendent of the School District of Escambia County was recommending to the Escambia County School Board (School Board) that her employment be terminated effective August 20, 2008, based on misconduct.

The misconduct alleged was the falsification of her post-hiring medical history questionnaire. Ms. English timely requested a hearing.

The matter was forwarded to the Division of Administrative Hearings and was filed on August 27, 2008. The hearing was set for October 21, 2008. Pursuant to Petitioner's Motion to Continue, the matter was re-scheduled for December 4, 2008, and was heard as scheduled.

Petitioner called three witnesses and offered eight exhibits. All exhibits were accepted into evidence.

Ms. English and her husband testified. Ms. English offered no exhibits.

A Transcript of the final hearing was filed on December 8, 2008. Pursuant to a motion to extend time for submitting proposed recommended orders, the time for submission was enlarged to December 23, 2008. Petitioner timely filed a proposed recommended order, and Ms. English timely filed a letter in lieu of a proposed recommended order.

References to statutes are to Florida Statutes (2008) unless otherwise noted.

FINDINGS OF FACT

1. The School Board is responsible for the administration of the school system in Escambia County, Florida.

2. Ms. English retired subsequent to more than 23 years' employment as a food-service worker for Wendy's Restaurants, Inc.

3. Ms. English began working for the Escambia County School District (School District) in 2004 and became a regular employee in 2005. She was employed as a food-service worker.

4. At the time of her employment, Ms. English, like all other new employees with the School District, was required to complete a post-hiring medical history questionnaire. The medical history questionnaire requires a new employee to fully disclose prior medical treatment for a number of conditions that are listed on the questionnaire. It also requires a new employee to disclose whether there has been any condition or disease for which treatment has been received in the last three years and whether there is any health-related reason the employee may not be able to perform the job for which the employee is applying.

5. The medical history questionnaire is relied upon by Petitioner to determine whether the employee has the physical

   capacity to safely complete the duties and responsibilities of the position for which the employee is to be hired without unreasonable danger of injury to self or others.

6. The medical history questionnaire is also utilized by Petitioner to determine whether, in the event of an injury on the job, the injury was caused in the workplace or, if the employee had a pre-existing injury or health condition, whether that condition has been exacerbated by the work event.

7. In the event Petitioner concludes the employee is not physically capable of performing the essential job functions, even with reasonable accommodations, the job offer may be rescinded.

8. The position of food-service worker involves working in extreme environmental conditions that require the worker to be in good physical condition. These conditions include exceptional heat, slippery floors, the requirement to lift heavy pots and pans, and exposure to hot grease and sharp objects.

   The position involves working in a closed area with as many as six or seven other employees. The position involves lifting and carrying items that weigh up to 50 pounds.

9. An ergonomic job analysis (EJA) for the job assigned to Ms. English describes with particularity the physical requirements of the position. The EJA noted that food service employees must push and pull up to five hours per day, reach

   above shoulder level three hours a day, bend and stoop up to five hours a day, kneel up to three hours a day, and lift and carry up to six hours a day.

10. In 2002, Ms. English was involved in a motor vehicle accident. She received a significant and permanent injury to her right shoulder and arm. Medical records for the treatment of the injury demonstrate that the injuries to her shoulder and arm were very serious.

11. In the accident, Ms. English suffered a fractured right humerus resulting in an open reduction and internal fixation. This means that the broken extremity was treated through the permanent placement of a rod with pins in the interior of the arm.

12. Glenda Torres, a consultant with Emerald Coast Rehab Associates, a person who provides medical management for employers, including Petitioner, concluded that Ms. English's condition would subject her to "weakness" or "giving away." Because of Ms. English's condition, Ms. Torres said that when working around hot or otherwise dangerous appliances or lifting heavy items, Ms. English could injure herself again or cause accidental injury to others.

13. Subsequent to the accident in 2002, Ms. English filed a lawsuit and alleged that she had suffered "devastating injuries," underwent "major invasive surgical procedures," and

    was required to engage in months of painful physical rehabilitation. She alleged that she suffered "substantial and permanent loss of use of her right upper extremities." She was absent from work at Wendy's for about six months due to her injuries. Ms. English settled her lawsuit against the person causing the injuries for $450,000.

14. Ms. English submitted her post-hiring medical history questionnaire on November 10, 2005. When executing the questionnaire, she denied that any condition had been treated in the three years preceding her employment with the School District. She denied that she had any health problems that might interfere with her employment as a food-service worker. She denied that she had ever had a shoulder injury and denied that she had any health-related reason that she could not perform her job. She denied that she had any disabilities or impairments that might interfere with the performance of her job.

15. The responses to the medical history questionnaire were not truthful and were deceptive. At the hearing, she admitted that the treatment had occurred within three years of her employment with the School District. If she had been truthful, she would not have been allowed to work as a

    food-service worker. Her prevarications resulted in her being

    exposed to danger in her workplace and resulted in exposing others to danger.

16. On April 21, 2008, Ms. English made cookie dough and had finished except for cleaning up when she felt a sharp pain in her back and neck. Subsequently, Ms. English filed a workers' compensation claim, and as a result of that, her dissembling on the medical history questionnaire was revealed.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat.

18. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Fla.

    Dep't of Transp. v. J. W. C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981). Accordingly, the School Board has the burden of establishing by a preponderance of the evidence that grounds exist to terminate Ms. English. § 120.57(1)(j), Fla. Stat.

19. Subsection 1012.40(2)(b), Florida Statutes, provides that educational support employees, such as Ms. English, may be terminated only "for reasons stated in the collective bargaining agreement."

20. Article IX.3 of the "Contract between the School District of Escambia County, Florida, and the Union of Escambia Education Staff Professionals, FEA, NEA, AFT," effective during

    all times pertinent to this case and applicable to the parties, provides, "An employee will not be disciplined or discharged, nor will entries be made against his/her record, without just cause."

21. "Just cause" is not defined in the collective bargaining contract. Its meaning is illuminated, however, by the language in Subsection 1012.33(1)(a), Florida Statutes,

    which states: "Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross

    insubordination, willful neglect of duty, or being convicted or

    found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude."

22. Petitioner has proved by a preponderance of the evidence that the falsification by Ms. English of the answers to the questions posed by the post-hiring medical questionnaire was misconduct in office and, thus, just cause for termination.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the School Board of Escambia County enter

a final order terminating the employment of Annie English.

DONE AND ENTERED this 30th day of January, 2009, in Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2009.

COPIES FURNISHED:

Annie English 2504 Gator Lane

Pensacola, Florida 32505

Joseph L. Hammons, Esquire

Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501-3125

Dr. Eric J. Smith Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Malcolm Thomas, Superintendent Escambia County School Board

215 West Garden Street Pensacola, Florida 32502-5782

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: 08-004231

Orders for Case No: 08-004231