The Issue The issue presented for decision herein is whether or not Respondent, Walter Pressley, should be expelled as a student from the Palm Beach County Public School System.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Walter Pressley, whose date of birth is August 6, 1970, was enrolled as a ninth grader at Lake Worth High School during the 1985-86 school year. On February 12, 1986, Respondent Pressley was suspended from Lake Worth Community High School for violation of Student Conduct Code 5.18 possession and selling drugs on campus. During January, 1986, Officer Jay Spencer was assigned by Lieutenant Ericson as an undercover officer and he (Spencer) was enrolled as a twelfth grade student for the Lake Worth Police Department at Lake Worth High School. On Monday, January 27, 1986, at approximately 11:40 a.m., Officer Spencer asked Respondent if he knew where he could get some "sensebud" (street name for a particular kind of marijuana). Respondent advised Officer Spencer that he did not have any on his person, but offered to take him to someone who did. Officer Spencer and Respondent attempted to locate the other student who supposedly had the sensebud but he could not be found. The time was drawing near for Officer Spencer's fifth period class to begin and he told Respondent that if he found any sensebud that he would be in his fifth period class whereupon Respondent asked him where was his fifth period class. Approximately fifteen minutes later, Respondent appeared at Officer Spencer's class and beckoned for him to come outside into the hallway. Once out in the hallway, Respondent told him that he had some sensebud. Officer Spencer and Respondent went to a bathroom located on the second floor of the south building at the school and Respondent presented a clear sandwich bag containing suspected marijuana. Officer Spencer conducted a field test of the substance which tested positive for the drug marijuana. Respondent told Officer Spencer that "he could have it for free" inasmuch as he was just establishing a business and he wanted to form a good reputation among other students and build a clientele. Officer Spencer refused to accept the suspected marijuana without payment and asked Respondent if $2.00 would cover it. Respondent agreed and Officer Spencer gave him $2.00 in U.S. currency in return for the marijuana. Officer Spencer then left the Lake Worth High School campus and returned to his home with the suspected marijuana. Once at home, Officer Spencer tested the suspected marijuana for the presence of Delta 9-THC with the Duguenois Reagent Test. After testing the suspected marijuana, it was positive for the presence of Delta 9-THC. At approximately 8:00, Officer Spencer met with Lieutenant Ericson at the Lake Worth Police Department and gave him the suspected marijuana which was thereafter placed into the evidence locker. On February 12, 1986, at approximately 9:00 a.m., Officer Spencer and Lieutenant Ericson arrested Respondent at the Lake Worth High School for the sale of 1.25 grams of marijuana. After Respondent was arrested, he was taken to the Lake Worth Police Department for processing and thereafter transported to the Division of Youth Services (DYS). Respondent was found guilty on March 25, in juvenile court, on a charge of sale and possession of a controlled substance; was placed on probation and given 50 hours of community service. (Petitioner's Exhibit 5). Richard Cahill is a guidance counselor at Lake Worth Community High School. Counselor Cahill reviewed Respondent's achievement record and noted that Respondent performed satisfactorily during his eighth grade, passing all of his classes (during the eighth grade) except math. During his first semester of ninth grade, Respondent again passed all of his classes except math. However, during the second semester, he only passed one subject and in all of his remaining classes Respondent earned F's and one incomplete grade. Once Respondent was enrolled in tenth grade, he commenced compiling a record of excessive absences and he was counseled by Counselor Cahill. Counselor Cahill spoke to Respondent's teachers who related that Respondent expended some effort during the first nine weeks of tenth grade, however, during the second semester, Respondent put forth very little effort and began to be disruptive in class. On November 1, 1983, Respondent was suspended for two days for using abusive language. On February 21, 1984, Respondent was suspended for three days for chronic tardiness. On March 27, 1984, Respondent was suspended for three days for excessively reporting tardy to class. On March 7, 1985, Respondent was suspended for seven days for being an accomplice to a robbery of another student. Finally, Respondent was initially suspended on February 12, 1986 based on the instant charge of possession and selling drugs on the campus of Lake Worth Community High School. (Petitioner's Exhibit 1). David Cantley is the principal at Lake Worth. Principal Cantley provides all students at Lake Worth with a copy of the student handbook at the beginning of each school year. Petitioner goes to great pains to advise students of the ill-effects resulting from the usage of drugs. The student handbook contains Petitioner's disciplinary procedures for the possession or sale of mood altering drugs. Petitioner considers the possession and/or selling of drugs on campus to be a serious infraction of the code of student conduct. (Student Code of Conduct, Section 5.18). Students found guilty of either possession, use or sale of drugs on campus are subject to disciplinary measures including expulsion. (Page 66, Student Handbook). Rich Mooney, an intake counselor for Youth and Family Services, Department of Health and Rehabilitative Services, has been involved in assisting the Respondent since March of 1985 when Respondent was charged with being an accessory to the robbery of another student at Lake Worth Community High School. Since the more recent charge of the sale and possession of marijuana while on the campus of Lake Worth Community High School, Counselor Mooney has enrolled Respondent at the Tri-Center Training and Rehabilitation Day Program (Tri- Center) which is a rehabilitation program operating Monday through Friday during the hours of 8:00 a.m. to 4:00 p.m. under the auspices of Petitioner's Alternative School System. Respondent has been enrolled at Tri-Center since he was recommended for suspension on February 12, 1986. During the first week of Respondent's enrollment at Tri-Center, he presented a few problems adjusting to the structured environment at Tri-Center, however, he is conforming and Counselor Mooney has expressed his opinion that Respondent should do well during the remainder of his enrollment at Tri-Center. Respondent's mother, Mrs. Ryna Pressley, has diligently tried to curb Respondent's disruptive conduct since he has been enrolled at Lake Worth Community High School. Her efforts appear to have failed based on the numerous suspensions of Respondent from Lake Worth commencing in November, 1983 through February, 1986.
Conclusions The School Board of Palm Beach County, Florida, has jurisdiction of the subject matter and the parties thereto. The School Board of Palm Beach County, Florida, has reviewed and adopts the Hearing Officer's conclusions of law, Section 120.57(1)(b)(9), Florida Statutes, and also adopts the recommendation for expulsion but only in conformance with School Board Policy, D-5.241 (3) which states: "Expulsion prevents a student from enrolling in any school programs offered by the school system for the effective date of the expulsion." and rejects the Hearing Officer's suggestion that an alternative program be provided during expulsion. This Order may be appealed within thirty days by filing a notice of appeal with the district court of appeal. Except in cases of indigency, the court will require a filing fee and payment for preparing the record on appeal. For further explanation of the right to appeal, refer to Section 120.63, Florida Statutes (1985), and the Florida Rules of Appellate Procedure. ORDERED AND ADJUDGED that the Respondent, Walter Pressley, is hereby expelled effective this date, from attendance from all programs of the Palm Beach County School System through the end of the 1986/87 school year. DONE AND ORDERED this 23rd day of July 1936. Louis J. Eassa Chairman School Board of Palm Beach County (SEAL) Filed with the Clerk of, the School Board this 23rd day of July, 1986. Clerk
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be expelled from the regular program at Petitioners School Board of Palm Beach County and that he be provided an education in Petitioner's alternative educational program in an appropriate school setting such as the Tri-Center Training and Rehabilitation Day Program. Recommended this 11th day of June, 1986, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1986. COPIES FURNISHED: Bernard Shulman, Esquire School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402 Mrs. Ryna Pressley 2073 N.W. Second Street Boynton Beach, Florida 33435 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner General Counsel Knott Building Tallahassee, Florida 32301 Thomas J. Mills Superintendent of Schools School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402 =================================================================
The Issue The issue is whether Respondent’s employment with Petitioner as a high school principal should be terminated.
Findings Of Fact Beginning in 2011, Respondent was employed by Petitioner as the principal of Spanish River High School (“SRHS”). As the principal of SRHS, Respondent was required to “perform such duties as may be assigned by the district school superintendent pursuant to the rules of the school board, [including] rules relating to administrative responsibility, instructional leadership in implementing the Sunshine State Standards and the overall educational program of the school to which the principal is assigned.” § 1012.28(5), Fla. Stat.; Palm Beach Sch. Bd. Policy 1.014. The educational program which principals are charged with implementing is defined by Florida law. Section 1003.42(1), Florida Statutes, requires school boards to provide “all courses required for middle school promotion, high school graduation, and appropriate instruction designed to meet State Board of Education adopted standards [in the subject areas of reading and other language arts, mathematics, science, social studies, foreign languages, health and physical education, and the arts].” Additionally, the State of Florida requires “members of the instructional staff of the public schools” to teach certain specified subjects “using books and materials that meet the highest standards for professionalism and historical accuracy.” § 1003.42, Fla. Stat. These specifically required teachings, which are defined and described in varying degrees of detail, include: the “history of the state”; “conservation of natural resources”; “the elementary principles of agriculture”; “flag education, including proper flag display and flag salute”; the “study” of Hispanic and women’s contributions to society; kindness to animals; the “history and content of the Declaration of Independence, including national sovereignty … and how [these concepts] form the philosophical foundation of our government”; the “history, meaning, significance and effect of the provisions” of the United States Constitution; the “arguments in support of adopting our republican form of government, as they are embodied in the most important of the Federalist Papers”; and “the nature and importance of free enterprise to the United States economy.” Section 1003.42(2)(f) requires the teaching of the history of the United States, including the period of discovery, the Civil War, and the civil rights movement to the present, and includes the following direction: American history shall be viewed as factual, not as constructed, shall be viewed as knowable, teachable, and testable, and shall be defined as the creation of a new nation based largely on the universal principles stated in the Declaration of Independence. Section 1003.42(2)(h), which requires Florida educators to teach the “history of African-Americans,” specifically requires instruction on: The history of African Americans, including the history of African peoples before the political conflicts that led to the development of slavery, the passage to America, the enslavement experience, abolition, and contributions of African Americans to society. Instructional materials shall include the contributions of African Americans to American society. The teaching of the history of the Holocaust is mandated by section 1003.42(2)(g), which provides: (2) Members of the instructional staff of the public schools, subject to the rules of the State Board of Education and the district school board, shall teach efficiently and faithfully, using the books and materials required that meet the highest standards for professionalism and historical accuracy, following the prescribed courses of study, and employing approved methods of instruction, the following: * * * (g) The history of the Holocaust (1933-1945), the systematic, planned annihilation of European Jews and other groups by Nazi Germany, a watershed event in the history of humanity, to be taught in a manner that leads to an investigation of human behavior, an understanding of the ramifications of prejudice, racism, and stereotyping, and an examination of what it means to be a responsible and respectful person, for the purposes of encouraging tolerance of diversity in a pluralistic society and for nurturing and protecting democratic values and institutions. The curriculum for teaching the Holocaust at SRHS included an assembly which all tenth-grade students were required to attend. Schools have discretion in constructing a curriculum. The school’s principal is responsible for determining the contents of the curriculum. A school is not required to have a Holocaust assembly as part of its curriculum, but if an assembly is part of the curriculum, the assembly must be mandatory. A Holocaust assembly was “part of [SRHS’s] mandatory curriculum for tenth- graders.” On April 13, 2018, the mother of a rising SRHS tenth-grader wrote to Dr. Latson “to discuss the Florida Mandate to include Holocaust Education each year in the student’s curriculum” and specifically to ask “in what ways/classes is Holocaust education provided to all of the students.” Dr. Latson answered the parent in an email which included these statements: [A]s far as [H]olocaust studies and the curriculum it can be dealt with in a variety of ways. The curriculum is to be introduced but not forced upon individuals as we all have the same rights but not all the same beliefs. Each year we do a Holocaust assembly and we target the 10th graders so every year that group will get a day[‘]s work with the [H]olocaust. We advertise it to the tenth grade parents as [there] are some who do not want their children to participate and we have to allow them the ability to decline. The parent replied to Dr. Latson in another email: Please clarify your statement: “The curriculum is to be introduced but not forced upon individuals as we all have the same rights but not all the same beliefs.” The Holocaust is a factual, historical event. It is not a right or a belief. Dr. Latson responded with the following statements: The clarification is that not everyone believes the Holocaust happened and you have your thoughts but we are a public school and not all of our parents have the same beliefs so they will react differently, my thoughts or beliefs have nothing to do with this because I am a public servant. I have the role to be politically neutral but support all groups in the school. I work to expose students to certain things but not all parents want their students exposed so they will not be and I can’t force the issue … . I can’t say the Holocaust is a factual, historical event because I am not in a position to do so as a school district employee. I do allow information about the Holocaust to be presented and allow students and parents to make decisions about it accordingly. I do the same with information about slavery, I don’t take a position but allow for the information to be presented and parents to be parents and educate their students accordingly. I am not looking for a situation to divide but just to let all know I don’t have a position on the topic, as an educator. My personal beliefs are separate and will always have no place in my profession. This is a very touchy subject, one I have had conversation with Rabbi Levin about. I am simply letting you know all we can do as a public school within our ability. Dr. Glenda Sheffield, who currently is Petitioner’s chief academic officer, was, at all times relevant to this matter, the instructional superintendent for Petitioner’s south region, which included SRHS. In that earlier position, Sheffield was the immediate supervisor of the principals of more than 20 middle and high schools located in the south region, including Dr. Latson. Sheffield reported to Dr. Ian Saltzman who was the regional superintendent for the south region. Saltzman reported to Mr. Keith Oswald. Oswald, at all times relevant to this matter, was Petitioner’s deputy superintendent of schools. Oswald’s duties included supervision of the regional and instructional superintendents who supervise the schools. Oswald was made aware of the email exchange between Dr. Latson and the SRHS parent by Dianna Fedderman, Petitioner’s assistant superintendent for curriculum, who had been told of it by Maureen Carter, Petitioner’s Holocaust program planner, to whom the parent had forwarded the emails. Carter and Fedderman expressed concern about the content of the emails, which Oswald shared. He forwarded the email chain to Saltzman and Sheffield to take action. Oswald directed Saltzman and Sheffield to keep him informed about the counseling they were giving to Dr. Latson, to address the Holocaust studies at the school to strengthen them, and to meet with the parent and address her concern. The Palm Beach County School District (“District”) did not publicize Dr. Latson’s emails, deciding the matter would be handled at the regional level. Dr. Latson was not disciplined for his statements to the parent. He was, however, counseled. Dr. Latson’s counsel described the coaching as advising Dr. Latson of the need for “more circumspect e-mail, e-mail composition to parents.” Dr. Latson testified that the “only criticism” he received was that he “could have worded a better email.” Sheffield did not feel the need to address the teaching of the Holocaust at SRHS because she knew from her own experience that the subject was, in fact, infused in the school’s curriculum. She, therefore, focused her work with Dr. Latson on what she considered to be his poor choice of words. Sheffield did work with the parent for “quite some time.” Between April of 2018 and July of 2019, there were numerous meetings and interactions among and between Sheffield, Saltzman, Carter, Fedderman, and the parent. Dr. Latson had no doubt that the District was supportive of him during this time and, again, the “only criticism” he received was that he “could have worded a better email.” Dr. Latson’s perception was that his emails to the parent were “not clear [and as I read them] some of the things weren’t clear and some of it, in retrospect I could have just left out.” Dr. Latson felt that his words to the parent “obviously gave her the belief that [he] did not believe in the Holocaust, [and he] was just saying [he] wasn’t going to affirm or deny it.” “[S]he kept bringing it back up, so that gave [him] the opinion that she didn’t understand what that meant, even after it was clarified.” When Sheffield was coaching Dr. Latson, she was not aware that he was allowing students to opt out of the Holocaust assembly because the students’ parents did not want the students to be exposed to the contents of the assembly. There is some confusion on this point because Dr. Latson says he never said directly that a student might “opt out” of an assembly with his blessing, but that parents were always free to keep their children home from school for any reason (including not wanting them exposed to the serious nature of the assembly), subject only to District attendance requirements. There is no District or SRHS provision authorizing a parent to opt out of instruction on the Holocaust. If a principal were to allow that practice, she believed he would not be enforcing the mandatory curriculum for the Holocaust. Oswald, who was to be kept informed of the efforts of Saltzman and the others, was told that Dr. Latson had acknowledged that his words were inappropriate. Like Sheffield, Oswald was not aware that Dr. Latson was allowing parents who wished to avoid the Holocaust assembly to “opt out” of it. On May 9, 2019, the same parent sent an email to Saltzman and copied Superintendent Fennoy, Oswald, and Sheffield about a meeting held on May 6, 2019, attended by the complaining parent and School District personnel. The email included the following statement referring specifically to Dr. Latson’s statements in his April 2018 emails: There is one major issue that was not resolved at the meeting, and we do not think there is any resolution other than to remove Mr. Latson as principal from [SRHS]. Mr. Latson made his thoughts very clear at the meeting. When he tried to explain that he thinks his statements in his offensive and erroneous emails last year were misunderstood, he ended up reiterating his offensive and erroneous views. Saltzman informed Oswald that the way the parent characterized the meeting of May 6, 2019, was not accurate. The District, therefore, gave no consideration to the parent’s call for Dr. Latson’s removal from his position at SRHS and took no action in response to the parent’s email. On July 5, 2019, the Palm Beach Post (“Post”) published an article headlined, “Spanish River High’s principal refused to call the Holocaust a fact: A mother pushed for a year to address what she described as a school leader’s failure to separate truth from myth.” Petitioner was aware before its publication that the article was being written. Oswald made a statement to the reporter writing the story. Oswald’s comments were reported in the article: Oswald, who oversees all the county’s principals, said he agreed with the mother that Latson’s email messages were inappropriate but were not reflective of who he was as an educator. Latson, he said, is a popular school leader whose school does more Holocaust education than most campuses and has led the school successfully for years. He should not be judged, he said, solely by a pair of email messages. “It was a hastily, poorly written email that he apologized for,” Oswald said. “That’s some of the challenge that we face when we email back and forth instead of picking up the phone.” Dr. Latson was also aware that the article was being written. The District’s communications director, Claudia Shea, worked with him to prepare a statement to be given to the writer. That statement was reported in the article: In a statement to The Post, Latson apologized for the way he expressed himself in his emails, saying it was not indicative of his actual beliefs or regard for historical fact. “I regret that the verbiage that I used when responding to an email message from a parent, one year ago, did not accurately reflect my professional and personal commitment to educating all students about the atrocities of the Holocaust,” Latson wrote. “It is critical that, as a society, we hold dear the memory of the victims and hold fast to our commitment to counter anti-Semitism,” he continued. He pointed out that [SRHS’s] educational offerings on the Holocaust exceed the state’s requirements. The Holocaust is taught, he said, in ninth- and 10th-grade English classes, as an elective course and in an annual assembly featuring a keynote speaker. The reaction to the publication of the article on July 5, 2019, was “complete outrage, chaos.” Oswald testified to the article’s impact: Q. Can you tell us how it was expressed? A. It was expressed … phone calls, e-mails, meeting with State representatives, locally to the White House. It was completely consuming of all my time on the following days. Q. The following day being the 6th? A. There and forward. The public reaction to the publication of the article and its impact on the District is not disputed. Dr. Latson himself acknowledged it in an email he sent to Oswald and others in the District at 3:36 p.m. on Saturday, July 6, 2019: The release of this article is having the effect the parent who wants to discredit me desired. It is causing a rift in the community, students and parents are attempting to defend me to those in the community who do not know me. I am not the public relations expert but I am wondering if something should come out from me to clear this up. Me not saying anything is fueling questions in the community. I am getting this daily from parents. My parent groups are trying to stop the negativity but they are asking if a statement can come out from me addressing this issue. They state that I have always been vocal and got ahead of things so it is the parents[‘] expectation to hear from me and not doing so is causing questions. Your thoughts? In response to Dr. Latson’s email, Oswald telephoned, telling him “not to make any statements and to not say anything and that we are working internally with the communications department about this.” Oswald specifically directed Dr. Latson not to make any further contact at that time. Oswald told Dr. Latson that they would talk on Monday, July 8, 2019. Dr. Latson testified that Oswald emailed his response to Dr. Latson’s July 6, 2019, email. No such email from Oswald was produced, but Dr. Latson’s telephone records indicate that he received a telephone call from Oswald on July 6, 2019, at 4:56 p.m., which lasted eight minutes. Dr. Latson acknowledged that this telephone call could have been Oswald’s response to his email. In any event, he did confirm being told that “we weren’t going to respond” to the article. The District continued to support Dr. Latson after the article was published. Before he left for vacation, he received a phone call from Sheffield, who told Dr. Latson that she was supporting him. Sheffield, having taken her current position as chief academic officer, was not Dr. Latson’s supervisor on July 6, 2019. She learned of the article’s publication while traveling back from her vacation. She nevertheless called Dr. Latson to ask how he was faring and to tell him to “hold [his] head high” and “[w]e’re going to get through this working together.” In the telephone conversation, Dr. Latson expressed the hope that “this doesn’t ruin [his] reputation.” He also spoke with Dr. Arthur Johnson, the representative of the principal’s association and his friend and former superintendent. Johnson told Dr. Latson to “hold on and let’s see what’s happening.” On Monday, July 8, 2019, Oswald called Dr. Latson at 7:36 a.m., and they spoke for five minutes. Oswald told Dr. Latson that the “Post article was starting to cause somewhat of a problem for [Oswald] and the District and [Oswald] wanted me to take a voluntary reassignment.” Dr. Latson told Oswald that he “needed to discuss [the reassignment] with [his] family” because he believed that his voluntary acceptance of a reassignment meant that the District could place him where they wanted and that might affect his compensation, and he “had an issue with that.” There is some variance between Dr. Latson’s testimony that he informed Oswald he would “try to get back” to him by noon, and Oswald’s testimony that Dr. Latson “stated he would get back to him that morning.” Dr. Latson admits “that Oswald requested a call back by noon.” Dr. Latson testified that, because he was on vacation, he was not obligated to call Oswald back before noon and, also, testified that, if he had been told to contact Oswald, that would be a directive he had to obey. It is, however, undisputed that Dr. Latson at least told Oswald he would “try” to get back to him by noon and undisputed that, even though he spoke with “individuals” about the reassignment, he made no effort to communicate with Oswald before noon of July 8, 2019. After speaking with Dr. Latson at 7:36 a.m., Oswald attempted to communicate with him no fewer than six times before noon on July 8, 2019, because of the urgency of the worsening situation. Oswald called Dr. Latson at 8:21 a.m., 9:35 a.m., 10:32 a.m., and 10:42 a.m., and texted him at 8:22 a.m. and 10:32 a.m. When Dr. Latson did not answer the telephone calls, Oswald left voicemails, increasing with urgency, saying the situation was escalating and asking him to return his call. In response to an automated text sent from Dr. Latson’s phone-- indicting he was driving and could not receive notifications, but informing the caller to “reply urgent” to send a notification with the original message-- Oswald texted him the word “urgent” twice at or around 10:32 a.m. Oswald received no response from Dr. Latson. Between 7:36 a.m. and noon on July 8, 2019, Dr. Latson placed nine and received four telephone calls to and from friends, family members, colleagues, and Johnson. Apparently, his cellular phone was functioning during this time. At approximately 12:33 p.m., not having heard back from Dr. Latson, Oswald sent Dr. Latson a text and an email informing him that Oswald was reassigning him to the District Office. Dr. Gonzalo La Cava, Petitioner’s chief of human resources, also left Dr. Latson a voicemail about the reassignment. Oswald’s text to Dr. Latson was as follows: “I have left you numerous messages to contact me. I am reassigning you to the district office. Please call me ASAP.” Dr. Latson’s argument, as opposed to his testimony, explaining his failure to respond to Oswald on July 8, 2019, is inconsistent. Dr. Latson initially justified his lack of a response to Oswald by arguing that the text he received from Oswald about being removed as principal of SRHS “did not seem to invite a response.” In fact, that text closed with the words, “Please call me ASAP.” In his Answer, Dr. Latson alleged that after he received the message about the re-assignment, he “attempted to email Oswald, but the message did not go through.” At hearing, Dr. Latson testified that he tried to text Oswald around 12:30 p.m., but the text did not go through. He also testified that he attempted to email Oswald at 9:30 p.m. from Jamaica. Dr. Latson explains his lack of response to Oswald by saying he was already on the phone whenever Oswald was trying to call and the calls could not have gone through. His telephone records, however, showed that other calls he was making during this time were interrupted and he was able to connect with the incoming caller. It is undisputed that Dr. Latson received Oswald’s communication telling him that he was being reassigned to the District Office. He admits he told Oswald he would “try” to get back to him specifically to tell Oswald whether he would accept the voluntary assignment. Dr. Latson’s failure to respond to Oswald’s several attempts to speak with him is consistent with a decision not to accept the voluntary reassignment. Contradicting testimony was given at hearing regarding whether Dr. Latson’s request to travel to Jamaica in July had even been approved or known about by Petitioner. A District spreadsheet showing a week-long leave beginning July 8, 2019, was offered into evidence and removed any doubt as to whether Dr. Latson was on recognized or approved leave. The public reaction that followed publication of the July 5, 2019, article was somewhat lessened by news of Dr. Latson’s reassignment, and, “after he was reassigned, there was some calming in the District.” The reassignment was widely publicized. The New York Times published an article datelined July 8, 2019, under the headline, “Principal Who Tried to Stay Politically Neutral About Holocaust Is Removed.” Although he did not respond to Oswald, Dr. Latson did email the faculty and staff at SRHS. The email was obtained by the author of the July 5, 2019, article. His email opened with the paragraph: I have been reassigned to the district office due to a statement that was not accurately relayed to the newspaper by one of our parents. It is unfortunate that someone can make a false statement and do so anonymously and it holds credibility but that is the world we live in. Dr. Latson describes his email as “a necessary and righteous denial of a false allegation.” He describes the “false statement”--the statement that was “not accurately relayed to the newspaper by a parent”--to be that “I was hesitant and I wouldn’t--I avoided confrontation with Holocaust deniers [and] that was not true [and] it also stated that, you know, I denied that the Holocaust occurred [and] that’s not true.” “She can fear my reluctance, but I had no reluctance, so that would be an incorrect statement.” However, in explaining his reasoning, Dr. Latson admits that the statements of the parent contained in the article were reported as the parent’s opinion and that, although she did not doubt that he knew the Holocaust was real, she “feared” that his reluctance to say so stemmed from a desire to “avoid confronting parents who deny the Holocaust reality.” He also made clear that the “statement” that was “relayed” by the parent to which he referred in his email to staff were, in fact, the statements that he had written in April of 2018. Dr. Latson believes that as an educator mandated by law to teach the history of the Holocaust, he is required--by the very statute which imposes that duty, to be tolerant of those who would deny that the Holocaust is historical fact, to the point of allowing some to avoid attending Holocaust remembrance assemblies required of all students. In his email to the complaining parent, Dr. Latson wrote that he could not, as a school district employee, say “the Holocaust is a factual, historical event.” At hearing, he testified that, although he could as a District employee state whether he believes the Holocaust to be a fact, he had the “option to be politically neutral.” In his email to the parent, Dr. Latson wrote that he advertised the tenth-grade Holocaust assembly “as there are some who do not want their children to participate and we have to allow them the ability to decline.” At hearing, Dr. Latson testified that he advertised the assembly so parents would know, in case a teacher marked a child who was attending the assembly absent. He testified that some parents do not want their children to attend the Holocaust assembly because of the graphic nature of the teaching materials used, and he is not “going to force a child to sit in a room where their parents don’t want them to be.” The District’s absence policy can be used to allow students to stay home from school during the Holocaust remembrance assembly, if the parents so desire. He believes that the statute mandating the teaching of the Holocaust as history requires that he be tolerant of those who do not want their children to be shown the graphic images of the atrocities, but that they could still learn from the required teachings through other means. Dr. Latson sent an email to faculty and staff at SRHS on the afternoon of July 8, 2019. Oswald, Fennoy, and the District did not learn of Dr. Latson’s statement concerning the complaining parent in this email until late that evening. Dr. Latson testified it was a common practice for principals leaving a school to inform the staff of their departure so they can prepare themselves for a change in administration, which generally means that an entering principal might do things a bit differently. He believed it was important to deliver the message of his leaving as early as possible. He admitted he wrote the email to staff quickly and did not take the time to fully consider the repercussions of his words regarding the complaining parent. He was frustrated that he had lost the support of the District at the time he wrote the email, after having received their support prior to that time. He admitted he did not do a good job of expressing his frustration, but he never believed the email would be seen by anyone but the faculty and staff at SRHS. While news of Dr. Latson’s reassignment had dampened the public reaction which the District was dealing with after publication of the July 5, 2019, article, Dr. Latson’s statement in the email re-energized the public. Instead of reconciliation over his poorly worded April 2018 emails, Dr. Latson’s placement of blame on the parent undermined the apology and made matters worse. There was “complete outrage [by District personnel] that he would do that to a parent.” An article which appeared in the Post on July 9, 2019, was headlined, “More calls for Spanish River High principal’s firing after he blames parent.” The article included the sub-heading, “Principal William Latson’s farewell message prompted an anti-hate group and two Boca-area legislators to join calls for his termination.” On July 10, 2019, the Post published an article headlined, “In defiant farewell, ousted principal blames parent.” Dr. Latson does not dispute that the public reaction to his email was negative, which he learned of while he was still in Jamaica. The personal impact of Dr. Latson’s statement in the July 8, 2019, email was demonstrated by those who testified on behalf of him. Dr. Latson conceded that he did not know the reasons for his reassignment at the time he wrote the email to SRHS faculty and staff. He wrote to his staff that he was reassigned because of a statement inaccurately relayed to the newspaper. He believes the statement to be that he did not want to confront Holocaust deniers. In fact, in the predetermination hearing, Dr. Latson’s representative began the defense with the statement that the District “cannot remove a principal or adversely transfer him for not being zealous enough in a parent’s personal crusade against anti-Semitism.” That is not how Dr. Latson’s supporters saw it. The record makes clear that the controversy was about Dr. Latson’s earlier words, specifically, that, as a public educator who was mandated to teach the history of the Holocaust, he thought it would be improper for him to state that the Holocaust was a fact since he would not be acting in a neutral manner as an educator. Shari Fox, the Magnet Academy coordinator at SRHS, testified that she specifically asked Dr. Latson, “What is controversial about the Holocaust?” His response was that he did not think it was controversial in the beginning, but it has more recently come to his attention that Holocaust deniers exist, which makes its existence controversial. Mr. Aaron Ryan Wells, a SRHS teacher and debate coach, described a news article that “was essentially fabricated in the sense that it didn’t give all the facts, basically creates the disaster that removes a man of three decades from his post.” Because of Dr. Latson’s treatment, Wells “treads lightly even when teaching geography.” He has had inquiries regarding whether the Holocaust is even an appropriate subject for high school students. This incident detracts from the power of the course that introduces the skill that is supposed to be introduced with these types of students, namely tolerance and respect for others who may be different from you. He took from Dr. Latson’s reassignment the lesson that a single parent can question how you teach a subject, which could potentially result in your reassignment or termination as an educator should you fail to bend to the parent’s wishes. The lesson and perception that Wells and others took from Dr. Latson’s removal was that you should not teach controversial subjects. In fact, and as a matter of law, the State of Florida does not consider the occurrence of the Holocaust to be controversial. It does not and cannot prevent any student or parent from holding the absurd “belief” that the Holocaust did not happen. It can and does mandate that the student will be taught that history is not opinion or belief and that the Holocaust did occur. Through his actions, Dr. Latson caused a great number of people to doubt the commitment of the District to honor that mandate. His unilateral attribution of the reasons for his termination caused further disruption in the SRHS community. Many SRHS faculty and staff were left with the idea that Dr. Latson was reassigned because of the April 2018 emails, and were left with a sense of “injustice” and “unfairness.” The Community, the faculty, and the staff were angry, and some of that anger was directed at the complaining parent and her student. Dr. Latson’s allocation of blame to the parent and pointing out a “false statement” also sowed discontent among the faculty and staff, directed towards the District. Because Dr. Latson’s email stating the reasons for his reassignment were the April 2018 emails and, what he considered to be, a false statement from a parent, the faculty and staff felt that the District did not support the staff. Prior to learning of Dr. Latson’s July 8, 2019, email, the District had not taken any action to terminate him. Dr. Latson believes he was terminated because of outside pressure, to satisfy the not insignificant group of public officials and members of the public who called for his resignation. But those calls were made some time before he was terminated. Despite those calls, the District took Dr. Latson at his word, that he had been misunderstood, that his emails could be worded better, and that he understood the parents’ perception of his views. After the newspaper article of July 5, 2019, was published, when Oswald faced the reaction of the public and public officials, the District stood by Dr. Latson. The article itself contained Oswald’s defense of Dr. Latson, that he had written a poorly worded email. Even after Dr. Latson made no effort to contact Oswald before noon on July 8, 2019, the District did not move to terminate him. He was reassigned. Not until Dr. Latson made clear that he had not been misinterpreted in his “neutrality” statements to the complaining parent and it was clear to the District personnel involved that he was not walking back these statements, did Fennoy conclude that Dr. Latson’s employment was incompatible with the District’s commitment to teach the Holocaust. At some level, Dr. Latson believed that parents who do not want their children to be taught the Holocaust should be allowed to keep their children out of school on that day. He believed that he had a professional obligation to be neutral on matters of historical fact, even as espoused by members of, for example, the Flat Earth Society. Further, he believed that a statute that mandated the teaching of the Holocaust in a way that promoted tolerance required the teacher to be tolerant of those who said the history to be taught was, in fact, not history. Johnson, a long-serving principal, former Palm Beach County school superintendent, and now a consultant to principals, testified that no progressive discipline was imposed on Dr. Latson. Respondent admitted into evidence a document entitled “The Discipline Process, A Guide for Principals and Department Heads.” He testified the manual is still in existence and used by the District. Describing the process, Johnson discussed how, typically, “we start from the bottom and move to the top,” beginning with a verbal reprimand, followed by a written reprimand, then a short-term suspension, followed by a longer-term suspension, and, ultimately, a termination. He noted that there are occasional instances where discipline can go from “zero to one hundred, all the way to termination,” but these must involve “very serious offenses” that “put the District at risk.” He testified that the initial problem here was “an overly zealous parent’s intolerance of Dr. Latson’s tolerance.” He believes that an educator’s role is to be neutral and provide both sides of an issue. “You stick with the facts.” “You present both sides of the story. And you as a teacher or administrator may have to become very neutral, meaning you can’t advocate.” “We are definitely not in a position to proselytize or to indoctrinate young people,” he testified. He did admit that Dr. Latson could have used better language to communicate his thoughts on neutrality and to communicate with faculty and staff via email. Dr. Ben Marlin, another former Palm Beach County school superintendent, concurred with Johnson’s analysis and the appropriateness of exercising progressive discipline in this case. He likened the process to a ladder, with the penalty growing more severe the higher you climb. He testified that he would not have terminated Dr. Latson under the circumstances of this case. He would have resolved the matter through a meeting with a possible verbal reprimand. If the behavior occurred again, he would consider a written reprimand. Subsequent violations would result in more severe penalties. The testimony of the two former superintendents was not challenged or rebutted by Petitioner. No witnesses were called to state that progressive discipline was not applicable to this matter. Fox testified “we have to stay neutral in all of these topics [including the Holocaust] and just explain the facts to the students and guide the information and the discussion.” Fox specifically testified she does not believe Dr. Latson is Anti-Semitic. According to SRHS history teacher, Ms. Rachel Ostrow, the teacher’s role is “to present the facts, to guide the discussion amongst the students. But I lay out the facts from every point of view and then we discuss the content.” Ostrow specifically testified she does not believe Dr. Latson is Anti- Semitic. On July 17, 2019, Dr. Latson received notice that an administrative investigation had been opened by the Department of Employee and Labor Relations related to Ethical Misconduct. An investigative report was authored by Ms. Vicki Evans-Paré on August 23, 2019. On September 26, 2019, Dr. Latson received a copy of the investigative file, including the written investigative report. On October 7, 2019, a predetermination meeting was held to allow Dr. Latson to respond to the allegations, produce any documents that he believed would be supportive of his position, or rebut information in the investigation materials he was provided. He submitted a written response to the potential charges and his representatives, Dr. Thomas E. Elfers and Johnson provided oral presentations. Dr. Latson’s response at the predetermination meeting again compared the Holocaust to a belief, claiming that “constitutional liberty interests are involved: an interest in not being forced to reveal information about personal beliefs and an interest in being forced to make statements about one’s views.” The response preached neutrality in the presentation of “various hot buttons or touchy subjects.” Dr. Latson believed his body of work as an educator should have been taken into account and should not have resulted in a termination of his employment. He had never been disciplined previously by the District or the Educational Practice Commission in 26 years as an educator. He had received a “highly effective evaluation” for each of his eight years as the principal of SRHS, and the highest possible evaluation for 25 of his 26 years as an educator. Under his leadership, Dr. Latson oversaw the raising of SRHS from a “B” to an “A” rating in 2012, which was maintained throughout his tenure as principal. He achieved many successes as principal, such as significantly raising the school’s national academic ranking, being recognized by the District as the highest performing Palm Beach County school in advanced academic studies, and creating a school environment described by teacher Wells as “phenomenal,” and engendering an atmosphere of trust among the teachers, as stated by Fox and Ostrow at hearing. When asked by his counsel at hearing, Dr. Latson unequivocally stated that he is not Anti-Semitic. This statement was unrebutted by Petitioner. On October 11, 2019, however, based upon the information presented to him from the investigation and the predetermination meeting, Fennoy informed Dr. Latson that there was just cause, which can be substantiated by clear and convincing evidence, to warrant his termination from his position as a principal, and that Fennoy would recommend Dr. Latson’s suspension without pay and termination of employment at the October 30, 2019, School Board meeting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order rescinding the suspension and termination of Dr. Latson; awarding him his lost wages for the period beginning with his suspension without pay; and transferring him to a position within the District, as determined by the superintendent, commensurate with his qualifications. DONE AND ENTERED this 13th day of August, 2020, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 13th day of August, 2020. COPIES FURNISHED: Thomas E. Elfers, Esquire Law Office of Thomas Elfers 14036 Southwest 148th Lane Miami, Florida 33186 (eServed) Thomas Martin Gonzalez, Esquire GrayRobinson, P.A. 401 East Jackson Street, Suite 2700 Tampa, Florida 33602 (eServed) Craig J. Freger, Esquire 16247 Northwest 15th Street Pembroke Pines, Florida 33028-1223 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Donald E. Fennoy II, Ed.D., Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, C-316 West Palm Beach, Florida 33406-5869
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. The above-styled case involves a revocation of license, a fine, and a survey fee. 2. A previous case was filed against this Respondent also involving the revocation of the license: Agency for Health Care Administration v. Angel Aides Center, Inc. d/b/a Boynton Beach Assisted Living, AHCA No. 2011012687, Case No.: 12-12-246PH. 3. On April 30, 2013, the Agency entered a Final Order in the above described case [AHCA No: 2011012687, Case No.: 12-246PH] adopting the findings of facts and the conclusions of law set forth in the Recommended Order issued by the Agency’s informal hearing officer, which upheld the revocation. 4. The Respondent appealed the Final Order to the Fourth District Court of Appeal, Fourth District Court of Appeal Case No.: 4D 13-1733. 5. On or about June 24, 2013, the parties agreed to place the case in abeyance while the appeal was being reviewed by the Fourth District Court of Appeals. 6. On September 18, 2014, the Fourth District Court of Appeal affirmed the Agency’s Final Order revoking the Respondent’s license 7. On November 17, 2014, the Respondent filed a Joint Notice of Dismissing its Request for a Formal Hearing with the DOAH and the Administrative Law Judge issued an order closing the file and relinquishing jurisdiction to the Agency. (Ex. 2) Filed December 24, 2014 3:16 PM Division of Administrative Hearings Based upon the foregoing, it is ORDERED: 8. The assisted living facility license of Respondent is REVOKED. 9. The Respondent shall pay the Agency $5,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 ORDERED at Tallahassee, Florida, on this /7_ day of Drandre 2014. Elizabeth Du , Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. ‘The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct, of this Final er was served on-the below-named persons by the method designated on this 1? fay of et _ 2014. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 2 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Interoffice Mail) Catherine Anne Avery, Unit Manager Assisted Living Facility Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit Agency for Health Care Administration (Interoffice Mail) | Arlene Mayo Davis, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Interoffice Mail) Lourdes A. Naranjo, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Interoffice Mail) Louis V. Martinez, Esq. Louis V. Martinez, P.A. 2333 Brickell Avenue — Suite A-1 Miami, Florida 33129 | (U.S. Mail) John G. Van Laningham Administrative Law Judge Division of Administrative Hearings (Electronic Mail) _ oe NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attomey may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed 4 3 provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue Whether Petitioner was the subject of an unlawful employment practice based on his disability by Respondent.
Findings Of Fact Respondent, Fresenius Medical Care, provides dialysis treatment to end-stage renal disease patients. During the time relevant to this proceeding, Respondent operated 11 clinics in the Northwest Florida and South Alabama area. The Florida clinics were located in Pensacola, Navarre, Destin, Fort Walton Beach and Crestview. The South Alabama clinic was located in Andalusia. “Dialysis” is the cleansing of the body of unwanted toxins, waste products, and excess fluid by filtering the blood of patients through the artificial membrane of a dialysis machine. Purified water and dialysate are used during the process. Dialysis treatment is necessary when a patient’s kidneys are inadequate or no longer capable of acting as a filter to remove waste and fluids from a patient’s blood. While the frequency of treatment can vary for each patient, patients typically received dialysis at Fresenius’ clinics three times a week for four hours. The treatment requires piercing the skin and blood vessel so that each patient is intravenously attached to a dialysis machine. Because dialysis involves piercing the skin and blood vessels, as well as the removal and replacing of a person’s blood, patients are at an increased risk of infection. In order to protect patients from infection, proper maintenance, testing, and sanitation of the equipment used during dialysis is of primary importance. As such, dialysis is highly regulated by state and federal agencies responsible for health, safety, privacy, and reimbursement for health care. In order to fulfill its obligations to its patients and regulators, Fresenius maintained a Code of Business Conduct that outlined policies and procedures which every employee was required to follow. These policies and procedures were based on federal regulations enforced by the Centers for Medicare and Medical Services (CMS). The Code required that maintenance, sanitation, and tests for contaminants be regularly performed according to the schedules established for such procedures. The Code of Business Conduct also required all of Respondent’s employees to maintain accurate and complete records. In particular, biomedical equipment technicians were required to maintain logbooks of all the maintenance and tests done on each piece of equipment used in the dialysis process. Documentation was required to ensure that state and federal reporting requirements for maintenance and testing on dialysis machines was done. Documentation of every task performed by a biomedical technician was also required for review by Respondent’s internal and external auditors. Failure to perform these functions could subject Respondent to fines and other government actions, including loss of its Medicare certification and a shutdown of its clinics. Respondent also maintained a “Continuous Quality Improvement” (CQI) program which was designed to review indicators of the quality of treatment Respondent’s patients were receiving. These quality measures were reviewed by a CQI committee. The CQI committee was an interdisciplinary team consisting of the Medical Director, the doctor responsible for overseeing the medical care provided in a clinic; the Area Manager, the person responsible for managing all aspects of a clinic’s operations; the Clinical Manager, the registered nurse responsible for nursing care and technical services at a clinic; and the Biomedical Technician, the person responsible for maintaining, sanitizing, and testing the dialysis equipment at a clinic. Periodic meetings were held by the CQI committee to review all aspects of dialysis at a clinic. The periodic meetings included a review of machine maintenance, machine sanitation, and culture tests done on dialysis machines at a clinic, as well as a review of logbooks maintained by the biomedical technician, if necessary. The periodic meetings also included a review of all adverse events and all patient incidents that occurred at a clinic. Additionally, to ensure quality dialysis services, all of Respondent’s employees received initial and annual compliance training, which addressed relevant changes to Respondent’s policies, as well as state and federal laws. Petitioner, David J. Normandin, was a certified Biomedical Equipment Technician and nationally certified Biomedical Nephrology Technician. Petitioner received extensive training as a Biomedical Technician, including training on national standards for nephrology technicians and national protocols for testing, maintenance, and documentation of these efforts. Additionally, Petitioner received both initial and annual on-the-job training from Fresenius regarding required maintenance, sanitation, and record-keeping responsibilities. Petitioner worked for Respondent on two separate occasions. Initially, he worked at one of Respondent’s clinics in North Carolina, where he was a Chief Technician. Later, Petitioner moved to Florida and was employed by Renal Care Group as a Biomedical Technician. Eventually, Renal Care Group was purchased by Respondent in April 2006. After the purchase, Petitioner remained employed with Respondent as a Biomedical Technician until his termination on February 6, 2008. As a Biomedical Technician, Petitioner was assigned responsibility for three clinics. Petitioner’s responsibilities included providing preventive maintenance, troubleshooting, repairing, cleansing, and disinfecting of the clinic’s dialysis machines and water treatment equipment. His responsibilities also required taking water cultures and testing the water systems to ensure that the equipment and water were free from bacterial growth and pathogens. Without such maintenance, sanitation, and tests, it was dangerous for a patient to be intravenously hooked up to a dialysis machine that had not been properly tested or maintained. Every patient with whom the dialysis equipment might come into contact would be affected. Indeed, the consequences of not performing required routine testing, sanitation, maintenance, and record-keeping tasks were serious. At Fresenius’ clinics, Biomedical Technicians worked independently and were assigned to specific clinics. However, Biomedical Technicians assigned to other clinics sometimes helped other technicians when needed to complete their required duties. Such help only occurred if the foreign technician was available and not busy with meeting responsibilities for their own clinics. Petitioner admitted that the other technicians were usually “slammed” with the work at their own clinics and not generally available to help at Petitioner’s clinics. Indeed, the evidence did not demonstrate that other qualified technicians were generally or routinely available to assist Petitioner in his job duties. Similarly, the evidence did not demonstrate that it was reasonable for Respondent to hire additional technicians to help Petitioner perform his job duties. Petitioner was required to provide a monthly summary or technical report to the CQI committee for each clinic to which he was assigned. As part of the report, Petitioner was required to self-report what maintenance and tests were completed, and what maintenance and tests remained to be completed at each clinic. Petitioner was also required to self- report if he was behind in the performance of his routine job duties so that help might be provided, if it was available. If Petitioner failed to properly report any compliance deficiencies, such deficiencies would not normally be discovered until the Regional Technical Manager, Todd Parker, conducted an internal audit of the clinic or an unannounced CMS survey was performed. When he was initially hired by Respondent, Petitioner was responsible for the clinics in Fort Walton Beach, Crestview and Andalusia. At times, Petitioner assisted in or was responsible for the maintenance of two additional facilities in the area. These additional assignments generally occurred when Respondent was understaffed or training new staff. However, by April or June 2007, Petitioner was only responsible for the three clinics in Fort Walton Beach, Navarre, and Destin. The evidence did not show that Petitioner was responsible for more clinics than any other Biomedical Technician. Joan Hodson was the Clinic Manager for Respondent’s Fort Walton Beach clinic. As of April 2007, Petitioner’s direct supervisor was George Peterson, who in turn reported to Mr. Parker. Joan Dye was the Area Manager. Petitioner testified that he informed his employer in 2003 that he had a bad back. Petitioner admitted that he continued to perform his job duties without significant difficulty. There was no evidence that demonstrated his complaints were more than ordinary complaints about a sore back or that such complaints rose to the level of or were perceived as a handicap by his supervisors. However, sometime in 2007, Petitioner was diagnosed with two herniated discs and began having difficulty keeping up with his job duties. In March 2007, Petitioner was the on-call technician for emergency calls from the clinics in the area. He did not respond to several calls from the area clinics. These clinics complained about the missed calls to Ms. Dye and Mr. Parker during the March CQI meeting in Pensacola. As a consequence, Ms. Dye and Mr. Parker called Petitioner into the office to discuss the missed calls and to address the issue that his work was falling behind. They asked Petitioner if there was a problem. At the time, Petitioner was not under any medical restrictions from a healthcare provider. Petitioner informed Ms. Dye and Mr. Parker that he was on medications for his back which caused him to sleep very deeply and not hear the phone ring when clinics called. He also told them that he was having a hard time keeping up with his work because of the pain from his back. As a result of the meeting, Petitioner was taken off “call” duty and was no longer responsible for responding to other clinics’ calls for assistance. Petitioner was also informed that he would be provided help when it was available so that he could catch up on his assignments. Additionally, Petitioner was asked to provide a doctor’s note concerning his back condition and any limitations he might be under due to his back. This meeting was the first time Petitioner informed his employer that he had a serious back problem. On April 24, 2007, Petitioner provided Respondent with a doctor’s note concerning his back. The doctor’s note stated that for two months Petitioner was not to lift over 30 pounds, and was not to engage in repetitive bending, stooping, or kneeling. Petitioner was released to full duty on June 24, 2007. This is the only doctor’s note Petitioner ever provided to Respondent. Importantly, these restrictions did not impair Petitioner’s ability to document all of the jobs he had performed or to accurately self-report when specific maintenance and tests were not done or were behind. On October 3, 2007, Mr. Parker performed a technical internal audit of the Navarre clinic which was assigned to Petitioner. At the time, Petitioner was responsible for the Navarre clinic. The audit revealed that Petitioner had performed no dialysis and end toxin testing for the clinic during the year. These tests were required to be performed every six months. Moreover, Petitioner failed to disclose to anyone that he had not performed these tests even though he had the opportunity to self-report during CQI meetings or at any other time. Again, Petitioner met with Mr. Parker and Ms. Dye. When asked to explain why the tests had not been performed at the Navarre clinic, Petitioner told Mr. Parker and Ms. Dye that he “did not know” he had to do them, and that he had simply “misunderstood” the requirements. Petitioner’s claim was not credible. His supervisors found Petitioner’s explanation to be suspect, since he had previously completed dialysis and end toxin testing at both Navarre and the other clinics he was responsible for. In a memo he later prepared as to why he had not conducted the tests, Petitioner wrote: “so much to do, so far behind.” Petitioner never mentioned his back as an excuse for why he had not performed the tests in his meeting with Ms. Dye and Mr. Parker. At the hearing, Petitioner admitted that he simply “forgot” to conduct the dialysis tests. Clearly, Petitioner’s failure to perform his duties was not related to his back. Similarly, his failure to self-report with any specificity was not related to his back. Ms. Dye instructed Petitioner to complete the test samplings for the clinic that day. Ms. Dye also instructed Petitioner to maintain samplings per the policies at all of his clinics going forward. Petitioner also was instructed by Ms. Dye that he had to immediately test all of the machines at the Fort Walton Beach and Destin clinics for which he was responsible. Petitioner asked Mr. Parker for assistance in catching up on the dialysis testing at the Navarre clinic. Mr. Parker came to the clinic and performed half of the tests, while Petitioner performed the remainder. In November 2007, Petitioner saw a surgeon for his back and, for the first time, was specifically informed by a physician that he would need back surgery. It was anticipated that the surgery would be performed sometime after the first of the year. Petitioner told his employer about his need for surgery. They encouraged Petitioner to do whatever he needed to do to take care of his health, and take any necessary time off. Petitioner chose to continue to work. A CQI committee meeting for the Fort Walton Beach clinic was scheduled for Thursday, January 24, 2008. Prior to the meeting, Joan Hodson, the Clinical Manager for the clinic, asked Petitioner to meet with her early in the morning to review the clinic’s dialysis culture logbook. Petitioner missed the meeting and arrived after noon, with no explanation. He told Ms. Hodson that all cultures were good. Later, at the CQI committee meeting, Petitioner reported to the Medical Director, Dr. Reid, that all the cultures looked good. In reviewing, the printout report for the cultures, Dr. Reid noticed that one of the samples was high and asked that it be redrawn. Petitioner told Dr. Reid and the committee that he had already performed a redraw. He left the meeting to go get proof of the redrawn results. Petitioner’s claim that he did not tell the committee that he had already redrawn the culture and had the results is not credible. Petitioner left the CQI meeting and never returned. Later, Petitioner admitted he had not redrawn the sample. He was instructed to redraw the sample immediately. The day after the CQI meeting, Ms. Hodson called Petitioner asking for the redraw results. Petitioner still had not performed the redraw claiming that he was “too busy.” He was again instructed to immediately perform the redraw. Ms. Hodson called Petitioner the following day, inquiring about the redraw, but did not receive a return call. That weekend, Mr. Parker also called Petitioner to ensure that the redraw was done or would be performed immediately. During the call Mr. Parker informed Petitioner of the seriousness of his failure to redraw the culture immediately as he had been instructed to do and the inappropriateness of his actions regarding the culture before, during, and after the CQI meeting. Mr. Parker also instructed Petitioner to call Ms. Dye about the redraw results. Petitioner again did not perform the redraw as instructed. Ms. Dye also left Petitioner a voicemail to call her about the redraw. Petitioner never called Ms. Dye back. Petitioner’s repeated and willful failure to comply with his supervisors’ instructions was not related to his back. On January 30, 2008, as a consequence of Petitioner’s failure, Petitioner was relieved of his duties for the Destin clinic. He was also given a written warning in a Corrective Action Form (CAF), based on the incidents from January 24, 25, 26, and 28, 2008. The CAF specified “Expectations for Change,” which identified problems with Petitioner’s performance. Ms. Dye reviewed the CAF with Petitioner and instructed him that these problems had to be addressed immediately. These expectations included: Perform all culture draws according to FMC Technical Manual and review this with the Clinical Manager. Immediately report any cultures that are outside the FMS limits and any redraws to the CM. . . . When Dave is at the clinic, he will be expected to redraw any culture that day, if necessary; At CQI monthly meetings, will ensure that all cultures are reported correctly and proper protocol is followed. A Technical CQI summary monthly report and a Spectra monthly summary culture report must be presented to the CM and MD for review and signature; Implement a basic monthly schedule and submitted to his CM’s by the 1st day of each month, will ensure that if he is not at a specific location according to his schedule, he will contact the CM or the Charge Nurse of that clinic to inform them of his location. If called or paged by any clinic, or a member of management, he must respond within 15 minutes from the time he received the call or page; Will follow a more systemic time schedule and will incorporate his time with his monthly schedule. Will make himself readily available to be present, if one of his clinics develops a problem in the early morning hours, if necessary; and When on-call, the 15-minute rule also applies. If not on-call, no matter which clinic calls, will return the call or page and assist the clinic, inform them who is on-call and/or attempt to resolve the problem over the phone. That same day, January 30, 2008, Petitioner received a Developmental Action Plan from Mr. Peterson. Five goals and an Action Plan were identified that Petitioner had to meet within time frames set during the next 90 days. Goals in the Plan included incorporating all of his monthly cultures into the FMC (Fresenius Medical Care) logbook and developing a basic monthly preventive maintenance culture and disinfect schedule for all facilities. By March 31, 2008, the Technical Manager would evaluate and review the goals accomplished by Petitioner to determine if further action was necessary. Petitioner admitted that although he had been obligated to self-report all of the deficiencies in the Corrective Action Form at the CQI meeting in January 2008, he failed to do so. Petitioner testified that he told Ms. Hodson that he was “very much behind” on performing his job duties. He also admitted that he never provided her with any specifics as to the tasks he had not performed. Additionally, he admitted that, “I don’t even know all of the things that I was behind on” and “I don’t know which [logbooks] I’m missing.” The internal audit at the Fort Walton Beach clinic and Petitioner’s actions regarding the redraw of the culture caused Ms. Dye to be concerned about the integrity of the job Petitioner was performing at all three of his clinics. Based on Petitioner’s lack of honesty with the CQI committee, Ms. Dye was legitimately concerned that Petitioner was covering up his failure to do his work and that the safety of patients was at risk. As a result, Mr. Parker performed an audit of the Fort Walton Beach clinic on February 6, 2008. The audit revealed that no dialysate cultures had been performed since October 2007; two out of 31 machines lacked proper documentation of any preventive maintenance having been performed; no preventive maintenance logs were available for the building maintenance and ancillary equipment; two new machines had no documentation; and no electrical and safety checks had been performed since April 2007. All of these tasks were required to have been completed by Petitioner, and Petitioner’s failure to complete them was a serious violation of his job duties. Indeed, these deficiencies placed the Fort Walton Beach clinic in immediate jeopardy of being fined and shut down by CMS. A shutdown would have left 80 of Respondent’s patients without dialysis treatment and placed them at risk for illness and possibly death. The audit also uncovered that the written summaries Petitioner had submitted to the CQI committee in October, November, and December 2007, and the verbal reports he had given to the committee at those monthly meetings, indicating that the preventive maintenance logs were up to date, were in fact incorrect. Again, Petitioner’s failure to document was a serious violation of Petitioner’s job duties and was not related to his back condition. By this time, Ms. Dye had legitimately lost all faith in Petitioner’s honesty. She suspected that Petitioner had falsified certain records because he could not produce various records when he was asked to produce them and only later did the requested records appear. In short, Petitioner’s supervisors had lost faith in Petitioner and could no longer trust him to self-report or to inform others when his duties were not being performed. On February 6, 2003, Ms. Dye presented Petitioner with a second Corrective Action Form, noting the issues generated by the internal audit and suspending Petitioner from work. The CAF was reviewed and signed by Petitioner. Based on what was discovered from the Fort Walton Beach clinic audit, Ms. Dye ordered an audit of Petitioner’s other clinics, Navarre and Destin. The same issues and deficiencies were discovered at those clinics: 1) the dialysate cultures at the Navarre and Destin clinics had not been performed since October 2007; 2) no safety checks had been performed on four out of 18 machines at the Navarre clinic, and none had been performed at the Destin clinic since July 2007; and 3) preventive maintenance was late on five machines at the Navarre clinic and six at the Destin clinic. The audit confirmed once more that Petitioner had misled the CQI committee members during the January CQI meetings for those clinics by not reporting in his written summary or verbal report any deficiencies. In addition, although Ms. Dye had instructed Petitioner just the week before to immediately perform dialysate cultures at all of his clinics, Petitioner had failed to perform any of those cultures and ignored the instructions of his supervisors. Petitioner was given a final Corrective Action Form by Ms. Dye on February 8, 2008. Ms. Dye reviewed the audit results with Petitioner, as well as the Corrective Action Form, which he signed. Petitioner was terminated the same day. Petitioner was fired after being on the Developmental Action Plan for one week because he had misled the CQI committee in his reports, failed to self-report the extent of the job duties he had not performed to the committee, and had not performed any testing of his dialysate cultures and electrical safety checks or reported that he could not perform those tasks. Such reporting was not related to Petitioner’s back condition. Moreover, misleading the CQI committee was not related to any back condition Petitioner had. Both were egregious and terminable offenses by Petitioner. After Petitioner was terminated in February 2008, he applied for unemployment compensation and for multiple jobs. He never informed any prospective employer that he was disabled or needed an accommodation. Once he ultimately had surgery in March 2008, Petitioner told Respondent that he was better and could work, and he asked for his job back. Eventually, Petitioner went to massage therapy school, obtained his license, and worked sporadically as a massage therapist. Prior to the hearing, Petitioner completed work as a team leader with the Census Bureau. These facts demonstrate that Petitioner’s back condition was not a handicap. There was no evidence that Petitioner was terminated for a handicap or a perceived handicap, and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief. DONE AND ENTERED this 18th day of November, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 18th day of November, 2010. COPIES FURNISHED: Richard N. Margulies, Esquire Jackson Lewis 245 Riverside Avenue, Suite 450 Jacksonville, Florida 32202 R. John Westberry, Esquire 7201 North 9th Avenue, Suite A-4 Pensacola, Florida 32504 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
