The Issue Whether Respondent's employment as a teacher by the Miami- Dade County School Board should be terminated for the reasons specified in the letter of notification of suspension and dismissal dated June 20, 2013, and the Notice of Specific Charges filed on August 28, 2013.
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Miami- Dade County, Florida. At all times pertinent to this case, Respondent was employed as a social studies teacher at Horace Mann Middle School ("Horace Mann"), a public school in Miami-Dade County, Florida. At all times material, Respondent's employment was governed, in part, by a collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). Dr. Jones-Carey, the principal at Horace Mann, was authorized to issue directives to her employees, including Respondent. Dorothy De Posada, the assistant principal at Horace Mann, was authorized to issue directives to her employees, including Respondent. Petitioner alleges, in its Notice of Specific Charges, an array of factual scenarios spanning several years that, when considered individually or in concert, supply just cause for Respondent's termination. Below, the undersigned has endeavored to address each seriatim. 2010-2011 School Year: Dr. Jones-Carey issued Respondent a letter of reprimand on May 23, 2011, concerning an alleged incident that occurred on April 27, 2011. On May 25, 2011, Dr. Jones-Carey held a Conference for the Record ("CFR") regarding this alleged incident.1/ Respondent was directed to strictly adhere to all Miami-Dade County School Board ("MDCSB") rules and regulations, specifically, rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213. 2011-2012 School Year: On April 13, 2012, subsequent to the investigation of an alleged incident that occurred on February 27, 2012, a CFR was held. Respondent was directed to adhere to all MDCSB rules and regulations, specifically 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics. Respondent was further directed to refrain from contacting any of the parties in the incident, refrain from using physical discipline, and "to conduct [herself] both in [her] employment and in the community in a manner that will reflect credit upon [herself] and M-DCPS." Respondent agreed to a 17-day suspension without pay regarding the alleged incident. 2012-2013 School Year: October 24, 2012 On November 16, 2012, subsequent to an investigation of an alleged incident that occurred on October 24, 2012, a CFR was held. Respondent was directed to adhere to all MDCSB policies, specifically 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; refrain from contacting any parties involved in the investigation; and "to conduct [herself] both in [her] employment and in the community in a manner that will reflect credit upon [herself] and M-DCPS." Additionally, on November 28, 2012, Respondent was issued a letter of reprimand concerning the October 24, 2012, incident. November 5, 2012 On November 5, 2012, Dr. Jones-Carey observed several male students standing outside of Respondent's classroom during the class period. While Petitioner contends said students were told to remain outside of the classroom at Respondent's instruction due to body odor, Petitioner failed to present sufficient evidence to support such a finding.2/ November 26, 2012 Shawnda Green-McKenzie is the Horace Mann social studies department chair and a social studies teacher. Ms. McKenzie explained that, on or around November 26, 2012, it was necessary for several homeroom classes to be "dissolved." The students in the dissolved homeroom classroom were to be added to the roster of other homeroom classes. Ms. McKenzie further explained that the homeroom teachers, such as Respondent, were unaware of the number of additional homeroom students they would acquire until the day the additional students arrived. On November 26, 2012, Ms. Green-McKenzie observed that a substantial number of the newly acquired students did not have desks or chairs available for their use in Respondent's homeroom class. She further observed some of the children sitting on the floor. Petitioner failed to present any evidence concerning when the new students presented themselves to Respondent's homeroom or the duration said students did not have available desks or chairs. While Ms. Green-McKenzie agreed that children sitting on the floor would "be kind of a safety concern if someone were walking around in the classroom," she further opined that Respondent's classroom was "definitely too small to take any additional desks" and adding additional chairs would make it "tight." February 8, 2013 On March 21, 2013, subsequent to an investigation of an alleged incident that occurred on February 8, 2013, a CFR was held. Respondent was directed to adhere to MDCSB policies and conduct herself in her employment and community in a manner that would reflect credit upon herself and the teaching profession. On April 9, 2013, Respondent issued a letter of reprimand concerning the alleged incident which likewise directed her to adhere to MDCSB policies and conduct herself in her employment and community in a manner that would reflect credit to herself and the teaching profession. February 20, March 7, and April 1, 2013 Dr. Jones-Carey testified that, on those occasions when a teacher is absent and a substitute teacher is unavailable, the students are typically "split" among classrooms within the same department. Teachers are expected to cooperate and receive the "split-list" students. Prior to February 9, 2013, Respondent was accommodating and amenable to accepting students on the "split-list." On February 20, March 7, and April 7, 2013, however, Ms. Green-McKenzie was informed that Respondent was unable to receive, or uncomfortable in receiving, any additional students. Respondent's refusal to accept the split-list students was premised upon her concern that accepting students, who may potentially have behavioral problems, may incite further problems between herself and the Horace Mann administration. After the second occasion (March 7, 2013), Ms. McKenzie-Green simply stopped placing Respondent's name on the split-lists. On each of the above-referenced occasions, Ms. McKenzie Green accepted the Respondent's split-list students into her classroom. Ms. McKenzie-Green explained that her classroom is a "double" that always has additional space and seating and can accommodate upwards of 60 students. Dr. Jones-Cary credibly testified that Respondent's unwillingness to accept the split-list children created a disruption in the "flow of instruction" and was disruptive to the operation of the school. March 1 and 5, 2013 On March 1 and March 5, 2013, Ms. De Posada observed Respondent, during class, seated in a chair in the doorway of her classroom with her feet up on the doorframe. On both occasions, Ms. De Posada directed Respondent to move inside the classroom; however, she refused. March 7, 2013 On March 7, 2013, Ms. De Posada observed that Respondent's classroom door was open. When Ms. De Posada directed Respondent to close the door, Respondent refused. In addition to Ms. De Posada's directive, Dr. Jones-Carey had previously issued an email directive to all faculty and staff to keep the classroom doors closed in an effort to preserve the newly-installed air-conditioning system. March 12, 2013 On March 12, 2013, Ms. De Posada was present in the main office with several parents, as well as clerical staff. Respondent was also present in the main office for the purpose of making photocopies. Due to the number and nature of individuals present, coupled with a pending deadline on another administrative matter, Ms. De Posada requested Respondent to leave the main office and offered clerical assistance in providing Respondent the needed copies. Ms. De Posada credibly testified that, in response to the request, Respondent complained loudly and defiantly, and refused to leave the office when directed. March 21, 2013 On March 21, 2013, Ms. De Posada presented to Respondent's classroom to conduct an official observation. On that occasion, she observed that, after the class bell had rung, Respondent's students remained outside and unsupervised. Ms. De Posada took it upon herself to usher the students inside the classroom. Respondent arrived prior to the late bell and took her seat at her desk. Ms. De Posada advised Respondent that she was there to officially observe and requested Respondent's lesson plans. Ms. De Posada credibly testified that Respondent thereafter opened her desk drawer, tossed her lesson plans to Ms. De Posada without speaking, and slammed the desk drawer.3/ Respondent proceeded to call roll and, upon completion of same, began reading the paper. Once finished her reading, Respondent remained in her chair and, with the exception of reprimanding three children, did not engage with the students. Respondent did not engage in any conversation with Ms. De Posada throughout the duration of the observation. Respondent concedes that she did not interact with Ms. De Posada during the observation because of her concern of being falsely accused of irate or belligerent behavior. April 3, 2013 On April 3, 2013, Horace Mann held a mandatory faculty meeting to provide training for the Florida Comprehensive Assessment Test ("FCAT"). Per the UTD Contract, teachers are required to extend their workday for the purpose attending faculty meetings; however, such meetings cannot exceed one hour and shall begin no later than ten minutes after students are dismissed. On this occasion, the faculty meeting was scheduled to begin at 4:00 p.m., however, it began a few minutes later to allow all teachers to arrive. Respondent, believing the UTD Contract allowed for her to leave at 5:00 p.m., left prior to the meeting being formally dismissed and without prior approval, at approximately 5:00 p.m. When Dr. Carey-Jones called out to Respondent, she continued to walk away from the meeting. Respondent was notified via a school-wide email that a make-up session for the FCAT training would be conducted at 8:20 a.m. Respondent perceived the make-up session was voluntary because it was scheduled prior to 8:30 (the time she believes she is required to work) and conflicted with a FCAT practice run also scheduled for that morning. Respondent did not seek clarification as to where she was to report. Accordingly, Respondent did not present to the training, but rather, went to the testing center. It is undisputed that Respondent did not complete the requisite training, and, therefore, was unable to proctor the FCAT exam. As a result, other teachers were assigned to cover Respondent's duties or responsibilities. April 24 and May 6, 2013 On April 24, 2013, a CFR was held and Respondent was directed to adhere to School Board polices and conduct herself in her employment and community in a manner that would reflect credit upon herself and her profession. On May 6, 2013, following Dr. Jones-Carey's recommendation that Respondent's employment be terminated, the Office of Professional Standards ("OPS") held a final CFR. Thereafter, OPS recommended that Respondent's employment be suspended pending dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Miami-Dade County School Board enter a final order finding Shavonne Anderson guilty of gross insubordination, suspend her employment without pay for a period of 180 school days, and place her on probation for a period of two years. Because Ms. Anderson has already been suspended for more than 180 school days, it is RECOMMENDED that her employment be reinstated, with the calculation of back pay not to include pay for the 180- day suspension period. DONE AND ENTERED this 30th day of December, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 December, 2013.
The Issue The issue presented is whether Respondent's employment by the School Board should be terminated.
Findings Of Fact At all times material hereto, Respondent Robert F. Ward was employed by the School Board as a teacher and was assigned to Richmond Heights Middle School, pursuant to a professional service contract. Willie Harris was the principal of Richmond Heights from 1988 to 1995. During those years, Harris gave Respondent verbal directives to follow School Board rules concerning the discipline of students. As punishment, Respondent inappropriately used excessive writing and standing and inappropriately placed students outside the classroom. Each time Respondent was warned that he was violating School Board rules in his methods of disciplining students, he would stop using those methods for a while but would then return to those methods and be warned again. Harris found it necessary to counsel Respondent every year. Principal Harris learned that Respondent responded better to male authority figures than to female authority figures. He, therefore, gave Respondent directives himself or through male administrators. Mona Bethel Jackson became the principal of Richmond Heights in July 1997. On October 2, 1998, Denise Franze, a parent, submitted a written complaint to Principal Jackson concerning Respondent's behavior at the school's Open House because Respondent appeared to be a very angry person. He spent the entire time that he met with her and other parents complaining about the school. She requested that her child be transferred out of Respondent's class. Respondent wrote her a very insulting, unprofessional response letter. His letter did not reflect credit upon himself or the school system. On November 17, 1998, Respondent left his class unsupervised, and two students became involved in a fight. Respondent was directed to properly supervise his class and was directed not to place any students outside his class unsupervised. At a faculty meeting on January 13, 1999, Principal Jackson reviewed School Board policies prohibiting inappropriate language/teacher conduct. At a faculty meeting on February 16, 1999, Jackson reviewed School Board procedures regarding the supervision of students. On March 26, 1999, student D. L. was being disruptive. Respondent told her to go outside the classroom. Because it was raining, D. L. refused to leave. Respondent again ordered her to go outside and called her "dumb." He then left his class unsupervised to deliver a memorandum regarding D. L.'s behavior to the school administrators. An assistant principal directed Respondent not to leave his class unsupervised. On March 30, 1999, Respondent was inside his newly- assigned portable classroom, by himself, writing on the board. An assistant principal asked Respondent where his students were, and Respondent answered that he did not know. Some of Respondent's students were found outside the portable classroom unsupervised, and others were found in the auditorium also unsupervised. Also on March 30, Respondent used the words "hell" and "damn" while aggressively reprimanding D. L., shouting at her, and shaking his fingers in her face. Respondent was reminded that School Board rules prohibit unseemly conduct and the use of abusive and/or profane language in the presence of students. On April 1, 1999, a conference-for-the-record was conducted with Respondent to address his failure to supervise his class, his inappropriate reprimand of a student, his lack of emergency lesson plans, and related matters. As a result of the conference, Respondent was rated unsatisfactory in professional responsibilities and was provided with a prescription to address his deficiencies. The prescription was to be completed by June 16, 1999. If done properly, the prescription should have taken no more than three weeks to complete. At the conference, Respondent was also directed to follow school procedures for the removal of disruptive students from class, to not leave students unsupervised at any time, to not expose students to unnecessary embarrassment or disparagement, to prepare lesson plans each day, to replenish emergency lesson plans, and to exercise the best professional judgment and integrity. He was warned that failure to comply with these directives would be considered insubordination and could lead to further disciplinary action. Respondent was given a copy of the School Board's employee conduct rule and the Code of Ethics of the Education Profession in Florida. On April 22, 1999, Respondent failed to report to the media center at the conclusion of a teacher workshop as directed in writing prior to the workshop and, again, at the beginning of the workshop. Respondent's annual evaluation for the 1998/99 school year was unsatisfactory due to Respondent's deficiencies in the area of professional responsibility. On June 16, 1999, Respondent's prescriptive activities were deemed unacceptable because they were careless, sarcastic, and unprofessional. Respondent admits that the prescriptive work he turned in to Principal Jackson was inappropriate. Respondent did not take his prescriptive activities seriously and did not attempt to benefit from them. On June 18, Principal Jackson directed Respondent to re-do his prescriptive activities and turn them in by October 1, 1999. Because Respondent ended the school year in an unacceptable status, his salary was frozen and he was precluded from summer school employment. Respondent assigned two students to detentions to be served before school on September 15 and 16, 1999. The students arrived at approximately 7:15 a.m. both days. At 8:00 a.m., Respondent had not yet arrived to supervise them on either day. When the bell rang at 9:00 a.m. to begin the school day, Respondent was still not there. One child's grandmother, who was concerned about the children not being supervised, complained to the school administrators. September 20, 1999, was a teacher planning day. Respondent was not present during his assigned work hours, 8:00 a.m. to 3:30 p.m. An "all call" for him was made over the public address system at 9:28 a.m., which went throughout the school. Respondent did not respond. An assistant principal checked his classroom, but Respondent was not there. She was unable to locate his car in the parking lot, and he had not signed the attendance roster. When Respondent arrived at approximately 10:00 a.m., he told Principal Jackson that he was not in the building because he had stopped at Publix. At the final hearing, Respondent testified that he was probably in the wood shop working on a personal project during his work hours when the "all call" announcement was made for him. Respondent failed to complete his prescription by the October 1, 1999, deadline. A conference-for-the-record was held on that date to address parental complaints about Respondent. The complaints involved the unsupervised detentions, Respondent's requiring students to stand for almost two hours as punishment, and Respondent's requiring students to write essays as punishment. Parents also complained that Respondent punished the entire class when only one student misbehaved. Respondent admitted that he administered those punishments. Respondent was directed to refrain from having students write essays for punishment, to refrain from having students stand for punishment, to refrain from assigning detentions when students would not be supervised by Respondent, to not expose students to unnecessary embarrassment or disparagement, and to follow all directives previously given to him. Since Respondent was already on prescription and had failed to complete the prescriptive activities by the October 1 deadline, Principal Jackson directed Respondent to complete his prescription by January 26, 2000. Respondent was warned that failure to comply with the directives would be considered insubordination and could lead to further disciplinary action. He was again provided with a copy of the School Board's employee conduct rule. On October 13, 1999, a conference was held with Respondent to discuss complaints from three parents. The complaints were that Respondent did not give clear directions to the students, that he had humiliated a student, that he required students to write essays as punishment, and that he was assigning math as punishment to his social studies students. The parents complained that Respondent was using academics as punishment. Principal Jackson directed him to stop humiliating students, to stop intimidating students, and to provide in-class assistance. She also directed Respondent to stop assigning math and requiring students to write repetitive "lines" as punishment. She directed Respondent to correct his grading practices and to not retaliate against any students. Respondent was given copies of the letters from the parents. The math that was assigned by Respondent was not an appropriate assignment for a sixth-grade geography class. The interim progress reports Respondent gave to his students corroborate that Respondent was using essays as punishment. After the conference, Respondent informed secretarial staff that he would be absent the next day, which was the day of the school's open house. Teachers have a contractual requirement to attend the school's open house. Respondent was not absent as a result of an illness or an emergency; rather, he simply decided to take a personal holiday on that day. On October 19, 1999, Respondent responded to a parental complaint with a letter that was unprofessional, demeaning, and insulting. His letter did not reflect credit upon himself or the school system. On October 29, 1999, Respondent was directed to report for a conference-for-the-record in the School Board's Office of Professional Standards on November 4, 1999. On November 2, 1999, Respondent attended a round-table discussion with a counselor, the parents of a student, the student, and all of that student's teachers. Respondent was abrasive to the student, loud, and intimidating. The student, who was communicative and comfortable before Respondent arrived at the meeting, was uncomfortable and would not speak while Respondent was present. After Respondent arrived, the student "clammed up," and his eyes "teared up." The next day, the student's father brought a letter to school reciting what had happened at the meeting and requesting that the student be transferred out of Respondent's class. The father and Respondent encountered each other in the school office, and Respondent invited the father to his classroom. While there, Respondent asked the father which grade the father wanted him to change. The father was surprised at Respondent's offer and explained to Respondent that he only wanted his son to get the grades his son deserved. On November 4, 1999, Respondent requested to leave school for a dental emergency. Since his conference-for-the- record was scheduled for that day, an assistant principal directed Respondent to submit documentation from his dentist to her or to the principal's secretary. Respondent failed to follow this directive in a timely fashion. Respondent was subsequently directed to comply with all directives given by his immediate supervisors. At Respondent's request, the conference-for-the-record was re-scheduled for November 9, and Respondent was directed to attend. Respondent did not attend the November 9 conference, which was scheduled to discuss his non-compliance with site directives, his performance assessment, parental complaints, and student complaints. As a result of the conference-for-the- record, which consisted of a review of Respondent's file, Respondent was directed to comply with the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida, to provide an educational environment free from harassment and intimidation for all students, to not intimidate staff and faculty members, to use sound professional judgment at all times, and to use specific grading practices. He was warned that non-compliance with these directives could lead to further disciplinary measures. Respondent was provided with another copy of the School Board's employee conduct rule, the Code of Ethics, and the School Board's violence in the workplace rule. On December 15, 1999, a conference-for-the-record was held with Respondent to review his performance assessments and future employment status. Respondent was reminded that he was in his second year of unacceptable performance status, which if not remedied, could lead to termination of his employment. He was also directed to comply with the directives previously given to him by the Office of Professional Standards. He was warned that non-compliance with the directives could result in disciplinary measures. Respondent failed to comply with his prescriptive activities by January 26, 2000. On February 7, 2000, at 3:39 p.m., Principal Jackson directed Respondent to submit his prescriptive activities directly to her within 24 hours. This directive was reasonable since the Principal had repeatedly directed Respondent to complete his prescriptive activities since April 1999. Respondent refused to sign that he had received a copy of the memorandum memorializing this directive even after being directed to sign it. On February 8 Respondent did not come to work. Another teacher gave Respondent's prescriptive activities to the principal's secretary after 5:00 p.m. The principal did not accept the activities because neither of her directives had been followed: the prescriptive activities were not given directly to her, and they were turned in late. On February 17, 2000, a conference-for-the-record was held with Respondent to address his non-compliance with prescriptive deadlines and to review his record and his future employment status. Respondent was reminded that if his deficiencies were not remedied, he could lose his job. Respondent was told that his failure to comply with the directives concerning his prescription was considered gross insubordination. Respondent was directed to place his prescriptive activities in the principal's hand by 12:30 p.m. the next day, February 18. He was warned that non-compliance would result in further disciplinary action. Respondent was absent from work on February 18, 2000, and did not attempt to give the documents to his principal until February 24 at 3:30 p.m. His principal refused to accept the package because it was so overdue. On February 28, 2000, Respondent was directed to report to a conference-for-the-record at the Office of Professional Standards at 9:00 a.m. on March 14, 2000. On March 13, 2000, Respondent was accused of battery and administering physically-demanding punishments to students. The investigation revealed that Respondent was still using inappropriate punishment and profanity with his students. The incidents described in paragraphs numbered 40-48 below were discovered. On March 2, 2000, Respondent called A. W. a "dummy," told him to "shut up," and ordered him to pull a heavy cylinder across the physical education field. The cylinder is a piece of equipment that is pulled by a tractor and used to flatten pavement. A. W. tried but could not comply. He was crying when he went to the school office, complaining that his hands hurt. Respondent ordered other students to pull or push the cylinder as punishment. Respondent also ordered students to push volleyball poles, or standards, which have tires filled with cement at the bottom. At the final hearing, Respondent admitted to administering this punishment one time. Respondent also ordered students to walk or run on the physical education field. At the final hearing, Respondent admitted to ordering students to walk to the far fence. Respondent ordered students to do "push-ups." At the final hearing, Respondent admitted he used "push-ups" as punishment at the election of the student in lieu of other discipline. Respondent ordered his students to move rocks located around his portable classroom. Respondent called the students derogatory names, such as "stupid," "dumb, dumber, and dumbest," and "imbecile." He told them to "shut up." In speaking with a security monitor, Respondent referred to one of his students as "a piece of shit." Respondent required his students to write essays and repetitive "lines" as punishment, which he admitted at the final hearing. He made his students stand for lengthy periods of time as punishment. At the final hearing, Respondent asserted that he only made them stand for 30-45 minutes. Respondent claims he was sending his students to "time-out" on the physical education field. Even if true, sending the students to the physical education field is not an appropriate time-out. It is humiliating and demeaning to the students, the students were not properly supervised, the students were not being educated, and the students were at risk of injury. The procedure for disciplining students at Richmond Heights was to counsel the student after the first violation, make contact with the parents after the second violation, and write a referral to the administrators after the third time. The School Board does not permit the physical punishment of students. On March 14, 2000, Respondent was two hours late for the scheduled conference-for-the-record. By the time he arrived, the other participants had left. He was directed to report for a re-scheduled conference at the Office of Professional Standards on March 27, 2000. On March 27, 2000, a conference-for-the-record was held with Respondent to address his non-compliance with site directives regarding prescription deadlines, student discipline, violation of the Code of Ethics and of professional responsibilities, violation of School Board rules, and his future employment status. Respondent was directed to comply with all previously-issued directives, to refrain from retaliating against students and staff, to use sound professional judgment at all times, and to comply with all School Board rules, the Code of Ethics, and the Principles of Professional Conduct for the Education Profession in Florida. On May 15, 2000, Principal Jackson observed Respondent outside of his classroom, with his back to his class, talking on the telephone. The class was noisy. No one was supervising his students. He was again directed not to leave his classes unsupervised. On May 22, 2000, a conference-for-the-record was held with Respondent to address the pending action by the School Board to take dismissal action at its meeting of June 21, 2000. On June 21, the School Board suspended Respondent without pay and initiated this dismissal proceeding against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Notice of Specific Charges, affirming Respondent's suspension without pay, and dismissing Respondent from his employment with the School Board effective June 21, 2000. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2001. COPIES FURNISHED: Stewart Lee Karlin, Esquire 400 Southeast Eighth Street Fort Lauderdale, Florida 33316 Madelyn P. Schere, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Roger C. Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Respondent, Yvonne B. Eisenberg (Respondent), committed the violations alleged in the Amended Administrative Complaint filed on September 27, 2012, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Manatee County Public School District (School District). As such, it has the authority to regulate all personnel matters for the School District. See § 1001.32, Fla. Stat. (2012). Dr. Timothy McGonegal is the superintendent of the public schools for the School District. Dr. McGonegal has the authority to recommend suspension and/or termination of employees for alleged misconduct. At all times material to the allegations of this case, Yvonne B. Eisenberg was an employee of the School District assigned to teach profoundly mentally handicapped (PMH) students at Southeast High School. At all times material to the allegations of this case, Mr. Hall was an assistant principal at Southeast High School. Mr. Hall’s responsibilities included overseeing the exceptional student education (ESE) program at Southeast High School. Respondent’s PMH class fell within the purview of the ESE program. Ms. Toole, an ESE specialist at Southeast High School who is the ESE department chairperson, directly supervised Respondent’s class. PMH students require constant supervision and care. Respondent was assigned a full-time aide to assist her with the class. At times Respondent was assigned a second aide to help with students. Students in Respondent’s class were limited intellectually and physically. All required assistance with feeding, diaper changes, and mobility. It is undisputed that the challenges of managing Respondent’s classroom were daunting. No one disputes that Respondent’s daily work required physical and emotional strength. Cooperation between Respondent and others assigned to work in her classroom was important in order for the school day to run smoothly. Students in Respondent’s PMH class ranged in age and size. The eldest student could be 22 years old. It is undisputed that a 22-year-old might prove to be a physical burden for mobility and diaper changes. Respondent has received satisfactory performance evaluations in the past. Respondent is effective as an ESE teacher. Nevertheless, on November 12, 2010, Mr. Hall conducted a conference with Respondent to present, in writing, specific expectations for Respondent’s future job performance. Mr. Hall advised Respondent to follow the Code of Ethics and to speak civilly and professionally to staff and co-workers. On June 10, 2011, Mr. Hall gave Respondent a written reprimand for her actions during the 2010-2011 school year. More specifically, Mr. Hall cited Respondent’s failure to correct her unprofessional conduct toward staff and co-workers, and her willful neglect of duties. Among other items not pertinent here, Respondent was directed to complete sensitivity training and to promote a positive atmosphere in her classroom. Respondent denied the underlying facts that gave rise to the reprimand, but admitted to “yelling” at her aide. Speaking disrespectfully and loudly toward others was a chief component of Mr. Hall’s concern regarding Respondent’s behavior. On September 20, 2011, Respondent approached Mr. Hall at approximately 8:00 a.m. and asked to talk to him. Mr. Hall had a busy morning agenda but told Respondent he would talk to her later in the day. Respondent accepted the deferment of the talk and did not suggest an emergency situation that required more immediate attention. Later in the day, at approximately 10:30 a.m., Respondent returned to Mr. Hall’s office and asked for a meeting. In the interim between the first request for a talk and the second request, Respondent had sent Mr. Hall e-mails outlining a need for supplies, a request for input regarding an aide’s condition (whether the aide had been cleared to help lift students), and a need for gloves. Mr. Hall advised Respondent that she was not responsible for buying gloves and soap, and that those types of supplies for her students would be provided by the School District. Respondent claimed that a second aide was not needed in her classroom because she felt the two aides assigned to the PMH class were “against her.” Finally, Respondent asked about the status of any physical restrictions for a specifically named aide, Ms. Mitchell. Mr. Hall assured Respondent that the aide could lift as required by the job and had no restrictions. The meeting ended with Mr. Hall presuming he had addressed Respondent’s concerns. Mr. Hall also mentioned that Mr. Johnson, a substitute teacher at Southeast High School, could be made available to help lift Respondent’s students when needed. At approximately 1:15 p.m. the same day (September 20, 2011), Respondent approached Mr. Hall’s office with her fists clenched, her face red with anger, and yelled, “Am I going to get any help in here today?” Mr. Hall was surprised by the loud yelling and was taken aback for a moment. Since he did not understand her request he asked Respondent for a clarification. After a brief exchange, it became apparent to Mr. Hall that Respondent was upset because her students had not been changed all day and were sitting in dirty diapers. Mr. Hall maintained that Respondent had not clearly asked for assistance in changing the students during the two exchanges they had had during the school day. At that point, Respondent exited Mr. Hall’s office and slammed the door. Mr. Hall then telephoned an ESE classroom near Respondent’s room and directed Mr. Hubbard to report to Respondent’s classroom to assist her with changing the students. As Mr. Hall was completing that call, Respondent reappeared at his office and Mr. Hall asked her to step inside. At that time, Mr. Hall told Respondent she could not communicate with him as she had, that she must remain respectful and professional. Respondent then advised Mr. Hall that she was “pissed off.” Mr. Hall directed Respondent to return to his office at the end of the school day, and that Mr. Hubbard was in her classroom waiting to assist her with the diaper changes. Subsequently, Respondent told Ms. Toole that she yelled at Mr. Hall. Respondent maintains that the frustrations of her job and the events of the day supported her behavior. Moreover, Respondent asserts that her passion for the care of her students led to the emotional outburst. Respondent did not return to Mr. Hall’s office at the end of the school day. Mr. Hall reported the matter to his principal and to the District’s Office of Professional Standards. The Superintendent of schools recommended that Respondent receive a three-day suspension without pay for her conduct toward Mr. Hall and her failure to correct behaviors that had previously been identified. The requirement that Respondent show respect toward co-workers was not a new theme. Had Respondent exhibited patience and a professional demeanor, clearly articulated her need for assistance in lifting her students for diaper changes, and sought help in a timely manner (during any portion of the school day prior to 1:15 p.m.), she could have easily avoided disciplinary action. As soon as Mr. Hall was made aware of her need for lifting assistance, he directed additional help to Respondent’s classroom. Curiously, Respondent did not ask Ms. Toole, her ESE supervisor, for help.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be suspended for three days without pay. DONE AND ENTERED this 29th day of January, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 29th day of January, 2013. COPIES FURNISHED: Erin G. Jackson, Esquire Thompson, Sizemore, Gonzalez and Hearing P.A. 201 North Franklin Street, Suite 1600 Post Office Box 639 Tampa, Florida 33602 Melissa C. Mihok, Esquire Kelly and McKee, P.A. 1718 East 7th Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Dr. David Gayler, Interim Superintendent Manatee County School Board 215 Manatee Avenue West Bradenton, Florida 34205-9069 Dr. Tony Bennett, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the challenged portions of Respondent's Manual of Administrative Personnel Procedures (MAPP), which is incorporated by reference in School Board Rule 6Gx13-4D-1.022 (specifically) that paragraph in subsection C-2 of the MAPP which references Section 231.29, Florida Statutes, and the following language in subsection C-8 of the MAPP, under Florida Principal Competency (FPC) No. 11: "The principal who has TACTICAL ADAPTABILITY: looks at problems as if there were no rules, then decides what to do to resolve the situation tactfully") are invalid exercises of delegated legislative authority, within the meaning of Chapter 120, Florida Statutes, for the reasons asserted by Petitioner. Whether Petitioner has standing, pursuant to Chapter 120, Florida Statutes, to challenge these provisions.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, including the parties' Pre-Hearing Stipulation,2 the following findings of fact are made: Respondent (School Board) is a duly-constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Section IV, of the Florida Constitution, and Section 230.03, Florida Statutes. Petitioner is a resident of Miami-Dade County, Florida, and the parent of a child enrolled in the Miami-Dade County Public School System (MDCPS) as a ninth-grade student at Miami Killian Senior High School (Killian).3 Petitioner is currently serving as the parent representative on the Educational Excellence Council at Killian. As Petitioner states in her "resume" (Petitioner's Exhibit 18), she is "an advocate for better education," and, "as such . . . ha[s] participated in committees, written numerous research-based reports, attended countless School Board meetings,4 and testified at many public hearings." Over the years, when she has had concerns regarding practices or policies at her children's schools, she has made these concerns known to School Board administrators and School Board members. Petitioner is challenging, as an invalid exercise of delegated legislative authority as defined in Section 120.52(8), Florida Statutes, language found in parts of the School Site Administrator Performance Planning and Assessment System (PPAS), which is contained in section C of the Manual of Administrative Personnel Procedures (MAPP) and which, together with the remaining portions of the MAPP, is incorporated in, and made a part of, School Board Rule 6Gx13-4D-1.022. Subsection C-1 of the PPAS (which Petitioner is not challenging) sets forth the "[s]cope and [p]urpose" of the PPAS. It provides as follows: This section, effective with the 1998-1999 school year, sets forth the rules, regulations and procedures for the establishment, maintenance, and administration of the performance planning and assessment system applicable to school site managerial personnel. Subsection C-2 of the PPAS contains a "[s]tatement of [p]olicy." It provides as follows: The Miami-Dade County Public Schools Performance Planning and Assessment System was developed as an aid to improving the performance and developing the potential of every administrator. A performance plan mutually developed by the administrator and the supervisor consists of three major components: Developing plans directly linked to overall job functions as related to the job duties and responsibilities, school site target objectives, and/or major system objectives, as applicable. Improving job performance by reviewing past assessments and setting expectations for improvement or enhancement. Developing personal potential through emphasis on standards required for success and professional growth in the present job, as well as preparation for future career goals. In evaluating performance standards, the emphasis is placed on collecting data which indicate that the individual demonstrates or practices the performance standards established for the assigned position and the school site target objectives. The performance assessment procedures set forth herein shall be adhered to strictly. Administrators shall have their performance evaluated by their immediate supervisor (assessor) and their assessor's supervising administrator (reviewer) only. Formal assessments and evaluations placed in administrator's official personnel files shall be in compliance with the procedures and instruments of the Performance Planning and Assessment System. Administrators being appraised need to be aware of the rationale, intent and procedures of the performance assessment system in relation to their job assignment. Florida Department of Education Performance Assessment System guidelines: specify that a comprehensive performance assessment system is fair, equitable, and legally sound; establish procedures for the collection, retrieval and use of data to provide feedback to an individual, a team, and the system; provide data for recognizing high performance through a variety of means; consider the specific conditions of the site in establishing expectations; promote the growth and development of the individual and the continuous improvement of the organization; allocate time to plan, coach and counsel for higher performance; provide orientation on the system and skill development in observing, mentoring, coaching and counseling for those in and affected by the system. Administrators who manage the performance assessment system must have knowledge and skills that go far beyond an academic knowledge of the system. They must understand and be able to respond to evaluative data on the system. They must also be able to link the performance assessment system to the other components of the Comprehensive Human Resources Development System. Pursuant to Florida Statute 231.29, the system (district) must include a mechanism to give parents and teachers an opportunity to provide input into the administrators performance assessment, when appropriate. The district mechanisms include notification to parents of this provision printed on student report cards and notification to teachers of this provision through memorandum included in staff handbooks. [Underlining added.] Principals must ensure that all assistant principals are exposed to and/or have experience in the 19 Florida Principal Competencies and the five M-DCPS Technical Skills. There may be cases where an assistant principal may not be assigned to work with all of the competencies and all of the technical skills. However, all assistant principals must be exposed to these competencies and technical skills either through actual experience(s), or attendance at district sponsored workshops, or other professional growth activities. Petitioner is challenging the underlined language of subsection C-2 of the PPAS set forth above (Input Provision), which was added to School Board Rule 6Gx13-4D-1.022 (Rule) on or about November 7, 1997. Before amending the Rule to add the Input Provision, the School Board published a Notice of Intended Action (dated September 12, 1997), which read, in pertinent part, as follows: PURPOSE AND EFFECT: To amend Board Rule 6Gx13-4D-1.022, Manual of Administrative Personnel Procedures, by revising the document, Manual of Administrative Personnel Procedures (MAPP), which is incorporated by reference and is part of this rule, in order to be in compliance with new state legislation, Section 231.29 . . ., Florida Statute[s]. SUMMARY: The revised rule provides language describing the mechanism to be used in the District for giving parents and teachers input into administrative assessment as appropriate. . . . SPECIFIC AUTHORITY UNDER WHICH RULEMAKING IS AUTHORIZED: 230.22(2), F.S. LAW IMPLEMENTED, INTERPRETED, OR MADE SPECIFIC: 231.02; 231.0861; 231.087(1); 236.0811, F.S.; 6A-4.0083; 61-4.0084 FAC. In addition, the School Board placed an advertisement in the September 29, 1997, edition of the Miami Daily Business Review, which read, in pertinent part, as follows: NOTICE The School Board of Dade County, Florida, announces the following Board Rule action will be taken at its 1:00 p.m. meeting on: November 5, 1997 School Board Auditorium 1450 N. E. Second Avenue Miami, Florida 33132 To Amend: 6Gx13-4D-1.022, Manual of Administrative Personnel Procedures (MAPP), in order to be in compliance with new state legislation, Section 231.29 . . ., Florida Statutes[s]. Specific Authority: 230.22(2), F.S. Law Implemented, Interpreted, or Made Specific: 231.02; 231.0861; 231.087(1); 236.0811, F.S.; 6A-4.0083; 61-4.0084 FAC Although Section 231.29, Florida Statutes, was mentioned in the Input Provision, neither the "Specific Authority," nor the "Law Implemented, Interpreted or Made Specific" portions of the November 5, 1997, amended version of the Rule contained any reference to Section 231.29, Florida Statutes. It was not until the day after the October 21, 1998, School Board meeting (the last School Board meeting at which members of the School Board took action to amend the Rule) that Section 231.29, Florida Statutes, was added to the "Law Implemented, Interpreted or Made Specific" portion of the Rule. The addition was made, not by the members of the School Board, but by the School Board Clerk, Ileana Menendez, who believed that such action was authorized by School Board Rule 6Gx13-8C-1.061, which, at all times material to the instant case, has provided as follows: CORRECTION OF CERTAIN ERRORS IN RULES The Superintendent of Schools, as Secretary to the Board, shall have the authority to review the School Board Rules and when judged useful shall: Correct grammatical, typographical, and like errors not affecting the construction or meaning of the rules; Keep a record of corrections made pursuant to subsection 1; and Report to the Board any corrections made. Ms. Menendez reported the "correction" she had made to the Office of the School Board Attorney. The English version of the "notification to parents . . . printed on student report cards,"5 which is referred to in the Input Provision, reads as follows: FLORIDA LAW PROVIDES FOR PARENT INPUT ON TEACHER/ADMINISTRATOR PERFORMANCE, WHEN APPROPRIATE. FOR MORE INFORMATION, CONTACT THE SCHOOL, PRINCIPAL, OR THE REGION OFFICE. By providing such notification, the School Board alerts the parent to the parent's opportunity to provide (at any time the parent deems appropriate) information and opinion regarding an administrator's performance for consideration by those (specially-trained individuals) charged with the responsibility of evaluating the administrator's performance. The significance of the "19 Florida Principal Competencies" referred to in the paragraph immediately following the Input Provision is described in subsection C-7 of the PPAS, which reads as follows: PERFORMANCE CRITERIA In order to qualify for a rating Distinguished Performance Standards on the annual evaluation form, assessees must be rated Distinguished Performance Standards on 18 out of the 19 Florida Principal Competencies and rated as Distinguished Performance Standards on five out of the five M-DCPS Technical Skills, and on Performance Related to Job Targets. In order to qualify for a rating Commendable Performance Standards, assessees must be rated as Commendable Performance Standards on 17 out of the 19 Florida Principal Competencies and rated as Commendable Performance Standards on four out of the five M-DCPS Technical Skills. Performance Related to Job Targets must be at least 90% accomplished (C-8 through C-11). In order to qualify for a rating Competent Performance Standards, assessees must be rated as Competent Performance Standards on 16 out of the 19 Florida Principal Competencies and rated as Competent Performance Standards on three out of the five M-DCPS Technical Skills. Performance Related to Job Targets must be at least 80% accomplished (C-8 through C-11). Assessees not exhibiting the minimum number of indicators listed for each standard of the 19 Florida Principal Competencies and/or the five M-DCPS Technical Skills, and/or who have not met their Performance Related to Job Targets will receive an overall rating of Below Expectations on Performance Standards and will require a Professional Improvement Plan (C-8 through C-11). The "19 Florida Principal Competencies" are listed and explained in subsection C-8 of the PPAS. "Florida Principal Competency" (FPC) No. 11 is "tactical adaptability," which is described in subsection C-8 of the PPAS as follows: TACTICAL ADAPTABILITY is the ability to adapt one's interaction and behavior to fit the situation. (3 out of 4) DIMENSIONS: ADAPTABILITY: Maintaining effectiveness in varying environments, tasks, responsibilities or with people; FLEXIBILITY: Modifying behavior to reach a goal; INDIVIDUAL LEADERSHIP: Utilizing appropriate interpersonal styles to guide individuals to task accomplishment. The principal who has TACTICAL ADAPTABILITY: adopts roles of listener, facilitator and confronter as needed finds ways to get around policies and procedures which interfere with the school's goals looks at problems as if there are no rules, then decides what to do to resolve the situation tactfully understands how own behavior affects others and makes appropriate adjustments. Except for the language in numbered paragraph 11.2, which Petitioner is no longer challenging (as a result of the School Board's agreement to initiate action to replace it with other language agreeable to Petitioner6), the foregoing, including the language in numbered paragraph 11.3 (Paragraph 11.3), the validity of which (along with the Input Provision) Petitioner disputes, is a verbatim recital of language contained in the Florida Principal Competencies section of the Human Resources Management and Development System Guidelines in Florida's School Districts developed, after study and scientific research, by the Florida Council on Educational Management.
Findings Of Fact Bryce David Forrester attended 7th grade at Glades Junior High for the 1984-1985 school year until his alternative school assignment on May 18, 1985. Petitioner's witness Judy Cobb, Assistant Principal of Glades Junior High had no personal knowledge of Bryce David Forrester's behavior and was not the official record custodian of his records. Her testimony provided no information of probative value. Thomas Zelenak is presently Principal of Glades Junior High and was formerly assistant principal there during the 1984- 1985 school year. He had no personal knowledge of the referrals which allegedly culminated in the computer record of disciplinary referrals admitted as the School's business record (P-2). The discipline referral slips were not offered. All discipline referrals had been by teachers who were not present for hearing and all counseling of the student had been handled by retired Principal Skinner or former Assistant Principal Zahner, neither of whom were available for hearing. Mr. Zelenak also had no personal knowledge of the Respondent's alleged disruptive/ behavior which resulted in the referrals and referral slips which allegedly were behind the computer record. Mr. Zelenak did conduct a parent-administrator conference on April 1, 1985 with Respondent's parents and agreed to Respondent's continued placement at Glades Junior High School provided his behavior improved. Respondent's father testified that at this conference Mr. Zelenak told him that alternative school placement was not in the student's best interest. Mr. Zelanek denied saying this. It is significant that P-2 does not reflect this conference ever occurred even though both Mr Zelenak and Mr. Forrester agree it did occur and the occurrence of this conference is corroborated by other exhibits. Therefore, this entire computer record (P-2) is of doubtful credibility. Mr. Zelenak gave his opinion at hearing that although the student may possess the ability to become a productive student he was not doing so at Glades Junior High and that the student belongs in an alternative placement program because of his disruptive behavior and its effect on the children around him. However, there was no predicate established for Mr. Zelenek's forming this opinion. The official record of the student's final grades for the year indicates failure in three subjects on the date he was withdrawn by the parent, May 22, 1985. Respondent's position was that the School Board did not make appropriate parent contact so as to forestall the alternative school assignment and that the procedure by which School Board officials reviewed and acted upon the principal's(Mr. Skinner's) recommendation of alternative school placement was contrary to School Board Rules duly adopted and promulgated. The testimony of William R. Perry, Director of Alternative Education Placement and Donald Hollis, Coordinator, Alternative Education Placement, that the procedure by which the assignment was made was in substantial compliance with the School Board rules is accepted over a single late postmark offered by Respondent for one of the notifications.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Bryce David Forrester to an appropriate regular school program, preferably at Glades Junior High School. DONE and ORDERED this 27th day of September, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 27th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esquire 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 Gary Forrester (Parent) 8340 S. W. 97th Street Miami, Florida 33130 Phyllis 0. Douglas, Esquire 1450 N. E. 2nd Avenue Miami, Florida 33122 Madelyn P. Schere, Esquire 1450 N. E. 2nd Avenue - Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact Prior to his dismissal in December, 1983, respondent had worked as a custodian for the School Board for over eight years. Since 1976, he had been a custodian at Gulfview Junior High School. At Gulfview Junior High, he worked the 2:00 p.m. - 10:00 p.m. shift, except for summer vacation periods, when he worked the 7:30 a.m. - 4:00 p.m. shift. During the 1981-82 and 1982-83 school years, respondent's work record for attendance and punctuality was less than satisfactory. The principal of Gulfview Junior High, Arthur J. Palin, noted on respondent's 1981-82 performance evaluation that improvement was needed in job attendance and punctuality. The principal noted that, in case of absence, phoning the school prior to report-in time would enable a substitute to be found. On many occasions, respondent had failed to comply with this requirement. Respondent, despite prior warnings not to leave work early without permission, repeatedly did so. Finally, on February 11, 1983, Principal Palin notified him, in writing, of various deficiencies in his job performance and the need for dramatic improvement. Specifically, respondent was notified that since September, 1982, he had left his job early on 18 different occasions without excuse or explanation; that he had been seen (and spoken to about) watching television, reading newspapers, and spending long periods of time on the telephone and engaging in personal activities during working hours; and that the area of the school which he was responsible for cleaning was the only one which had received negative comments during the last plant inspection. The Principal ended the memorandum by advising respondent that "Unless all actions on your part dealing with the above cease immediately, I will not recommend you for continued employment for the 83/84 school year." (petitioner's Exhibit 1) Respondent signed the memorandum, acknowledging receipt. The principal reinforced this warning with several verbal warnings that respondent needed to improve his work performance. The written warning notice resulted in a marked, though short-lived, improvement in respondent's work performance. Between February 11, 1983 and May, 1983, respondent reported to work on time, did not leave early, and received no unsatisfactory reports. (Deposition of Palin, p. 33) On May 5, 1983, Mr. Hogan, respondent's immediate supervisor, inspected C-Wing of Gulfview Junior High (respondent's area of responsibility) and found discrepancies such as dirty floors, lack of dusting and dirty window sills. On May 5, 1983, respondent failed to report to school and failed to timely report his absence. On May 10, 1983, Principal Palin gave respondent his 1932-83 school year performance evaluation, which was accompanied by another written notice. The evaluation graded him less than satisfactory in categories of Utilizes Time Efficiently ("does not follow regular routine; spends time on task(s) of personal nature and not on assigned job. . ."); Attendance ("absent far too often"); Punctuality ("arrives late or leaves early on many occasions.") Other areas of needed improvement were also identified. Respondent signed the evaluation, indicating it had been discussed with him, but expressed--by check mark--his disagreement with its content. The warning notice of the same date advised that he had been absent on March 5, 1983 without informing the school and that, because of that and numerous other similar incidents, "I must inform you that if you fail to notify us of your absence in the future, I will not recommend you for reemployment or will ask for your resignation." (petitioner's Exhibit 3) Despite respondent's assertion to the contrary, the evidence convincingly demonstrates that he was repeatedly warned, both verbally and in writing, of deficiencies in his attendance, punctuality and quality of work; that he knew the correct procedure for reporting absences; and that he knew that, absent dramatic improvement, his continued employment with the school system was in jeopardy. In September, 1983, Principal Palin met with his custodians, including respondent, and specifically warned them that they were not to leave work early without permission. On November 23, 1983, respondent requested permission to leave work early; but when Principal Palin denied his request, respondent left work early anyway. The quality of respondent's work and his responsiveness to his supervisor's requests, continued to deteriorate. On September 30, 1983, an inspection of his work area revealed dirty walls, dirty fixtures, dirty windows, and bugs in light fixtures. On October 20, 1983, Mr. Hogan asked him to change the light fixtures in a classroom; when he did not do so, Mr. Hogan changed them himself. In November, 1983, respondent ignored his supervisor's request to clean bugs from light fixtures prior to an inspection. On each of these occasions, respondent was warned verbally if not in writing, of his work deficiencies. These deficiencies--together with further observations of respondent reading newspapers and watching television during working hours, complaints by teachers about the condition of their rooms; and continued reports by supervisors of respondent's deteriorating work--led Principal Palin to recommend to the Superintendent of Schools that respondent be dismissed. These grounds have been substantiated by the evidence and provide a sufficient basis for respondent's dismissal. On November 30, 1983, after being informed of the charges against him and of the principal's recommendation that he be dismissed, respondent threatened Mr. Hogan, his supervisor: "If anything happens and I lose my job, you are going to pay." (petitioner's Exhibit 21, testimony of Hogan)
Recommendation Based on the foregoing, it is, RECOMMENDED: That respondent be DISMISSED from his employment, effective January 4, 1984, on grounds of neglect of duty, excessive absenteeism, misconduct, and insubordination, and that the charge of immorality be dismissed. DONE and RECOMMENDED this 2nd day of November, 1984, in Tallahassee, Florida. R. L. CALEEN, JR., 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 2nd day of November, 1984. COPIES FURNISHED: Abbey G. Hairston, Esquire 3323 Belvedere Road West Palm Beach, Florida 33402 Hyman Borax Dawn P. Bonard Post Office Box 449 Boynton Beach, Florida 33435 Thomas J. Mills, Superintendent School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402
