The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment pursuant to Sections 231.36(1)(a) and 231.35(6)(a), Florida Statutes.
Findings Of Fact Respondent has been employed as a social studies teacher at Bell High School since 1988. He is employed under a professional services contract for instructional personnel. At all times material to this proceeding, Respondent has received satisfactory performance appraisals. He was selected Bell High School Teacher of the Year and Gilchrist County Teacher of the Year in 1996. Respondent's competency as a teacher is not at issue here. It is undisputed that Respondent is an effective teacher except as alleged by Petitioner in this case. 1998/1999 School Year On January 26, 1999, Superintendent Thomas (Superintendent) wrote a letter recommending Respondent for the James Madison Fellowship Program. In the letter, the Superintendent stated that Respondent is an outstanding teacher who is academically strong in the field of social studies, American History, and American Government. The letter recounts Respondent's involvement as the senior class sponsor and in developing a cultural exchange program and a junior achievement program. Respondent was the senior class sponsor in the Fall of 1998. In the first days of school, Respondent prepared and presented the seniors with a detailed letter containing information, including, but not limited to, officer duties and responsibilities. The section on officer duties and responsibilities stated, in part, that the senior sponsor reserved the right to remove officers for incompetence or inappropriate behavior. Subsequently, a certain female student was elected senior class president. She and Respondent had a personality conflict from that time forward. Part of the problem involved the student's initiation of class projects without Respondent's approval, which was contrary to Respondent's procedures outlined in the letter referenced above. Respondent often found fault with the senior class president's performance of her duties and her inability to devote full time to her elected position because of extracurricular activities. On several occasions, Respondent made comments to the senior class president that embarrassed her in front of other students and teachers, embarrassing her to the point of tears. One time Respondent told the student that he was not going to chaperon "some damn carwash" and miss his football game. The student complained to her parents about the way Respondent treated her. In November 1998, the student and her parents requested a parent/teacher conference with Respondent. The assistant principal also attended the meeting. After Respondent offered to shake the father's hand, the conversation almost immediately resulted in a heated discussion between the student's father and Respondent. During the conversation, Respondent informed the parents that he had students in his class that were more important than their daughter's feelings and that if the daughter was going to complain to her parents, she was fired from her position as senior class president. The student's father then accused Respondent of being disrespectful of the daughter and objected to Respondent's use of curse words in front of the daughter. Respondent stated that he did not consider "damn" a curse word. On November 9, 1998, the parents made a written complaint about Respondent's conduct before and after the parent/teacher conference. They requested that the letter be placed in Respondent's personnel file. Respondent responded with a letter dated November 8, 1998. He claimed that he had been summoned to the office for a meeting with a hostile parent for which he had been completely unprepared. Respondent denied that he had ever cursed the student. Respondent stated that he did not ever intend to be "bushwhacked" again. Respondent later told the principal that the student was fired as class president. The principal said that she would not be removed from her elected office. Respondent then resigned his position as senior sponsor. In January 1999, Respondent wrote a letter to the Superintendent and members of the school board. The letter outlined a series of events and incidents alleged by Respondent to represent the inadequacies of the school system. For example, the letter includes, but is not limited to, the following: (a) allegations of nepotism and incompetent teachers; (b) allegations that a student broke the nose of Respondent's daughter after a coach told her to hit the student if he sexually harassed her again; (c) allegations that a coach had walked into the girls locker room while they were changing; and (d) allegations that the coach had retaliated against Respondent by falsifying his daughter's grades because Respondent complained about the locker room incident. Apparently the Superintendent did not reply in writing to Respondent's January 1999 letter or require any employee to write a letter of apology. Nevertheless, competent evidence indicates that the Superintendent investigated Respondent's concerns and properly resolved all issues, including the disciplining of employees where necessary. Respondent was responsible for the establishment of a World War II (W.W. II) Monument on the grounds of the Gilchrist County Courthouse in honor of the veterans who fought in that war. Respondent often invited veterans to speak in his class regarding their wartime experiences. Mr. Cody Bennett, a W.W. II veteran, spoke to Respondent's class approximately 16 times. On one occasion, the principal questioned whether Mr. Bennett had signed in at the office and whether Respondent had requested pre-approval of Mr. Bennett's presentation according to the school's policy. Bell High School policy requires a visitor to sign in at the main office and to be approved by an administrator. The policy states that guest speakers should be pre-approved by an administrator. Mr. Bennett's class presentation was not pre-approved by an administrator. Because Mr. Bennett had not signed in at the office before visiting Respondent's classroom, Respondent signed him in as he was leaving the campus. 1999/2000 School Term In the Fall of 1999, Respondent requested another male teacher to demonstrate something for Respondent's students. The male teacher agreed and went into Respondent's class. Respondent then requested his colleague to show the class the "three point stance" of a football player. After the teacher bent over with his hands on his knees, Respondent asked the teacher to spell the word "r-u-n." As the class burst out laughing, the embarrassed teacher quickly left the class. The teacher later realized that he had been requested to demonstrate a homosexual act in front of the class. Respondent made the same request of another male teacher. After asking his colleague to show the class a football lineman's position (knees bent ready for a block), Respondent requested the teacher to spell the word "r-u-n." Once again the class burst out laughing. The second teacher did not fully understand the inappropriate joke until he left Respondent's classroom. By letter dated October 22, 1999, the principal of Bell High School wrote a letter to Respondent reprimanding him for the inappropriate sexual implication of Respondent's behavior. The principal directed Respondent to write letters to the teachers, apologizing for his conduct that constituted extreme misconduct for a teacher. The principal warned Respondent that such conduct in the future could result in discharge. The principal noted in his October 22, 1999, letter that Respondent had shown a negative attitude toward the principal as Respondent's supervisor. The principal stated that he expected Respondent to show a more positive attitude in the future. The principal placed the letter of reprimand in Respondent's personnel file. As requested by the principal, Respondent wrote letters of apology dated October 22, 1999, to the teachers. Both letters stated Respondent's regrets for causing his co- workers embarrassment for the incident that he referred to as a "spontaneous practical joke." Respondent admits that the practical joke was in bad taste and demonstrated a lapse of judgment on his part. During the hearing, the teachers testified that they maintained good professional and personal relationships with Respondent despite the incidents. One day before class in April 2000, one of Respondent's students told him that she needed to leave his class early to attend a school softball game. Respondent was unnecessarily harsh and embarrassed the student when she reminded him during class that she had to leave the class. In chastising the student, Respondent emphasized that the student did not need softball to graduate but that she did need his class. The incident was videotaped because a group of students were about to make a class presentation at the time. The student's parent wrote a letter to Respondent, complaining about Respondent's treatment of the student. The complaint alleged, among other things, that Respondent had humiliated the student about her work and yelled and screamed at the student for interrupting class when leaving for the game. Respondent replied to the parent's complaint by letter dated April 28, 2000. Respondent objected to being slandered by a student. He stated that the student's grade for incomplete work would stand as recorded. Respondent admitted that he did not like interruptions in his class due to sports events. He said he would no longer give the student a "mild scolding" to enhance her performance. According to Respondent's letter, he felt the parent's letter was hostile, unfounded, and personally insulting. On May 1, 2000, the principal advised Respondent that he was transferring the student out of Respondent's class due to the strained relationship on the part of the student. The letter requested that Respondent furnish the principal with the student's grades and a copy of the videotape of the incident involving the student's interruption of class. Respondent complied with the principal's request to provide the principal with the student's grades. There is no persuasive evidence that Respondent altered the student's grades before doing so. However, there is competent evidence that Respondent never complied with the principal's request to produce the videotape. 2000/2001 School Term Petitioner requires its teachers to maintain a portfolio containing examples of assignments and student work samples. One purpose of the portfolio is to assist supervisors in assessing the teachers' performance at the end of the year. On May 2, 2001, the teachers at Bell High School were advised that their portfolios would be due on May 18, 2001. Respondent did not turn in a portfolio by the required date. Toward the end of the 2000/2001 school year, the fire alarm was activated at Bell High School. The record is unclear whether the alarm was the result of a planned fire drill or a false alarm due to recurring problems with the fire alarm system. In any event, Respondent did not interrupt his class to take his students outside as required by school policy. In June 2001, the assistant principal at Bell High School and Respondent met to review Respondent's end-of-the- year performance evaluation. Petitioner's signature on the evaluation would have indicated only that the assistant principal had reviewed it with Respondent. During the meeting, the assistant principal explained that Respondent's score would have been higher but for Respondent's failure to turn in a portfolio and his failure to take his class outside during a fire alarm during semester exams. Respondent disagreed with the assistant principal over his evaluation, in part, because a one-point higher would have resulted in an increase in Respondent's salary. The assistant principal responded to Respondent's objections stating, "You made it easy." Because he did not agree with the evaluation, Respondent told the assistant principal that he was wasting Respondent's time and that he did not "want to listen to any more of this." Respondent then requested that he be dismissed so that he could attend a school board meeting. Respondent started to leave the room. When the assistant principal requested Respondent to return to discuss the evaluation, Respondent stated, "Why listen to more of this bullshit?" Respondent then told the assistant principal that he was a "spineless lizard." Respondent then wrote "I do not concur" on the evaluation and without signing his name on the evaluation, left the room. By letter dated June 6, 2001, the principal of Bell High School reprimanded Respondent for his inappropriate, unprofessional, and insubordinate conduct toward the assistant principal. The principal reminded Respondent that he previously had been reprimanded for his attitude to the former principal. The principal stated that such conduct in the future could result in discharge. The principal's letter of reprimand directed Respondent to write a letter of apology to the assistant principal. Before the letter was placed in Respondent's personnel file, Respondent signed it, including the statement "I spoke only the truth." On June 6, 2001, Respondent wrote a one-sentence letter of apology to the assistant principal. The letter simply stated, "I am sorry." Respondent subsequently wrote a letter dated June 8, 2001, directed to the principal and others, including the Superintendent, but not including the assistant principal. Respondent's letter listed a number of incidents in which Respondent felt that he had been unfairly treated. Respondent's June 8, 2001, letter asserts that a teacher twice called him a "son of a bitch" without receiving a reprimand. That incident involved a situation where Respondent told a teacher that he was not going to engage in a battle of wits with an unarmed person. The teacher then called him a "son of a bitch." Respondent asked his colleague to repeat what she said in front of witnesses and she did. The principal subsequently counseled with Respondent and the teacher, giving them both a verbal reprimand, and telling them not to make such inappropriate comments to each other in the future. In his June 8, 2001, letter, Respondent requested an investigation of each of the incidents. Respondent also stated in the letter that he was sorry if he hurt the assistant principal's feelings. The assistant principal never received a copy of the letter containing Respondent's apology. The Superintendent subsequently performed an investigation. By letter dated October 11, 2001, the Superintendent advised Respondent that the issues raised in his June 8, 2001, letter had been reviewed. Competent evidence supports the Superintendent's conclusion in the letter that the former or current principal at Bell High School had properly addressed each of Respondent's concerns. 2001/2002 School Term On August 6, 2001, the Superintendent signed and issued to Respondent a Professional Service Contract of Employment for Instructional Personnel of the Public Schools for the 2001/2002 school term. The contract states that Petitioner had determined that Respondent had satisfactorily completed all requirements of law for such a contract. On August 10, 2001, Respondent signed a form indicating that he had received a copy of Bell High School's Teacher Handbook. The handbook included an emergency plan that required teachers to keep their classroom doors locked each period of the day. The policy was created as a safety measure after the "Columbine" shooting spree. Respondent generally followed the locked-door policy. However, occasionally he would leave the door open so that students could go and come from the restroom without interrupting the class. Respondent also left his door open for about 10 or 15 minutes in the morning because one student from another school zone arrived late every morning and Respondent did not want the class interrupted. Despite the inconvenience to Respondent in having his class interrupted, leaving the door open was contrary to established policy. Sometime prior to August 15, 2001, Respondent extended an invitation to Brett Hillman to visit his class. Mr. Hillman was a former student of Respondent and on leave from active military service. When Mr. Hillman arrived on campus, he was arrested for trespassing on school property. Respondent subsequently wrote a letter dated September 14, 2001, to the county judge assigned to hear the criminal trespass case against Mr. Hillman. Respondent's letter explained to the judge that he felt responsible because he had neglected to have Mr. Hillman's visit to the campus approved through the office. An assistant state attorney subsequently wrote a letter dated October 18, 2001, advising the principal that Mr. Hillman's case was resolved in a deferred prosecution procedure. The assistant state attorney explained the problems associated with the prosecution not being aware of Respondent's invitation for Mr. Hillman to visit Respondent's classroom. One of Respondent's classes in the Fall of 2001 was an eighth-grade American History class. The students ranged in ages from 14 to 17. The following incidents occurred with students in that class. Several times Respondent asked students if they had a date for the weekend. If the student replied that he or she did not, Respondent would respond, "Oh, I didn't think so" or "Ha-Ha, I didn't think so." On one occasion, Respondent replied, "I figured not because you're so ugly." The regularity in which Respondent made these statements and manner in which the students understood them indicates that the students were not offended and understood that Respondent was joking. On at least one occasion, Respondent discussed the difference in Democrats and Republicans with two of his students. Respondent told the students that Democrats are asses, not donkeys, and Republicans are elephants. The evidence is not clear and convincing that Respondent made this comment intentionally to slander or make a profane statement about either of the political parties. At times, Respondent used inappropriate language in an attempt to motivate his students individually. For example, Respondent called one student who was rather large, "Bigun," meaning no disrespect to the student. However, on at least one occasion, Respondent told "Bigun" that he was lazy and should drop out and shovel shit if he did not want to stay in school. On another occasion, Respondent told "Bigun" to get his fat ass out of his (Respondent's) class. Respondent told a bashful student that if he did not want to participate in class, he could get the hell out of the class, drop out, and flip burgers. Respondent made this comment because the student did not want to read out loud in class. Respondent also made the following statements to students: (a) a student should drop out and get a job flipping burgers so she would not be on welfare for others to support; (b) a student should get out of school and stop stinking it up if they did not want to learn; (c) two students were a pain in the ass because they had not finished a report and did not want to learn; (d) it was bullshit for a student not to want to participate in a project; (e) a student should shut up; and (f) a student should get the hell out of here. Sometimes Respondent made inappropriate comments to the class at large. Respondent told the class he knew he was an asshole but the class would have to live with it because he did. Respondent also said he "could be a nice person, but just don't piss him off." Respondent would remind his class that if they dropped out of school and got a job, their boss would yell at them and tell them to get off their fat ass. Respondent made some of these comments in the context of a lesson on illiteracy. Nevertheless, Respondent's choice of words to make his point regarding the importance of an education in getting and keeping a good job was inappropriate. On two occasions, Respondent told a student to "get the hell out of this classroom" if the student did not want to learn. The second time that Respondent made this statement, the student left the class, spoke to the principal, and spent a couple of days in the In-School Suspension (ISS) room. When the student returned to Respondent's class, Respondent learned that the student had spoken to the principal. Respondent then stated, "All this crap is happening all over again." On another occasion, Respondent used the word "damn" in a conversation with a student. During the conversation, Respondent also stated, "[t]his is my class and I'm running the show here. And if you don't want to go along with it, you can get out." After making this statement, another student in the same area of the classroom started laughing and making fun of the first student. In discussing the First Amendment to the United States Constitution, Respondent told his students that they could say anything because they had a right to freedom of speech. To make his point, Respondent told the class that they could curse each other or him outside of class and he would not write them up because of their right to speak freely. However, there is no clear and convincing evidence that Respondent condoned student use of curse words in class. On September 11, 2001, the atmosphere in Respondent's class was emotionally charged as everyone learned about the attack on New York City. Later in response to a student's questions, Respondent used the words "rag heads," referencing the terrorists responsible for the collapse of the World Trade Center towers. Respondent used the same terms in discussing the terrorists with the principal. In the Fall of 2001, one eighth-grade student complained to his mother that Respondent was singling him out and embarrassing him in class. The mother told her son to tough it out for another week because Respondent might have been having a bad day. The student later complained again to his mother about Respondent's embarrassing treatment in the classroom. Based on the student's repeated complaints, the mother sent a message to Respondent asking him to call at his convenience. After receiving the message, Respondent immediately returned the mother's call. During the conversation, Respondent stated that the student was "not completing his work. I chewed him out really good yesterday so maybe he'll do something today." When the mother inquired about the student's allegations that Respondent was singling the student out in class and embarrassing him to the point of tears in front of the other students, Respondent replied, "Yes, that's true, but I am a hard teacher and I am not gonna cuddle and baby [the student] in my classroom. He either does what I say or he fails." When the mother questioned whether Respondent had told his students to quit school and stop wasting Respondent's and the school's time if they did not want to work, Respondent admitted that he had made such a statement. When the mother asked Respondent not to embarrass her son in front of the class, Respondent stated, "[y]ou wouldn't call up your doctor or your lawyer and harass them, and I don't expect you to do this to me." When the mother responded that she was just trying to find out what was going on, noting that Respondent was chewing her out, Respondent replied, "If there is nothing else, I have a class to teach so you can make an appointment like everybody else" then hung up the phone. Respondent appeared to be angry when he returned to the classroom after speaking with the mother. Respondent then requested to see the student's work folder. After making a derogatory comment about the work in the folder, Respondent told the student to get it organized and tossed it down on the student's desk, causing the papers to fall on the floor. There is no clear and convincing evidence that the folder hit the student in the chest, but the incident did cause the student embarrassment in front of his classmates. The mother subsequently called the assistant principal to complain about Respondent's unprofessional behavior. Specifically, the mother stated that Respondent had hung up on her and that she wanted her son removed from Respondent's class. After receiving written complaints from the mother and her son, both of which contained allegations that Respondent used curse words in class, the assistant principal gave the information to the principal. Based on the complaints from the mother and her son, the principal initiated an investigation on October 11, 2001. He first talked to several students in the class. The students did not know why they were being questioned. Without naming Respondent, the students were asked whether any teachers used profanity in the classroom. The students named Respondent as the only teacher who did so. Each student was talked to separately, sequestered, and asked to write a statement concerning Respondent's conduct in the classroom. There is no competent evidence that the students were unduly influenced or coached regarding the content of their statements. Two students, who did not want to get involved, were allowed to return to class. The student's initial statements and the mother's statement were submitted to the Superintendent. Because the statements warranted further investigation, the Superintendent appointed a committee to look into the matter. Respondent sent a memorandum dated October 16, 2001, to the members of the school board. In the memorandum, Respondent complained that he was being harassed because students from his at-risk class were being summoned from class to provide statements regarding his classroom activities without his knowledge. According to Respondent, the administration's current investigation was consistent with past personal attacks on Respondent. Respondent demanded that Petitioner provide him with all written statements by students, teachers, and parents and any notes in the possession of administrators but not included in his personnel file. He demanded that Petitioner refer the alleged harassment to the Educational Practices Commission. He insisted that he receive prior notification of any subsequent investigations. The Superintendent appointed an outside investigator as soon as he learned that Respondent believed the investigation was politically motivated and in retribution for Respondent running against the Superintendent in the most recent election. During the investigation, Petitioner once again pulled the students who had signed previous statements from class. At that time, Petitioner requested the students to sign affidavits that their initial statements were true. The only other times that Petitioner pulled students from class in relation to this case was to speak with an investigator or attorney in preparation for trial. On one occasion a student asked to call her father. At that point Petitioner's counsel stopped talking to the student. On or about October 15, 2001, Respondent called the Superintendent at home one night, demanding copies of all documents being considered in the investigation. During this conversation, Respondent told the Superintendent that the investigation was all a bunch of crap, that the principal at Bell High School was an idiot, and that he (Respondent) was not interested in the Superintendent's bullshit procedures. When the independent investigation was completed, the Superintendent reviewed all of the information. He considered Respondent's years of service, his satisfactory performance evaluations, and his personnel file, which contained two letters of reprimand. The Superintendent concluded that termination of Respondent's employment was appropriate after considering all aggravating and mitigating factors. By letter dated October 29, 2001, Respondent was invited to a meeting to discuss the allegations against him, which at that point included misconduct in office and/or gross insubordination. Specifically, the letter stated that Respondent had: (a) used profane or obscene language; encouraged or condoned student's use of profanity; intimidated and embarrassed students; and (d) continued refusal to obey direct orders from school board personnel. The Superintendent's letter advised Respondent of his rights under the Collective Bargaining Agreement, giving him a five-day notice of the meeting scheduled for November 5, 2001. The purpose of the meeting was to allow Respondent an opportunity to rebut the allegations against him. In a letter dated November 1, 2001, Respondent objected to the meeting scheduled for November 5, 2001, because it did not provide him with a five-day notice from the time that he received the October 29, 2001, letter. Respondent also requested that the Superintendent furnish Respondent with copies of certain documents, including his personnel file, all written complaints from students, parents, and teachers, and a copy of Petitioner's policies. Respondent's November 1, 2001, letter stated that the eighth-grade class had been exploited and that the student's affidavits had been solicited under duress. There is no persuasive evidence to support these allegations. Respondent claimed that the classroom was hostile and not conducive to effective education. Respondent asserted that he was not certified to teach the eighth-grade class because it was not a mainstream class. He requested that he be assigned to teach another class for that time block. By letter dated November 1, 2001, the Superintendent rescheduled the meeting for November 7, 2001, to ensure that Respondent was given adequate notice. The Superintendent also reminded Respondent that he had been furnished a copy of his entire personnel file and copies of affidavits obtained during the preliminary investigation. The Superintendent's letter enclosed a copy of the parent's letter that initiated the investigation. The letter sets forth the conditions under which a copy of Petitioner's policies would be made available to Respondent. Finally, the Superintendent's November 1, 2001, letter denied Respondent's request for reassignment as premature. However, that request was subsequently granted. On November 4, 2001, Respondent wrote a letter to the Superintendent. The letter states, among other things, that a student had called his home to tell him that his daughter was threatening other students. Respondent demanded a written explanation from the Superintendent regarding the persons who assisted the student in using the office phone to make the call and insisting that the Superintendent investigate the incident. There is no persuasive evidence that Respondent's daughter ever threatened her classmates. Respondent attended the meeting with the Superintendent on November 7, 2001. During the meeting, the Superintendent granted Respondent's request for additional time to respond to the allegations in writing. Respondent made his written response in a letter dated November 12, 2001. In Respondent's November 12, 2001, letter, Respondent apologized for using certain inappropriate words in class but argued that technically they were not defined as "profanity." He denied that he had ever disobeyed a direct order but apologized for offending the Superintendent in a heated conversation. He denied intimidating and embarrassing students, claiming that he only administered warranted admonishments. Respondent could not recall what he had said to students about the terrorists on September 11, 2001. He condoned the division of the word "assassination" into syllables to help the students learn to spell it. He denied that he called a student fat but admitted that he may have used the work lazy. Respondent accused a student of using the word ass instead of donkey to describe Democrats, stating that he thought nothing of the student's comment at the time. By letter dated December 7, 2001, the Superintendent suspended Respondent's employment with pay. The letter stated that the suspension would be effective until Petitioner's next board meeting on December 11, 2001. Respondent and another school employee ran against the Superintendent for the elected position of Superintendent of Gilchrist County Schools in 2000. The Superintendent was reelected in the first primary. There is no persuasive evidence that the Superintendent's investigation and ultimate decision to recommend suspension of Respondent's employment was politically motivated. There have been other incidents where the Superintendent has had to discipline teachers for using profanity. There has been no situation where the Superintendent has failed to take some disciplinary action against these teachers. The type of discipline in each incident was decided on a case-by-case basis, depending on the circumstances. Petitioner has a policy entitled "Profane or Obscene Language," which states as follows in pertinent part: Under no condition shall any School Board employee be permitted to use profane or obscene language in his or her relationship with students. Any employee who uses profane or obscene language while speaking to, communicating with or in the presence of students shall be guilty of misconduct in office, conduct which seriously reduces his/her effectiveness as an employee and failure to comply with a School Board rule. On every occasion in which a violation of this policy has been brought to the attention of the Superintendent, he has issued some form of discipline. There is no policy requiring the Superintendent to inform anyone about the discipline of another teacher. During the public input period of the hearing, the general public was given an opportunity to present oral or written communications. Five individuals spoke on Respondent's behalf. Some of these witnesses could not believe that Respondent would engage in the conduct of which he was accused but conceded that if Respondent had behaved in such inappropriate conduct, it might change their opinion of him. Two citizens testified on behalf of Petitioner during the public input period. One witness was a former student of Respondent who presented credible testimony that Respondent called him a "swinging dick" on one occasion and threw the student's shoe out the window on another occasion because the student had his foot on his desk. The other public input witness testifying for Petitioner was the father of a former student. This witness presented credible evidence that Respondent engaged in degrading and humiliating behavior toward his family, by insulting them during a parent/teacher meeting. During this meeting, Respondent accused the father of not having the ability to comprehend or deal with the situation and that the father was not mentally capable of carrying on a conversation with him. Respondent used many posters as visual aides in his classroom. For example, Respondent had pictures of every president of the United States up on the walls. One of Respondent's classes in 1992 hung President Clinton's picture upside down until the assistant principal required Respondent to turn the picture right side up in 1998. Respondent routinely placed a Groucho Marx nose on the picture of the President when the class was studying about that president. There is no clear and convincing evidence that Respondent used the nose to disparage one president over another. However, there is competent evidence that Respondent did not immediately remove the nose from President Clinton's picture when the assistant principal requested him to do so. In the Fall of 2001, the principal found one poster on the outside of Respondent's classroom door. The posted depicted a crying baby and a picture of the official seal of the United States Democratic Party, with the caption "Don't be a cry baby." The principal removed the picture from Respondent's door because the principal did not believe the poster was politically neutral. In prior years, the principal twice instructed Respondent to remove a car tag from his bulletin board. The car tag showed a person urinating on President Clinton's name. The second time that Respondent was directed to remove the tag, he covered the tag with a paper containing the word "censored" on it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order dismissing Respondent from his employment as a teacher in the Gilchrist County School System. DONE AND ENTERED this 26th day of June, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 26th day of June, 2002. COPIES FURNISHED: Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Don Thomas, Superintendent Gilchrist County School Board 310 Northwest 11th Avenue Trenton, Florida 32693-3804 William H. Andrews, Esquire Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203 Dan Taylor Post Office Box 657 Bell, Florida 32619-0657
The Issue The issue to be resolved in this proceeding concerns whether the Respondent should be discharged for alleged violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1991)("Act"), as set forth in the Notice of Termination entered May 6, 2004.
Findings Of Fact The Respondent holds Florida Educator's Certificate No. 537246, licensing her to teach in Florida. That license allows her to teach music for kindergarten through twelfth grades. She has worked for the Duval County School Board as a teacher continuously since 1997 and is a tenured teacher. She has prior teaching experience with the Duval County School Board as well. During the 2001-2002 school year Patsy Butterbrodt, a music teacher for the Petitioner, evaluated the Respondent during Ms. Johnson's assignment as a teacher at William Raines High School (Raines). Ms. Butterbrodt found that the Respondent's teaching was unsatisfactory due to the Respondent's poor organization, her failure to comply with the music curriculum which had been adopted, and overall lack of professionalism. Ms. Butterbrodt, is the principal author of the music curriculum, provided the curriculum to Ms. Johnson and observed her teaching. The Respondent taught at Andrew Jackson High School (Jackson) during the 2002-2003 school year. During that year Principal Jack Shanklin counseled the Respondent concerning her excessive absences and excessive tardiness, as well as her failure to comply with the Petitioner's curriculum standards and other requirements. He found that her lesson plans were habitually inadequate and "sketchy" and that she failed to adequately adhere to "standards based teaching" principles and requirements. She was required to make a syllabus for her students and never did so. These problems, coupled with her excessive tardiness and absences resulted in her being placed upon a "Success Plan" designed to improve her performance. She continued to be deficient, however. Her student progress reports were never done on time and she was non-compliant with her Success Plan. After the inauguration of the Success Plan her lesson plans were still inadequate. On December 16, 2002 the Respondent was given a written reprimand for her tardiness and excessive absences and was suspended without pay for five days. At the request of Principal Shanklin, the assistant principal for curriculum, Ms. Pierce, observed and evaluated the Respondent. Ms. Pierce concluded that her performance was unsatisfactory. Ms. Pierce reported that the Respondent failed to comply with the curriculum standards or with standards for punctuality. She often simply failed to attend her class. In fact, security became a problem during the Respondent's tenure at Jackson High School. She was often not at her classroom on time, causing the students to be locked out of the room. The Respondent also repetitively failed to enforce tardy procedures for students. Ms. Pierce wrote the Success Plan which the Respondent failed to comply with for her tenure at the Jackson High School. Principal Shanklin also asked Allen Fletcher, the assistant principal for curriculum at Jackson to observe and evaluate the Respondent. He evaluated and monitored her compliance with the Success Plan. He established that progress reports for students were not finished on time by the Respondent and that the "scan sheets" regarding student academic progress were habitually late. He established that she was non-compliant with the Success Plan designed to improve her performance (See Exhibit M in evidence). At the conclusion of the 2002-2003 school year, Principal Shanklin evaluated Ms. Johnson as being unsatisfactory. Art Lauzon was the principal at Sheffield Elementary School at times pertinent hereto. The Respondent was assigned, at her request, as a music teacher at that school for the 2003- 2004 school year. A Success Plan was developed for the Respondent at Sheffield and principal Lauzon personally administered the plan. During that school year Mr. Lauzon observed the Respondent using inappropriate teaching methods and being excessively tardy and absent on multiple occasions. He had difficulty getting her to attend school reliably. She was ultimately assigned an unsatisfactory rating for that school year. Mr. Lauzon found that her lesson plans were never adequate and that parents were sending letters of complaint to him. Dr. Mary Jeanette Howle has a doctorate degree in music education and is nationally board-certified in music education. Dr. Howle established the applicability of the Sunshine State Standards for music education as the basis for the curriculum the Respondent was supposed to employ (as shown by exhibit B in evidence). She observed the Respondent on three occasions. The Respondent did not comply with the properly adopted musical curriculum nor did she employ appropriate teaching standards. Additionally Jan Moore, a teacher with 35 years' experience in the Duval County System and 33 years' experience at Sheffield Elementary was asked to observe the Respondent's teaching. Ms. Moore found the Respondent's attendance to be unsatisfactory and that she employed poor teaching methods and practices. She opined that the Respondent was an unsatisfactory teacher, although she was a very talented musical performer and a nice person. Dr. Howle likewise found her to be a warm and loving person in her relationship with students, but a very unsatisfactory teacher. Their opinions are most credible and are accepted as fact. At the conclusion of the 2003-2004 school year at Sheffield Elementary, Ms. Johnson received another unsatisfactory evaluation, as a result of these observation and evaluation efforts. Mr. John Williams has 25 years' experience with the Duval County School Board. He is the director of professional standards and is responsible for employee discipline. He suspended the Respondent for five days without pay due to her repetitive tardiness. He established that the Respondent's tardiness, attendance pattern, and absences were unacceptable. Mr. Williams sponsored Composite Exhibit A which is a two-page compilation of the Respondent's absences. She had missed a total of 356.85 hours at Jackson High School and 259.73 hours at Sheffield Elementary School. These attendance deficiencies are grossly excessive. Mr. Williams also established that there had been many problems in the Respondent's past history with the Duval County School Board concerning her performance, her attendance, and tardiness earlier than the past two years and at least as far back as 1992. Mr. Williams was the custodian of the Respondent's complete file, including her disciplinary record, and also established that the Respondent has been a unsatisfactory teacher for a substantial period of time. The Respondent testified and essentially admitted most of the allegations of the Petitioner. She acknowledged the problems with her teaching and the problems with her tardiness and attendance. She argued, however, that her previous many years' employment experience with the Petitioner should ultimately affirm her value as a teacher and justify her retention. Mr. Williams established, particularly on rebuttal, that the problems found above concerning the Respondent's performance as a teacher, and her past history of performance were of long standing as to her attendance, punctuality and adherence to professional standards. Indeed, if she had made only one point lower on her evaluation for the 1991-1992 school year she would have received an unsatisfactory rating for that year as well. In summary, the Petitioner established that the Respondent's performance as a teacher, and her professional competence as a teacher are so deficient as to justify her termination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Duval County School Board finding that the Respondent, Diane Johnson, should be discharged from her employment with the Duval County School District. DONE AND ENTERED this 2nd day of March, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 2nd day of March, 2005. COPIES FURNISHED: John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Virginia Baker Norton, Esquire City of Jacksonville Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Diane Johnson 2746 Stardust Court, No. 44 Jacksonville, Florida 32211
The Issue The issue is whether Petitioner has just cause to terminate Respondent’s employment for gross insubordination, deficient performance, and conduct unbecoming a school board employee.
Findings Of Fact Petitioner employed Respondent continuously from December 6, 1993, through her termination on January 12, 2000. During her entire term of employment, Respondent was employed as a Secretary II. Respondent has a bachelor of science degree in marketing and business from Liberty University in Virginia. Prior to her employment with Petitioner, Respondent had worked as a secretary, including at Florida National Bank and, while living out-of- state, First Pennsylvania Bank. Respondent described her work with Petitioner as enjoyable. She testified that it involved word processing, answering the telephones, and filing. Respondent’s initial assignment was to provide clerical support for exceptional student education. This work required, among other things, considerable speaking on the telephone to coordinate the work of district-office workers with the various schools that they served and typing of school psychological reports concerning students. Repeatedly, Respondent demonstrated problems with accurate and timely typing of school psychological reports, declined to take school-related telephone calls from the switchboard, and reported to work late. When her supervisor conducted an informal conference, Respondent explained that she was often late to work due to a conflicting school schedule of her child, so the supervisor agreed to start Respondent’s workday one-half hour later. When Respondent’s tardiness did not improve, the supervisor had a formal conference for the record (CFR). At the CFR, which took place on February 27, 1995, the supervisor warned Respondent that she must report to work on time and do her job while at work. During this period, Respondent would be late 10-15 times within a 20-day pay period. These occasions of tardiness were substantial, not a couple of minutes, but 30-40 minutes. Even after the supervisor postponed Respondent’s starting time, Respondent continued to report to work late. During this period, Respondent resisted answering the phone and typing. The supervisor had one primary typist, whose typing speed was considerably better than the typing speed of the other secretaries, so the supervisor directed her to do nothing but type school psychological reports. The supervisor directed the other three or four secretaries, of whom Respondent was one, to type school psychological reports when time permitted and to answer the telephone to assist district-office field workers, school personnel, and parents. Respondent resisted this dual assignment. The supervisor could not recall having another CFR for any other employees during the period that she supervised Respondent. Shortly after the February 27 CFR, Respondent’s supervisor transferred to a different area and did not have further contact with Respondent. Respondent’s new supervisor also had problems with Respondent’s job performance. On June 23, 1998, the supervisor completed a written evaluation of Respondent’s job performance and rated her unsatisfactory in knowledge (specifically, ability to communicate effectively) and interpersonal skills (specifically, positive relationship with the public and harmonious relationship with the staff). The overall performance rating was unsatisfactory with the following note: “Additional opportunities will be provided to Annet to improve her interpersonal skills that interfere with the day-to-day operations of the office. If not successful, stronger measures will be taken.” Protesting the inaccuracy of the evaluation, Respondent refused to sign the form. The new supervisor had observed Respondent’s communications with parents on the telephone and staff in the office. Respondent was often rude with parents, so the supervisor talked to her about how to answer the telephone, giving her suggestions for improvement. Respondent’s relationship with her coworkers suffered from her disruptive behaviors, such as loud singing and talking. At one point, Respondent’s relationship with one coworker had so deteriorated that it became necessary for her supervisor, in September 1998, to direct Respondent to change desks. However, when directed to change desks, Respondent refused, forcing her supervisor to reduce the directive to writing. About four months later, to give Respondent a fresh start elsewhere, her supervisor facilitated Respondent’s transfer to a school that served as a center for exceptional student education. The supervisor did not fill the vacancy in the district office created by the transfer, nor did she fill an existing vacancy at the school; essentially, the supervisor merely transferred the physical location of Respondent’s job position. By memorandum dated January 12, 1999, Respondent’s supervisor advised Respondent of the transfer and her new duties, which again included typing school psychological reports. The memorandum also informed Respondent that her workday hours would remain 8:00 a.m. to 4:30 p.m. with lunch from 12:30 p.m. to 1:30 p.m. and breaks starting at 10:15 a.m. and 3:00 p.m. About one week after Respondent reported to the school for her new assignment, the principal gave her a written schedule showing Respondent’s hours as 8:00 a.m. to 4:30 p.m. with one hour for lunch and 15-minute breaks starting at 10:00 a.m. and 2:30 p.m. The schedule also assigned tasks to be performed during different times of the day. These tasks included typing, filing, telephone work, and assisting parents, staff, and students. These tasks included one block of two hours and fifteen minutes devoted to performing district-office tasks, but while remaining at the school to which Respondent had just been reassigned. Respondent was dissatisfied with her new assignment, preferring to work at the district office where she had been assigned. Respondent’s new supervisor, the school principal, noticed immediately that Respondent had trouble interacting appropriately with staff and parents, typing school psychological reports accurately, and answering the telephone when it rang. The principal corrected Respondent’s style of answering the telephone, informing her that she was to identify the school and herself, offer assistance, and offer to take a message if the person being called is not available. Instead, the principal heard Respondent repeatedly deal with callers brusquely, such as by stating, “They’re not in the office. Call back later.” While at the switchboard, Respondent repeatedly sent callers to the wrong extension. On April 15, 1999, the principal had a CFR with Respondent. The next day, the principal gave Respondent a written memorandum reflecting their discussions. The memorandum identifies nine specific areas of Respondent’s job performance, to which the principal expressed serious concerns. For each of these areas, the memorandum supplies a detailed list of behaviors and actions to do and not to do. For example, the form directs Respondent to speak with others pleasantly, politely, and professionally--not argumentatively, sarcastically, or caustically. Another item directs Respondent to spell check and proof read all typed materials--not submit uncorrected typed materials. Another item directs Respondent to remain engaged in work while at work--not doodle, read magazines, or make personal telephone calls while at work. The memorandum documents informal conversations on February 4 and March 17 between the principal and Respondent in which the principal had already counseled Respondent about her rudeness and idleness, including one conversation in which the principal noted, “You had to be told in excruciating detail how to perform the most mundane of tasks.” The memorandum notes that Respondent had characterized the principal’s assessment of her work as unfair, and the principal had warned her that a failure to improve her job performance and her relationships with staff and parents would jeopardize her future employment with Petitioner. The memorandum notes that the CFR of the preceding day had ended with the comment from Respondent: “If you need to let off steam you need to find another way to do it. This is ridiculous.” During this period of time, Respondent had informed the principal that it was not Respondent’s job to proofread the material that she typed and, thus, she would not spell check these documents. On at least one occasion, Respondent mistyped a form, confusing the specific learning disability and severely emotionally disturbed classifications of exceptional students. During one month, every single item that Respondent typed had to be returned to her for corrections--at least once and sometimes more than once. Respondent resisted the principal’s criticisms by telling the principal to "get a life" and that the principal did not know what she was doing. In front of one parent, Respondent said that the mother should be doing a better job with the child. Many of Respondent’s statements of these types to supervisors, coworkers, and parents were made in the presence of students. The principal found Respondent repeatedly not working or reading a magazine when she had work to do. In response, Respondent would assert that she had not been told to do anything, and the principal each time reminded her that there was always filing to be done. At least four times over two months, the principal found Respondent on a personal call while parents or students were waiting for her to take care of their needs. One time, when the principal asked her if she could break off the call and take care of the people waiting, Respondent merely shrugged her shoulders and rolled her eyes, not responding whether the call was an emergency and leaving the principal to deal with the waiting parent. One morning, the principal walked into the office and observed the registrar working with the parent and the telephone start to ring. The registrar asked Respondent to answer the phone, but she did not. After the third ring, the principal answered the phone. Another time, the registrar was busy at the counter with a parent when she was summoned to the telephone. After a few moments, the registrar put the caller on hold and asked Respondent to remove an item from the mail because the mail room attendant was approaching. Refusing to comply with the request, Respondent told the registrar, “I didn’t put it in there. I’m not taking it out.” A distinct act of insubordination took place after the April 15 CFR and April 16 memorandum. On this morning, the principal entered the office and found the staff extremely busy, such as obtaining materials for teachers. Respondent was issuing admission slips for tardy arrivals. The telephone was ringing, and staff was juggling their other activities as best they could while still answering the phone. However, Respondent, although seated next to the switchboard, was not answering the phone at all. When the principal asked her to answer it, Respondent loudly replied, “Do you think I can do two things at once?” The whole office became quiet, as a teacher answered the telephone. The principal directed Respondent to start answering the phone, but four more calls came in, and Respondent refused to answer them. More memoranda followed. On May 25, 1999, the principal provided Respondent a detailed memorandum with an evaluation. The memorandum covers the same items already discussed. The evaluation is unsatisfactory in every major category. A memorandum dated May 27, 1999, accompanying a CFR of the same date, discusses, among other things, the telephone incident described in the preceding paragraph and reemphasizes that Respondent is the first person responsible for answering the telephone. Another CFR took place on June 9 with another memorandum dated the next day at which the same issues are discussed. The principal provided Respondent with a detailed list of recorded deficiencies, prescriptive means by which to correct them, recommended resources, and deadlines. The principal extended the deadlines for performing fairly undemanding tasks, but Respondent declined to perform them. At the start of the 1999-2000 school year, Respondent routinely came to work late. She was late every day in September, rarely arriving less than 30 minutes late and once over one hour late. On Monday, October 4, 1999, the principal provided Respondent with a memorandum documenting the days and extent of her tardy arrivals. The memorandum documents a discussion between the principal and Respondent on the preceding Friday, October 1. The memorandum notes that Respondent claimed to have changed her schedule, on her own authority, and the principal had informed her that the principal, not Respondent, had the sole authority to set her schedule. The memorandum documents that the principal had suggested that Respondent follow established procedure to change her starting time, but, until and unless the principal changed the time, Respondent was to report to work at 8:00 a.m., as she was always required to have done, on the following Monday, October 4. The memorandum notes that Respondent responded that she had to take her daughter to school and would not be reporting to work at 8:00 a.m. The memorandum documents that, on the morning of Monday, October 4, Respondent called in at 8:40 a.m. saying she had had car trouble and would be late; she arrived at 9:15 a.m. On October 5, the principal conducted another CFR and issued another memorandum, dated October 5. Respondent did not report to the CFR when directed, and the principal had to have her assistant principal get Respondent. After initially declining to attend, Respondent appeared at the CFR, 15 minutes late. When the principal asked Respondent to take a seat, she replied that she would prefer to stand, and did so. Disputing the date set for the CFR, Respondent stated that she would not remain. At the conference, the principal read Respondent the following definition of gross insubordination or willful neglect of duties: “a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.” Respondent unsuccessfully attempted to change her schedule to postpone her starting time to 8:30 a.m. Respondent was late to work every day from September to January. Each day, she would leave work at 3:40 p.m. to pick up her daughter and return to work late, usually at 4:05 or 4:10 p.m. However, when the principal offered to shorten her day by one-half hour, so as to allow her to leave work one-half hour earlier, Respondent refused to shorten her lunch. On October 6, 1999, the principal issued Respondent a reprimand for failing to finish her prescriptive activities within the extended deadlines. Giving her until October 26 to complete them, the reprimand warns: “Failure to comply with this directive will constitute gross insubordination and may lead to further disciplinary action.” On October 7, the principal sent her assistant principal to summon Respondent to the principal’s office to provide Respondent with the above-described documents. Respondent refused to come. The principal approached Respondent and asked her to come to the principal’s office, but Respondent replied that she had no intention of reporting to the principal’s office ever again and the principal was harassing her. The next day, Respondent did not report to work. When Respondent failed to meet the October 26 deadline, the principal issued a memorandum, dated October 28, citing her for gross insubordination. This memorandum effectively marked the end of the principal’s involvement with Respondent. Overall, Respondent’s repeated insubordination and carelessness had undermined the morale among staff at the school. The principal found it hard to assign work to other secretaries, who rightly felt that they were carrying Respondent’s load. The atmosphere in the office became strained. The principal could not possibly have done anything more to help Respondent do her work. It was not an issue of ability, but of a lack of effort and refusal to make the effort. At one point, Respondent told the principal that she found it demeaning to be told to file and answer the telephone given her high-level skills. Attempts by the district office to conduct CFRs were met by Respondent’s defiance: she did not attend any of the three scheduled meetings. By letter dated January 13, 2000, Petitioner suspended Respondent, effective January 12, 2000, and initiated this proceeding to terminate Respondent’s employment. Respondent is subject to the Contract between Petitioner and the United Teachers of Dade (Contract). Contract Section 3.D provides that Petitioner may terminate a covered, noninstructional employee, such as Respondent, for “just cause.” Section 3.D defines “just cause” as including: “misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009.” Petitioner has proved that Respondent is guilty of gross insubordination.
Recommendation It is RECOMMENDED that The School Board of Miami-Dade County, Florida enter a final order terminating Respondent’s employment. DONE AND ENTERED this 7th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2000. COPIES FURNISHED: Roger C. Cuevas, Superintendent The School Board of Miami-Dade County, Florida 1450 Northeast Second Avenue Room 912 Miami, Florida 33132-1308 Timothy A. Pease The School Board of Miami-Dade County, Florida 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Joseph F. Lopez 250 Bird Road, Suite 302 Coral Gables, Florida 33146
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following bindings of fact: The Respondent, Consuelo DeArmendi, holds a Rank I Florida teaching certificate #399385, expiring June 30, 1987, authorizing her to teach foreign languages in secondary education. The Respondent has been employed as a foreign language teacher by the Dade County school system for approximately eight (8) years beginning in 1978. Respondent was initially employed at Miami Palmetto Senior High School for the 1978-79 school and taught at Highland Oaks Junior High School for the 1979-80 school year. Beginning with the 1980-81 school year, Respondent taught Spanish and French at Miami Carol City Senior High School where she remained until her suspension on June 4, 1986. 1980-81 SCHOOL YEAR During the 1980-81 school year, the Respondent was late or absent from Miami Carol City Senior High School on many instances and failed to call the school office as prescribed in the Faculty Handbook. According to the handbook, which is provided to all teachers, a teacher is required to notify the school prior to leaving if the teacher is aware that he or she will be absent the following day. A teacher may also call a designated member of the clerical staff between 6:00 p.m. and 9:30 p.m. if they intend to be absent the following day but were unaware of the intended absence prior to leaving school. Finally, the teacher is allowed to report an unexpected absence to the school on the morning of the absence between 6:30 and 6:45 a.m. Advance notice of an absence allows the school to secure substitute teacher coverage for the class. For the 1980-81 school year, Respondent was observed and evaluated by her principal and rated "unacceptable" in preparation and planning, professional responsibility and supportive characteristics because of repeated absences and tardiness. On February 10, 1981, the principal placed the Respondent on extended annual contract for failure to improve her attendance at work and failure to comply with school policy regarding teacher absences. 1981-82 SCHOOL YEAR The classroom observation of Respondent conducted on November 11, 1981 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher Student Relationships; and Category VII - Professional Responsibility. The classroom observation of Respondent conducted on March 1, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques; Category VI - Teacher-Student Relationships; and Category VII - Professional Responsibility. The classroom observation of Respondent conducted on March 18, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher-Student Relationships and Category VII - Professional Responsibility. The classroom observation of Respondent by Ms. Wally Lyshkov, the school district foreign language supervisor, conducted on April 15, 1982, resulted in an overall "unacceptable" rating. In particular, Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques and Category VI - Teacher-Student Relationships. Ms. Lyshkov's observation of Respondent's teaching techniques and materials revealed that Respondent had a multi- level class (Spanish II and III combined), but only used one set of lesson plans. The lesson plans did not include the variety of activities that are usually and normally found in a multi-level class. The students tended to ignore any directions that Respondent gave and there was little, if any, exchange with the students. There was almost no activity or active participation on the part of the students, and Respondent was generally unaware of what the students were doing. During the 1981-82 school year, the Respondent received assistance and recommendations from Ms. Lyshkov on handling multi-level classes and assistance in establishing various student-directed and teacher-directed activities. In Ms. Lyshkov's opinion, the Respondent did not demonstrate an ability to deliver quality education or instruction because of her ineffectiveness in transmitting her knowledge to the students. During the 1981-82 school year, the principal became concerned with Respondent's excessive number of absences and her failure to comply with the school's procedures for calling in and reporting absences. In addition, the principal had received several complaints from students and parents concerning Respondent's excessive absences. On March 8, 1982, the principal gave her a notice of not complying with procedures and requested a formal conference to discuss Respondent's excessive absenteeism and student complaints. On June 3, 1982, Respondent was officially observed in the classroom by the principal and received an overall rating of acceptable. However, Respondent was rated unacceptable in Category VIII - Professional Responsibility, because of her consistent failure to follow guidelines in reporting her absences and her excessive number of absences which negatively impacted on the continuity of instruction provided to her students. In the Respondent's Annual Evaluation Report for the 1981-82 school year, the principal recommended that Respondent not be re-employed. The Respondent was rated "unacceptable" in preparation and planning, classroom management, techniques of instruction, teacher-student relationships, professional responsibility and supportive characteristics (teacher contribution to total school program). Despite the principal's recommendation, Respondent was re-hired because she had already achieved continuing contract status. 1982-83 SCHOOL YEAR On January 26, 1983, the principal conducted a conference-for-the- record with Respondent. The conference was held because of Respondent's attendance record, lack of planning and failure to comply with instructions governing the reporting of absences. On several occasions, the Respondent failed to timely notify the school about her intention to be absent which resulted in difficulties obtaining a substitute teacher and often required another teacher to cover the Respondent's classes as well as his/her own class. In addition, teachers are required to have emergency lesson plans on file for use by substitute teachers when the primary teacher is absent. The Respondent did not have any emergency lesson plans on file. Respondent had been absent from her teaching assignment twenty-seven (27) days since the beginning of the 1982-83 school year. During the January 26, 1983 conference, Respondent informed the principal that she was taking medication (lithium) because of a manic-depressive disorder and that her most recent string of absences were due to a failure to take a proper dosage of the medication. The principal reminded Respondent of her responsibility to properly notify the school when she was going to be absent or tardy and referred her to the Employee Assistance Program. 1983-84 SCHOOL YEAR During October 1983, the Respondent was warned by the assistant principal on several occasions about her failure to properly inform the school regarding her absences. She was referred to the Faculty Handbook to review teacher's absences. Further, she was asked to prepare at least one week of emergency lesson plans to be used in her absence. Respondent did not prepare the emergency lesson plans as required. A classroom observation of Respondent conducted on November 22, 1983 by the assistant principal resulted in an overall "unacceptable" rating. In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning because she did not have adequate lesson plans for the subjects being taught. The lesson plans were not suitable for Respondent's mixed-level class because there was no distinction between student activities. Respondent was rated "unacceptable" in Category IV - Techniques of Instruction because there was no distinction in instruction provided to the different levels and groups of students. Respondent was rated "unacceptable" in Category V - Assessment Techniques because she did not follow school policy concerning grades which required at least one grade per week. There were only two or three grades on the roll book per student (this was the ninth week of school) and there was no rationale for the grades. Respondent did not maintain any records of student achievement other than what was on the roll book. Respondent was found "unacceptable" in Category VII - Professional Responsibility and Category VIII - Supportive Characteristics because of her excessive absences and her failure to follow proper procedure in reporting absences. The Respondent's excessive absences led to problems with continuity in student instruction as well as parental and student complaints. As a result of the observation on November 22, 1983, Respondent was given a prescription of planned activity which was designed to help her improve in these areas that had been rated unacceptable. On December 2, 1983, the Respondent was again warned by the assistant principal about reporting absences in a timely fashion. As was the case in most instances, the Respondent was absent and had failed to notify the school in a timely manner. A classroom observation of Respondent conducted on January 19, 1984 by the assistant principal resulted in an overall rating of "unacceptable". In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning; Category V - Assessment Techniques; Category VII - Professional Responsibility; and Category VII - Supportive Characteristics. For the 1983-84 school year, the principal rated Respondent as acceptable and recommended her for employment primarily because he had noted a sharp turnaround in Respondent's performance in the second half of the school year, starting in February, 1984. The principal knew that Respondent had been hospitalized in December 1983, and believed that as long as she was receiving medical attention and taking medication, she would be capable of performing in the classroom. 1984-85 SCHOOL YEAR At the conclusion of the 1984-85 school year, the principal rated the Respondent acceptable in all categories and recommended her for employment. 1985-86 SCHOOL YEAR On October 4, 1985, the principal held a conference for the record with Respondent to discuss her continued excessive absenteeism, failure to timely notify the school regarding her absences and numerous parent and student complaints regarding the instruction in Respondent's classroom. On October 4, 1985, the school year had been in session for students for twenty-two (22) days. The Respondent had been absent 10 days and had only completed one full week of school without an absence. At a conference on October 4, 1985 with the principal, Respondent indicated that she was under medication and that the problems she was experiencing would be corrected. On October 17, 1985, the assistant principal conducted an observation of Respondent's classroom. Respondent was rated overall as "acceptable", but was rated "unacceptable" in classroom management. Respondent was rated "unacceptable" in classroom management because of an apparent lack of control over the students in her classroom. When the assistant principal entered the classroom, the teacher was sitting at the desk and seemed to have little or no control over the students. Only four (4) or five (5) students were participating in the class discussion and the balance of the 25-30 students in the classroom were combing their hair, talking, eating or doing whatever they chose to do. When Respondent noted the presence of the assistant principal, she began to shout loudly at the class in an unsuccessful attempt to gain control. After the October 17 observation, the assistant principal gave Respondent a prescription for classroom management which required her to plan instructional activity to cover the entire hour of the class, establish a seating chart, separate talking students, plan activities with other Spanish teachers for instruction, work with the guidance counselor and make parental contacts with students who were disruptive in class. Respondent did not comply with or perform the planned activities set forth in the prescription. On November 6, 1985, the principal directed Respondent to provide a doctor's statement whenever she was absent because of illness. Respondent was absent after the directive and did not comply with it or provide an explanation for her absence. Between November, 1985 and early February, 1986, the Respondent took leave. She returned to work on February 14, 1986 and shortly thereafter continued her pattern of absences. In early March, 1986 the principal scheduled a conference for the record with Respondent for March 5, 1986 to discuss several student and parent complaints which the school had received. The Respondent was absent and did not attend the conference scheduled for March 5. Although the Respondent called the school to report an intended one day absence, the school did not hear anything from Respondent nor anything of her again until March 14, 1986. On March 14 a corrections officer contacted the school and stated that the Respondent was in the Women's Detention Center on a charge of battery and was being held pending a psychiatric examination at Jackson Memorial Hospital. Respondent was absent from her school assignment from March 5 until May 7, 1986. This absence negatively affected instructional continuity and the quality of education provided to the students in Respondent's classes. During the 1985-86 school year, Respondent was absent from her work assignment for at least eighty (80) days. At the conclusion of the 1985-86 school year, Respondent was evaluated by her principal as "unacceptable" and was not recommended for employment. Respondent was rated "unacceptable" in classroom management and professional responsibility. Throughout her period of employment, Respondent has undergone psychiatric medical treatment from at least five different physicians: Dr. Martinez, Dr. Garcia-Granda, Dr. Diaz, Dr. Metcalf and Dr. Vilasusa. Respondent has been diagnosed as a manic-depressive, characterized by periods of deep depression and/or extreme elation. It was uncontroverted that Respondent has an excellent command of her academic specialities--Spanish and French.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be issued sustaining Respondent's suspension and dismissing Respondent from employment with the School Board of Dade County, Florida. DONE and ORDERED this 22nd day of June, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2274 The following constitutes my specific rulings pursuant to Section 120.59 (2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner. 1. Adopted in Finding of Fact 2. 2. Adopted in Finding of Fact 3. 3. Adopted in Finding of Fact 5. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 6. 6. Adopted in Finding of Fact 9. 7. Adopted in Finding of Fact 11 8. Adopted in Finding of Fact 11. 9. Adopted in Finding of Fact 12. 10. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 12. 12. Adopted in Finding of Fact 13. 13. Adopted in Finding of Fact 13. 14. Adopted in Finding of Fact 14. 15. Adopted in Finding of Fact 15. 16. Adopted in Finding of Fact 15. 17. Adopted in Finding of Fact 16. 18. Adopted in Finding of Fact 17. 19. Adopted in Finding of Fact 18. 20. Adopted in Finding of Fact 19. 21. Adopted in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25. Adopted in Finding of Fact 25. Rejected as a recitation of testimony. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Adopted in Finding of Fact 33. Rejected as a recitation of testimony. Rejected as a recitation of testimony and/orsubordinate. Rejected as a recitation of testimony and/orsubordinate. COPIES FURNISHED: Johnny Brown, Esquire Suite 301 1450 N.E. Second Avenue Miami, Florida 33132 William DuFresne, Esquire 2929 S.W. Third Avenue Suite One Miami, Florida 33129 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education The Capitol Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Dade County Public Schools 1450 N.E. Second Avenue Miami, Florida 33132
The Issue The issue for determination is whether Petitioner has just cause to terminate Respondent's employment as an educational support employee.
Findings Of Fact Petitioner employed Respondent as a food service worker at Lehigh Acres Middle School in Lee County, Florida (the school), from October 22, 1998, until August 2, 2004, when Petitioner suspended Respondent with pay and benefits. A food service worker is an educational support employee defined in Subsection 1012.40(1)(a), Florida Statutes (2004). Petitioner proposes to terminate Respondent's employment on the basis of facts alleged in the Petition for Termination dated August 11, 2004 (the petition). In relevant part, the petition alleges that during the 2003-2004 school year Respondent was guilty of excessive absences that affected Respondent's ability to carry out the essential functions of her position within the meaning of Section 9.015 of the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (SPALC agreement). During the 2003-2004 school year, Respondent's work day began at 8:30 a.m. and ended at 3:00 p.m. Each day included two paid 15-minute breaks and one unpaid 30-minute lunch break. Respondent's immediate supervisor adopted a policy identified in the record as a "ready-to-work" policy. The policy required food service workers, including Respondent, to put on their hair nets and aprons and wash their hands before beginning work. After a worker was ready to work, the worker then entered in a daily log sheet the time that the worker began work each day. The policy also required each worker to record in the daily log the time the worker left work and any period that the worker left and returned to work in the same day. The supervisor incorporated the "ready-to-work" policy in a revised employee handbook. The revised handbook was distributed to food service workers on September 26, 2003. On December 10, 2003, Respondent signed a form acknowledging that she had read the revised handbook. On 47 days from August 14, 2003, through May 20, 2004, Respondent was late to work, left work early, left for part of the same day, or was absent the entire day. Respondent was late to work on 20 days, left work early on 13 days, was absent 13 days, and left for part of one day for two hours and ten minutes. Petitioner deems all 47 instances to be "absences" within the meaning of Section 9.015 of the SPALC agreement. Assuming arguendo that all 47 instances are absences, the preponderance of evidence does not show that the absences were unauthorized. The supervisor testified at the hearing. The supervisor did not have authority to approve or disapprove absences. Rather, the head of the department or the school principal authorized requests for absences. Neither the head of the department nor the principal testified at the hearing. The supervisor did not know whether Respondent's absences were unauthorized. The supervisor merely reported the 47 absences to the "front office" and later determined they were unauthorized and excessive. Petitioner did not submit personnel records that may have documented which absences, if any, were unauthorized. Counsel for Petitioner argued during the hearing that even authorized absences can adversely affect Respondent's ability to carry out the essential functions of her position within the meaning of Section 9.015. However, counsel did not cite any legal authority in his PRO to support the argument. Assuming arguendo that all 47 absences were unauthorized, Subsection 9.016(a) of the SPALC agreement imposed an affirmative duty on Petitioner to inform Respondent, immediately upon her arrival to work following each absence, that Petitioner considered the absence to be unauthorized. The purpose of the requirement is to afford an employee such as Respondent with notice and an opportunity to show extenuating circumstances. If an employee demonstrates extenuating circumstances, the agreement requires Petitioner to change the absence to an authorized absence. It is undisputed that Respondent had several physical conditions, including skin cancer and a miscarriage, that affected her attendance during the 2003-2004 school year. The preponderance of evidence shows that Respondent was absent from work due to medical conditions. During the hearing, Petitioner stipulated that it was withdrawing several dates as a basis for its proposed termination of employment. The withdrawn dates include all 13 days on which Respondent was absent for an entire day; the day that Respondent left and returned to work for part of the day; and ten days that Respondent left work early on August 25 and September 10, 2003, and between October 20, 2003, and March 26, 2004. The stipulation reduced the contested absences on which Petitioner based the proposed termination to 20 days when Respondent was late to work and three days when Respondent left work early. As previously found, Petitioner failed to submit testimony or documentation that the contested absences were unauthorized or that Petitioner informed Respondent upon her arrival to work that Petitioner had determined the immediately preceding absence to be unauthorized. Assuming arguendo that the contested absences were unauthorized and that Petitioner provided timely notice to Respondent, the contested absences present other evidential concerns for the trier of fact. On 12 of the 20 days that Respondent was late to work, Respondent was no more than five minutes late. Being late five minutes or less did not affect Respondent's ability to carry out the essential functions of her position within the meaning of Section 9.015. Another food service worker testified for Petitioner that being late five minutes or less did not affect any employee's ability to do his or her job. For the remaining eight late arrivals, Respondent was 15 minutes late on two days, 30 minutes late on two days, and was late the remaining four days between seven and 12 minutes. The preponderance of evidence did not show that Respondent failed to telephone her supervisor when Respondent was going to be late 15 or more minutes. During most of the remaining four days, Respondent was at the school getting ready for work or otherwise within view of her supervisor. The co-worker called as a witness by Petitioner, testified that Respondent's tardiness in excess of five minutes did not adversely affect the witness' job responsibilities, but did adversely affect the supervisor or other workers. However, the witness erroneously thought that Respondent's work day in the 2003-2004 school year began at 8:00 a.m. It is undisputed that Respondent's shift began at 8:30 a.m. The witness never really knew Respondent's actual start time. When Respondent was late to work, Respondent made up the time by working into her lunch or break periods. This was a custom that similarly situated workers practiced regularly. The assistant principal for the school did not testify. However, documents in the record indicate that the assistant principal met with Respondent on October 20, 2003. At that time, Respondent had been late to work approximately 15 times, absent approximately two times, and had left work early approximately two times. The documents indicate the assistant principal "talked with [Respondent] . . . about being on time to work." The supervisor who testified at the hearing was not present at the meeting. Following the meeting with the assistant principal, Respondent's attendance improved. The supervisor did not formally discuss Respondent's attendance with her again until the supervisor completed a performance evaluation for Respondent in March 2004. The performance evaluation, in pertinent part, authorized the supervisor to score prescribed categories of Respondent's job performance as "Effective level of performance observed," "Inconsistently practiced," or "Unacceptable level of performance observed." The supervisor did not score any of Respondent's targeted areas as "Unacceptable level of performance observed." She scored five areas as "Inconsistently practiced," including categories labeled "Is punctual in attendance," "Follows written and oral work schedule," and "Exhibits dependability." On April 22, 2004, the school principal signed a form recommending Respondent for reemployment for the 2004-2005 school year. On April 29, 2004, Respondent counter-signed the form recommending reemployment. On the date of the proposed reemployment, Respondent had been absent from work 43 days, including 19 of the 20 contested late arrivals and one of the three contested days when Respondent left work early. On May 20, 2004, Respondent left work three hours early. On May 21, 2004, the supervisor issued a written reprimand to Respondent for being late to work, leaving work early, or being absent from work approximately 47 times between August 14, 2003, and May 20, 2004. The written reprimand did not provide a clear point of entry for Respondent to contest the factual basis for the reprimand in an administrative hearing. The reprimand merely informed Respondent that Respondent was entitled to prepare a response to the reprimand. Respondent and her union representative did not challenge the factual basis of the written reprimand in a grievance procedure authorized in Article 5 of the SPALC agreement. However, Section 5.102 prohibits the grievance procedure from being construed to deny any rights that are otherwise guaranteed to Respondent by law. On May 24, 2004, the first work day following Respondent's receipt of the written reprimand, Respondent began work five minutes late at 8:35 a.m. Neither the supervisor nor any other representative for Petitioner spoke with Respondent to inform her that Petitioner had determined the late arrival to be an unauthorized absence. On May 27, 2004, the supervisor recommended that Petitioner terminate Respondent's employment. This proceeding ensued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the petition, reinstating the employment of Respondent, and awarding Respondent full back pay and benefits. DONE AND ORDERED this 1st day of February, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 1st day of February, 2005. COPIES FURNISHED: Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 J. Paul Carland, II, Esquire Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Dr. James W. Browder, III, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact David B. Clark, Respondent, is employed by the Leon County School Board on continuing contract and was so employed at all times here involved. By Request for Leave dated May 31, 1978 (Exhibit 2) Respondent requested leave without pay from August 1978 through June 1979 for the purpose of continuing education. The request was forwarded approved by the Respondent's principal and approved by N. E. (Ed) Fenn, Petitioner. The principal who recommended approval of Respondent's leave request testified he would not have recommended approval had he not believed Respondent would pursue graduate studies. At the time Respondent submitted his application for leave he had been assured of financial assistance from his family to provide him the necessary funds to be a full-time student at Florida State University in the Masters program in public administration. In July Respondent learned he would be unable to get the financing he had expected to allow him to attend school full time. He proceeded to the school personnel office, advised the personnel director of his dilemma and requested advice. She advised him to go to the school at which he was employed the past school year and ask for his position back for the 1978-79 school year. When he did so he found a new principal had been appointed who was unsure of the job availability but he advised Respondent that his previous year's position had been filled by someone else. Respondent went back to the personnel officer for Leon County School Board where he learned there were no jobs available but he could be listed on the rolls as a substitute. He also was told that he should attempt to take some graduate courses even if he couldn't afford to go full time. Respondent agreed to try and do so. By letter dated 31 July 1978 (Exhibit 5) Respondent applied to be placed on the rolls as a substitute teacher for the 1978-79 school year. Respondent then took a sales job at which he worked in the late afternoon and early evening while also working as a substitute teacher. After the first semester, Respondent quit his sales job and worked full-time as a substitute teacher until the end of the school year. He was then offered a summer job on a construction project in Georgia, which he took. After Respondent reapplied and was employed for the 1979-1980 school year, the charges of gross insubordination and misconduct in office followed. Respondent's evaluation reports (Exhibit 4) contain a satisfactory rating in all categories for the past three years. Only in the year 1974-1975 was a "needs to improve" rating given in any of the categories for evaluation. Subsequent to the 1974-1975 evaluation year Respondent was placed on continuing contract status.
Findings Of Fact Between December 6, 1994, and October 15, 1995, Respondent was employed by the Petitioner as a school bus driver and, subsequently, as a materials handling technician who delivered textbooks and supplies. His performance evaluations for that work were satisfactory or better. Prior to October 15, 1995, a teacher aide position became vacant at H. L. Johnson Elementary School, one of the public schools in Palm Beach County. This vacancy was in the special education classroom taught by Harriet Lurie. Although he had no experience or training for this type work, Respondent was hired to fill this vacancy. Respondent began this employment on October 15, 1995. The students in this classroom require constant supervision and assistance. Ms. Lurie, an experienced ESE teacher, the Respondent, and one other teacher aide were expected to provide the care and supervision required by these students. Respondent and Ms. Lurie were unable to develop an effective working relationship. The conflicts between Respondent and Ms. Lurie escalated, despite the efforts of the principal, Penelope Lopez, to encourage them to work together. December 15, 1995, was the last day of school prior the Christmas holidays. Following an incident between Respondent and Ms. Lurie earlier that day, Respondent appeared in Ms. Lopez's office and requested that he be transferred from Ms. Lurie's class to any other available position. Ms. Lopez explained to Respondent that there were no other available positions. Because he was adamant about not returning to Ms. Lurie's classroom, Ms. Lopez agreed during that meeting to let Respondent perform custodial duties for the remainder of the day. January 2, 1996, was the first day of school following the Christmas holidays. On that date, Respondent reported to Ms. Lopez's office and met with her prior to the beginning of school. Respondent again asked that he be transferred from Ms. Lurie's classroom. Respondent became upset when Ms. Lopez denied his request for transfer and thereafter gave him a written reprimand. The reprimand, which accurately reflects efforts by Ms. Lopez to resolve the problems between Respondent and Ms. Lurie, provided, in pertinent part, as follows: I have had conferences with you on December 6, 12 and 15, 1995 and numerous other impromptu meetings in which we discussed your concerns, my concerns and conflicts you were having with the teacher and the other teacher aide in the K-1B classroom (Ms. Lurie's classroom). The students in this classroom need consistent supervision in a warm nurturing environment. I am very unhappy with the conflict going on between you and the teacher and you and the other aide, at times in front of the students . . . There appears to be no effective working relationship between you and these associates . . . * * * 6. As a teacher-aide (sic), you report to the teacher in the K-1B class and work under her direct supervision. You are expected to follow directions and not argue with her . . . I have requested at each meeting with you to work cooperatively with the teacher and your coworker to solve problems or enhance the classroom setting and work as a team. I had to remove you from the classroom on December 15, 1995 due to a conflict with the teacher. Since you have not heeded my previous advice, I'm presenting you with this written reprimand as disciplinary action. I expect your behavior to improve immediately in all of these areas. Should you fail to improve your attendance and abide by established and published rules and duties of your position, you will subject yourself to further discipline. After Ms. Lopez gave Respondent the written reprimand, on January 2, 1996, she instructed him to return to his duties in Ms. Lurie's classroom. Respondent refused this instruction and left the school campus. Respondent did not return to the school campus on January 2, 1996. Respondent had seven days of sick leave available for his use as of January 2, 1996. Further, he qualified for additional unpaid leave pursuant to the Family and Medical Leave Act (1993), 29 USC Sections 2611 et seq. Respondent did not requested nor had he been given any type of authorized leave for January 2, 1996. Respondent asserts that the School Board has no grounds to terminate his employment for his conduct on January 2, 1996, because he left school to go visit his doctor. The assertion that he left campus on January 2, 1996, because he was sick or in need of a doctor is contrary to the greater weight of the evidence in this proceeding. Based on the greater weight of the evidence, it is found that after he left the school campus on January 2, 1996, Respondent spent the balance of the day attempting to contact district administrators to complain about the letter of reprimand he had received. The greater weight of the evidence establishes that Respondent did not seek medical attention on January 2, 1996. 1/ Respondent disobeyed Ms. Lopez's clear and direct instructions on January 2, 1996, and he willfully neglected his official responsibilities. This action was not justified by a need for medical attention. On January 3, 1996, Respondent reported to Ms. Lopez's office at approximately 7:45 a.m. Ms. Lopez told Respondent that he was needed in Ms. Lurie's class and told him to report to duty. Respondent replied that he was going to the doctor and left school campus. When Ms. Lopez asked why he had not gone to the doctor when he was away from school on January 2, Respondent replied that he had been too busy attempting to do something about the reprimand he had been issued. Respondent was entitled to use sick leave to visit the doctor on January 3, 1996, and he was entitled to use paid sick leave, to the extent of its availability, between January 3, 1996, and the time of his tests on January 16, 1996. Good Samaritan Primary Care is a group of doctors who have associated for the practice of medicine. Leonard A. Sukienik, D.O., and Karen Kutikoff, M.D., are employed by that group practice. On January 3, 1996, Respondent was examined by Dr. Sukienik. Following that examination, Dr. Sukienik scheduled certain medical tests for Respondent to be conducted January 16, 1996. Dr. Sukienik wrote the following note dated January 3, 1996: To whom it may concern, Mr. Frank Sedor is a patient in my office and is noted to have stress related anxiety attacks with chest pain symptoms. This stress may be related to his job and Mr. Sedor may benefit from time off from work. Respondent returned to Johnson Elementary and met with Ms. Lopez at approximately 1:30 p.m. Respondent gave Ms. Lopez the note written by Dr. Sukienik. When Ms. Lopez asked Respondent to return to work, he informed her that he was not going to return to work until after the tests scheduled for January 16, 1996, had been completed. Respondent thereafter left the school campus. Respondent did not request any type of leave on January 3, 1996. Prior to her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez did not intend to recommend that Respondent's employment be terminated because she hoped that the problems between Respondent and Ms. Lurie could be resolved. After her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez sent a memorandum to Louis Haddad, Jr., the coordinator of Petitioner's Employee Relations office in which she requested that further disciplinary action be taken against Respondent for his refusal to report to his classroom as instructed on January 2, 1996, and for thereafter leaving the school site. The School Board, based on the superintendent's recommendation, voted to terminate Respondent's employment at its meeting of February 7, 1996, on grounds of insubordination and willful neglect of duty based on Respondent's conduct on January 2, 1996. 2/ The School Board is not seeking to terminate Respondent's employment for conduct after January 2, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. The final order should also terminate Respondent's employment as a teacher aide. DONE AND ORDERED this 30th day of December, 1996, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1996.
The Issue The issue in this case is whether Petitioner, Charlotte County School Board (the "School Board") has just cause to terminate the employment contract of Respondent, Natalie Santagata, based upon loss of effectiveness as a teacher due to scandalous materials being disseminated to School Board employees and parents.
Findings Of Fact The School Board is the duly authorized entity responsible for the operation, control, and supervision of the School, which is an elementary school within the Charlotte County Public School system. The School is an "A-rated" school with approximately 650 students and 45 members of the teaching staff. At all times relevant hereto, Santagata was employed at the School under a professional services contract. At the time of her termination from employment by the School Board, Santagata was teaching fifth grade at the School. She had been teaching at the School for approximately four years, having transferred from Peace River Elementary School. By all accounts, Santagata was an excellent teacher when she was hired to work at the School. She was hired to teach third-graders, an important grade due to the "no-child- left-behind" requirements associated with that grade level. Santagata was a "stellar" teacher according to the school principal. When she first came to the School, she taught third grade. Then, she "looped" to fourth grade the next year. One hundred percent of her students' parents agreed to allow their children to loop with her so she could continue teaching them. Santagata continued to be an excellent teacher at the School. However, in the beginning of the 2010-2011 school year, things began to change. At the start of the school year Santagata was operating at about the same proficiency level as in previous years, but in November her supervisor and co-workers began to notice disturbing changes in Santagata's appearance and demeanor. She began to show up at work in a somewhat disheveled state, she began to lose a noticeable amount of weight, and she was absent from the classroom more than usual. There were reports that Santagata was leaving her co-teacher alone in the room with the students more frequently. Her co-teacher at that time was a teacher with three years' experience as a teacher, but was in her first year at the School. Santagata was, however, never unable to perform her duties as a teacher during the school year. Santagata was experiencing significant difficulties in her personal life at the time she began to struggle as a teacher. She was going through a very unpleasant divorce and was undergoing extreme stress and anxiety because of that event. Beginning late in 2010 and continuing into the early months of 2011, Santagata showed signs that she was not performing up to her normally excellent standards. According to her principal, Santagata began to lose her "with-it-ness," i.e., her ability to maintain interaction and involvement with her students and their parents. One day, Santagata did not show up for work. When the principal called, Santagata said she had overslept. Santagata, ultimately, made it to work, but she was late and was admonished for that failure on her part. As her concerns about Santagata grew, the principal began to take more frequent "walk-throughs" in Santagata's classroom as a means of monitoring her more effectively. As a result of her observations during those walk-throughs, the principal decided to offer Santagata some help by way of the employee assistance program. The program provides teachers a way to deal with private and personal problems more effectively in order to maintain professionalism in their classrooms. The program was first discussed with Santagata in November of the 2010-2011 school year when the principal first learned Santagata was going through her divorce. The program was offered a second time in January after Santagata's behavior and demeanor began to change even more. There was no evidence as to whether Santagata availed herself of the employee assistance program. At about the time Santagata began showing signs of stress, the School received a few anonymous telephone calls from individuals saying that Santagata was using drugs and making inappropriate life choices. The School knew that Santagata's estranged husband was attempting to hurt her in any way he could. It was believed that he may be the source of the anonymous calls. The School also received an anonymous email advising about a You-Tube video purportedly showing Santagata in a room where other people were apparently smoking marijuana. When confronted with those allegations, Santagata voluntarily agreed to take a drug test to prove her innocence. The School decided not to test Santagata at that time. At a school field day held in the spring, a couple of parents reported to a teacher that Santagata looked "terrible." The teacher reported the observation to the principal, who went to see for herself. The principal found Santagata not to be up to her normal standards, but she did not look terrible. Shortly thereafter, the principal received another anonymous email saying Santagata was abusing drugs. At that time, the School decided to ask Santagata to submit to a drug test. Santagata was placed on administrative leave pending the result of the test, and when the test returned with a negative result, Santagata was reinstated. The reinstatement occurred just a few days before the end of the 2010-2011 school year. After the conclusion of the school year, various administrators at the School received packages from an anonymous sender. The packages contained videos and still photographs that purported to be Santagata engaged in sexual activities and smoking marijuana. The person in the videos and photographs resembled Santagata. The school principal recognized Santagata's house from one of the videos or still photographs. However, there was no verification that the person in the videos and photographs was indeed Santagata. Santagata neither admitted, nor denied that the videos and photographs were of her. One of the videos shows a woman engaging in oral sex with a man. Both appear to be adults and the sexual activity appears to be consensual. The videos also show the man and woman smoking cigarettes, but holding the cigarettes between the thumb and forefinger, i.e., in the manner which is generally associated with smoking marijuana cigarettes. The man in the videos at one point asked the woman whether she was "high" or some such reference to drug use. One of the videos also shows the woman moving from room to room, seemingly gathering clothes and other items as if she were packing. The man and woman appear to be angry at each other during this particular video. The woman appears to be preparing to terminate whatever relationship existed with the man. Once the videos were received at the School Board, they were turned over to the School Board security officer so that an investigation could be conducted. As part of the investigation, the security officer reviewed the videos and pictures, pleadings and other documents concerning Santagata's divorce proceedings, newspaper articles, and other documents. The officer interviewed school employees, but did not interview any parents of students from the School. The officer did not interview Santagata. Mrs. Mangiafico, a parent of students at the school, also received the pictures that had been sent to the School and School Board. Mangiafico's children were never in Santagata's classroom, but they were friends with Santagata's children. Mangiafico may have, at the time she turned over the pictures to the School, stated that she did not want Santagata teaching her children. However, she considered Santagata to be an excellent teacher and that "everybody wanted their kid in her class." Mangiafico did not know whether any other parents of students received the videos or pictures. She did not believe there had been any change in Santagata's reputation as a result of the pictures being disseminated. A local newspaper published an article about Santagata saying she was under investigation due to "inappropriate photos" the School had received. The article was published on August 10, 2011. There is no mention in the article as to what the photographs may have depicted. The School Board recognized that Santagata was not responsible for releasing the videos and pictures. It was, however, concerned about the possible perception of the School and Santagata by the general public. Specifically, the superintendent worried that "because the pictures and videos had been sent out to parents, that would affect [Santagata's] effectiveness in the classroom." The School principal was concerned about "the doubt that was placed in parents' minds" about Santagata as a teacher. Likewise, the assistant superintendent's concern was that once the pictures got out into the public, "it would lessen her effect [sic] as a teacher." The School Board was genuinely worried that if the videos and pictures were distributed more widely, the School may experience some negative public scrutiny. The School and School Board took strong measures to ensure that they were not the source of dissemination of the information to the public, but they could not be sure that some anonymous person might do so. Based upon those concerns, the School Board decided to terminate Santagata's employment. Santagata was offered the opportunity to resign, rather than being fired, but she refused to do so. Santagata was placed on administrative leave with pay, effective August 1, 2011. On September 6, 2011, the School Board voted to terminate Santagata's employment; she was notified by letter the next day. According to the superintendent of schools and the School principal, the pictures and videos were not sufficient, in and of themselves, to warrant discipline against Santagata, nor had any discipline been imposed against Santagata prior to her being placed on administrative leave. The basis of the School Board's action was simply the possibility that Santagata may lose her effectiveness, if the public was made aware of the photographs and videos.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Charlotte County School Board, rescinding the termination of Respondent, Natalie Santagata's, employment and that she be reinstated to her position with back pay and benefits for the reasons set forth above. DONE AND ENTERED this 13th day of March, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 March, 2012. COPIES FURNISHED: Dr. Douglas Whittaker, Superintendent Charlotte County School Board 1445 Education Way Port Charlotte, Florida 33948-1052 Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark S. Herdman, Esquire Herdman and Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Thomas M. Gonzalez, Esquire Erin G. Jackson, Esquire Thompson, Sizemore, Gonzalez & Hearing, P.A. 201 North Franklin Street, Suite 1600 Tampa, Florida 33602
The Issue The issue in this case is whether the Pinellas County School Board (Petitioner) has just cause to terminate the employment of teacher Francine Louis (Respondent).
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner as a French teacher, assigned on a full-time basis to Countryside High School in Clearwater, Florida. The terms of the Respondent's employment were governed by a collective bargaining agreement (CBA) between the Petitioner and the Pinellas County Classroom Teachers Association. Pursuant to the CBA, the Respondent was entitled to one day of sick leave per month, up to a maximum of ten days per school year. Unused sick leave would accrue from year to year without restriction. Upon providing two days advance notice, a teacher could use up to four days of sick leave for personal reasons unrelated to illness, and the personal leave would be charged against accrued sick leave. The Respondent's job performance was satisfactory through the end of the 2008-2009 school year. In December of 2009, Assistant Principal Lewis Curtwright became aware that the Respondent had been absent from the classroom for approximately 15 days during the first part of the 2009-2010 school year. He approached the Respondent in the school hallway and asked if there was a reason for the absences. The Respondent declined to discuss the matter with Mr. Curtwright. Based on the Respondent's refusal to address his concern during the informal discussion, Mr. Curtwright scheduled a formal meeting for December 8, 2009, to discuss the Respondent's attendance, and advised the Respondent of the meeting in a hand-delivered notice, dated December 3, 2009. At the December 8, 2009, meeting, the Respondent explained that the attendance situation was related to personal stress and health concerns, to her enrollment in a graduate studies program, to unhappiness with her classroom arrangements, and to her schedule. Mr. Curtwright responded by emphasizing the importance of classroom instruction, and advised the Respondent that her absences could be negatively impacting the quality of instruction and the educational progress of her students. He advised that documentation was required for the absences, and that use of extended sick leave required a doctor's note. Mr. Curtwright memorialized the discussion from the meeting in a letter dated December 10, 2009, which was provided to the Respondent. Despite the conference, the Respondent's attendance continued to be a matter of concern for Mr. Curtwright. By the time Mr. Curtwright completed the Respondent's annual performance appraisal on April 23, 2010, the Respondent had been absent for 21 classroom days, and in addition, had started to leave the school grounds without permission before the end of the work day. He noted the concerns in the Respondent's performance evaluation. Mr. Curtwright also scheduled a formal meeting for May 3, 2010, by notice dated April 28, 2010, and delivered to the Respondent; he advised that the meeting was being held to discuss the Respondent's "poor attendance and leaving without signing out." At the May 3, 2010, meeting, Mr. Curtwright noted that since the December 8, 2009, meeting, the Respondent had missed additional classroom days, and that he had seen the Respondent leaving campus before the end of the school day without signing out. He observed that no documentation had been provided for any of the absences. He reiterated the requirements for documentation and noted that additional absences would result in a reprimand and additional disciplinary measures. The Respondent did not participate during the meeting, but took notes. Mr. Curtwright memorialized the discussion from the meeting in a letter of caution, issued and delivered, to the Respondent on May 4, 2010. By the end of the 2009-2010 school year, the Respondent had been absent without approval or documentation for a total of 25.5 days. According to the Petitioner's attendance reports, the Respondent was absent on 16 days prior to the December 8, 2009, meeting, and was then absent for 9.5 days between the December 8, 2009, and the May 3, 2010, meeting. Despite the warnings, the Respondent's attention to attendance requirements did not improve. Teachers employed under the CBA do not receive "vacation" time other than the usual periods when schools are not in session, such as during the summer and various holidays. It is reasonable to expect that teachers consider the school calendar when planning vacations, so as to be present and available for work when school is in session. The 2010-2011 school year was scheduled to commence on August 16, 2010. Students are not present during the first week of the school year, and teachers are expected to be present at the school to participate in various planning and organizational meetings, and to make ready for the commencement of instruction when students return. Countryside High School teachers were specifically advised of the starting date for the 2010-2011 school year in a faculty meeting held in January of 2010. Copies of the 2010- 2011 school calendar were distributed at the faculty meeting, and the school calendar was published and widely available. In February 2010, the Respondent made plans to travel outside the country during the summer of 2010. On the evening of Sunday, August 15, 2010, the night before the 2010-2011 school year began, the Respondent sent an email to the school secretary stating that the Respondent was "out of the country" and would not return to work until August 23, 2010. The Respondent's email stated that she had attempted to utilize an online system (the "sub-finder" system) to record the absences, but that the system had been unavailable. The Respondent failed to request or to obtain approval for her absence from the first week of the 2010-2011 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Manatee County, Florida, enter a Final Order terminating the employment of Francine Louis. DONE AND ENTERED this 24th day of March, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 24th day of March, 2011. COPIES FURNISHED: Laurie A. Dart, Esquire Pinellas County Schools 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33770-2942 Francine Louis 31177 U.S. Highway 19, North Apartment 101 Palm Harbor, Florida 34684 Dr. Julie M. Janssen, Superintendent Pinellas County School Board 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33770-2942 Dr. Eric J. Smith Commissioner of Educations Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
