The Issue The issue to be resolved in this proceeding concerns whether the Petitioner qualifies, pursuant to Section 212.08(7)(o)2.d., Florida Statutes, for a consumer's Certificate of Exemption as a state, district, or other governing or administrative office, the function of which is to assist or regulate the customary activities of educational organizations or members.
Findings Of Fact The Petitioner is a "not for profit" corporation that, for all relevant periods of time, has held an exemption from federal income tax as an educational institution pursuant to Section 501(c)(3) of the federal Internal Revenue Code. The purpose of the Society, the Petitioner, is to further the practice of the teaching of photography and to insure high standards in photographic education in the educational institutions in this country and in Florida, particularly post- secondary educational institutions. The Society has been provided facilities at the Daytona Beach Community College, including office space, telephones and facsimile lines. The community college provides publication and marketing services to the Society. There is no formal affiliation between the Society and any higher educational institutions. The community college provides these services to the Society in return for the prestige associated with its being home to the Society. The Society is not accredited as an educational institution in its own right. It is an educational organization consisting primarily of university, college and secondary school educators as members. Its purpose is to advance the field of photographic education and to assist its members in their collective interests and concerns as educators. The Society also assists colleges, universities, and other organizations in achieving their educational mission in terms of education in the field of photography. It therefore functions as an administrative office, " . . the function of which is to assist or regulate the customary activities of educational organizations and members." The Society's national office assists the customary activities of the regional organizations under its umbrella through management of their data bases in support of their regional publications and conferences. The dominant function of those conferences is to promote educational standards in photography and related fields. They are typically attended by graduate students and educators in the field of photographic education. Moreover, the Society's national office examines and approves regional budget funding proposals and disburses funds to regional organizations that are in accord with its national by-laws and policies, so as to provide appropriate control and regulation with regard to its educational mission. The treasurer of the Society for photographic education requires uniform accounting procedures for each of the regional treasury accounts. The Society is thus an umbrella organization for eight regional societies located throughout the country. The Society provides money to these regional organizations and the regions are required to prepare and submit financial statements to the Society. These regional societies operate pursuant to the national by-laws and their officers serve at the pleasure of the national organization. Annual national conferences are held as are regional conferences by the regional societies. Participants at these conferences are offered seminar level courses and workshops in different areas of photography, such as digital imaging. There is also typically a trade show at these conferences where corporations demonstrate new products in the field of photography. Most of the persons attending these conferences are either graduate students or faculty members of various educational institutions. While the Society does not provide educational credit to attend these, the programs at these conferences are educational in nature, designed to further the education of the attendees in the aspects of the field of photographic education. The Society does not regularly provide educational curricula to other organizations.
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 the Department of Revenue enter a Final Order granting the consumer Certificate of Exemption applied for by the Petitioner. DONE AND ENTERED this 7th day of July, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1998. COPIES FURNISHED: Kevin O'Donnell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 James J. Murphy, Executive Director Society for Photographic Education Post Office Box 2811 Daytona Beach, Florida 32120-2811 Linda Lettera, Esquire Department of Revenue 204 Carson Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue in this case, a bid protest, is whether Respondent, Orange County School Board (the School Board), acted contrary to its governing statutes, rules or policies when it awarded the alternative education drop-out prevention services request for proposal number 1401017 (the RFP) to Ombudsman Educational Services, LTD. (Ombudsman) instead of Catapult Learning, LLC (Catapult).
Findings Of Fact Catapult is a limited liability company organized in Delaware. Catapult currently holds the contract in Orange County for the Alternative Education Drop-out Prevention program. The School Board is a public entity responsible for procuring services for the Orange County public school system. Ombudsman is a for-profit corporation duly organized in Illinois. On or about January 31, 2014, the School Board issued the RFP, "requesting solicitations from experienced respondents with a proven track record in providing alternative education services to students at risk of dropping out or [who] have dropped out from school and seek to return to continue their education." Originally, the solicitations were to be filed "no later than 2:00 p.m. EST, on February 24, 2014." The RFP included the following admonition and time schedule: The District will attempt to use the time schedule as indicated below. Note: References to Ronald Blocker Education Leadership Center (RB-ELC) address is: 445 West Amelia Street, Orlando, FL 32801. The below dates and times are subject to change. All changes will be posted to the Procurement website as they become available. January 31, 2014 Solicitation Date February 10, 2014 Re-submittal conference at 1:00 p.m. RB-ELC, February 11, 2014 Request for Information (RFI) cut-off February 24, 2014 Proposal opening at 2:00 p.m., RB-ELC, Lobby Conference Room Proposal will be opened and only the company names will be announced March 6, 2014 Evaluation Meeting Date (Tentative Date) (8:30 a.m.) March 7, 2014 Notice of Intended Decision (Tentative Date)(8:00 a.m.) March 13, 2014 Presentations by Respondents (Tentative Date) March 14, 2014 Notice of Intended Decision Date (Tentative Date) April 8, 2014 Board Recommendation (Tentative Date) On February 19, the School Board issued Addendum No. 1 (the Addendum) which provided the new solicitation deadline, highlighted in red ink, of "11:00 A.M., EST on February 26, 2014." Additionally, the Addendum advised the potential bidders (or vendors) of "changes/clarifications" to the RFP: "REVISED PROPOSAL PRICE SHEET, APPENDIX A" with the sentence, "Please ensure you submit your proposal using this REVISED PROPOSAL PRICE SHEET," and a paragraph addition to the "Scope of Services." These announced changes were also highlighted in red ink. The evaluation criteria for the RFP were provided in section 5, "Evaluation of Proposals." Potential bidders were advised that the PEC would receive, publicly open, review, and evaluate the proposals. Additionally, the PEC reserved the right to "interview any, all or none of the Respondents . . . and to require formal presentations with the key personnel . . . before recommendation of award." Section 5.5, "EVALUATION CRITERIA," provided: Only proposals that meet the compliance requirements will be evaluated based on the following criteria. Shortlist Possible Points Evaluation Criteria I. Experience and Qualifications 100 Maximum Value 30% Weight II. Scope of Services 100 40% III.MWBE/LDB4/ Participation 100 10% IV. Proposal Price 100 20% 400 100% The Procurement Representative shall calculate all scoring and determine a ranking of all respondents. The PEC shall determine if presentations/interviews are necessary. Note: The District will post an intended decision recommending Respondents to move to the next phase to be review [sic] by interested parties on the SBOC website at www.procurement.ocps.net. Failure to file a protest within the time prescribed in Section 120.57(3)b, Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Once the allowed time period has passed this phase of the process will be completed. Presentations/Interviews: Should the PEC members request presentation or interview from shortlisted respondents the following evaluation criteria will apply: Presentation/Interview Evaluation Criteria Possible Points Maximum Weight Value I. Planning/Delivery of Service 100 40% II. Firm Experience 100 20% III. Evidence of Student Achievement 100 40% 300 100% The Procurement Services representative shall calculate all scoring and determine a ranking of the shortlisted firms based on the presentation/interview evaluation criteria. The highest ranked firms will be recommended for negotiation and award. Timely responses to the RFP were submitted by six vendors: Catapult, Ombudsman, Atlantic Education Partners, Advanced Path, Excel Alternative Schools, and Driven Academy. These responses were reviewed by the PEC which was composed of School Board personnel with various educational based backgrounds. On March 6, the PEC evaluated all six proposals according to the RFP stated evaluation criteria: experience and qualifications; scope of services; proposal price; and MWBE/LDB. Four of the six bidders did not provide the pricing proposal as a percentage of full time equivalent. All six vendors were awarded zero points for the proposal price, and each received zero value for the proposal price. The justification for each bidder receiving a zero score was based on the School Board's procurement representative's inability to provide an "apples to apples" comparison of the six pricing proposals. Ms. Nido, the School Board's procurement representative, affirmed the School Board's position that when a proposal is non-responsive it is not scored. Here, all six proposals were scored. The PEC evaluated and ranked all six vendors. The PEC then posted its short list evaluation rankings, which included the short list evaluation form. Both Catapult and Ombudsman scored the same ranking: 64.2. Below the ranking, the following sentence appeared: "Committee agreed by consensus to invite Catapult Learning, Ombudsman, and Atlantic Education Partners for interviews/presentations." Additionally, below this sentence the following language appeared: "Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under chapter 120, Florida Statutes." The 72 hour posting requirement will elapse on March 11, 2014 at 2:30 p.m. E.S.T. "The Orange County Public School Board is an equal opportunity agency." Catapult did not have a representative present during the March 6 meeting as Ms. Folsom, the local director, arrived late. It is the School Board's practice that if a member of the public appears late for an evaluation meeting, the staff will bring the public to the meeting room, knock on the meeting door and allow the public into the meeting. If the meeting is over, the public is not brought to the meeting room. No vendor filed a written notice of protest within 72 hours after the School Board posted the short list evaluation ranking. On March 6, the School Board posted a meeting notice that the PEC would meet on March 13 at 8:30 a.m. EST to hear the three bidders' presentations. Atlantic Educational was to make its presentation first, followed by Catapult and lastly, Ombudsman. The meeting notice also provided that the PEC would evaluate the three bidders' presentations immediately following the conclusion of the presentations. Later on March 6, Catapult made a public records request for all proposals submitted pursuant to the RFP. Catapult asked that the documents be sent via email or Catapult would have a staff member come to the "proper office" at the School Board. Catapult received the requested public records at its New Jersey office sometime after March 12, 2014. As scheduled, on March 13, the PEC met and heard the presentations of Atlantic Educational, Catapult, and Ombudsman, the three short list bidders. As set forth in the RFP, section 5.5., the criteria for the presentation evaluation included the following criteria: planning/delivery of service; firm experience; and evidence of student achievement. Four days later, the School Board posted the presentation ranking and presentation evaluation form. Out of a possible 100 points in each category, Catapult received 81 points for planning/delivery of service, 86 points for firm experience, and 83 points for evidence of student achievement, for a total of 250 points. Ombudsman received 88 points for planning/delivery of service, 87 points for firm experience, and 83 points for evidence of student achievement, for a total of 258 points. Below the presentation ranking, the following sentence appeared: "Committee agreed by consensus to enter into negotiation and contract award to the following vendor(s): Ombudsman." Additionally, below this sentence the following language appeared: "Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under chapter 120, Florida Statutes." The 72 hour posting requirement will elapse on March 20, 2014 at 9:00 a.m. E.S.T. "The Orange County Public School Board is an equal opportunity agency." On March 19, Catapult filed its notice of protest and posted the requisite bond. On March 28, Catapult filed its formal written protest, the Petition, and thereafter on April 18, filed an Amended Petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the presentation ranking that found Ombudsman to be the highest ranking bidder was not contrary to the School Board's governing statutes or the School Board's policies or rules, nor was it clearly erroneous, arbitrary, capricious or contrary to competition. DONE AND ENTERED this 5th day of June, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 5th day of June, 2014.
The Issue Whether there exists just cause to suspend Respondent from his teaching position for five days, without pay, for "misconduct in office" and "immorality," as alleged in the Administrative Complaint.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Piper High School (Piper)), and for otherwise providing public instruction to school-aged children in the county. At all times material to the instant case, Enid Valdez was the principal of Piper; Patrick Lowe, Robert Godwin, and Sharon Grant were assistant principals at the school; and Donavan Collins was the school's social studies department chair. Respondent has been a social studies teacher at Piper since 2002. He presently holds a professional services contract with the School Board. During the first semester of the 2009-2010 school year, Respondent taught three American History classes at Piper (during the first, second, and fourth periods of the school day). The previous school year, in or around February 2009, Respondent had ordered, in his own name, a 25-copy per issue subscription for the upcoming 2009-2010 school year to "New York Times Upfront" (Upfront), a magazine for high school students published by Scholastic, Inc., that Respondent believed to be an "excellent [learning] tool" from which his students could benefit academically. The total cost of the subscription (Upfront Subscription) was $246.13. Respondent planned to use the magazine in the classes he would be teaching at Piper the following school year. After receiving, in or around August 2009, 25 copies of the September 2009 issue of Upfront, the first issue of the 2009-2010 school year, Respondent distributed them to the students in his three American History classes for their review. He told the students they each would have the option of using Upfront, instead of School Board-provided materials, for class assignments, provided they paid him $3.00 to help cover the cost of the Upfront Subscription. He subsequently asked each student in his three classes whether or not that student wanted to exercise this option and noted on the class roster those students who responded in the affirmative (Upfront Option Students). For the next two or so months, he collected money (in cash) from the Upfront Option Students and recorded each payment he received. On October 22, 2009, using his debit card, Respondent made an initial payment to Scholastic of $124.00 for the Upfront Subscription (that he had ordered in or around February 2009). He made a second and final payment of $122.13 (again using his debit card) on November 3, 2009. The money Respondent collected from the Upfront Option Students was insufficient to cover the $244.13 cost of the Upfront Subscription. Respondent paid the shortfall out of his own pocket. Sometime in early November 2009, Respondent gave the Upfront Option Students their first assignment from the magazine (copies of which Respondent had distributed to the students). During the 2009-2010 school year, Piper had the following policy concerning the collection of money (Piper Collection of Money Policy), which was published in the Piper 2009-2010 Faculty Handbook: Money is never to be left in any classroom, storage cabinet, or office desk. Collected money is the responsibility of the teacher and is deposited with the school bookkeeper by the end of the day. A receipt will be given when the money is deposited. Money cannot be collected by any teacher unless the collection and distribution of the money has been previously discussed, planned, and approved by the principal's designee and the bookkeeper has been informed. All money must be deposited daily with the bookkeeper. (The document referred to in paragraphs 7 and 8 of the Administrative Complaint as "Exhibit A" is a copy of the Piper Collection of Money Policy, as the parties stipulated at hearing.3 See pp. 66 and 67 of the hearing transcript.) Respondent was provided a copy of the Piper 2009-2010 Faculty Handbook prior to the beginning of the 2009-2010 school year. At all times material to the instant case, Respondent was aware of the Piper Collection of Money Policy. Nonetheless, in violation of that policy, he did not obtain, or even seek, the necessary administrative approval to collect money from the Upfront Option Students, nor did he deposit any of the money he collected from these students with the bookkeeper, much less inform her (or any school administrator, for that matter) of his money collection activities. The foregoing notwithstanding, his intent in acting as the conduit through which these students purchased issues of Upfront for use in his classes was to help the students achieve academic success, not to exploit them for his own personal gain or advantage. He never had any intention of doing anything with the money he collected from the students other than using it (as he ultimately did) to help cover the cost of the Upfront Subscription. It was not until on or about October 19, 2009, that the Piper administration first learned about Respondent's money collection activities as a result of discussions that Assistant Principal Lowe had with students in Respondent's classes. After having been briefed by Mr. Lowe regarding what these students had reported, Principal Valdez asked Assistant Principal Grant to speak with Respondent. During his meeting with Ms. Grant, Respondent admitted to collecting money from the Upfront Option Students to help pay for the Upfront Subscription, and he acknowledged that he had not sought approval from anyone in the school administration to do so. On or about October 26, 2009, Principal Valdez sent a Personnel Investigation Request to the School Board's Office of Professional Standards and Special Investigative Unit (SIU) through which she requested that SIU conduct an investigation of the matter. An investigation was authorized by SIU on October 28, 2009, and an SIU investigator was assigned the case a week later. On or about November 3, 2009, Respondent was provided with a letter from Craig Kowalski, the SIU Acting Executive Director, advising Respondent of SIU's "investigation into a complaint . . . regarding an alleged violation [by Respondent] of the Principles of Professional Conduct of the Education Profession in Florida, Rule 6B-1.006(2)(h) [sic],[4] to include the collection of money from students to purchase magazines." After the SIU investigation was completed, an investigative report was prepared and presented to the School Board's Professional Services Committee for its consideration. The Professional Services Committee found "probable cause." A pre-disciplinary conference was then held, after which the Superintendent, on August 10, 2010, issued an Administrative Complaint recommending Respondent's suspension, without pay, "for a period of five (5) days effective from June 3, 2010 through June 9, 2010."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Broward County School Board issue a final order finding that the charges against Respondent have not been sustained, dismissing these charges, and awarding Respondent any "back salary" he may be owed. DONE AND ENTERED this 26th day of July, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 July, 2011.
The Issue Whether the Petitioner qualifies for renewal of a consumer's certificate of exemption as an "educational institution" as defined in Section 212.08(7)(o)2.d., Florida Statutes.
Findings Of Fact Based on the evidence presented, the following findings of fact are made: Petitioner is an active not-for-profit incorporated organization, having its principal place of operation in the State of Florida. Petitioner is a recipient of a 501(c)3 Letter from the Internal Revenue Service (IRS) and maintains its exempt status thereunder. Respondent is the state agency charged with the administration of the tax laws of the State of Florida and is the agency responsible for issuing or denying certificates of exemption to qualified organizations. Petitioner applied for renewal of its certificate of exemption on or about January 5, 1997, as an educational institution. The application for exemption was denied by Notice of Intent to Deny rendered by Respondent, after several requests for information, on the grounds that Petitioner did not qualify under the statutory requirements for a consumer certificate of exemption. Petitioner, founded in 1981, is a nationwide organization of writers, located in east central Florida, which seeks to encourage, train, and develop professional and avocation writers. It holds an annual writers' conference for adults and students; sponsors writing contests in the public schools and community colleges; provides a community speakers' bureau in the community and schools of the area; bestows scholarship and awards service to deserving individuals; and publishes periodic newsletters and an annual directory. The only criteria Petitioner could meet as an educational institution was as an "administrative office." No evidence was presented to indicate that Petitioner could qualify under any other alternatives or options allowed under Section 212.08(7)(o)2., Florida Statutes. Petitioner is not an accredited educational institution with regular classes, a television or radio network, a museum, library, or an accepted and statutorily recognized continuing educational program. There was no evidence to show that Petitioner has any control of or any organizational nexus with any accredited educational institution; or that Petitioner functions to assist or regulate any specific educational institution within the meaning of the applicable statute as it has been defined by prior Final Orders of the Department. See Section 212.08(7)(o)2.d., Florida Statutes. There was no evidence to show that Petitioner customarily and routinely exercised any control over any specific educational institution or that an agreement of any kind with any educational institution existed. There was no evidence to show Petitioner functions or operates within a larger hierarchy of any educational institution, or that any administrative rules, policies or by- laws have been promulgated or adopted by any educational institution that specifically identify the Petitioner or the conditions in which Petitioner uses or controls public property, facilities, or personal services operated by an educational institution. The Florida Department of Education has not approved Petitioner as an educational institution or promulgated any administrative rules regarding the Petitioner. Petitioner has not provided or raised funds for any educational institutions or for the administrative assistance of any educational institutions, nor does it directly provide 50 percent of its expenditures to any educational institution; Petitioner provides no volunteers and raises no funds for any charitable or educational organizations; and does not provide 50 percent of its expenditures to statutorily provided educational or charitable programs. Petitioner is not organized or operated exclusively to receive, hold, invest and administer property and to make expenditures to or for the benefit of public education programs in this state, nor is Petitioner a Charter School under Section 228.056, Florida Statutes, a Direct Support Organization under Sections 237.40, 240.299, or 240.331, Florida Statutes, or a Nonprofit Cable Consortium.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Revenue enter a Final Order denying a consumer's certificate of exemption for Petitioner. DONE AND ENTERED this 27th day of April, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1998. COPIES FURNISHED: William B. Nickell, Esquire Department of Revenue 501 South Calhoun Street Carlton Building, Room 204 Tallahassee, Florida 32301 Dr. Ed Kirschner Petitioner's Representative Space Coast Writer's Guild Post Office Box 804 Melbourne, Florida 32902-0804 Linda Lettera, General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Larry Fuchs, Executive Director Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 16, 2000, and, if so, the discipline that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Palm Beach County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes. Mr. Navarro began working for the School Board as a custodian in July 1996. He was assigned full-time to the custodial staff at C.O. Taylor/Kirklane Elementary School ("Taylor/Kirklane Elementary") during the 1998-1999 and 1999- 2000 school years. The terms of Mr. Navarro's employment are governed by the provisions of the Agreement between The School District of Palm Beach County, Florida, and National Conference of Firemen & Oilers, Local 1227, July 1, 1999 - June 30, 2002 ("Union Contract"). On January 22, 1999, Mr. Navarro suffered an injury to his back while he was lifting several tables to put them on the stage in the school cafeteria; the tables slipped, and Mr. Navarro fell. Mr. Navarro experienced a sharp pain in his back that almost kept him from walking, but he finished his shift that night, which was a Friday night.2 Because of the pain in his back, Mr. Navarro could not get out of bed on Saturday or Sunday, and, on Monday, he went to see his personal doctor, J.J. Bogani, M.D. Dr. Bogani examined Mr. Navarro and prescribed pain medication. Dr. Bogani advised Mr. Navarro to file a workers' compensation claim with the School Board, which he did. As a result of his workers' compensation claim, Mr. Navarro was referred to a Dr. Goldberg, who examined and treated him on February 1, 1999. At the times material to this proceeding, Dr. Goldberg was one of the physicians who acted as a primary physician, or "gatekeeper," for employees of the School Board who were injured on the job and whose care was covered by workers' compensation insurance. Dr. Goldberg diagnosed Mr. Navarro's injury as lumbar strain. Mr. Navarro saw Dr. Goldberg again on February 3, 1999, and Dr. Goldberg prescribed a back belt for Mr. Navarro. On Mr. Navarro's third visit on February 8, 1999, Dr. Goldberg found that Mr. Navarro had reached maximum medical improvement with respect to the lumbar strain and that the lumbar strain had been resolved. Dr. Goldberg released Mr. Navarro to full-duty work, with an impairment rating of zero percent. Dr. Goldberg examined Mr. Navarro again on March 2, 1999, and Dr. Goldberg reaffirmed his diagnosis of lumbar strain, prescribed physical therapy for Mr. Navarro three times per week for two weeks and returned Mr. Navarro to full-duty work as of March 3, 1999. Dr. Goldberg did not examine Mr. Navarro subsequent to March 2, 1999. In early April 1999, Miguel Mendez, an attorney specializing in workers' compensation, contacted the company that administers the School Board's workers' compensation program on Mr. Navarro's behalf and requested that Mr. Navarro be evaluated by an orthopedist, Dr. Merrill Reuter. The administrator responded in a letter dated April 7, 1999, that Dr. Goldberg declined to recommend an orthopedic evaluation. Mr. Mendez was advised that Mr. Navarro could request a new gatekeeper physician, and a list of approved gatekeeper physicians was included with the letter. Mr. Navarro did not select a new gatekeeper physician until June 2000, even though he continued to have severe back pain. Dr. Bogani, Mr. Navarro's personal physician, treated him for his back problems from March 1999 until June 2000. Agartha Gragg was appointed principal at Taylor/Kirklane Elementary in July 1999, and she was apparently suspicious of Mr. Navarro's work attendance from the beginning of her tenure.3 One of the first changes she made as principal was moving the custodians' sign-in/sign-out log to her office so she could keep track of the comings and goings of the custodial staff. The School Board's personnel records show that Mr. Navarro was absent on annual leave, sick leave, sick leave charged to annual leave, or sick leave charged to "without pay,"4 on January 5 through 14, 18 through 21, and 27 and 28, 2000.5 On January 27, 2000, Dr. Bogani wrote a note on a page of his prescription pad certifying that Mr. Navarro was not able to return to work until January 31, 2000, and that Mr. Navarro needed to be restricted for two weeks, with no heavy lifting or bending. The School Board's records reflect that Mr. Navarro was absent on leave "without pay," sick leave charged to annual leave, or sick leave charged to "without pay" on February 4, 7, through 18, and 21, 2000. Dr. Bogani gave Mr. Navarro a certification dated February 7, 2000, indicating that he could return to work on February 8, 2000. In February 2000, Ms. Gragg received several complaints about Mr. Navarro's job performance from members of the teaching staff. The complaints involved Mr. Navarro's failure to keep his assigned areas clean, especially his failure to keep the floors clean. At the time, Mr. Navarro was working in the area that included the kindergarten classrooms, and one kindergarten teacher wrote Ms. Gragg a note praising the substitute custodian and advising Ms. Gragg that her area was much cleaner when Mr. Navarro was absent. The School Board's records reflect that Mr. Navarro was absent on sick leave, sick leave charged to annual leave, or sick leave charged to "without pay" on March 6, 7, and 13 through 17, 2000, except for one hour on March 13, 2000. Dr. Bogani gave Mr. Navarro a certification dated March 7, 2000, indicating that he could return to work on March 8, 2000. On March 13, 2000, Dr. Bogani gave Mr. Navarro a certification stating that Mr. Navarro would not be able to work during the week of March 13, 2000 and that he would be unable to lift more than 15 pounds on his return to work. In a letter dated March 7, 2000, Ms. Gragg directed Mr. Navarro to attend a meeting with her on March 13, 2000, to discuss his excessive absences and his unsatisfactory job performance. Ms. Gragg advised Mr. Navarro in the letter that he could bring a representative with him and that the meeting could result in disciplinary action. A note at the bottom of the letter states that Ms. Gragg's secretary, Rosa McIntyre, read the letter to Mr. Navarro in Spanish. Mr. Navarro attended the meeting with Lourdes Martinez, a paralegal employed in Mr. Mendez's office, as his representative; the other attendees were Ms. Gragg and Ms. McIntyre. The meeting was summarized in a letter to Mr. Navarro dated March 13, 2000, entitled "Verbal Reprimand With a Written Notation," in which Ms. Gragg noted that Mr. Navarro explained that both his absences and his poor job performance were due to medical reasons. The letter reflects that, at the meeting, Ms. Gragg directed Mr. Navarro to provide medical certification from his doctor for any future absences; directed Mr. Navarro to review cleaning procedures with the Interim Head Custodian at Taylor/Kirklane Elementary; recommended that Mr. Navarro contact Ernie Camerino's6 office to discuss leave options for which he might be eligible; recommended that Mr. Navarro contact the School Board's Employee Benefits and Risk Management office to discuss medical disability options that might be available to him; advised Mr. Navarro that his job performance would be reviewed on April 18, 2000; and, finally, advised Mr. Navarro that, if he failed to follow the directives and recommendations set forth in the letter, he would be subject to further discipline, including termination of his employment. The March 13, 2000, letter was prepared in both an English and a Spanish version and was sent to Mr. Navarro by certified mail. Ms. Gragg also noted in the March 13, 2000, reprimand letter that she might change the area Mr. Navarro was assigned to clean. Ms. Gragg did change Mr. Navarro's assignment, but, according to Mr. Navarro, the change was for the worse because he was required to carry a vacuum cleaner on his back and to vacuum carpeted floors, both of which put a lot of strain on his back. The School Board's records reflect that Mr. Navarro was absent on sick leave, sick leave charged to annual leave, and sick leave charged to "without pay" on April 5 through 7 and 28, 2000, and for four hours on April 27. On May 1, 2000, Dr. Bogani certified that Mr. Navarro was under his care from April 28 through May 2, 2000, and noted that his office should be called if there were any questions. On April 17, 2000, Ms. Gragg received a complaint from a member of the teaching staff that Mr. Navarro had not vacuumed the carpet in her classroom the previous week. A copy of the complaint was provided to Mr. Navarro, and he went to Ms. Gragg's office on April 17, 2000, to discuss the complaint. In a letter dated April 17, 2000, Ms. Gragg requested that Mr. Navarro meet with her to discuss his job performance and any concerns he might have regarding his job. This letter was prepared in both an English version and a Spanish version, and Mr. Navarro signed the acknowledgement that he had received the letter on April 17. Mr. Navarro did not, however, meet with Ms. Gragg during the month of April 2000.7 The School Board's records reflect that Mr. Navarro was absent on sick leave charged to annual leave or sick leave charged to "without pay" on May 1, 2, 11, 12, 15 through 19, 26, and 30, 2000; Mr. Navarro was also absent for five hours on both May 22 and 25, 2000. On May 11, 2000, Dr. Bogani provided certification that Mr. Navarro would be out of work on May 11 and 12, 2000, "for health reasons," noting that his office should be called if there were any questions. On May 15, 2000, Dr. Bogani provided certification that Mr. Navarro would not be able to work on May 15 through 19, 2000, because of "severe muscle spasm in lumbar spine," noting that Mr. Navarro would not be able to vacuum for at least a month. On May 26, 2000, Dr. Bogani provided certification that Mr. Navarro had been under his care for back problems and that Mr. Navarro would be under his care from May 26 through 30, 2000. In a letter dated May 11, 2000, Ms. Gragg notified Mr. Navarro that he was to attend a meeting on May 17, 2000, to discuss allegations of excessive absences and to review his job performance, that he could bring a representative to the meeting, and that the meeting could result in disciplinary action being taken against him. The letter was prepared in both an English and a Spanish version. Meanwhile, Ms. Gragg completed Mr. Navarro's annual evaluation in which she gave him an overall unsatisfactory rating and rated his performance unsatisfactory in several categories, including attendance. Ms. Gragg set forth Mr. Navarro's deficiencies on a separate sheet attached to the annual evaluation, as follows: Job Knowledge You failed to effectively clean the "gang" bathrooms in the main building May 15- May 23, 2000. [Correct dates are April 15- April 23, 2000][8] You failed to effectively clean the floors in Bldg 200 on March 23, April 17-May 25, 2000. [Correct dates are April 17-April 25, 2000, see endnote 9.] Self Management/Self Motivation You did not complete assigned duties in a timely manner. Restrooms in the main building were not cleaned on May 15-23, 2000. [Correct dates are April 15-April 23, 2000, see endnote 9.] Interpersonal effectiveness You failed to complete your assigned duties, thus causing your co-workers to assume extra responsibilities. Mr. Angel Rivera, Head Custodian, was required to clean you assigned areas on March 23, April 17-May 25, 2000. [Correct dates are April 15-April 25, 2000, see endnote 9]. Ms. Gragg also noted on the annual evaluation form that Mr. Navarro had been absent 53 days during the 1999-2000 school year and that she had previously recommended that Mr. Navarro inquire about his eligibility for appropriate leave. The evaluation form was signed by Ms. Gragg and dated May 18, 2000, and, at some point, Ms. Gragg discussed the evaluation and the specific deficiencies and improvement strategies with Mr. Navarro. A note dated May 19, 2000, signed by Ms. McIntyre, indicates that the evaluation was translated into Spanish for Mr. Navarro and that Mr. Navarro refused to sign the form. In a letter dated May 23, 2000, Ms. Gragg issued Mr. Navarro a written reprimand for his failure "to report to work in accordance with published rules and the duties and responsibilities" of his job. Specifically, Ms. Gragg noted that Mr. Navarro had been put on notice on March 20, 2000, that he was to report to work on a regular basis; that he had been absent 14.5 days since March 20, 2000; that he had been absent a total of 53 days during the school year; and that he was absent on May 18 and 19, 2000, but did not call to inform her office of his absence. Mr. Gragg advised Mr. Navarro in this letter that, if he engaged in similar conduct in the future, he would be subject to further discipline, including termination of his employment. The letter was prepared in both an English and a Spanish version. It is not clear from the letter whether Ms. Gragg was reprimanding Mr. Navarro for excessive absences or for failing to call to inform her office of his absences on May 18 and 19, 2000. Ms. Gragg was advised in a letter from a teacher dated May 25, 2000, that Mr. Navarro had failed to empty the garbage can in her classroom on May 24, 2000, and Ms. Gragg provided a copy of the letter to Mr. Navarro. Throughout March, April, and May 2000, Mr. Navarro was experiencing problems with his back, and he was able to work only when he took pain medication, which made him feel drowsy and lethargic. Mr. Navarro visited Dr. Bogani often as a result of the pain, and he always provided to Ms. Gragg Dr. Bogani's medical certifications for his absences.9 Mr. Navarro was also becoming increasingly distraught because of what he considered Ms. Gragg's unfair criticisms of his job performance and her apparent inability to understand the extent of his medical problems. He was particularly affected by his unsatisfactory annual evaluation because he had received satisfactory evaluations since he began working for the School Board. On June 5, 2000, Mr. Mendez, the attorney handling Mr. Navarro's workers' compensation claim, contacted the School Board's workers' compensation administrator on Mr. Navarro's behalf and requested that Dr. James B. Phillips be assigned as Mr. Navarro's gatekeeper. An appointment was arranged for Mr. Navarro with Dr. Phillips for June 8, 2000. Mr. Navarro advised Ms. McIntyre that he would be absent on June 8, 2000, for a doctor's appointment.10 Ms. McIntyre asked that Mr. Navarro complete a "Leave/Temporary Duty Elsewhere" form requesting leave for June 8, 2000, and he refused; this form is a School Board form that must be completed before an employee can be approved for any type of leave. Ms. Gragg sent Mr. Navarro a memorandum dated June 7, 2000, in which she directed him to submit a completed leave form to her "today" and advised him that failure to do so would be considered insubordination and would subject him to discipline. Mr. Navarro submitted a leave form dated June 7, 2000, but he did not indicate on the form the type of leave he requested or the amount of time he would be absent. Ms. Gragg disapproved the request on June 7, 2000, with the notation "Incomplete TDE." Mr. Navarro gave no explanation for his failure to fill out the leave request form completely. Dr. Phillips first saw Mr. Navarro on June 8, 2000, and Mr. Navarro explained to Dr. Phillips that he had injured his back on the job on January 22, 1999. Dr. Phillips did several tests and diagnosed Mr. Navarro as having a "lumbosacral sprain, chronic," but also noted that Mr. Navarro most likely magnified the symptoms of his back injury. Dr. Phillips also recommended that Mr. Navarro have a MRI. Dr. Phillips completed a Workers' Compensation Work Status Report in which he indicated that Mr. Navarro could do light-duty work with the restrictions that he was not to use a vacuum cleaner or to lift more than 15 pounds. Dr. Phillips directed Mr. Navarro to give the form to his supervisor at work. On June 9, 2000, Mr. Navarro took this form to Ms. Gragg's office at Taylor/Kirklane Elementary. At approximately 10:15 a.m., Ms. McIntyre called Linda Meyer, a claims technician for the School Board's workers' compensation program, and advised her that Dr. Phillips had placed Mr. Navarro on light-duty restrictions and that there were no such assignments available at the school. One of Ms. Meyer's responsibilities is to find light-duty placements for School Board employees injured on the job who cannot return to their jobs because of work restrictions imposed by a doctor participating in the School Board's workers' compensation program. Ms. Meyer told Ms. McIntyre to send Mr. Navarro to her office immediately, and Ms. Meyer asked Ms. McIntyre to send Mr. Navarro's work restrictions to her by facsimile. Ms. Meyer found a light duty job for Mr. Navarro that met his work restrictions. Mr. Navarro was to work with the medical records clerk in the School Board's Risk Management office, Sheila Rick; the job required Mr. Navarro to sit at a table, take medical records out of files, count the documents, and return them to the files. Ms. Riczko speaks fluent Spanish, and it would not have been necessary for Mr. Navarro to speak or read English to do this job. Dr. Phillips is of the opinion that Mr. Navarro would have had no physical problem doing this work. When Mr. Navarro had not reported to her office by noon on June 9, 2000, Ms. Meyer telephoned Ms. McIntyre to confirm that Mr. Navarro had been told where to report for his assignment; Ms. McIntyre told Ms. Meyer that Mr. Navarro had left Taylor/Kirklane Elementary at approximately 10:45 a.m. Shortly after noon, Ms. Meyer received a telephone call from Carolyn Killings, Mr. Navarro's union representative, asking about Mr. Navarro's light-duty work assignment. Ms. Killings told Ms. Meyer that Mr. Navarro was in her office; Ms. Meyer told Ms. Killings to tell Mr. Navarro that she had a light-duty work assignment for him and that he was to report to her office. Mr. Navarro did not report to Ms. Meyer's office on June 9, 2000. Ms. Meyer prepared a letter advising Mr. Navarro that he was to report for his temporary light-duty work assignment, and the letter was prepared in both an English version and a Spanish version. In the letter, Ms. Meyer told Mr. Navarro where to report and confirmed that the assignment satisfied the restrictions imposed by Dr. Phillips on June 8, 2000, that he not lift anything weighing more that 15 pounds and that he do no vacuuming. Ms. Meyer further advised Mr. Navarro in this letter that failure to report for this assignment might result in termination of his workers' compensation benefits and in disciplinary action by the School Board, including termination of employment. Ms. Meyer also attached a light-duty sign-in sheet and directed Mr. Navarro to complete the sheet each day. Also on June 9, 2000, after Mr. Navarro had presented to Ms. McIntyre the work restrictions imposed on June 8, 2000, by Dr. Phillips, Ms. Gragg prepared a Written Letter of Reprimand for actions involving repeated insubordination. Specifically, Ms. Gragg reprimanded Mr. Navarro because he left campus at his regular break time of 10:00 a.m. but did not return until 10:45 a.m., with a sandwich.11 Ms. Gragg noted in the letter that she had questioned Mr. Navarro as to why he returned to campus past the end of his break time and how he intended to eat and do his work at the same time. According to the letter, Mr. Navarro explained that he was hungry and had to eat. Ms. Gragg referred in the letter to Mr. Navarro's failure to heed her warning on June 8, 2000, to correct his actions, and she advised Mr. Navarro that she was referring the matter for a "District review" with respect to the next step in the disciplinary process.12 A handwritten note at the bottom of the letter states that Ms. McIntyre "verbally interpreted" the letter into Spanish for Mr. Navarro. Ms. Gragg followed up her June 9, 2000, Written Reprimand with a letter dated June 12, 2000, to the Director of the School Board's Employee Relations Department. In the letter, Ms. Gragg stated: "I have issued a Written Reprimand and the employee has repeated the misconduct. Therefore, I am requesting a District review for the purpose of determining the next step in the discipline process." Ms. Gragg also noted in the June 12, 2000, letter that Mr. Navarro had not reported to the Risk Management office for light duty or to Taylor/Kirklane Elementary for regular duty. Ms. Gragg also telephoned a complaint regarding Mr. Navarro to the School Board's Office of Professional Standards on June 13, 2000. Ms. Gragg charged Mr. Navarro with unauthorized absence and insubordination, based specifically on his refusal on June 7, 2000, to complete a leave form for his doctor's appointment on June 8, 2000, and on Mr. Navarro's failure to respond to her directive on June 9, 2000, that he report to Ms. Meyer's office for a light-duty work assignment. In a letter dated June 15, 2000, Ms. Gragg advised Mr. Navarro that she was concerned that he had not reported to Ms. Meyer's office for his light-duty work assignment or to Taylor/Kirklane Elementary. She asked that Mr. Navarro call her office regarding these absences. This letter was prepared in both an English version and a Spanish version. On June 15, 2000, Ms. Meyer asked Ms. Riczko to telephone Mr. Navarro's home to ask why he had not reported for his light-duty assignment. Ms. Riczko spoke with Mrs. Navarro, who said that Mr. Navarro would be in on Monday, June 19, 2000. On June 19, 2000, Mrs. Navarro telephoned Ms. Riczko and told here that Mr. Navarro had an appointment with his attorney and would not be reporting for his work assignment that day. Mr. Navarro did, however, report to Ms. Meyer's office late in the day on June 19, 2000. Mr. Navarro told Ms. Meyer that he could not work because of the medication he was taking. Ms. Meyer advised Mr. Navarro that he was to have reported for his light-duty work assignment on June 9, 2000, and that, by refusing the light-duty work, he was jeopardizing his workers' compensation benefits. Ms. Meyer suggested that Mr. Navarro talk to someone in Ernie Camerino's office about taking an extended medical leave. Mr. Camerino's office is responsible for processing retirements and leaves of absence for the School Board. Mr. Navarro picked up a set of leave forms from Mr. Camerino's office on June 19, 2000. On June 20, 1999, Mr. Navarro visited Dr. Phillips' office and requested that Dr. Phillips authorize him to take two weeks off of work. Dr. Phillips refused and again advised Mr. Navarro that he could return to light-duty work. Mr. Navarro submitted a Request for Leave of Absence Without Pay to Ms. Gragg on June 22, 2000, in which he asked for personal leave from June 9, 2000, to July 9, 2000. Ms. Gragg denied Mr. Navarro's request in a letter dated June 22, 2000, which was prepared in both an English and a Spanish version. The reasons given by Ms. Gragg for her refusal to approve Mr. Navarro's leave request were as follows: (1) Mr. Navarro did not request the leave in advance; (2) the leave request form was submitted on June 22, 2000, for leave extending from June 9, 2000, to July 9, 2000, and she could not backdate a personal leave request; and (3) Mr. Navarro did not discuss or provide proper documentation on his leave form. Finally, in the June 22, 2000, letter, Ms. Gragg directed Mr. Navarro to report for work on June 26, 2000. Mr. Navarro wrote a letter to Ms. Gragg dated July 26, 2000, in which he explained that he requested personal leave because he did not feel emotionally stable as a result of his problems and that his personal doctor, Dr. Bogani, had given him documents that showed he approved the leave. Mr. Navarro also advised Ms. Gragg that he was scheduled to have an MRI on June 28, 2000,13 and would receive treatment for his back, depending on the results of the test. Mr. Navarro reminded Ms. Gragg that she had prohibited him from bringing his medication to school and that it was the only medication he took, and that it helped him work "almost normal." The contents of this letter had no effect on Ms. Gragg's decision to deny Mr. Navarro's request for leave without pay. Mr. Navarro's MRI was completed on July 9, 2000, and, on July 10, 2000, Dr. Phillips went over the results with Mr. Navarro. The MRI showed that Mr. Navarro had a disc herniation at L5-S1, which displaced the S1 nerve posteriorally, with severe right foraminal narrowing. In Dr. Phillips' opinion, Mr. Navarro had a serious problem with his back, and he modified Mr. Navarro's work restrictions to provide that he could not lift anything weighing more than 10 pounds. In a letter dated July 10, 2000, sent to Mr. Navarro by certified mail and in both an English and a Spanish version, Ms. Meyer noted that he had not yet reported for his light-duty work assignment, and she reiterated the penalties that could be imposed for his failure to report. On July 14, 2000, Ms. Meyer sent another letter to Mr. Navarro, by certified mail and in both an English version and a Spanish version, advising him that he had been scheduled to report for his light-duty work assignment on June 9, 2000, that he had not done so, and that the missed days would not be approved as related to his workers' compensation claim. Ms. Meyer again urged Mr. Navarro to report for work immediately. Mrs. Navarro telephoned Ms. Meyer's office on July 19, 2000, and spoke with Ms. Riczko about Mr. Navarro's light-duty work assignment. Ms. Riczko told Mrs. Navarro that Mr. Navarro must report to Ms. Meyer's office the next morning at 8:00 a.m. to start his work assignment. Mrs. Navarro said that she would tell her husband. Mr. Navarro reported to Ms. Meyer's office at 8:45 a.m. on July 20, 2000; his wife accompanied him. Mr. Navarro told Ms. Meyer and Ms. Riczko, who was acting as interpreter, that he was not able to work because he was taking pills that made him very lethargic and sleepy. He said that he intended to call Dr. Phillips and ask for a different type of pain medication. Ms. Meyer advised Mr. Navarro that it might be best for him to ask for a leave of absence; Ms. Meyer reiterated that he must report for his light-duty assignment if he did not get approved for a leave of absence. Mr. Navarro was told to report at 8:00 a.m. on July 24, 2000, for his light-duty work assignment. He telephoned at 8:45 a.m. and advised Ms. Riczko that he had taken his wife to the hospital emergency room and needed to stay with her. Ms. Riczko heard nothing further from Mr. Navarro, and he never reported to her office for the light-duty work assignment. After reviewing the results of Mr. Navarro's MRI, Dr. Phillips had requested that Mr. Navarro be examined by a neurosurgeon, and, on August 16, 2000, Dr. Brodner examined Mr. Navarro. Dr. Brodner advised Mr. Navarro that he needed surgery on his back and that there was a 20-percent chance that the surgery would cause paralysis in his legs. As of the date of the hearing, Mr. Navarro had refused the surgery because of this risk. Meanwhile, School Board personnel investigated the allegations made by Ms. Gragg in her telephoned complaint of June 13, 2000, and a report of the investigation was submitted to the School Board's Case Management Review Committee for a determination of probable cause. The committee found probable cause at a meeting held on July 23, 2000, and recommended that Mr. Navarro be terminated from his employment with the School Board. Paul LaChance, the Director of the School Board's Office of Professional Standards, arranged to meet with Mr. Navarro on August 15, 2000, in order to go over the investigation report and the committee's recommendation and to allow Mr. Navarro the opportunity to respond to the charges against him. Mr. Navarro presented Mr. LaChance with a letter written in Spanish, which was later translated into English for Mr. LaChance, in which he offered his explanation for his absences and his version of the events leading up to Ms. Gragg's complaint and the events relating to his failure to report for his light-duty work assignment. Mr. LaChance reviewed Mr. Navarro's letter and requested that Ms. Gragg respond to certain allegations against her that Mr. Navarro had included in the letter. After reviewing Ms. Gragg's response to Mr. Navarro's letter, Mr. LaChance recommended that Mr. Navarro be suspended without pay and that his employment with the School Board be terminated. In a document entitled "Notice of Suspension and Recommendation for Termination of Employment," dated September 8, 2000, and signed by Dr. Marlin, Mr. Navarro was notified that Dr. Marlin would recommend to the School Board that it terminate Mr. Navarro's employment at its September 20, 2000, meeting. The School Board approved Dr. Marlin's recommendation and immediately suspended Mr. Navarro without pay. Mr. Navarro believed that he was not physically or emotionally able to do even light-duty work, and the School Board's records show that Mr. Navarro did not report for either regular work or his light-duty work assignment from June 9, 2000, through September 20, 2000, when he was suspended from his employment. Summary The evidence presented by the School Board is not sufficient to establish with the requisite degree of certainty that Mr. Navarro abused his sick leave privileges. The School Board did not present any evidence to establish that Mr. Navarro was absent for reasons other than medical reasons, and, indeed, the School Board classified Mr. Navarro's absences almost exclusively as sick leave, sick leave charged to annual leave, or sick leave charged to "without pay." There is no question that Mr. Navarro used his sick leave as he earned it, and Ms. Gragg was justified when she directed Mr. Navarro in the March 13, 2000, Verbal Reprimand With a Written Notation to provide medical certifications for any future absences. Mr. Navarro submitted such certifications from Dr. Bogani for most of his absences subsequent to March 13, 2000, although he did not provide medical certifications for his absences on April 5, 6, and 7, 2000; for 4 hours on April 27, 2000; or for five hours on May 22 and May 25, 2000. These lapses are not sufficient to support a finding that Mr. Navarro abused his sick leave privileges, and there is no evidence to establish that Ms. Gragg advised Mr. Navarro that the certifications were insufficient or advised him that he had failed to provide the certifications timely. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Navarro was willfully absent from duty without leave from June 9, 2000, until September 20, 2000, when the School Board suspended him and termination proceedings were initiated. Ms. Meyer advised Mr. Navarro of his obligation to report or face possible disciplinary action in her letter dated June 9, 2000, which was sent to Mr. Navarro in both an English and a Spanish version. Mr. Navarro was repeatedly directed to report for work by Ms. Gragg and Ms. Meyer, both verbally and in writing, and he advised that his failure to report for his light-duty work assignment would jeopardize both his workers' compensation benefits and his employment with the School Board. Credence is given to Mr. Navarro's belief that he was emotionally and physically unable to work subsequent to June 8, 2000, but he failed to explain why he did not apply for a leave of absence until June 22, 2000. Ms. Gragg had advised him to inquire about his eligibility for leave in her reprimand letter of March 13, 2000, and Ms. Meyer urged him to talk with Mr. Camerino's office regarding a leave of absence on several occasions. Mr. Navarro did not apply for personal leave without pay until June 22, 2000, and he requested leave from June 9, 2000, through July 9, 2000. When Ms. Gragg denied the leave, Mr. Navarro did not file a grievance pursuant to the Union Contract, he simply did not report for work. Mr. Navarro was aware of the consequences of his failure to pursue his leave request or to report for work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order sustaining the suspension without pay of Miguel Navarro and terminating his employment with the School Board. DONE AND ENTERED this 22nd day of August, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 22nd day of August, 2001.
Findings Of Fact At all times relevant hereto, respondent, Elizabeth Harrison, was an instructional employee of petitioner, School Board of Broward County. She has held a continuing contract of employment since 1961. When the events herein occurred, she was assigned as a media specialist (librarian) at Nova Middle School in Davie, Florida. Respondent has also used the name Elizabeth Dunn, her maiden name, and E. Dunn Harrison, a variation of her married name. Prior to this occasion, she had never been disciplined for misconduct. Harrison has known Walter James Stanley, Jr. since 1957 when Stanley was a student at a junior high school in Dade County where Harrison was employed. Stanley has been a mathematics teacher at Nova High School since 1981. Nova High School, Nova Middle School and two elementary schools share the same campus in Davie, but are located in different buildings and are considered separate schools within the Broward County school system. In 1984, Stanley made application with Southeast Bank, N.A. for various personal loans. In connection with one of those loans, he purchased insurance policy number 29-235, certificate number 188693, with Bankers Life Insurance Company of Florida (Bankers Life). Under the terms of the policy, whenever Stanley was disabled and unable to work, Bankers Life was obligated to pay the creditor (Southeast Bank) for that portion of the installment loan payment then due. On the credit application filled out on October 17, 1984, Stanley used the name "Walter Stanly," and gave his employment as a teacher at Nova High School. 2/ He also listed Elizabeth Harrison as his supervisor, and gave the telephone number 475-7760 as the number for the school. That telephone number was actually the telephone number in the media room at Nova Middle School where respondent worked. It should be noted that respondent had no personnel responsibilities in her position as a librarian, and had no connection whatever with Nova High School. Indeed, Stanley's personnel records were maintained by the office manager of Nova High School. On January 27, 1985, Stanley executed a claim form under policy number 29-235 with a general agent for Bankers Life. It was eventually forwarded to the claims department in St. Petersburg on February 20, 1985. The form has appropriate sections to be filled out by the creditor, insured, physician and employer. According to the section purportedly filled out by the employer on January 4, 1985, Stanley (referred to as "Stanly" in the form) had been disabled and absent from work at Nova High School since June 5, 1954. The employer section was not signed by an individual, but simply had the words "Personnel Records Secretary" in the signature block where the employer was to sign. However, in the line for the employer's address, the words "3600 College Avenue, Ft. Lauderdale, Fla., 33314 Attn: Elizabeth Harrison" were written. The employer's telephone number was listed as 305-475-7760. To verify Stanley's absences at work, Patricia Verbosch, a claims representative, telephoned 305-475-7760 on February 25, 1985. After Verbosch explained who she was and the purpose of her call, the person who answered the telephone identified herself as Harrison and said she was the personnel records secretary. Although Harrison denies that it was she who spoke with Verbosch that day, it is found that Harrison did indeed speak with Verbosch. Harrison confirmed to Verbosch that she had filled out the form and that the absences for Stanley were correct. Having been satisfied that Harrison filled out the form, the claims department later approved the claim for absences from work for the period August 14, 1984 through February 1, 1985 and paid the creditor $839.36 by check dated April 11, 1985. Without Harrison's representation, the claim would not have been paid. On May 21, 1985 the claims department of Bankers Life was contacted by petitioner's director of internal affairs, Howard Stearns, and told that three other insurance companies were investigating Stanley. Stearns also gave the department's supervisor, Nancy Berghammer, the actual dates of absences by Stanley during school year 1984-85 as well as Stanley's correct name, address and social security number. Shortly afterwards, Stanley made claim under his policy for continued disability after February 1, 1985. In view of Stearns' conversation, and conflicting dates of absences, Berghammer spoke with Stanley by telephone on June 19, 1985. She then telephoned 305-475-7760 the same day and spoke with a female who identified herself as Elizabeth Harrison. Although Harrison denies it was she who spoke with Berghammer, this is not deemed to be credible. Berghammer requested copies of the computer printout for Stanley's attendance record in 1984-85 and an affidavit verifying his dates of absence. She was told by Harrison that it would be supplied by mail. On July 5, 1985, Berghammer received a letter dated June 26, 1985 on Nova High School stationery which read as follows: TO: Banker's Life Insurance Company Claim's Department RE: Walter Stanly's absences from work March 9, 1945/ss#263-71-5128 Mr. Stanly was absent from work from March '84 to June '84; August '84 to June '85. The letter did not bear the author's signature. In connection with a credit application filed with Sentry Acceptance Corporation (Sentry) in Coral Springs, Florida, Stanley purchased policy number 95735 with American Financial Life Insurance Company (America) effective February 29, 1984. This policy provided that during any period Stanley was disabled and out of work, American was required to pay Sentry that portion of the installment loan then due during the disability period. On the application, Stanley used the name "Walter Stanly" and gave March 19, 1945 and 263-71-5128 as his date of birth and social security number, respectively. In January, 1985 Stanley filed a claim for payment under policy number 95735. In the form it was represented that Stanley was absent from work continuously from June, 1984 through December 19, 1984. The portion of the form where the employer was to give the dates of absence from work was blank. After checking with Stanley, an American claims clerk sent a letter to respondent on January 24, 1985 at Nova High School requesting that she document his absences from work. The letter was returned to the claims clerk with a notation on the envelope "Not at Nova H.S." However, on January 31, 1985 a completed claim form was received in the mail by American. The employer's section stated that "Stanly" had been absent from work continuously from June 19, 1984 through January 30, 1985, and that the employer "(didn't) know when Walter will return to work." It bore the purported signature of Elizabeth Harrison, Secretary Records, and gave the telephone number 305-475-7760. At about the same time American had directly contacted the principal's office at Nova High School requesting verification of Walter Stanley's absences. On January 30, 1985, the principal sent American a letter advising that Walter Stanley was absent from work on December 11 through 14, 17 through 20, 1984 and on January 22 through 25, 1985. When no payment on his claim had been made, Stanley telephoned American in February and was told the school had sent a verification letter with different attendance dates than those given on the claim form. After speaking with Stanley, American's office manager, Laurie Ragan, telephoned Nova High School and obtained a different spelling of Stanley's last name, as well as a different date of birth and social security number than those given on the credit application. In an effort to clarify the matter, Ragan telephoned 305-475-7760 on the morning of February 20, 1985 because Harrison's name and telephone number were given on the claim form. Without identifying herself, Ragan asked to speak to Elizabeth Harrison. A second female came to the telephone, and after Ragan identified herself, she gave the purpose of her call. Although Harrison denied it was she who spoke with Ragan, this assertion is not deemed to be credible. Harrison told Ragan she had just seen Stanley that morning, and would forward the requested information. On February 25, 1985 Ragan received a letter dated February 27, 1985 on Nova High School stationery which stated as follows: Stanly, Walter/bd-March 19, 1945 To whom it may concern: Mr. Walter Stanly (263-71-5128) has been absent since June 15, 1984 and as of now he is still out, because of illness. Sincerely, Elizabeth Harrison The letter was written on Nova stationery which was no longer being used. Such stationery was available to all teaching personnel. On March 7, 1985 American sent Stanley a letter advising him that in view of the "many discrepancies" in his name, social security number, date of birth and absences from work, it would no longer honor his claims until such discrepancies were "cleared up." Stanley also purchased disability policy number H1-839-092 from Northwestern National Life Insurance Company (Northwestern). This policy was not purchased in connection with a loan. The application was made on October 26, 1984 and the policy became effective January 1, 1985. Stanley used the correct spelling of his name and date of birth on the application. On March 27, 1985 he executed a claim for disability benefits ($1,000 per month) under the above policy indicating he became totally disabled on February 1, 1985 and did not expect to return to work until August, 1985 due to a leg injury received from tripping over a water hose. The form also reflected that Elizabeth Harrison was the appropriate employer representative to be contacted. The telephone number 305-475-7760 was given. After receiving the claim on April 2, Anita Holmes, a disability claims examiner for Northwestern, engaged the services of Equifax, a firm which specializes in insurance investigations. Holmes requested, among other things, that Stanley be interviewed and that his attendance records from Nova High School be obtained. The investigator, Walter Lohmann, interviewed Stanley at his residence on April 19, 1985. After interviewing Stanley, Lohmann went to Nova High School to secure his attendance records, but he could not find an Elizabeth Harrison in that school's personnel office. On April 23 he returned to Nova Middle School and went to the media room. He entered, introduced himself to Harrison and requested Stanley's attendance records. She told him the hard copies were at the school board central office but she could supply the information from a 3x5 file card she had in her file box. She then retrieved a 3x5 card and told Lohmann that Stanley had been absent continually from February 2 through April 14, 1985. Lohmann later received a copy of Stanley's attendance records from Nova High School and they reflected that Stanley was actually absent on February 6 and March 7, 8 and 11 (1/2 day) due to illness. As a result of this investigation, Holmes wrote Stanley on May 3, 1985 advising him that his claim had been denied. Respondent denied (a) that she was involved with Stanley, (b) that it was she who had spoken with Verbosch and Ragan on the telephone, (c) that she had authored and mailed the employer's statements and various letters sent to the insurance companies, and (d) that she had given Lohmann the false attendance records on April 23, 1985. However, she did concede that Stanley, an old friend, may have asked her to participate in the scheme on one occasion. To support her steadfast denial, Harrison produced an "alibi" witness who claimed she was with respondent on the morning of February 25, 1985. According to this witness, she specifically remembered taking Harrison to work that day around 12:30 p.m., or after Verbosch had telephoned the media office and spoken with a female who identified herself as respondent. However, this testimony is discredited since the official school attendance records reflect Harrison was present at work the entire day. Harrison also offered an expert documents examiner who opined, without credible contradiction, that the signature on Harrison's personal checks was not the same as the signature on the letter purportedly authored by Harrison on February 25 and the employer's certificate on the various claim forms. In fact, the expert found that the claims form certificates may have signed by two or three different persons. In view of this testimony, it is found that Harrison did not author the letter dated February 25 or sign any of the various claim forms. It is further found that Harrison did not receive any financial reward by virtue of her conduct. 4/ However, the remainder of her testimony is not deemed credible, and it is found she had knowledge of the letters and forms, and otherwise aided and assisted Stanley in his efforts to defraud the insurance companies. A former associate superintendent testified on Harrison's behalf and stated that if the facts in the amended petition were true, it would still not justify her dismissal. However, the witness acknowledged that if Harrison represented herself to various insurance companies as a responsible school official for the purpose of allowing a third party to collect unauthorized benefits, such conduct would be "serious" and would warrant the consideration of dismissal as a penalty. Harrison's principal could not say whether Harrison's effectiveness as a teacher at Nova Middle School was impaired by virtue of her conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of immorality and she be suspended for school year 1986-87 and thereafter reinstated on probationary status the following two years, with a return to annual contract status in school year 1989-90. All other charges should be dismissed. DONE and ORDERED this 12th day of August, 1986, in Tallahassee, Florida. DONALLD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1986.
Findings Of Fact Respondent has for twelve years been an instructional employee of the School Board of Broward County, Florida. She currently holds a continuing contract as a classroom teacher, and is assigned to Perry Elementary School in Miramar, Florida. During the same time period, Harold McKahand, Respondent's husband, and Peggy Freeman were instructional employees of the Broward County School Board assigned to Perry Middle School, adjacent to Perry Elementary where Respondent taught. From as early as 1979, Respondent had suspected that her husband and Mrs. Freeman were having a love affair. These suspicions were a frequent topic of conversation between Respondent and her husband. In fact, Respondent had indicated to her husband her intention to seek a divorce. Notwithstanding Mr. McKahand's assurances that he did not want a divorce and would no longer see Mrs. Freeman, he continued to do so, and Mrs. Freeman on many occasions made telephone calls to the McKahand residence, which Respondent apparently considered harassing in nature. All of this culminated in a discussion between Respondent and Mrs. Freeman in August of 1981 in which Respondent requested that Mrs. Freeman cease making telephone calls to her home because they disturbed her and her two children. After this discussion between Respondent and Mrs. Freeman, there was little or no personal contact between them until the act which gave rise to this proceeding. On December 12, 1981, Respondent, her husband and two children attended a racquetball tournament. After the tournament, they returned to their home and Respondent busied herself with work around the home. Respondent's husband, unbeknownst to Respondent, took the family car and proceeded to Perry Middle School to obtain some work folders from his office. Upon arriving at Perry Middle School, Mr. McKahand discovered Mrs. Freeman conducting a Saturday afternoon basketball practice with the school's girls basketball team, which she served as coach. Mr. McKahand and Mrs. Freeman conversed briefly, and Mr. McKahand departed the school and returned home. Meanwhile, Respondent's oldest son had left the family home without performing certain chores which had been assigned to him by Respondent. Upon discovering her son's absence, Respondent took her bicycle and began to search the neighborhood for him. Her search carried her ultimately to the gymnasium at Perry Middle School. Respondent had no knowledge that her husband had gone to his office at Perry Middle School, nor did she know that Mrs. Freeman was conducting a basketball practice at the school. When Respondent arrived at the school, she walked into the gymnasium to see if her son was there. Upon entering the gym, she saw the basketball practice in session, and noticed Mrs. Freeman. When she did not see her son, Respondent started walking from the gym. A member of the girls basketball team advised Mrs. Freeman that Mrs. McKahand was at the door. Although there is some conflict in the testimony on this point, it appears that Mrs. McKahand did not beckon to Mrs. Freeman to follow her outside the gym, but that one of the team players told Mrs. Freeman of Respondent's presence, and indicated to Mrs. Freeman that Respondent wanted to talk to her. Upon being advised of this, Mrs. Freeman walked across the basketball court, picked up her purse from a table, and proceeded to the gym door through which Respondent had exited. By this time Respondent was outside the gym. Mrs. Freeman forcefully opened the gymnasium door behind which Respondent was standing, striking Respondent on the arm. As Mrs. Freeman exited the door, she and Respondent grabbed one another and a fight ensued. The girls basketball team members were at various positions inside the gymnasium at the time the scuffle between Respondent and Mrs. Freeman started. It is clear from the record, however, that each of the students were located behind Mrs. Freeman and, therefore, were not in the best of positions to observe the precise manner in which the conflict started. It is also equally clear that the physical confrontation between Respondent and Mrs. Freeman occurred quickly and spontaneously, and, as a result, the various eye-witness accounts contained in this record predictably contain varying and conflicting versions of the events leading up to and culminating in the scuffle between Respondent and Mrs. Freeman. During the course of their physical confrontation, Mrs. Freeman placed one of her hands on Respondent's throat and the other in Respondent's hair, and Respondent reciprocated, pushing Mrs. Freeman against the gymnasium wall. Several blows were exchanged between the two women. Although the gymnasium door had closed behind Mrs. Freeman, several of the basketball team members followed the two teachers out the door and attempted to separate them. After the fight began, there is no evidence that Respondent acted other than in defense of the actions of Mrs. Freeman. When the students were finally successful in separating the two combatants, Respondent began looking for her sunglasses, which had fallen off, and Mrs. Freeman retrieved her purse, which she had dropped during the altercation. Upon finding her purse, Mrs. Freeman called to several of the students to stand back, whereupon she removed a .22 calibre pistol from her purse, and fired at least two shots. Respondent, upon observing Mrs. Freeman to be armed, began to run from the school premises, retrieved her bicycle, and retreated to her home. Apparently unsatisfied with these results, Mrs. Freeman incredibly loaded several of the team members, including some of the students who testified in this proceeding, into her car, where she reloaded her weapon. Mrs. Freeman then proceeded to drive in a reckless manner, including running several stop signs, to Respondent's home. Upon arriving at Respondent's home, Mrs. Freeman pulled her car into the driveway, took her pistol, got out of her car, and again confronted the Respondent who was standing in her driveway with her two children. Respondent picked up a broom in her garage and got her two children to stand behind her in an attempt to shield them from Mrs. Freeman. Mr. McKahand, who was inside the home during this time, came outside, and ultimately was able to get Respondent inside their home. Mrs. Freeman then departed the McKahand residence, but shortly thereafter began making harassing telephone calls to the McKahand home. Later that afternoon, Mr. McKahand attempted to take Respondent to her part-time job in a local department store, but was prevented from doing so when Mrs. Freeman attempted to run the McKahand car off the street with her vehicle, and further fired upon the McKahands with her pistol. As previously indicated, Petitioner has charged Respondent with referring to Mrs. Freeman as a "bitch" during the course of their fight. Respondent denies making such a statement, and the only testimony in the record which would establish a finding that such a statement was made is contained in the conflicting testimony of Mrs. Freeman and Rachel Geathers, one of the student basketball players. Mrs. Freeman's testimony in this regard, which the Hearing Officer hereby finds unworthy of belief, was that Respondent referred to her as a "filthy bitch" as Mrs. Freeman exited the gymnasium door. Ms. Geathers' testimony was that Respondent referred to Mrs. Freeman as a "bitch" after the two combatants had exited the gym and enough time had passed to allow all of the basketball players to run through the door and outside the gym. Ms. Geathers' testimony in this regard is also rejected, in that several of the other students who were in a better position to observe and hear Respondent and Mrs. Freeman testified that they heard no such statement made. Accordingly, it is specifically concluded that the evidence in this case fails to establish Respondent's use of profanity in the presence of students as alleged in the Petition. There is no evidence in the record of this proceeding to indicate the Respondent's effectiveness as an employee of the Broward County School System has in any way been adversely affected by the above-described events. In fact, Respondent's principal and grade chairman both testified that Respondent is a good teacher, and they would welcome her back on the faculty of Perry Elementary School should she be absolved of the allegations involved in this proceeding. Even a cursory review of the record in this case will reveal sharp divergencies and conflicts in the testimony of several witnesses. In attempting to resolve these conflicts, the Hearing officer has observed the demeanor of the witnesses while testifying, their interest, if any, in the outcome of this proceeding, together with any motive, bias or prejudice which might affect their credibility. Further, the Hearing Officer has also taken into account the conditions existing at the time of the incident observed by the witnesses in weighing the credibility to be attached to the various accounts contained in this record. In so doing, the Hearing Officer has concluded that Respondent did not go to the Perry Middle School gymnasium seeking a confrontation with Mrs. Freeman. Indeed, the record clearly establishes that Respondent did not know Mrs. Freeman was even at the gymnasium on the date in question. Further, it is concluded, despite some evidence to the contrary, that Respondent did not summon Mrs. Freeman to follow her outside the gymnasium, but that Mrs. Freeman was induced to do so as a result of a student telling her that someone was outside the gym to see her. Finally, the quality as opposed to the quantity of the evidence in this case does not support a factual conclusion that Respondent, in fact, initiated the physical confrontation with Mrs. Freeman. Because of her conduct at the time of the incident, and further because of the inaccuracies and inconsistencies in Mrs. Freeman's testimony at the final hearing in this cause, her testimony, in its entirety, is worthy of little credibility. Because of this, her testimony that Respondent initiated the fight has been found unworthy of belief. The testimony of Mrs. Freeman's students, several of whom testified that the first aggressive gesture they saw was made by Respondent, is tainted both by their admitted allegiance to their teacher, Mrs. Freeman, and by their physical positioning which would not admit a particularly clear view of the incident. Conversely, the factual version of this incident given by Respondent in her testimony was, in every particular, more plausible than that contained in the testimony of either the students or Mrs. Freeman. At the time of the above- described incident, almost three and one-half months had passed since Respondent had last spoken in person with Mrs. Freeman. The Respondent did not know that Mrs. Freeman was at the gymnasium when she arrived there looking for her son. As a result, there could not have been any premeditated design on the part of Respondent to assault Mrs. Freeman and, due to the passage of time since her last contact with Mrs. Freeman, there is no apparent motive of record to explain a spontaneous assault. As a result, the only way to resolve the conflict in the testimony concerning how this altercation originated is to weigh the credibility of the various participants. Making such a choice is perhaps the most difficult task a finder of fact must face in a proceeding such as this, but by applying the aforementioned factors, the Hearing Officer has determined that in the areas of conflict, the testimony of the Respondent is more credible than that of either Mrs. Freeman or her students.
