The Issue The issues are whether Petitioner has cause to discipline Respondent, and if so, whether Respondent's employment should be terminated.
Findings Of Fact At all times material, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Washington County, Florida. Respondent began working as a food service worker for Petitioner in 1998. In February 2009, Petitioner employed Respondent as Manager of Food Services at the Chipley High/Roulhac Middle School Cafeteria (the “Cafeteria”). Respondent received good performance evaluations throughout her tenure. Petitioner never had cause to discipline Respondent. In her capacity as manager, Respondent supervised several food service workers at the Cafeteria. These included, among others: Becky Brock, cashier and cook; Florence Harmon, cook; Louise Pettis, cook; and Evelyn Harmon, cook. Respondent was the only manager at the Cafeteria. Petitioner has a contract with an outside vender, Chartwell Food Service Management Company (Chartwell), to provide management oversight for food service operations at Petitioner's school cafeterias. In February of 2009, Chartwell’s on-site manager for the District was Jim Boylen. Every five years, the Florida Department of Education (DOE) conducts a Coordinated Review Effort (CRE) Audit of selected school cafeterias. When Bill Lee became Petitioner's Director of Food Services in October 2008, he learned that there would be a CRE Audit in February of 2009. Mr. Lee knew that DOE would audit two schools in the District. He also knew DOE would not disclose the identity of the schools until February 2, 2009. The CRE Audit is a very important audit. It is designed to assure the integrity of the federally-funded child nutrition programs operated by school districts. The CRE Audit can affect the District’s entire national school lunch operations. As the February 2, 2009, date approached, Mr. Boylen and Mr. Lee were eager to learn which two schools DOE intended to audit. It was Mr. Boylen’s responsibility to make sure that the specific schools were ready for the audit. Thus, Mr. Boylen asked Mr. Lee a couple of times on February 2, 2009, whether DOE had identified the schools. Mr. Lee received an email on February 2, 2009, at 4:11 p.m., that the Cafeteria was one of the two school cafeterias selected for the CRE Audit. Mr. Lee notified Mr. Boylen that same day of the Cafeteria's selection. Earlier on February 2, 2009, Mr. Boylen met with Respondent and her staff to discuss their production sheets. Mr. Boylen identified some deficiencies with the quality of the forms that the staff used. While Mr. Boylen was addressing Ms. Brock, Respondent looked directly at Ms. Brock and made a gesture with her hand while pointing at her head. Ms. Brock understood Respondent’s hand gesture to mean that Ms. Brock was stupid. Respondent's hand gesture embarrassed Ms. Brock. Later on February 2, 2009, Respondent asked Ms. Brock to give her a ride home from work. When Ms. Brock refused because her husband was sick, Respondent told Ms. Brock to "go home to [her] cry-baby husband.” On February 3, 2009, Mr. Boylen notified Respondent that DOE had selected the Cafeteria for the CRE Audit. Respondent was not happy about the selection because DOE had selected the Cafeteria for a previous audit. Respondent felt it was unfair that her lunchroom would be subjected to another audit for the 2008/2009 school term. The CRE Audit is stressful for cafeteria managers because the audit includes a live observation component. During the observation, the auditors observe cafeteria cashiers to determine whether they are properly following collection procedures. The collection process is the least controlled component of the audit. If a cashier makes a mistake during the live-observation, the mistake cannot be fixed. During the afternoon of February 3, 2009, Respondent's staff was cleaning the kitchen in preparation for the audit. When Respondent moved a rolling cart, she saw a pair of Ms. Brock’s shoes under the cart, along with a hard, heavy-duty cardboard tube. The cardboard tube was from an industrial-size roll of Saran Wrap. The cardboard edge of the tube is about a quarter of-an-inch thick, and the opening of the tube is two and one- half inches in diameter. The cardboard tube itself is about 18 inches long. Respondent grabbed the cardboard tube and approached Ms. Brock, who was putting away food. Ms. Brock did not see Respondent approach her, but she heard Respondent talking about a big inspection coming up. Ms. Brock heard Respondent say that “there needed to be some housecleaning starting with [Ms. Brock].” Respondent had the cardboard tube in her right hand. Without any warning, Respondent stopped behind Ms. Brock, drew back, and hit her hard on her hip/buttocks area with the cardboard tube. Ms. Brock had not said anything to provoke Respondent. When Respondent hit Ms. Brock, there was a loud pop. At first Ms. Brock was shocked, asking her co-workers what she had done. Then with a red face and tears coming down her face, Ms. Brock told Ms. Pettis how much it hurt. Ms. Brock’s hip/buttock area immediately began to burn, turn red, and become a whelp with the skin raised up from swelling. After Respondent hit Ms. Brock with the cardboard tube, Respondent told Ms. Brock that Respondent was going to throw Ms. Brock’s shoes in the garbage. Ms. Brock responded to Respondent, saying, “Please don’t.” Respondent then opened the door and threw Ms. Brock’s shoes out the door of the Cafeteria. Ms. Brock was very embarrassed to have been hit in front of her co-workers. Although shy and very embarrassed, Ms. Brock showed the mark to Ms. Florence Harmon, Ms. Pettis, and Ms. Evelyn Harmon. Ms. Pettis described a red streak that was as wide as the tube. Ms. Florence Harmon described a red mark and a good-sized whelp. Ms. Evelyn Harmon also saw the red mark and whelp. Ms. Brock tried to show the red mark and whelp to Respondent. However, Respondent avoided Ms. Brock and would not look at the injury. That evening, Ms. Brock looked in the mirror and saw the bruise. The following day, a bluish-green bruise was still on her hip. These were not the only times that Respondent called Ms. Brock by demeaning and derogatory names and otherwise insulted her in the work environment. Respondent had a history of mistreating Ms. Brock, including calling Ms. Brock demeaning and derogatory names at work, like “dumb-dumb,” “cry baby” and “whimp.” Ms. Brock always tried to be friends with Respondent and wanted Respondent to like her. Ms. Brock usually sat next to Respondent during lunch. Ms. Brock and Respondent would laugh and talk with the group. On one occasion after lunch, Ms. Brock and Respondent watched a DVD movie on Respondent's portable DVD player. On another occasion, Ms. Brock and Respondent met each other at Goodwill to shop. Nevertheless, Ms. Brock was fearful of Respondent. After the incident on February 3, 2009, Respondent put the cardboard tube in her office. Later that day, Respondent called Ms. Brock into her office and asked Ms. Brock why she told Ms. Florence Harmon about the incident. Respondent then threatened Ms. Brock, telling her that “if [she] did not behave that [Respondent] would give her some more of [the cardboard tube].” The following day, Respondent threatened Ms. Brock again by asking Ms. Brock if she “wanted some more of what [Respondent] had given [her] yesterday.” Ms. Brock saw the cardboard tube in Respondent’s office on both of these days. The day after the incident, Respondent also threatened to hit Ms. Florence Harmon with the cardboard tube. Respondent reached down under her desk, pulled out the cardboard tube, and told Ms. Harmon that she “was next.” Ms. Harmon believed that Respondent was not joking or playing around when she made the threat. Initially, Ms. Brock was afraid to report the incident. Ms. Brock had witnessed Respondent retaliate against other employees who had made complaints about Respondent. Ms. Brock feared that Respondent would retaliate against her if Ms. Brock reported the incident. As time passed, Respondent continued to mistreat Ms. Brock by deliberately ignoring her and avoiding her. Respondent wouldn’t talk to Ms. Brock. Ms. Brock eventually decided to report the incident. On February 9, 2009, Ms. Brock called Dr. Cook to report the incident. Dr. Cook told Ms. Brock that Ms. Brock would need to put her complaint in writing. Ms. Brock replied that she was afraid to go to the District's office to deliver her written complaint, because she feared that Respondent might find out and retaliate against her. Therefore, Dr. Cook told Ms. Brock that she could mail her complaint to Dr. Cook’s home address. Ms. Brock typed a letter to Dr. Cook, outlining the facts and circumstances. Ms. Brock mailed the letter on February 10, 2009. When Dr. Cook received Ms. Brock’s letter on February 11, 2009, she asked Deputy Superintendent Jayne Peel and Mr. Lee to investigate the matter. Dr. Cook believed that having two members of the District's staff listening to the employees and taking notes would ensure that the facts were accurately recorded. Dr. Cook believed the matter was very serious, and she wanted it investigated the same day. Thus, Ms. Peel and Mr. Lee immediately went to the Cafeteria. Mr. Lee and Ms. Peel first met with Respondent. They explained why they were there, and they asked Respondent to give her version of the incident. Respondent wrote out a statement in which she admitted that she “popped” Ms. Brock, but claimed she was just playing around and didn’t mean to hurt her. Respondent wrote in her statement that Ms. Brock was “acting like a baby” when the incident occurred. Respondent did not express any remorse over hitting Ms. Brock with the cardboard tube. Ms. Peel and Mr. Lee then interviewed four other food service employees: Ms. Brock, Ms. Florence Harmon, Ms. Pettis, and Gladys Wagner. Among other things, these employees described how Respondent hit Ms. Brock with the cardboard tube and how the injury produced a red mark and whelp. They also related that Respondent’s supervision of the Cafeteria created a hostile work environment. Ms. Peel returned to the District's office on February 11, 2009. She reported the results of the investigation to Dr. Cook. On February 13, 2009, Ms. Brock notified Dr. Cook that the cardboard tube was at the Cafeteria, if Dr. Cook needed it. Dr. Cook obtained the cardboard tube and placed it in a secure location. The atmosphere in the Cafeteria changed on a day to day basis, depending on Respondent's mood. When Respondent was in a good mood, the work environment was friendly, even playful, as the staff joked around. On those days, the staff might pop each other with a dish cloth or brush at each other's feet with brooms. When Respondent was not in a good mood, she was likely to call the staff, in addition to Ms. Brock, derogatory names. For instance, Respondent referred to another employee, Ms. Wagner, as “crippled” or "limpy” because Ms. Wagner had bad knees and walked with a limp. Respondent also told Ms. Florence Harmon, on more than one occasion during the 2008/2009 school year, that Ms. Harmon “should have died when her husband died.” Ms. Harmon’s husband died five years ago. Respondent would refer to herself at work as the “H-N- I-C,” i.e., Head N In Charge. Both before and after the incident, Respondent would reprimand employees in front of their co-workers, teachers and students, including shouting at the employees. When employees requested time off or took time off, Respondent would ignore them and not speak to them. On one occasion, Respondent threatened to reassign Ms. Brock as punishment if Ms. Brock took time off. Respondent sometimes used inappropriate punitive measures in response to employee performance issues. For instance, Respondent threatened to take Ms. Brock’s stool away and make her stand when working as a cashier as punishment for accidentally missing a charge for a slice of pizza. Respondent did take Ms. Brock’s stool away on at least one occasion. Additionally, Respondent used the Cafeteria to cater a private function, for which she earned a profit. Petitioner did not request advance permission to use the facility for personal reasons in violation of Petitioner's policy. Respondent's testimony that she was not aware of Petitioner's policy regarding the use of school property for personal reasons, after seven years as Food Service Manager, is not credible. Dr. Cook carefully considered the facts learned by Ms. Peel and Mr. Lee during their investigation. Even though the CRE Audit was scheduled for the following week, Dr. Cook decided to suspend Respondent with pay effective, February 12, 2009. Ms. Peel and Mr. Boylen met with Respondent that afternoon and advised Respondent of Dr. Cook’s decision. Ms. Peel also advised Respondent that she would have an opportunity for a pre-termination conference with Dr. Cook and that Respondent had the right to request a formal hearing on Dr. Cook’s recommendation. Petitioner subsequently gave Respondent written notice by letters dated February 13, 2009, regarding the following: Dr. Cook’s recommendation, (b) the date of Respondent's pre- termination conference with Dr. Cook; (c) the date of Petitioner's meeting on March 9, 2009; and (d) Petitioner’s right to request a formal hearing. Superintendent Cook had a pre-termination conference with Respondent on February 19, 2009. At that time, Respondent gave her version of the events directly to Dr. Cook. On February 23, 2009, Respondent provided Petitioner with a written request for a hearing. In a letter dated March 18, 2009, Petitioner notified Respondent that Petitioner would meet on March 19, 2009, to decide whether it would conduct the hearing or refer the case to the Division of Administrative Hearings. The March 18, 2009, letter also advised Respondent that Petitioner would rely on additional information relating to inappropriate comments that Respondent allegedly made to employees to support Petitioner's decision to suspend Respondent without pay and terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 16th day of July, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 16th day of July, 2009.
The Issue The central issue in this case is whether FMG met the qualifications to bid as set forth in the Invitation to Bid. Specifically involved is whether or not FMG met the requirement of having been engaged successfully in the business of food service management for at least a ten (10) year period prior to the date of the bid. As a secondary issue, FMG argued that the requirement is a minor irregularity which, by rule, should be waived.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, FMG organized and filed its Articles of Incorporation on November 8, 1985. The Florida corporation has remained active with all fees due the Secretary of State having been paid through December 31, 1987. On July 14, 1986, Thomas David Witten, became the majority shareholder and president of FMG. Mr. Witten's prior work experience included seventeen years of food service management with the Marriott Corporation followed by six years with Canteen. Mr. Witten left Canteen in 1985. While with Canteen, Mr. Witten had Successfully negotiated the contract at South Florida State Hospital for the food service management program. Canteen had obtained this contract after the bid process in 1981. On May 4, 1987, HRS mailed an Invitation to Bid (ITB) to obtain competitive prices for the food service management program contract to commence July 1, 1987. The ITB required the bidders to have engaged Successfully in the business of food service management for at least ten years prior to the date of the bid. The bidder was also required to furnish, as a part of its bid, a written statement evidencing its ability to accomplish the Specified work. As part of the written statement, the bidder was required to include information as to the immediate availability or ownership of the necessary equipment to perform the work, and the financial worth or reputability of the bidder together with the experience which the bidder has had in Successfully completing projects of a similar size, scope and responsibility The ITB also set forth specification; one of which was a performance and payment surety bond in the amount $250,000 to be furnished by the bidder to the hospital upon award of the contract. On May 14, 1987, HRS conducted a pre-bid conference. In attendance were representatives from Canteen, FMG, ServiceMaster, Food Service, and Service America Corporation (not a party to these proceedings). At this pre-bid conference no question was raised by FMG as to the qualification requiring ten (10) years experience in the business of food service management. The bid proposal submitted by FMG responded to the bidder's qualification by enclosing the curriculum vitae for members of FMG's professional staff. Documents regarding the experience of T. David Witten, Jimmy Blicharz, Williams Cox and Robert J. Trinley were included. Mr. Blicharz's career summary described thirteen years of operational and marketing management in the food service industry. Mr. Witten's curriculum vitae described twenty-three years of food service management experience as previously described. Mr. Cox's experience dated to 1966 and detailed food service activity as both food service director and dietician for various health care providers. Mr. Trinley's experience included over twenty-five years of administrative work with various health care providers. FMG described its bidder experience by listing work which had been performed by its individual employees at various institutions. In each of the instances, the experience noted was as a member of the staff of another company- not FMG. FMG, the company, was the bidder for bid number 595-530. HRS opened the proposals for bid number 595-530 on June 10, 1987. Additional information was requested from all bidders. On June 11, 1987, HRS requested the following information from FMG: Demonstration of ten (10) years of corporate history and corporate management of food services for institutions of Similar size and complexity. A written statement evidencing FMG's ability to accomplish the Specified work. FMG's reply to the HRS request maintained that the experience of its principal employees qualified FMG under the bid requirement Clearly, FMG had not successfully engaged in the business of food Service management for at least ten years prior to its bid proposal. HRS did not waive the ten year requirement. HRS, Food Service, ServiceMaster, and Canteen have agreed to readvertise bid number 595-530. The results of the bid tabulation for bid number 595- 530 were as follows: A. Food Service $103,979 B. ServiceMaster $110,000 C. FMG $ 96,900 D. Canteen $106,000 Four other potential bidders did not submit a proposal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That HRS enter a Final Order denying the protest filed by FMG. DONE and RECOMMENDED this 22nd day of October, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH 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 22nd day of October, 1987. APPENDIX TO RECOMMENDED ORDER 87-3131BID, 87-3132BID, 87-3133BID Rulings on Petitioner, FMG's Proposed Findings of fact: Accepted, finding of fact paragraph 1 Accepted, finding of fact paragraph 2 Paragraphs 3 and 4 are accepted but deemed unnecessary since, at best, the described activities have only occurred within the last two years. Paragraph 5 is accepted, finding of fact paragraph 2. Paragraphs 6 and 7 accepted but are unnecessary to the resolution of the issues in this cause. Paragraph 8 is accepted in material part in finding of fact, paragraph 6. Paragraph 9 is accepted and addressed in material part in findings of fact paragraphs 2 and 6. Paragraph 10 is accepted as provided in findings of fact, paragraphs 2 and 6 the balance of paragraph 10 is deemed unnecessary. Paragraph 11 is accepted as addressed in finding of fact, paragraph 6. Paragraph 12 is rejected as unnecessary. Paragraph 13 is accepted only to the extent addressed in findings of fact, paragraphs 10 and 11. The balance is rejected as contrary to the weight of the evidence. Paragraph 14 is rejected as an argumentative conclusion outside the scope the issues to be resolved. Paragraph 15 is accepted in finding of fact, paragraph 14. Paragraph 16 is rejected . Mr. Witten's individual experience is not at issue. Mr. Witten, individually, was not the bidder. FMG chose to submit the proposal and waived its right to challenge the bid qualification requiring ten years experience. The conclusion reached in Paragraph 16 is contrary to the weight of the evidence and the law. Paragraph 17 is rejected. The conclusion reached is argumentative and contray to the weight of evidence and the law. Rulings on HRS' Proposed Findings of Fact: Accepted. Accepted. Accepted but deemed unnecessary to the resolution of the issues of this case. Accepted as addressed in finding of fact, paragraph 3. Accepted as addressed in finding of fact paragraph 3. Accepted as to date for incorporation otherwise rejected as unnecessary. Accepted. Accepted. Accepted. Paragraph 10 and 11 are addressed in material part in finding of fact, paragraphs 6, 7, 10, and 11. Paragraph 12 is accepted. Paragraph 13 is accepted to the extent that its alleges the requirement was considered indispensable, otherwise rejected as unnecessary or not supported by evidence. Paragraphs 14 and 15 are accepted. Rulings on Canteen's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted but unnecessary to the resolution issues in this cause. Accepted. Accepted. Accepted but unnecessary. Accepted. Accepted. Accepted but unnecessary as the parties agreed the sole issue was whether or not FMG met the bid qualification requiring ten years of experience. Rejected. All parties had waived any right to challenge the ten years requirement. Rejected as argumentative Allegation that bid was done as corporation not individually is accepted. Accepted. Rejected. FMG's position is that qualification should be waived. Accepted. COPIES FURNISHED: William E. Williams, Esquire Fuller & Johnson, P.A. 111 North Calhoun Street Tallahassee, Florida 32302 Phil Dresch 2304 Parklake Drive, North East Building 9, Suite 290 Atlanta, Georgia 30345 Roy C. Young, Esquire Young, VanAssenderp, Varnadoe & Benton, P.A. 225 South Adams Street, Suite 200 Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., Esquire District 10 Legal Counsel East Broward Boulevard Fort Lauderdale, Florida 33301-1885 Celeste Rossi, President Duval Street West, Florida 33040 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-700
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges (as finally amended)? If so, whether such conduct provides the School Board of Dade County, Florida, with just or proper cause to take disciplinary action against her? If so, what specific disciplinary action should be taken?
Findings Of Fact Based upon the evidence adduced at hearing, the parties' stipulations, and the record as a whole, the following Findings of Fact are made: The Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent At all times material to the instant case, Respondent has been employed by the School Board. She is currently under suspension pending the outcome of these disciplinary proceedings. Respondent began her employment with the School Board in 1976 as a part-time cafeteria aid/monitor. From 1979 to 1986, she was employed by the School Board as a permanent part-time general worker. During the 1986-87 school year, Respondent participated in the School Board's food service managerial training program. During her participation in the program, Respondent received training and instruction designed to enable her to perform the duties and responsibilities of a food service manager in accordance with School Board procedures and requirements. Respondent successfully completed the training program. Following her successful completion of the training program, she became, in the fall of 1987, the food service manager at Nautilus Middle School (after having served in a similar capacity at another school the preceding summer). At all times material to the instant case, Respondent served as the food service manager at Nautilus Middle School (Nautilus). In that capacity she was responsible for the management and operation of the school's food service program. The Collective Bargaining Agreement As a food service manager employed by the School Board, Respondent is a member of a collective bargaining unit represented by the American Federation of State, County and Municipal Employees, Local 1184 (AFSCME) and covered by a collective bargaining agreement between the School Board and AFSCME, effective July 1, 1994, through June 30, 1997 (AFSCME Contract). Article II, Section 3, of the AFSCME Contract provides as follows: ARTICLE II- RECOGNITION SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: (1) selection and promotion of employees; (2) separation, suspension, dismissal, and termination of employees for just cause; (3) the designation of the organizational structure of the DCPS and lines of administrative authority of DCPS. It is understood and agreed that management possess the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: Discipline or discharge of any employee for just cause; Direct the work force; Hire, assign, and transfer employees; Determine the missions of the Board agencies; Determine the methods, means, and number of personnel needed or desirable for carrying out the Board's missions; Introduce new or improved methods or facilities; Change existing methods or facilities; Relieve employees because of lack of work; Contract out for goods or services; and, Such other rights, normally consistent with management's duty and responsibility for operation of the Board's services, provided, however, that the exercise of such rights does not preclude the Union from conferring about the practical consequences that decisions may have on terms and conditions of employment. Article XI of the AFSCME Contract addresses the subject of "disciplinary action." Section 1 of Article XI is entitled "Due Process." It provides as follows: Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed: verbal warning; written warning (acknowledged); and, Conference-for-the-Record. Conference-for-the-Record shall be held as the first step when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated personnel investigation. The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline (i.e., in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record). The employee shall have the right to representation in Conferences-for-the-Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated. The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notification of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit. Section 2 of Article XI is entitled "Dismissal, Suspension, Reduction-in-Grade." It provides as follows: Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action. The Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions- in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Dismissal, suspension, reduction-in-grade, and non- reappointments are not subject to the grievance/arbitration procedures. Section 3 of Article XI is entitled "Cause for Suspension." It provides as follows: In those cases where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. Section 4 of Article XI is entitled "Types of Separation." It provides, in pertinent part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four distinct types of separation. Voluntary-- The employee initiates the separation by resigning, retiring, abandoning the position, or other unilateral action by the employee. Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of 10 working days after the first day of notification of the unauthorized absence. Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. Non-reappointment-- The employee is separated by management's decision not to offer another annual contract. However, such non-reappointment shall not be in lieu of discipline or lay-off. Employees whose performance has been deemed marginal by the supervising administrator, who have been counseled during the school year concerning performance, and have failed to perform acceptably shall not be reappointed. Such employees and the Union shall be put on written notice of possible non-reappointment. Counseling and written notice of non- reappointment shall be provided in a timely manner. This action shall not be arbitrary or capricious, but based upon reason for the best interest of the employer. AFSCME bargaining unit members employed by the school district in excess of five years shall not be subject to non-reappointment. Such employees may only be discharged for just cause. Layoff-- . . . The factors most important in determining what type of separation occurred for a given employee are: which party initiated the action; what time of the work year the action occurred; and the employer's expressed intent. Article XIII of the AFSCME Contract addresses the subject of "leaves." Section 4 of Article XIII is entitled "Personal Leave Without Pay." It provides as follows: Leave of absence for personal reasons not to exceed 30 days may be granted to permanent employees of the Dade County Public Schools, if approved by the Superintendent, subject to the following guidelines: No wages or salaries shall be paid during such leave, except as provided in other sections of Board Rules. All such leaves in excess of 30 consecutive workdays shall be approved by the Board, except for those granted in accordance with provisions of the Workers' Compensation Law. Reemployment rights to a position of like status shall be protected. Such leave shall not exceed one year in duration. Such leave may be granted for one of the following reasons: to serve in the Peace Corps; to accept a Fulbright scholarship; to fill full-time staff position(s) for AFSCME; and, to continue no more than one parental leave. Personal leave for reasons other than those listed above may be approved by the Board upon recommendation of the Superintendent Permanent employees may request personal leave without pay after three years of continuous employment with the Dade County Public Schools. Section 6 of Article XIII is entitled "Extended Sick Leave Without Pay." It provides as follows: Extended leave without pay for illness of the employee constitutes a protection of one's employment rights. Such leave shall be granted only for health of self or family member, provided the following requirements are met: Employees seeking such leave must make application on the form provided by Personnel Management and Services. Such application must be supported and accompanied by the following: identity of person in ill health; statement from physician explaining why such leave is necessary; and effective dates of requested leave (beginning and ending). Such leave shall not exceed one year in duration. Employees on such leave may, upon expiration of leave, apply for an extension. The employer may grant such extension as warranted; however, the maximum time an employee may be absent on leave for illness of self, illness of relative, or any combination thereof shall be two years. While an employee is on extended sick leave without pay, the employer agrees to continue to pay its regular contribution to the employee's insurance benefits. 1. Notwithstanding the limitations on the maximum length for each type of extended leave of absence without pay (i.e., extended leave for illness/personal or parental), the following overall limitation shall apply to any combination of leaves, regardless of category: The number of calendar years granted for any single period of continuous leave of absence without pay, with the exception of extended military leave, shall not exceed the number of creditable salary years earned with DCPS immediately preceding the leave request, up to a maximum of two. Exception to such provision will be made only for extenuating circumstances, as determined by the Deputy Superintendent for Personnel Management and Services. Employment rights to the same position shall be protected for one year. Employees returning from leave in excess of one year shall be assigned to an equivalent position. Full-time employment while on leave is not permitted, unless specifically requested and approved by the Deputy Superintendent for Personnel Management and Services at the time the leave is granted. If approved for full- time employment, an employee shall not receive any fringe benefits provided by the Dade County Public Schools. The School Board's Rule 6Gx13-4A-1.21 As a School Board employee, Respondent was obligated to act in accordance with School Board rules and regulations, including Rule 6Gx13-4A-1.21, which was in effect at all times material to the instant case and which provides, in part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES EMPLOYEE CONDUCT All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. Records and Reports All personnel shall keep all records and shall prepare and submit promptly all reports that may be required by State Law, State Department of Education Rules, School Board Rules, and administrative directives. . . . Written Procedures of the School Board's Department of Food and Nutrition As a food service manager, Respondent was required to comply with the written policies and procedures adopted by the School Board's Department of Food and Nutrition (DFN), including those described below, of which she was made aware. DFN's Food Service Procedure Number B-6 addresses the subject of "menus and standardized recipes." It has been in effect since August of 1986 and provides, in part, as follows: MENUS, BREAKFAST AND LUNCH Lunch and breakfast menus are on a four-week cycle. Lunch menus are planned for student choices in accordance with Federal Regulation 210.10, National School Lunch Program, which states in part: "whenever possible provide a selection of foods from which children may choose the reimbursable lunch." The lunch menu is designed to provide one-third of the Recommended Dietary Allowance as established by the Food and Nutrition Board of the National Academy of Sciences and the National Research Council. Breakfast menus are planned to meet one fourth of the Recommended Dietary Allowance. Menu items are based on student responses to food preference surveys and actual student involvement with taste-testing and bid evaluation. Alternates are offered throughout the serving period to provide choices for students and staff. . . MENU CHANGES When the county-wide menu is changed at the school level, the principal and the food service administrator should be advised. DFN's Food Service Procedure Number G-12 contains the "job descriptions" of various food service positions. It has been in effect since August of 1991 and provides, in part, as follows: All food service personnel must be informed of the duties and responsibilities of the position they are occupying. The following job descriptions are general statements about the operation and policies established by the Department of Food and Nutrition. Individual school operations and County procedures may require additional duties which would also be a part of a particular job description and become the responsibility of the employee holding that position. FOOD SERVICE MANAGER I-VI FUNCTION OF JOB: The school food service manager is directly responsible for the fiscal management and operation of the food service program of an individual school, as well as any satellite programs assigned to that location. He/she must manage the program in compliance with the School Board of Dade County Administrative Rules and the Department of Food and Nutrition Procedures Manual. The food service manager must train and supervise school food service personnel and organize the work of the food service department by scheduling hours, duties, and equipment for maximum use. Performance is subject to review by administrative superiors as well as through periodic inspections and evaluation procedures. Description of Duties: Accounting/Auditing All payroll hours must be certified as accurate before submitting to payroll clerk. Free and reduced price meal records and all prepayments must be clear, accurate, and auditable. Cash register change and petty cash must be maintained separately and returned to Food Service Accounting at the end of the year according to existing procedures. If a food service manager must leave prior to the end of the year, these funds must balanced and passed on to the new food service manager or the principal. D. Complete all appropriate cash register procedures. Ordering/Inventory Receiving Evidence of pre-planning is necessary to determine control of food usage. Inventory levels of all purchased and commodity foods and non-food items must be kept at a minimum for financial and sanitation purposes. Standardized menus and portion sizes must be followed to maintain proper food costs and to comply with U.S.D.A. guidelines. Leftover food must be accurately accounted for and used according to food service procedures. No food may be taken from the food service facility, including scraps for pets. All items to be transferred must be accompanied by a transfer slip. Check purchases upon delivery and complete appropriate receiving procedures. All food usage inventory and ordering records must be completed accurately. Personnel When hiring new employees or disciplining employees, the principal and food service coordinator should be notified. Proper uniform code must be followed by all food service employees. Outline specific duties of food service employees and schedule their hours of work within the staffing formula. Cooperate with the principal, school faculty and supervisory staff in furthering food service as an educational asset in the school. Assist other school personnel in interpreting the school food service program, its goals and objectives, for the teachers, pupils, parents and community. A helpful pleasant attitude should be encouraged throughout the food service department. This should extend to students, school staff, and other food service personnel. Attendance The attendance of the food service manager is critical since substitutes are not available. Pre-planning is essential in case an emergency occurs. When indefinite absences occur, the food service manager must call in each day until other arrangements are made. Unauthorized absences could lead to disciplinary action. Sanitation Maintain standards in compliance with the County policies for efficient, safe and sanitary practices in preparation and service of appetizing food. A cleaning schedule must be posted and followed. Pest control measures must be maintained and monitored. Storage areas must be free of clutter. DFN's Food Service Procedure Number E-2 addresses the subject of "operating procedures for the NCR P[oint].O[f].S[ale]. cash register." It has been in effect since August of 1994 and provides, in part, as follows: Introduction The computerized Point-of-Sale (P.O.S.) cash register system is an approved accounting system which standardizes operational procedures, provides an audit trail of cash control, and counts and records meals claimed for reimbursement. The system provides each student with an account which tracks updated meal eligibility status, payments and itemized meal components. . . . Operation Following are the procedures for operating the computerized cash register system: . . . Cashier signs on as usual, with his/her specific password. Enter payments received into individual student accounts. Enter breakfast for employees and any visitors. Set the P.C. in LUNCH MODE Check the overlay(s) and make sure that all leftover and substitute items are included on the day's menu. Check all registers to determine if the overlay keys correspond to the menu items. Each sale is entered separately and itemized as each student or adult passes by the cash register. Students enter their account number on the key pad. Adult meals are entered as account 1. The cashier enters each component of each tray as customer passes the POS. Enter lunches for employees and any visitors. Enter Special Programs and Outside Lines. The food service manager enters the daily deposit at the end of the day and prints the Day End Reports. If there are discrepancies on the deposit screen, the Day End Procedure is aborted. If errors are found in the Event log, the transaction data is printed, the incorrect amount is cancelled, the correct amount entered under the corresponding mealtime and Day End Procedure is completed . . . DFN's Food Service Procedure Number E-5 addresses the subject of "cash counting procedures." It has been in effect since August of 1992 and provides, in part, as follows: Each cashier counts the money in the register drawer and gives it to the head cashier or designee for verification (counting the money again). The Cash for Deposit Report MIS 13286, S [and] D [No.] 878-6259 (see attached) is filled out, signed by the cashier and head cashier or designee and given to the food service manager. After all money has been counted, the deposit slip is filled out by the head cashier and co-signed by one other employee. The food service manager should also initial the deposit slip to verify that two people have counted the money. The bag is then sealed and taken to the front office for pick-up. When the food service manager supervises an operation where less than 300 meals are served for lunch, or in a situation where personnel is limited, the manager may be the second person verifying the money count. The signature of the food service manager would then verify the accuracy for both money count and deposit slip. . . . DFN's Food and Nutrition Procedure Number G-6 addresses the subject of "uniform and personal hygiene." It has been in effect since August of 1991 and provides, in part, as follows: To implement high standards of sanitation in school food service programs, the following personal hygiene and dress standards should be observed. It is the responsibility of the food service manager to enforce high standards of personal grooming and sanitation practices in the supervision of employees. Personal Hygiene . . . All food service employees should observe the following habits of neatness: Proper personal hygiene practices. Clean uniform and undergarments daily. Clean unpolished fingernails, cut short. No false fingernails . . . Jewelry Necklaces, earrings, bracelets, broaches, hair ornaments, or fancy handkerchiefs should not be worn while on duty. Plain wedding bands may be worn while on duty. When an employee has pierced ears, plain earrings may be worn. . . . VI. Shoes Professional uniform shoes should be worn. Shoes should be clean, white with a non-skid sole and closed heel and toe, well fitting, and in good repair. Heels should never be run over. Low heeled shoes give greater support and are more comfortable. DFN's Food and Nutrition Procedure Number C-12 addresses the subject of "daily cold storage temperature record." It has been in effect since August of 1988 and provides as follows: A copy of the attached form Daily Cold Storage Temperature Record MIS [No.] 13550 is to be taped on the door of each refrigerator and freezer in the food service department and accurate temperature readings recorded daily. This duty is to be assigned to one employee as a daily responsibility. The food service manager is responsible for proper training of this procedure. In the event of loss of commodity foods due to malfunction of a refrigerator or freezer, a copy of the attached Daily Cold Storage Temperature Record Form is to be submitted to the Department of Food and Nutrition with the lost Commodity Report and the Stop Sale Notice. This information must be reported to HRS when a loss of over $100.00 occurs due to refrigeration malfunction. Each of these reports should be filed along with all other documentation kept for audit purposes. Each refrigerator or freezer should be identified so that trends of malfunctions can be identified. DFN's Food Service Procedure Number C-15 addresses the subject of "perpetual inventory procedures for commodity foods." It has been in effect since August of 1994 and provides as follows: CURRENT STATE POLICY ON PERPETUAL INVENTORY The Florida Department of Agriculture and Consumer Services has stated that current federal regulations (CFR250) do not require perpetual inventory records for USDA donated foods. The regulations do require accountability of USDA commodity food items from the time they are received until they are served. DEFINITION A perpetual inventory is determined by keeping a continuous record of the increase, the decrease, and the balance on hand for each kind of merchandise. PROCEDURE Schools are required to follow all established procedures regarding the care and use of USDA commodity foods. See SFS Procedures C-1 through C-13 for further information. DFN's Food Service Procedure Number C-8 addresses the subject of "inventory of commodity and purchased food and non- food" items. It has been in effect since August of 1989 and provides as follows: Inventory Procedures A complete physical inventory of all commodity and purchased foods and non-food items must be taken as scheduled by Food Service Accounting. Inventory periods are determined by fiscal month rather than calendar month; therefore the physical inventory schedule provided by Food Service Accounting must be consulted to determine the dates for reporting inventory. A preprinted inventory report with price averages will be sent to each school each month. This inventory report will include all items ordered by that school for the past five weeks through the Automated Ordering System, with correct inventory units listed. It is necessary to record only the month and year of receipt on each can or case; the price is not required. All paper goods are part of the cost-of- goods-sold and must be included in the inventory. DIRECTIONS: Two people must take and sign inventory Record physical counts on inventory report Extend amount using prices given Total each page and total each section Obtain a grand total for each category Purchased Food (Dry, Frozen and Refrigerated, Bread and Perishables) Commodity Food (Dry, Frozen and Refrigerated) Paper Goods Make a copy to keep on file at school Send original to Vince Dawkins, Food Service Accounting, mail code 9999-652 Items on hand not pre-printed on the report must be hand-written in and priced from previous inventory or on-line screen. The item number assigned by M.I.S. does not need to be included for these additional items. Counts recorded on the physical inventory should agree with counts on perpetual inventory cards (See SFS Procedure C-15). DFN's Food Service Procedure Number B-1 addresses the subject of the "food service program." It has been in effect since August of 1991 and provides, in part, as follows: PURPOSE The primary purpose of the child nutrition program is to provide students with nutritionally adequate meals that will contribute to their overall good health. A second purpose is to contribute to the development of good eating habits by permitting students to make wise food choices and to develop positive attitudes toward food. The regular school lunch and breakfast programs, as well as the total school environment, should provide experiences that reinforce health and nutrition education in the classroom. DEFINITION School food service is defined as total food and beverages served to students during school hours on school grounds. All income from food and beverage sale is classified under school food service operating funds, except as specified in Board Rule 6Gx13-3B- 1.061. SERVICE AND OFFERINGS In accordance with the Florida Department of Education regulations, Board Rule 6Gx13-3B- 1.061, and the Boards's contractual agreement for the maximum amount of federal cash reimbursements, donated commodities and the state reimbursement, all schools are to limit food and beverages available to students on the school campus during the school hours to: Reimbursable Breakfast priced as a unit Reimbursable Lunch priced as a unit Individually-priced items for students to purchase with or without a lunch for students to purchase in addition to a lunch senior high students. Only one breakfast and one lunch per student is reimbursed. Second meals purchased must be at the adult price and recorded as student item at adult price. Breakfast programs may be closed in secondary schools when daily participation warrants. . . . LUNCH PATTERNS Students are to have available unit priced lunches, low fat and whole milk and full strength fruit or vegetable juices. The reimbursable lunch must meet the nutritional requirements set forth by law and regulations of federal and state governments. Schools are to provide lunches in accordance with the menu published by the Department of Food and Nutrition. Lunch menus should be expanded to provide wider choices. Variations of the unit-priced lunch includes: Chef salads Salad Bars Cold plates Box or bag Lunches Milk served as part of a meal, that has not been opened, may be recycled. . . The Secondary Reimbursable Lunch Includes: Meat or Meat Alternate . . . . 2 Ounces Vegetables and/or Fruits. . . 3/4 Cup (Two Items of 3/8 Cup Each, or Two [No.] 12 Scoops) Bread or Bread Alternate . . . . 1 1/2 Serving Milk . . . 1/2 Pint (Any Flavor) C. Offer Versus Serve- Lunch The National School Lunch Act permits students the opportunity to select three of the five offered components of the reimbursable lunch and still obtain the benefits of the complete unit priced reimbursed lunch rather than paying the price of individual components. Following are accepted component combinations: Meat or meat alternate, vegetable or fruit, vegetable or fruit Meat or meat alternate, vegetable or fruit, bread Meat or meat alternate, vegetable or fruit, milk Vegetable or fruit, vegetable or fruit, bread Vegetable or fruit, vegetable or fruit, milk Meat or meat alternate, bread, milk Vegetable or fruit, bread, milk The above combinations are to be counted as a reimbursable lunch and all food service employees are to made aware of these combinations. Students may not choose two of the same component on the day's meal. (Example: A student choosing pizza may not choose two (2) juices, or two (2) servings of corn to complete the day's meal). A student wishing two servings of the same item must pay the a la carte price for the second repeated item. A sign must be posted to make students aware of the Offer versus Serve option. . . DFN's Food and Nutrition Procedure Number F-3 addresses the subject of "equipment maintenance." It has been in effect since August of 1991 and provides, in part, as follows: MAINTENANCE SERVICES are those which pertain to the actual "Repair" of equipment items. The food service manager assumes the responsibility for the use and care of the food service equipment. . . . ROUTINE REPAIR PROCEDURE Food service manager responsibilities: Prepare for the principal's signature a Maintenance Support Request Form (MIS-10400) describing the services required and send the form to the Maintenance Department via school mail. Refer to the work order number previously assigned when making call regarding a routine maintenance request. These maintenance work order numbers will appear on a weekly "print- out" from Maintenance Systems listing all work orders for individual schools. EMERGENCY MAINTENANCE Situations that require immediate action by the Maintenance Department to correct problems that involve the safety, health and welfare of the Food Service Program are considered emergencies, e.g. a freezer breakdown. EMERGENCY REPAIR PROCEDURE The food service manager should: contact the zone mechanic, if possible. telephone the appropriate Maintenance Department location directly: . . during the telephone request, record the work order number assigned by the Maintenance Department for future reference. when necessary to make subsequent calls regarding an emergency request, refer to the previously assigned work order number. The Chain of Command Food service managers must obey the reasonable work- related directives of their supervisors. The principal of the school to which a food service manager is assigned has supervisory authority over the food service manager. The principal, however, may delegate such authority to another administrator at the school. In exercising supervisory authority over the food service manager, the principal (or the principal's designee) is assisted by a DFN food service coordinator. The food service coordinator monitors the school's food service program to determine if there is compliance with School Board (DFN) procedures and requirements and brings to the attention of the principal (or the principal's designee) and the food service manager any deficiencies that are found. Respondent's Early Years at Nautilus From the time that she became Nautilus' food service manager in the fall of 1987, until August of 1993, Respondent worked under the supervision of Elsie O'Dell, an assistant principal at the school who had been delegated (by the principal) the authority to oversee the school's food service program. In O'Dell's opinion, Respondent was, overall, an "efficient manager." Although Respondent discharged her duties and responsibilities in a manner that satisfied O'Dell, there were occasions when others evaluating her performance found it to be deficient in certain areas. The Arrival of a New Principal at Nautilus In July of 1993, Freddie Pittman, Sr., became the principal of Nautilus, a position he still holds today. Following O'Dell's retirement in August of 1993, Pittman assigned another assistant principal to be responsible for oversight of the school's food service program. In the months that followed, Pittman received complaints regarding the school's food service operations. The March 7, 1994, Evaluation On March 7, 1994, Jeanne Ober, a food service coordinator, visited Nautilus to conduct a compliance review of the school's food service program. There were deficiencies that Ober noted. Ober recorded her findings in a Compliance Visitation Criteria report, which she furnished to, and discussed with, Respondent. The report reflected that there was a need for improvement (NI) in meeting the following requirements relating to "cash control and accountability/NCR:" Each sale is entered separately and itemized as each student or adult passes by cash register. Exceptions may be made with approval. (SFS E-2) Money is counted by cashier and one other employee other than the manager. Exceptions: participation at or under 300, and limited staff. (SFS E-5) The report also contained the following "recommendations/comments" concerning these matters: 1) Cashier must ring up each student as they pass register. Cashiers should count their own drawers and check each other's cash drawer. Ober's report further reflected that there was a need for improvement (NI) in meeting the following requirements relating to "inventory control," "personnel," and "sanitation and safety:" INVENTORY CONTROL . . . 4. A perpetual inventory is maintained for each commodity food item. (SFS C-8). . . PERSONNEL 1. All personnel are informed of their job descriptions and work schedules are planned. (SFS G-12) . . . 4. Work Hours Used Report is completed according to procedure. (SFS G-8) . . . IV[sic]. SANITATION AND SAFETY . . . 7. Temperature readings are recorded daily for each refrigerator, freezer, milkbox and dry storage area. (SFS C-12) The report also contained the following "recommendations/comments" regarding these matters: * no fingernail or false fingernails; all employees must wear proper footwear (white- not canvas non-skid); temperature charts must be kept on a daily basis; job descriptions and schedules to be posted; inventory cards (commodity) and work hours used to be current. Olicker Becomes Respondent's Immediate Supervisor After the end of the 1993-1994 regular school year, the assistant principal who had replaced O'Dell as the on-site administrator responsible for supervision of Nautilus' food service program was reassigned to another middle school. At the beginning of the 1994 summer term, Pittman assigned the food service supervisory duties that had been performed by O'Dell's successor to Charlene Olicker, an assistant principal at Nautilus since August of 1993. Pittman told Olicker, when he advised her of the assignment, that "there were some problems in the cafeteria" and that he wanted her "to get a handle on them and turn them around." Olicker was a demanding and vigilant supervisor. Within a week after her assignment, Olicker met with Respondent to explain what she expected of Respondent. She told Respondent that it was her expectation that students would receive the meals to which they were entitled, that the meals would be prepared appropriately, and that they would be delivered in a timely manner. Respondent was further advised that if she had any work-related problems or need for assistance, she should discuss these matters with Olicker before "she went anyplace else" inasmuch as Olicker was "the first step in the administrative chain." In addition, during her meeting with Respondent, Olicker emphasized that Respondent needed to timely contact Olicker if Respondent was going to be late or absent. The 1994 Summer Term On July 7, 1994, Jacqueline Ruybali, a DFN summer school feeding monitor, visited Nautilus to conduct a compliance review of the school's summer feeding program. Respondent was absent from work that day. There were deficiencies that Ruybali noted. Ruybali recorded her findings on a Monitor's Site Review form. She left the completed form on Respondent's desk. Ruybali subsequently telephoned Respondent and discussed her findings with Respondent. Ruybali's report reflected that the meal (lunch) did not "follow the day's menu plan" and that students were not given required food options and choices. The report further reflected that improper entries were being made by the cashiers. Ruybali also visited Nautilus on several subsequent occasions to speak with Respondent concerning Respondent's failure to comply with School Board (DFN) procedures and requirements regarding inventory and accounting. On July 12, 1994, Respondent reported late to work without having given any advance notification of her late arrival. Her tardiness caused the serving of breakfast to be delayed. Following Respondent's arrival at work, Olicker spoke with her and reminded her that she was required to telephone the school if she would not be present at work by 8:00 a.m. That same day, July 12, 1994, Respondent made changes to the lunch menu without following the School Board (DFN)- prescribed procedure for making such changes. Upon learning that Respondent had made these changes, Olicker spoke with Respondent and reminded her what she needed to do in order to comply with the School Board (DFN)-prescribed procedure for making menu changes. On July 14, 1994, inappropriately prepared grilled cheese sandwiches were served for lunch in the Nautilus cafeteria. On July 15, 1994, Olicker sent Respondent a memorandum concerning the incident, which read as follows: The main course for the above referenced lunch was grilled cheese. The students experienced considerable difficulty biting into the sandwiches, which looked over-cooked and/or rewarmed from the previous day. I observed students futilely attempting to eat the sandwiches by softening the card-like bread with milk, breaking off the crusts, and breaking the bread into bite-size pieces. One student told me that she could not eat her lunch because she was afraid she would break her braces if she bit into the sandwich. Many students simply did not eat the main course. Obviously, it is unacceptable to serve food which is inappropriately prepared. Please arrange to meet with me to discuss this situation. Olicker subsequently met with Respondent and discussed the contents of the memorandum with Respondent. Respondent blamed the substandard quality of the grilled cheese sandwiches on the head cook. On July 19, 1994, Olicker made arrangements to meet with Respondent on July 21, 1994, to discuss several issues related to cafeteria management and operations, including Respondent's continuing failure to comply with School Board (DFN) procedures and requirements regarding menu changes and Respondent's continuing failure to report to work on time. Respondent did not show up for the scheduled meeting. Thereafter, the meeting was rescheduled for July 22, 1994. Once again, Respondent did not make an appearance at the meeting. Olicker subsequently sent Respondent a memorandum expressing her concerns regarding Respondent's failure to meet with her as planned. In the memorandum, Olicker advised that she was "referring the matter to Mr. Pittman for further consideration." On August 4, 1994, Respondent met with Olicker and Pittman. Later that same day, following the meeting, Olicker prepared, and furnished to Respondent, a memorandum (Olicker's August 4, 1994, memorandum) in which she summarized what had transpired at the meeting. The memorandum read as follows: A conference was held at 2:30 p.m. this afternoon [August 4, 1994] to address several issues that have been pending. Present and participatory at this ninety minute meeting were Mr. Pittman, this administrator, and you. The following is a summary of professional concerns that were addressed, with agreed upon resolutions: Effective immediately, responsibility for administrative oversight of cafeteria operations has been transferred from Mr. Bowen [O'Dell's successor] to this administrator. You are reminded, and have agreed, that all concerns regarding cafeteria operations which require administrative assistance will be brought directly to this administrator, rather than to the principal. All aspects of cafeteria operations are the direct, immediate responsibility of the Food Services (Cafeteria) Manager. The scope of responsibility includes (but is not limited to) on-si[te] management of the entire process of food preparation and delivery of meals. You have agreed to be in the kitchen during the entire lunch period to ensure appropriate preparation of food, and to back up the cook, the baker and the lines for efficient, time-effective delivery of individual meals. You have agreed to dispose of inappropriately prepared foods in accordance with district procedures. You have agreed that students who inadvertently receive inappropriately prepared food have the absolute right to exchange it. This administrator will advise the faculty that our students must be informed of their right of a replacement meal upon presentation of their tray to the Food Services Manager or designee. Students who refuse meals or portions of meals based upon a food-specific allergy will receive alternate items which do not contain the allergen. If you do not have medical documentation in your file, you have agreed to request clarification of student status from this administrator. Under no circumstances will a student who verbally reports an allergy be required to accept any food item containing the alleged allergen. You have agreed to accept the word of the student until the situation is administratively resolved. You have agreed to supply Ms. Brenda Taylor, Clerk, with a complete list of student names and Personal Identification Numbers (PINS). Students who forget their PINS will be required to report to the Attendance Office to receive them from Ms. Taylor. You have agreed to continually update Ms. Taylor's list. Effective immediately, you have agreed to the follow the published district food menus for breakfast and lunch. Changes in the menu will not be routine. If a menu change is required, you have agreed to notify this administrator and Ms. Joanne Br[ew]ton, Food Services Coordinator, of the compelling circumstances in writing. If menu changes are dictated by the district, a copy of the E-mail will be forwarded to this administrator. In either event, you have agreed that your written notification will include details of the change. You have agreed to utilize ordering cycles to ensure timely delivery of supplies. You have also agreed to request early delivery of items to be served on Mondays to ensure that the district menus will be followed. Leftover foods may be served the next day (only), in accordance with district procedures. If the rewarmed food is not appropriate for delivery to our students, then you have agreed to dispose of it in accordance with district procedures (disposal or donation.) In accordance with your request, this administrator has recommended and the principal has approved your on-line access to PARIS. You have agreed to submit the following documentation to the administrator on a continuing basis: Portions Planned (weekly); End of Day Cashier Report (daily); current district memorandum regarding vendor bids (August 5, 1994), 1994-95 district memorandum regarding vendor bids (August 25, 1994). Your eight-hour workday has been established as commencing at 7:30 a.m. and ending at 4:00 p.m., including a 30 minute lunch period which you have agreed to take at 11:30 a.m. You may not "skip lunch" and leave for the day at 3:30 p.m. If you are going to be late, or if you are going to be absent, you have agreed to page me on my beeper with a "22" code at 7:00 a.m., and follow up by calling the school at 7:30 a.m. to leave the appropriate message for this administrator. If you have scheduled an appointment which will require you to leave the school during the workday, you have agreed to submit your request for mid-day or early leave to this administrator at least 24 hours in advance. Respondent did not fully comply with the directives given to her on August 4, 1994. On August 5, 1994, Respondent failed to report to work on time and did not comply with the notification requirements described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum. Olicker responded to such noncompliance by preparing, and furnishing to Respondent, another memorandum (dated August 5, 1994), which read as follows: Yesterday afternoon, a conference was held. In attendance were Mr. Pittman, this administrator, and you. Among the issues discussed were the hours of your workday and procedures for reporting lateness and absence. (Please refer to memorandum CLO/1994-95/M09, August 4, 1994, "Summary of Conference, August 4, 1994," page 3, item 11.) This morning you did not report to work on time, and you agreed that you had failed to comply [with] procedures set forth and agreed upon at the above referenced meeting as follows: you did not page me at 7:00 a.m.; and, you did not call the school at 7:30 a.m. to leave the appropriate message for me. The exact time of your arrival has not been satisfactorily determined, however, you had not yet arrived at 8:15 a.m., and you were present in your office, at 9:10 a.m. I questioned you in your office as to your time of arrival, and informed you that your estimate of 8:10 a.m. was incorrect. In any event, you were at least 45 minutes late for work this morning. Article XI, Section 1.A of the Contract between the Dade County Public Schools and the American Federation of State, County, and Municipal Employees, Local 1184, July 1, 1991 through June 30, 1994 (referred to herein as "the Contract"), states: "Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency of rule, regulation or policy violated."03 0 3 The successor collective bargaining between Please be reminded that you have agreed to comply with the outcomes of our meeting yesterday afternoon. It is anticipated that there will be no recurrences of the incident this morning, and the terms of our accords will be respected. On August 22, 1994, Respondent again failed to report to work on time and did not comply with the notification requirements described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum. Olicker responded to such noncompliance by preparing, and furnishing to Respondent, yet another memorandum (dated August 22, 1994), which read as follows: This morning you did not report to work on time. You failed to comply with procedures set forth and agreed upon at our meeting of August 4, 1994 (please refer to memorandum CLO/1994-95/M09, August 4, 1994, "Summary of Conference, August 4, 1994," page 3, item 11) as follows: you did not page me at 7:00 a.m.; and, you did not call the school at 7:30 a.m. as required. Ms. Taylor received and logged a call from you at 7:55 a.m. to leave a message for me that you would be late. The exact time of your arrival has not been satisfactorily determined, however, I observed your presence in the front office at approximately 9:10 a.m. It may be surmised, therefore, that you were at least 90 minutes late for work this morning. You are again reminded that Article XI, Section 1.A of the Contract between the Dade County Public Schools and the American the School Board and AFSCME (which became effective July 1, 1994) contains an identical provision. Federation of State, County, and Municipal Employees, Local 1184, July 1, 1991 through June 30, 1994 (referred to herein as "the Contract"), states: "Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency of rule, regulation or policy violated." This is the second such incident since the above-mentioned conference was held. This incident also represents the second occurrence of undocumented time of arrival at work. In order to accurately document your time of arrival for payroll purposes, you are asked to report directly to Ms. Taylor or me whenever you enter the building past 7:30 a.m. You may not call the attendance office from the cafeteria in lieu of a personal appearance. Once again please be reminded that you have agreed to respect school board and site procedures, and, further, that your compliance is required. The purpose of this memorandum is to comply with the above-cited section of the Contract by rendering notice of violation to you. The following day, August 23, 1994, Respondent again reported to work late and failed to comply with the requirement, described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum, that she "beep" Olicker at 7:00 a.m. to let Olicker know that she would not be on time. Following Respondent's arrival at work on August 23, 1994, she reported to Pittman and Olicker that food that had been stored in the freezers in the school's kitchen had spoiled due to a power outage. Olicker directed Respondent to take various measures to address the situation. These directives were subsequently reduced to writing in the following memorandum, dated August 24, 1994, that Olicker sent to Respondent: Yesterday you reported to Mr. Pittman and to this administrator that the food in the freezers had spoiled because the electrical supply to the freezers had failed. You also reported to this administrator that you had already ordered a new supply of food. This situation raises several concerns which need to be addressed immediately. Although there were intermittent power failures during the last several weeks, none were for an extended period of time. The insulation in the freezers should have kept the food unspoiled until the electrical power was restored. The restoration of power should have caused the freezers to immediately resume normal operation. Since this did not occur, it is obvious that a serious situation exists. I will ask Mr. Simms to immediately investigate the power supply to the freezer, from the main breaker to the outlet, to ensure that it is not defective. It is also requested that you immediately investigate the procedure for diagnosing and remediating the faulty operation of freezers (if you have not already done so). Please be assured that the appropriate repairs will be authorized as soon as you and Mr. Simms have provided me with your findings. These reports are due to me on or before Friday, September 2, 1994. Please provide me with the serial and Property Control (PC) numbers of all affected freezers, and an itemized inventory of all the food that was spoiled and had to be discarded. This is also due by Friday, September 2, 1994. Please attach to the above-mentioned inventory written procedures (district and internal) for discarding large amounts of spoiled food. Please attach to the above-mentioned inventory the procedure you will employ for deodorizing the affected freezers (if that can be done). I trust that you have complied with all relevant items of our agreement (please refer to Memorandum [No.] 09, "Summary of Conference, August 4, 1994," items 6, 7 and 10). Your cooperation is required and greatly appreciated. Respondent did not timely furnish Olicker with the required documentation (described in Olicker's August 24, 1994, memorandum). On August 24, 1994, Respondent was absent from work and failed to provide advance notification of her absence in accordance with the procedure described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum. On August 25 and 26, 1994, Respondent failed to report to work on time and did not comply with the notification requirements described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum. On Friday, August 26, 1994, Joanne Brewton, a food service coordinator, visited Nautilus to ascertain the readiness of the school's food service program for the start of classes for the 1994-95 regular school year (on Monday, August 29, 1994). Brewton discovered that Respondent had yet to make the necessary preparations for the upcoming school year. As of this date, Respondent had not contacted any of her staff, prepared job descriptions or had the kitchen cleaned. During her August 26, 1994, visit, Brewton participated in a meeting that Respondent had with Olicker and Pittman. At the meeting, Respondent was reminded that she needed to address any work-related concerns or requests for administrative support to Olicker before raising them with anyone else in the chain of command, including Pittman and Brewton. Respondent was given this reminder because she was continuing to attempt to speak to Pittman and Brewton about work-related matters without first discussing them with Olicker. In addition, at this August 26, 1994, meeting, the general procedures for the issuance of PIN numbers to students,04 and those specific procedures that would be followed the first day of the new school year, were reviewed with Respondent. As the food service manager, Respondent was ultimately responsible 04 Each student is supposed to be assigned a separate, four-digit PIN number, which enables the student to obtain meals in the school cafeteria. for ensuring that each student at the school was issued a PIN number. The Beginning of the 1994-95 Regular School Year Brewton paid a return visit to Nautilus on Monday, August 29, 1994, the first day of the 1994-95 regular school year, with the intention of providing Respondent with assistance. Respondent still had not taken the necessary measures to prepare for the opening of school. She was instructed to correct these deficiencies. Furthermore, on this first day of school, Respondent did not comply with the procedures regarding PIN numbers that had been reviewed with her during the August 26, 1994, meeting she had with Olicker, Pittman and Brewton. On this day, Respondent had another meeting with Olicker and Pittman at which the subjects of PIN numbers and the chain of command were discussed. Following the meeting, Olicker sent Respondent two separate memoranda, each dated August 30, 1994, concerning these subjects. The memorandum concerning PIN numbers read as follows: On Friday, August 26, 1994, a meeting was held in Mr. Pittman's office. In attendance were the principal, this administrator, Mrs. Joanne Brewton, Food Services Coordinator, and you. Another meeting was held in Mr. Pittman's office on Monday, August 29, 1994. In attendance were the principal, this administrator, and you. The procedure for issuing lunches to students who did not have lunch PINs (Personal Identification Numbers) was designed as follows: All students who receive meal cards are responsible for memorizing their PINs. If they forget their PINs, or lose their cards, they may see Ms. Brenda Taylor, who will give them their numbers again. You are responsible for updating Ms. Taylor's computerized list at the end of every day. All students who do not have lunch numbers will receive them from you. This includes new registrants, and returning students who have not been issued lunch cards. Students for whom there is no PIN by lunchtime will receive a full lunch. Your responsibility is to ensure that the names of those students do not appear on the computerized list, and to record their names on a running list. The list of students fed without PINs is to be submitted at the end of each day to Ms. Judith Coldros-Williams, Treasurer, for reconciliation. Ms. Coldros will then issue a check to the cafeteria. . . . This memorandum is to direct you to follow the procedure as it was designed and reiterated herein. Ms. Coldros has been instructed to reconcile the lists when you resubmit them and to issue a check to the cafeteria for those students who meet criterion [No.] 4 as described above. The memorandum concerning the chain of command read as follows: On Friday, August 26, 1994, a meeting was held in Mr. Pittman's office. In attendance were the principal, Mrs. Brewton, this administrator and you. Yesterday, another meeting was held in my office, with you, Mr. Pittman and this administrator in attendance. A topic of discussion at both the above- referenced conferences was the internal administrative chain available to you for program support. In accordance with the consensus of yesterday that you receive written reiteration of information to facilitate communication, the appropriate administrative chain of command is delineated as follows: This administrator has been delegated the responsibility of oversight of the Food Services program, including kitchen and cafeteria operations. Issues related to this program which require administrative assistance are appropriately brought to this office. The principal is available to assist in matters that cannot be resolved at the level of delegated responsibility. It is requested that you inform this administrator of your intention to request the assistance of the principal. Mrs. Brewton assumes that you have notified this office prior to requesting her assistance. It is hoped that this memorandum provides the requested clarification. During her August 29, 1994, visit to Nautilus, Brewton went with Olicker to Respondent's office, where they observed six signs on the walls which contained the following statements: first sign- "When I woke up this morning I had one nerve left, and damned if you ain't got 'on it;'" second sign- "In case of fire awaken sleeping employees slowly to prevent nervous shock and leave as fast as you do at closing time;" third sign- "Doing a good job here is like wetting your pants in a dark suit: you get a warm feeling but no one else notices;" fourth sign- "I'm surrounded by idiots;" fifth sign- "All employees here love their Jobs. Its just the work they hate;" and sixth sign- "I've been beaten, kicked, lied to, cussed at, swindled, taken advantage of and laughed at, but the only reason I hang around this crazy place is to see what will happen next!!!" Olicker believed that the signs were inappropriate for the workplace inasmuch as they did not foster a positive work environment. She ordered Respondent to remove the signs by the end of the workday. Respondent failed to comply with this reasonable directive. When Olicker visited Respondent's office the following morning (August 30, 1994), the signs that Olicker had ordered Respondent to remove were still on the walls. Olicker confiscated the signs. Later that same day, she sent the following memorandum to Respondent: Yesterday morning, Mrs. Joanne Brewton, Coordinator, Department of Food and Nutrition, was accompanied by this administrator to the cafeteria. We observed six inappropriate signs hanging on your office wall which we judged to be highly inappropriate to the workplace, and certainly oppositional to our endeavor to instill and maintain pride in our school. I instructed you to remove them by the end of the school day. This morning, I visited your office at 7:40 a.m., and observed that the signs were still in place. As you were at that point preoccupied by a telephone call, I removed the offensive material, and exited the cafeteria with it. You are again reminded that Article XI, Section 1.A of the Contract between the Dade County Public Schools and the American Federation of State, County, and Municipal Employees, Local 1184, July 1, 1991 through June 30, 1994 (referred to herein as "the Contract"), states: "Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency of rule, regulation or policy violated." The purpose of this memorandum is to comply with the requirements of the above-cited section of the Contract. Enclosed with this memorandum are the above- referenced signs. You are instructed to refrain from displaying them in the school. It is also highly recommended that you scan your office for any remaining material which may be interpreted as inappropriate to the workplace, and remove said items in the interests of professional pride. Brewton returned to Nautilus on August 31, 1994. The deficiencies that she had noted during her previous visits had not been corrected. Brewton again directed Respondent to take the necessary corrective action to eliminate these deficiencies. Such action was to be taken by September 2, 1994. Brewton prepared a written report of her August 31, 1994, visit, which she provided to Respondent. The report read as follows: Manager has not followed recommendations and directives given to her on Friday, Aug. 26. As of today, the following directives were given again to her. Personnel- All employees are to receive their job descriptions including work hours and lunch time. Post an organizational chart and work schedule. Following hiring procedure, as per Ms. Olicker, assistant principal. Staff kitchen using food service work hour procedures. (Kitchen is understaffed!) Schedule three (3) employees at three (3) hours each to clean all kitchen equipment and serving lines. Remember employees must be trained to operate cash register and food service equipment! Accounting- Print student pin number lists for all cashiers and front office when needed. Follow food service procedures for filing and storing all food service records and reports. On September 2, 1994, Respondent failed to act in accordance with the procedures set forth in Olicker's August 30, 1994, memorandum concerning PIN numbers and, as a result, some students did not receive lunch. On that same date, September 2, 1994, Respondent informed Olicker that she would be not able to serve an item on the lunch menu for that day because the item (sausage pizza) had not been delivered. While it was true that the item had not been delivered, the reason it had not been delivered was because Respondent had not ordered the item in accordance with School Board (DFN) procedures. On September 7, 1994, Respondent attempted to circumvent the chain of command when, without first discussing the matter with Olicker, she wrote a note to Pittman in which she inquired of him whether "food service employees (part-time) need to sign out/in if they want to go out of the building." On September 12, 1994, Respondent left her cafeteria keys in a manila envelope for one of her subordinates, Julia Bing. On the envelope, Respondent wrote a note in which she instructed Bing, in Respondent's absence, to "not give [Respondent's cafeteria] keys to any one not even the principal or the other one." On September 13, 1994, Brewton paid another visit to Nautilus. As of this date, there were still deficiencies in the school's food service program. Brewton prepared, and subsequently provided to Respondent, a written report describing these deficiencies. The report read as follows: On Aug. 29 during site visit the following deficiencies were identified and a corrective action plan was developed with the manager: Personnel- job descriptions, work schedule, organizational charts and hiring procedures Accounting- student pin numbers and food service records and reports On Aug 31 corrective action directives were monitored and no actions were taken by the manager. On Sept. 2 manager was to provide food service personnel with job descriptions and work schedule. Subsequently information was faxed on Sept 9 to my office. On Sept. 13 during another site visit, the manager was (on an excused) absen[ce] but did not leave an on-site person in charge of managing the food service operation. The breakfast service was incompliant and because I was present on the site, the lunch service was supervised by myself and was compliant. The following deficiencies were noted: -Bread order had to be placed/emergency food order phoned in -Staff needed directions -Breakfast menu not posted. -Storeroom issue sheet not posted. -Accurate reports and records not filed -Student pin numbers had to be issued On September 14, 1994, Respondent reported to work late and failed to comply with the requirement, described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum, that she "beep" Olicker at 7:00 a.m. to let Olicker know that she would not be on time. On September 16 and 19, 1994, Respondent made changes to the lunch menu without following the notification requirements described in numbered paragraph 6. of Olicker's August 4, 1994, memorandum. On September 19, 1994, Respondent attempted to discuss with Pittman a work-related matter that she should have (in accordance with previous directives given her), but which she did not, first discuss with Olicker. On September 20, 1994, Pittman directed Respondent (in writing) to report to Pittman's office on September 22, 1994, for a conference-for-the-record concerning: [He]r level of productivity. The implementation of duties applicable to the position of Food Service manager. Effective delivery of services and support. The conference-for-the-record was held, as scheduled, on September 22, 1994, with Respondent, Pittman and Olicker in attendance. Respondent's deficiencies were addressed at the conference. Respondent was advised that, following the conference, she would receive a written "list of directives" and that her failure to comply with these directives would "negatively impact [her] future employment." On September 22 and 23, 1994, Respondent made changes to the lunch menu without following the notification requirements described in numbered paragraph 6. of Olicker's August 4, 1994, memorandum. On September 23, 1994, Olicker met with Respondent to discuss Respondent's failure to fulfill her responsibility to monitor and confirm the personnel status of two individuals who had received offers of employment to work on a part-time basis in the Nautilus cafeteria. On that same date, September 23, 1994, Respondent sent Olicker a note advising Olicker that the "menus may be change[d] for next week" because "items [were] not available." In response to the note, Olicker sent Respondent the following memorandum, dated September 23, 1994 (Olicker's September 23, 1994, memorandum): The information you provided to me this morning regarding proposed changes in the lunch schedule for the above-referenced week [September 26-30, 1994] is insufficient. As you are aware, you are required to provide three- to four- day advance notification of the specific menu item changes, the reason for every proposed change, and pertinent supportive documentation. At this time, no menu changes will be anticipated by this administrator inasmuch as the required information has not been submitted. On September 30, 1994, Respondent was absent from work and failed to provide advance notification of her absence in accordance with the procedure described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum. On October 3, 4, and 5, 1994, Respondent made changes to the lunch menu without following the notification requirements described in numbered paragraph 6. of Olicker's August 4, 1994, memorandum, as clarified and supplemented by Olicker's September 23, 1994, memorandum. On October 5, 1994, Brewton's supervisor, Pauline Ferris, DFN's director of program operations, visited Nautilus to observe the school's food service operation and to speak with Respondent. The visit was made in response to complaints that Ferris had received from Olicker. During her visit, Ferris noted, among other things, the following: Respondent's inventory report for September, 1994, was overdue; the serving line had most, but not all, of the items on the menu; there were insufficient quantities of certain items on the serving line; Respondent's office was in disarray, with papers "scattered all over;" and the kitchen "could use a thorough cleaning." Ferris discussed these matters with Respondent. During her discussion with Respondent, Ferris stressed the importance of Respondent attending "scheduled inservice workshops" offered by the School Board (DFN). Ferris came away from her visit with the view that, although Respondent was a "capable and knowledgeable Food Service Manager," she was "not providing the type of service a middle school such as Nautilus require[d] and deserve[d]." Ferris advised Pittman of her opinion in a memorandum that she sent to him describing what occurred during her October 5, 1994, visit to Nautilus. On October 6, 1994, Respondent failed to report to work on time and did not comply with the notification requirements described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum. That same day, October 6, 1994, Respondent made changes to the lunch menu without following the notification requirements described in numbered paragraph 6. of Olicker's August 4, 1994, memorandum, as clarified and supplemented by Olicker's September 23, 1994, memorandum. Also on October 6, 1994, Respondent received the written "list of directives" she had been promised at the September 22, 1994, conference-for-the-record. The list was contained in a memorandum, dated October 4, 1994, from Pittman (Pittman's October 4, 1994, memorandum), which read as follows: A Conference for the Record was held on September 22, 1994. The summary memorandum of the Conference, dated September 23, 1994, was given to you on October 3, 1994. The purpose of the Conference for the Record and the subsequent summary memorandum was to review your individual level of productivity, the implementation of your duties in your position as Food Services Manager, and the effectiveness of your delivery of services and [s]upport to Food Services. Several significant deficiencies in your performance were identified at the Conference and reiterated in the summary memorandum. The purpose of this memorandum is to explicitly enumerate those deficiencies and to provide timelines for remediation. You are again reminded that failure to remediate the deficiencies in your performance will have an impact upon your continued employment at Nautilus Middle School and the Dade County Public Schools. You will respect and follow the internal administrative chain as it has been delineated to you. (immediate remediation) You will comply with all directives and requests from your supervising administrator. (immediate remediation for all new requests; October 17, 1994 for all previously issued requests) You will follow district breakfast and lunch menus exactly as they are written and disseminated. There will be no substitutions of menu items without advance approval from your supervising administrator. Leftover menu items from the previous day may be scheduled items. (by October 17, 1994) Food orders will be placed utilizing routine departmental procedures, including the option for early delivery. (by October 17, 1994) You will include your supervising administrator in the hiring process for all prospective employees. (immediate remediation) You will comply with all district directives and remediate all district- identified deficiencies relative to food inventory reports, kitchen procedures, accounting procedures, and all other items listed on Program Visitation and Report Supplements of August 31, 1994 and September 13, 1994. (by October 17, 1994) You will comply with established internal procedures for reporting absences and lateness to work. (immediate remediation) You will arrange for the cashiers to have the required district training. (schedule of appointment dates by October 24, 1994) You will back up the serving lines during breakfast and lunch periods except when assisting students who cannot be assisted by Ms. Taylor. (immediate remediation) Please be reminded that you remain free to contact Mrs. Brewton and/or the Help Desk for assistance. You may also contact Ms. Helen Viviand at the Employee Assistance Program, 995-7111, to address any personal concerns. On October 7, 11, and 12, 1994, Respondent made changes to the lunch menu without following the notification requirements described in numbered paragraph 6. of Olicker's August 4, 1994, memorandum, as clarified and supplemented by Olicker's September 23, 1994, memorandum. On October 18 and 19, 1994, Respondent failed to report to work on time and did not comply with the notification requirements described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum. On October 19, 1994, Respondent made changes to the lunch menu without obtaining advance approval from Olicker, as required by numbered paragraph 3. of Pittman's October 4, 1994, memorandum. On October 20, 1994, the glass shield on one of the serving tables in the cafeteria broke. Respondent continued to use this serving table for the delivery of food to students, notwithstanding the safety hazard that the broken glass shield posed. She reported the incident to neither Olicker nor the zone mechanic. On October 21, 1994, Respondent was absent and did not comply with the requirement, described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum, that she "beep" Olicker at 7:00 a.m. to let Olicker know that she would not be at work that day. Brewton conducted another on-site review of the Nautilus food service program on October 21, 1994. The review revealed continuing deficiencies. Brewton prepared a written report of her October 21, 1994, visit, in which described these deficiencies. The report, which she provided to Respondent, read as follows: Food service manager not in compliance with directives given to her on August 26, 29 and 31. Manager still continues not to follow food service department policies and procedures when managing kitchen operation. To this date, the following items have not been done: Set-up (schedule) cashier training for employees. Food service accounting records/reports not filed and stored away. Kitchen facility not clean and maintenance problems not reported. (broken glass on steam table line.) Employees performing managerial duties not trained. I recommend that the manager apply/transfer to a school site classified at a Manager II level (850 or less meal participation). Respondent declined to follow Brewton's suggestion that she seek a transfer to a smaller05 school. On October 25, 26, 27 and 28, 1994, Respondent was either tardy (October 25 and 27) or absent (October 26 and 28) and did not comply with the notification requirements described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum. On October 31, 1994, Respondent made changes to the lunch menu without obtaining advance approval from Olicker, as required by numbered paragraph 3. of Pittman's October 4, 1994, memorandum. On November 3, 1994, Respondent failed to report to work on time and did not comply with the notification requirements described in numbered paragraph 11. of Olicker's August 4, 1994, memorandum. Respondent's Extended Sick Leave Respondent felt as if she was under a considerable amount of stress at work. To make matters worse, she was 05 Approximately 1200 students participate in Nautilus' food service program. experiencing problems in her personal life that made her feel depressed. Following a confrontation that she had with Olicker in or about mid-November of 1994, Respondent requested that, in the interests of her emotional health, she be allowed to go on extended sick leave. Respondent's request was approved. She went on extended sick leave effective November 17, 1994. She received approval to remain on such leave until May 30, 1995.06 On March 30, 1995, in anticipation of the expiration of Respondent's extended sick leave, a conference-for-the-record was held to clarify Respondent's future employment with the School Board in light of her deficient pre-leave job performance and her noncompliant pre-leave conduct. Present at the conference were Respondent, Pittman, Olicker, Brewton, A. Louise Harms (the executive director of the School Board's Office of Professional Standards), Dr. Joseph Burke (the director of the School Board's Region II Operations), and Alvaro de los Santos (an AFSCME representative). Following a discussion about Respondent's pre-leave job performance and conduct, Respondent was advised that, in light of her deficient performance and 06 The approval of Respondent's leave request did not serve to excuse Respondent for her pre-leave performance deficiencies and noncompliant conduct, nor did it constitute an acknowledgment that her pre-leave performance deficiencies and noncompliant noncompliant conduct, Pittman had recommended her dismissal and that the Region II Superintendent had "endorsed this recommendation." Harms prepared, and provided to Respondent, a summary of the March 30, 1995, conference-for-the-record. Respondent's Temporary Reassignment Effective upon her return from leave on May 31, 1995, Respondent was temporarily reassigned to work in the DFN test kitchen under the supervision of Margaret Bowersox, DFN's senior executive director, pending School Board action on the recommendation that Respondent be terminated. On June 16, 1995, Bowersox sent Harms the following memorandum concerning Respondent's attendance: Ms. Carmen Arroyo was assigned to the Department of Food and Nutrition, May 31, 1995. Mrs. Arroyo reported to work two (2) days, May 31 and June 1, 1995. After that she called in to report that she would not be to work four times. Dates Caller Staff Contacted 6/2/95 Carmen's son Nita Shelton 6/5/95 Carmen Nita Shelton 6/6/95 Carmen Mary Lou Pitts 6/7/95 Carmen's daughter Nita Shelton The last time the department heard from her was June 7 when she reported she had ingrown toenails on both feet and would not be to work. Since this date the department has not heard from her. conduct were the product of poor health. On June 19, 1995, Harms sent the following letter to Respondent: The Office of Professional Standards has been advised that you have been absent without authority from your duties as an employee in the Dade County Public Schools. During this period you did not notify your supervisor (Ms. Madeline Bowersox, Executive Director, Department of Food and Nutrition) regarding your absence. Article XI, Section 4, of the AFSCME Contract states: . . . Your absence has been termed abandonment of position by your supervisor, and as a result you [are] deemed to have voluntarily terminated your employment with the Dade County Public Schools. With regard to the above-indicated contractual rights, please be advised that unless you provide a written notification to the Office of Professional Standards . . . or you[] request . . . a review of the facts concerning your termination within ten (10) workdays from the receipt of this letter, your termination will be submitted to the School Board for final action at a Board meeting subsequent to this letter. Respondent requested a review conference regarding the matter. Grievances were also filed (under the provisions of the AFSCME Contract) on her behalf. A decision was made by School Board administrative staff not to pursue the abandonment issue. The matter was therefore never considered by the School Board. Respondent was advised of the "withdrawal" of the "abandonment action" by memorandum, dated November 28, 1995, from Dr. D. Patrick Gray, Jr., a School Board associate superintendent. The memorandum provided, in part, as follows:
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing her as an employee of the School Board. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of February, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1997.
The Issue This issues in this proceeding are whether Respondent, in violation of Chapter 509, Florida Statutes (2004), committed acts alleged in the Administrative Complaint dated April 16, 2004, and, if so, what disciplinary action should be taken against the license held by Respondent.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made during the final hearing, and the entire record compiled herein, the following relevant and material facts are found: At all times material hereto, Respondent, Bacco's Restorante Italliano, a food service and eating establishment, was licensed and regulated by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, having been issued license number 6804773-R, type 2010, a Permanent Food Service license. Respondent's facility is located at 23 North Lemon Avenue, Sarasota, Florida. Andrea Posani testified that he was a "party of interest" in the proceeding because he had a financial interest in Bacco's Restorante Italliano, a food service and eating establishment, and he possessed authority to speak on behalf of (and represent) Respondent, Bacco's Restorante Italliano, licensee. Petitioner's witness, Daniel Erdman, deputy district manager (for three months) and senior sanitation safety specialist for the preceding five years (1999 through 2004) in Manatee and Sarasota counties, earned his Bachelor of Science degree from Florida State University with a major in hospitality administration. Mr. Erdman conducts more than 1,500 inspections annually. Mr. Erdman described a "critical violation" in the food business as violation of any of the Florida Statutes, the Florida Administrative Code rules, and the Food Code, that "has more of a potential for food borne ailments." Mr. Erdman has been Petitioner's inspector of Respondent's business for more than four years in both locations, first, on Main Street and, now, on Lemon Street, in Sarasota, Florida. Mr. Erdman, on March 1, 2004, inspected Respondent's business, noted violations on DBPR Form HR 5022-014 that was signed by Mr. Erdman and Claudia Zecchin-Moschini (Claudia Zecchin at the time of signing), and a copy was given to Ms. Zecchin-Moschini. Thereon was the "callback date/time that informs Respondent of both the time to correct noted violation(s) and the inspection return date. The Administrative Compliant alleged the following critical violations of Chapter 509, Florida Statutes (2003), Florida Administrative Code, and/or rules of the Division of Hotels and Restaurants noted during the March 1, 2004, inspection: 27-22 5-202.12 FC Handwashing Facility, Installation. (A) A handwashing lavatory shall be equipped to provide water at a temperature of at least . . . (110 degrees Fahrenheit) through a mixing valve or combination faucet. (B) A steam mixing valve may not be used at a handwashing lavatory. (C) A self-closing, slow-closing, or metering faucet shall provide a flow of water for at lease 15 seconds without the need to reactivate the faucet. (D) An automatic handwashing facility shall be installed in accordance with manufacturer's instructions. Observed no cold water provided at handsink (Bar) 2. 31-10 5-204.11 & 6-401.10 FC Handwashing Facility. Conveniently Located. A handwashing facility shall be located: (A) To allow convenient use by employees in food preparation, food dispensing, and warewashing areas; and (B) in, or immediately adjacent to, toilet rooms. Observed missing handsink at dishwashing machine/cold prep area (removed) 3. 31-10 5-204.11 & 6-401.10 FC Handwashing Facility. Conveniently Located. A hadwashing facility shall be located: (A) To allow convenient use by employees in food preparation, food dispensing, and warewashing areas; and (b) in, or immediately adjacent to, toilet rooms. Observed no handsink provided in prep area, bread station service area in dining room without a handwashing sink. Bread station was removed from dining room on 3.15.2004 on reinspection evidence of bread station observed on 4.02.04 4. 53B-01 509.049 FS Food Service Employee Training. The Division shall adopt, by rule, minimum food safety protection standards for the training of all food service employees who are responsible for the storage, preparation, display, or serving of foods to the public in establishment regulated under this chapter. These standards shall not include an examination, but shall provide for a food safety training certificate program for food service employees to be administered by a private nonprofit provider chosen by the Division. Any food safety training program established and administered to food handler employees prior to the effective date of this act shall be submitted by the operator to the Division for its review and approval. It shall be the duty of the licensee of the public food service establishment to provide training in accordance with the described rule to all employees under the licensee's supervision or control. The licensee may designate a certified food service manager to perform this function as an agent of the licensee. Food service employees must receive certification pursuant to this section by January 1, 2001. Food service employees hired after November 1, 2000, must received certification within 60 days after employment. Certification pursuant to this section shall remain valid for 3 years. Observed no proof or required employee training 11 employees over 60 days employed (Reihou, Terrence, Paolo) [Emphasis added] Mr. Erdman, on March 15, 2004, returned and inspected the facility, finding violations 27-22, 31-10, and 45-14. These violations were granted time extension for correction to April 2, 2004. Mr. Erdman returned on April 2, 2004, and inspected the facility, identifying seven violations (two 27-22s, three 31- 10s, and two 53B-01s). During this reinspection, Mr. Erdman entered, in the comment section of his inspection report "note plumber scheduled for sink installation, water to bar tomorrow. Employee food safety training booklets ordered [training not completed]. Bread baskets, plated [sic], bread warmer, crumbs etc. observed in dining area/no hand sink provided." This report was not a warning as were the prior inspection reports; this report recommended filing of an administrative complaint. Respondent's witness, Ms. Zecchin-Moschini, when asked by Respondent, could not recall circumstances pertaining to each alleged violation. Her answers, on both direct and cross examinations, consisted primarily of "I don't remember," on four separate occasions. "I don't remember" is the answer given when Ms. Zecchin-Moschini was asked about the location of the sink and the present location of the beer cooler. This witness acknowledged that she did not have food management training: Yes, I don't have the training for these people. They were being coming from another restaurant, working there for a couple years, and I didn't ask them if they have any. I never got it. The only one that was there was Paolo that he didn't have. Mr. Posani admitted having no personal knowledge of the sink location violation and having no personal knowledge regarding the food management training violations for three of his employees. The record was left open for ten days for post- hearing submission of documentation of training, and none was submitted at the entry of this Recommended Order. Mr. Posani offered no credible and material evidence that could be considered a legal challenge to violations itemized in the Administrative Complaint and established by Respondent's witness' unrefuted testimony and exhibits in evidence. Petitioner proved, by clear and convincing evidence, each specific allegation against Respondent contained in the Administrative Complaint filed in this cause. Petitioner's compliance with cited Florida Statutes and cited rules of the Florida Administrative Code permits the imposition of penalty against Respondent for violations hereinabove found.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order: Finding Respondent guilty of violating Subsection 509.049(5), Florida Statutes (2004), and Sections 5-202.12, 5-204.11, and 6-401.10 of the Food Code, incorporated by reference and applicable to Florida Administrative Code Chapters 61C-1, 61C-3, and 61C-4; and Imposing an administrative penalty in the amount of $250.00 per violation for a total penalty amount of $1,000.00, due and payable to: Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date the final order is filed with the agency clerk. DONE AND ENTERED this 5th day of July, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 5th day of July, 2005. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Andrea Posani 23 North Lemon Avenue Sarasota, Florida 34236 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
