The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 16, 2000, and, if so, the discipline that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Palm Beach County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes. Mr. Navarro began working for the School Board as a custodian in July 1996. He was assigned full-time to the custodial staff at C.O. Taylor/Kirklane Elementary School ("Taylor/Kirklane Elementary") during the 1998-1999 and 1999- 2000 school years. The terms of Mr. Navarro's employment are governed by the provisions of the Agreement between The School District of Palm Beach County, Florida, and National Conference of Firemen & Oilers, Local 1227, July 1, 1999 - June 30, 2002 ("Union Contract"). On January 22, 1999, Mr. Navarro suffered an injury to his back while he was lifting several tables to put them on the stage in the school cafeteria; the tables slipped, and Mr. Navarro fell. Mr. Navarro experienced a sharp pain in his back that almost kept him from walking, but he finished his shift that night, which was a Friday night.2 Because of the pain in his back, Mr. Navarro could not get out of bed on Saturday or Sunday, and, on Monday, he went to see his personal doctor, J.J. Bogani, M.D. Dr. Bogani examined Mr. Navarro and prescribed pain medication. Dr. Bogani advised Mr. Navarro to file a workers' compensation claim with the School Board, which he did. As a result of his workers' compensation claim, Mr. Navarro was referred to a Dr. Goldberg, who examined and treated him on February 1, 1999. At the times material to this proceeding, Dr. Goldberg was one of the physicians who acted as a primary physician, or "gatekeeper," for employees of the School Board who were injured on the job and whose care was covered by workers' compensation insurance. Dr. Goldberg diagnosed Mr. Navarro's injury as lumbar strain. Mr. Navarro saw Dr. Goldberg again on February 3, 1999, and Dr. Goldberg prescribed a back belt for Mr. Navarro. On Mr. Navarro's third visit on February 8, 1999, Dr. Goldberg found that Mr. Navarro had reached maximum medical improvement with respect to the lumbar strain and that the lumbar strain had been resolved. Dr. Goldberg released Mr. Navarro to full-duty work, with an impairment rating of zero percent. Dr. Goldberg examined Mr. Navarro again on March 2, 1999, and Dr. Goldberg reaffirmed his diagnosis of lumbar strain, prescribed physical therapy for Mr. Navarro three times per week for two weeks and returned Mr. Navarro to full-duty work as of March 3, 1999. Dr. Goldberg did not examine Mr. Navarro subsequent to March 2, 1999. In early April 1999, Miguel Mendez, an attorney specializing in workers' compensation, contacted the company that administers the School Board's workers' compensation program on Mr. Navarro's behalf and requested that Mr. Navarro be evaluated by an orthopedist, Dr. Merrill Reuter. The administrator responded in a letter dated April 7, 1999, that Dr. Goldberg declined to recommend an orthopedic evaluation. Mr. Mendez was advised that Mr. Navarro could request a new gatekeeper physician, and a list of approved gatekeeper physicians was included with the letter. Mr. Navarro did not select a new gatekeeper physician until June 2000, even though he continued to have severe back pain. Dr. Bogani, Mr. Navarro's personal physician, treated him for his back problems from March 1999 until June 2000. Agartha Gragg was appointed principal at Taylor/Kirklane Elementary in July 1999, and she was apparently suspicious of Mr. Navarro's work attendance from the beginning of her tenure.3 One of the first changes she made as principal was moving the custodians' sign-in/sign-out log to her office so she could keep track of the comings and goings of the custodial staff. The School Board's personnel records show that Mr. Navarro was absent on annual leave, sick leave, sick leave charged to annual leave, or sick leave charged to "without pay,"4 on January 5 through 14, 18 through 21, and 27 and 28, 2000.5 On January 27, 2000, Dr. Bogani wrote a note on a page of his prescription pad certifying that Mr. Navarro was not able to return to work until January 31, 2000, and that Mr. Navarro needed to be restricted for two weeks, with no heavy lifting or bending. The School Board's records reflect that Mr. Navarro was absent on leave "without pay," sick leave charged to annual leave, or sick leave charged to "without pay" on February 4, 7, through 18, and 21, 2000. Dr. Bogani gave Mr. Navarro a certification dated February 7, 2000, indicating that he could return to work on February 8, 2000. In February 2000, Ms. Gragg received several complaints about Mr. Navarro's job performance from members of the teaching staff. The complaints involved Mr. Navarro's failure to keep his assigned areas clean, especially his failure to keep the floors clean. At the time, Mr. Navarro was working in the area that included the kindergarten classrooms, and one kindergarten teacher wrote Ms. Gragg a note praising the substitute custodian and advising Ms. Gragg that her area was much cleaner when Mr. Navarro was absent. The School Board's records reflect that Mr. Navarro was absent on sick leave, sick leave charged to annual leave, or sick leave charged to "without pay" on March 6, 7, and 13 through 17, 2000, except for one hour on March 13, 2000. Dr. Bogani gave Mr. Navarro a certification dated March 7, 2000, indicating that he could return to work on March 8, 2000. On March 13, 2000, Dr. Bogani gave Mr. Navarro a certification stating that Mr. Navarro would not be able to work during the week of March 13, 2000 and that he would be unable to lift more than 15 pounds on his return to work. In a letter dated March 7, 2000, Ms. Gragg directed Mr. Navarro to attend a meeting with her on March 13, 2000, to discuss his excessive absences and his unsatisfactory job performance. Ms. Gragg advised Mr. Navarro in the letter that he could bring a representative with him and that the meeting could result in disciplinary action. A note at the bottom of the letter states that Ms. Gragg's secretary, Rosa McIntyre, read the letter to Mr. Navarro in Spanish. Mr. Navarro attended the meeting with Lourdes Martinez, a paralegal employed in Mr. Mendez's office, as his representative; the other attendees were Ms. Gragg and Ms. McIntyre. The meeting was summarized in a letter to Mr. Navarro dated March 13, 2000, entitled "Verbal Reprimand With a Written Notation," in which Ms. Gragg noted that Mr. Navarro explained that both his absences and his poor job performance were due to medical reasons. The letter reflects that, at the meeting, Ms. Gragg directed Mr. Navarro to provide medical certification from his doctor for any future absences; directed Mr. Navarro to review cleaning procedures with the Interim Head Custodian at Taylor/Kirklane Elementary; recommended that Mr. Navarro contact Ernie Camerino's6 office to discuss leave options for which he might be eligible; recommended that Mr. Navarro contact the School Board's Employee Benefits and Risk Management office to discuss medical disability options that might be available to him; advised Mr. Navarro that his job performance would be reviewed on April 18, 2000; and, finally, advised Mr. Navarro that, if he failed to follow the directives and recommendations set forth in the letter, he would be subject to further discipline, including termination of his employment. The March 13, 2000, letter was prepared in both an English and a Spanish version and was sent to Mr. Navarro by certified mail. Ms. Gragg also noted in the March 13, 2000, reprimand letter that she might change the area Mr. Navarro was assigned to clean. Ms. Gragg did change Mr. Navarro's assignment, but, according to Mr. Navarro, the change was for the worse because he was required to carry a vacuum cleaner on his back and to vacuum carpeted floors, both of which put a lot of strain on his back. The School Board's records reflect that Mr. Navarro was absent on sick leave, sick leave charged to annual leave, and sick leave charged to "without pay" on April 5 through 7 and 28, 2000, and for four hours on April 27. On May 1, 2000, Dr. Bogani certified that Mr. Navarro was under his care from April 28 through May 2, 2000, and noted that his office should be called if there were any questions. On April 17, 2000, Ms. Gragg received a complaint from a member of the teaching staff that Mr. Navarro had not vacuumed the carpet in her classroom the previous week. A copy of the complaint was provided to Mr. Navarro, and he went to Ms. Gragg's office on April 17, 2000, to discuss the complaint. In a letter dated April 17, 2000, Ms. Gragg requested that Mr. Navarro meet with her to discuss his job performance and any concerns he might have regarding his job. This letter was prepared in both an English version and a Spanish version, and Mr. Navarro signed the acknowledgement that he had received the letter on April 17. Mr. Navarro did not, however, meet with Ms. Gragg during the month of April 2000.7 The School Board's records reflect that Mr. Navarro was absent on sick leave charged to annual leave or sick leave charged to "without pay" on May 1, 2, 11, 12, 15 through 19, 26, and 30, 2000; Mr. Navarro was also absent for five hours on both May 22 and 25, 2000. On May 11, 2000, Dr. Bogani provided certification that Mr. Navarro would be out of work on May 11 and 12, 2000, "for health reasons," noting that his office should be called if there were any questions. On May 15, 2000, Dr. Bogani provided certification that Mr. Navarro would not be able to work on May 15 through 19, 2000, because of "severe muscle spasm in lumbar spine," noting that Mr. Navarro would not be able to vacuum for at least a month. On May 26, 2000, Dr. Bogani provided certification that Mr. Navarro had been under his care for back problems and that Mr. Navarro would be under his care from May 26 through 30, 2000. In a letter dated May 11, 2000, Ms. Gragg notified Mr. Navarro that he was to attend a meeting on May 17, 2000, to discuss allegations of excessive absences and to review his job performance, that he could bring a representative to the meeting, and that the meeting could result in disciplinary action being taken against him. The letter was prepared in both an English and a Spanish version. Meanwhile, Ms. Gragg completed Mr. Navarro's annual evaluation in which she gave him an overall unsatisfactory rating and rated his performance unsatisfactory in several categories, including attendance. Ms. Gragg set forth Mr. Navarro's deficiencies on a separate sheet attached to the annual evaluation, as follows: Job Knowledge You failed to effectively clean the "gang" bathrooms in the main building May 15- May 23, 2000. [Correct dates are April 15- April 23, 2000][8] You failed to effectively clean the floors in Bldg 200 on March 23, April 17-May 25, 2000. [Correct dates are April 17-April 25, 2000, see endnote 9.] Self Management/Self Motivation You did not complete assigned duties in a timely manner. Restrooms in the main building were not cleaned on May 15-23, 2000. [Correct dates are April 15-April 23, 2000, see endnote 9.] Interpersonal effectiveness You failed to complete your assigned duties, thus causing your co-workers to assume extra responsibilities. Mr. Angel Rivera, Head Custodian, was required to clean you assigned areas on March 23, April 17-May 25, 2000. [Correct dates are April 15-April 25, 2000, see endnote 9]. Ms. Gragg also noted on the annual evaluation form that Mr. Navarro had been absent 53 days during the 1999-2000 school year and that she had previously recommended that Mr. Navarro inquire about his eligibility for appropriate leave. The evaluation form was signed by Ms. Gragg and dated May 18, 2000, and, at some point, Ms. Gragg discussed the evaluation and the specific deficiencies and improvement strategies with Mr. Navarro. A note dated May 19, 2000, signed by Ms. McIntyre, indicates that the evaluation was translated into Spanish for Mr. Navarro and that Mr. Navarro refused to sign the form. In a letter dated May 23, 2000, Ms. Gragg issued Mr. Navarro a written reprimand for his failure "to report to work in accordance with published rules and the duties and responsibilities" of his job. Specifically, Ms. Gragg noted that Mr. Navarro had been put on notice on March 20, 2000, that he was to report to work on a regular basis; that he had been absent 14.5 days since March 20, 2000; that he had been absent a total of 53 days during the school year; and that he was absent on May 18 and 19, 2000, but did not call to inform her office of his absence. Mr. Gragg advised Mr. Navarro in this letter that, if he engaged in similar conduct in the future, he would be subject to further discipline, including termination of his employment. The letter was prepared in both an English and a Spanish version. It is not clear from the letter whether Ms. Gragg was reprimanding Mr. Navarro for excessive absences or for failing to call to inform her office of his absences on May 18 and 19, 2000. Ms. Gragg was advised in a letter from a teacher dated May 25, 2000, that Mr. Navarro had failed to empty the garbage can in her classroom on May 24, 2000, and Ms. Gragg provided a copy of the letter to Mr. Navarro. Throughout March, April, and May 2000, Mr. Navarro was experiencing problems with his back, and he was able to work only when he took pain medication, which made him feel drowsy and lethargic. Mr. Navarro visited Dr. Bogani often as a result of the pain, and he always provided to Ms. Gragg Dr. Bogani's medical certifications for his absences.9 Mr. Navarro was also becoming increasingly distraught because of what he considered Ms. Gragg's unfair criticisms of his job performance and her apparent inability to understand the extent of his medical problems. He was particularly affected by his unsatisfactory annual evaluation because he had received satisfactory evaluations since he began working for the School Board. On June 5, 2000, Mr. Mendez, the attorney handling Mr. Navarro's workers' compensation claim, contacted the School Board's workers' compensation administrator on Mr. Navarro's behalf and requested that Dr. James B. Phillips be assigned as Mr. Navarro's gatekeeper. An appointment was arranged for Mr. Navarro with Dr. Phillips for June 8, 2000. Mr. Navarro advised Ms. McIntyre that he would be absent on June 8, 2000, for a doctor's appointment.10 Ms. McIntyre asked that Mr. Navarro complete a "Leave/Temporary Duty Elsewhere" form requesting leave for June 8, 2000, and he refused; this form is a School Board form that must be completed before an employee can be approved for any type of leave. Ms. Gragg sent Mr. Navarro a memorandum dated June 7, 2000, in which she directed him to submit a completed leave form to her "today" and advised him that failure to do so would be considered insubordination and would subject him to discipline. Mr. Navarro submitted a leave form dated June 7, 2000, but he did not indicate on the form the type of leave he requested or the amount of time he would be absent. Ms. Gragg disapproved the request on June 7, 2000, with the notation "Incomplete TDE." Mr. Navarro gave no explanation for his failure to fill out the leave request form completely. Dr. Phillips first saw Mr. Navarro on June 8, 2000, and Mr. Navarro explained to Dr. Phillips that he had injured his back on the job on January 22, 1999. Dr. Phillips did several tests and diagnosed Mr. Navarro as having a "lumbosacral sprain, chronic," but also noted that Mr. Navarro most likely magnified the symptoms of his back injury. Dr. Phillips also recommended that Mr. Navarro have a MRI. Dr. Phillips completed a Workers' Compensation Work Status Report in which he indicated that Mr. Navarro could do light-duty work with the restrictions that he was not to use a vacuum cleaner or to lift more than 15 pounds. Dr. Phillips directed Mr. Navarro to give the form to his supervisor at work. On June 9, 2000, Mr. Navarro took this form to Ms. Gragg's office at Taylor/Kirklane Elementary. At approximately 10:15 a.m., Ms. McIntyre called Linda Meyer, a claims technician for the School Board's workers' compensation program, and advised her that Dr. Phillips had placed Mr. Navarro on light-duty restrictions and that there were no such assignments available at the school. One of Ms. Meyer's responsibilities is to find light-duty placements for School Board employees injured on the job who cannot return to their jobs because of work restrictions imposed by a doctor participating in the School Board's workers' compensation program. Ms. Meyer told Ms. McIntyre to send Mr. Navarro to her office immediately, and Ms. Meyer asked Ms. McIntyre to send Mr. Navarro's work restrictions to her by facsimile. Ms. Meyer found a light duty job for Mr. Navarro that met his work restrictions. Mr. Navarro was to work with the medical records clerk in the School Board's Risk Management office, Sheila Rick; the job required Mr. Navarro to sit at a table, take medical records out of files, count the documents, and return them to the files. Ms. Riczko speaks fluent Spanish, and it would not have been necessary for Mr. Navarro to speak or read English to do this job. Dr. Phillips is of the opinion that Mr. Navarro would have had no physical problem doing this work. When Mr. Navarro had not reported to her office by noon on June 9, 2000, Ms. Meyer telephoned Ms. McIntyre to confirm that Mr. Navarro had been told where to report for his assignment; Ms. McIntyre told Ms. Meyer that Mr. Navarro had left Taylor/Kirklane Elementary at approximately 10:45 a.m. Shortly after noon, Ms. Meyer received a telephone call from Carolyn Killings, Mr. Navarro's union representative, asking about Mr. Navarro's light-duty work assignment. Ms. Killings told Ms. Meyer that Mr. Navarro was in her office; Ms. Meyer told Ms. Killings to tell Mr. Navarro that she had a light-duty work assignment for him and that he was to report to her office. Mr. Navarro did not report to Ms. Meyer's office on June 9, 2000. Ms. Meyer prepared a letter advising Mr. Navarro that he was to report for his temporary light-duty work assignment, and the letter was prepared in both an English version and a Spanish version. In the letter, Ms. Meyer told Mr. Navarro where to report and confirmed that the assignment satisfied the restrictions imposed by Dr. Phillips on June 8, 2000, that he not lift anything weighing more that 15 pounds and that he do no vacuuming. Ms. Meyer further advised Mr. Navarro in this letter that failure to report for this assignment might result in termination of his workers' compensation benefits and in disciplinary action by the School Board, including termination of employment. Ms. Meyer also attached a light-duty sign-in sheet and directed Mr. Navarro to complete the sheet each day. Also on June 9, 2000, after Mr. Navarro had presented to Ms. McIntyre the work restrictions imposed on June 8, 2000, by Dr. Phillips, Ms. Gragg prepared a Written Letter of Reprimand for actions involving repeated insubordination. Specifically, Ms. Gragg reprimanded Mr. Navarro because he left campus at his regular break time of 10:00 a.m. but did not return until 10:45 a.m., with a sandwich.11 Ms. Gragg noted in the letter that she had questioned Mr. Navarro as to why he returned to campus past the end of his break time and how he intended to eat and do his work at the same time. According to the letter, Mr. Navarro explained that he was hungry and had to eat. Ms. Gragg referred in the letter to Mr. Navarro's failure to heed her warning on June 8, 2000, to correct his actions, and she advised Mr. Navarro that she was referring the matter for a "District review" with respect to the next step in the disciplinary process.12 A handwritten note at the bottom of the letter states that Ms. McIntyre "verbally interpreted" the letter into Spanish for Mr. Navarro. Ms. Gragg followed up her June 9, 2000, Written Reprimand with a letter dated June 12, 2000, to the Director of the School Board's Employee Relations Department. In the letter, Ms. Gragg stated: "I have issued a Written Reprimand and the employee has repeated the misconduct. Therefore, I am requesting a District review for the purpose of determining the next step in the discipline process." Ms. Gragg also noted in the June 12, 2000, letter that Mr. Navarro had not reported to the Risk Management office for light duty or to Taylor/Kirklane Elementary for regular duty. Ms. Gragg also telephoned a complaint regarding Mr. Navarro to the School Board's Office of Professional Standards on June 13, 2000. Ms. Gragg charged Mr. Navarro with unauthorized absence and insubordination, based specifically on his refusal on June 7, 2000, to complete a leave form for his doctor's appointment on June 8, 2000, and on Mr. Navarro's failure to respond to her directive on June 9, 2000, that he report to Ms. Meyer's office for a light-duty work assignment. In a letter dated June 15, 2000, Ms. Gragg advised Mr. Navarro that she was concerned that he had not reported to Ms. Meyer's office for his light-duty work assignment or to Taylor/Kirklane Elementary. She asked that Mr. Navarro call her office regarding these absences. This letter was prepared in both an English version and a Spanish version. On June 15, 2000, Ms. Meyer asked Ms. Riczko to telephone Mr. Navarro's home to ask why he had not reported for his light-duty assignment. Ms. Riczko spoke with Mrs. Navarro, who said that Mr. Navarro would be in on Monday, June 19, 2000. On June 19, 2000, Mrs. Navarro telephoned Ms. Riczko and told here that Mr. Navarro had an appointment with his attorney and would not be reporting for his work assignment that day. Mr. Navarro did, however, report to Ms. Meyer's office late in the day on June 19, 2000. Mr. Navarro told Ms. Meyer that he could not work because of the medication he was taking. Ms. Meyer advised Mr. Navarro that he was to have reported for his light-duty work assignment on June 9, 2000, and that, by refusing the light-duty work, he was jeopardizing his workers' compensation benefits. Ms. Meyer suggested that Mr. Navarro talk to someone in Ernie Camerino's office about taking an extended medical leave. Mr. Camerino's office is responsible for processing retirements and leaves of absence for the School Board. Mr. Navarro picked up a set of leave forms from Mr. Camerino's office on June 19, 2000. On June 20, 1999, Mr. Navarro visited Dr. Phillips' office and requested that Dr. Phillips authorize him to take two weeks off of work. Dr. Phillips refused and again advised Mr. Navarro that he could return to light-duty work. Mr. Navarro submitted a Request for Leave of Absence Without Pay to Ms. Gragg on June 22, 2000, in which he asked for personal leave from June 9, 2000, to July 9, 2000. Ms. Gragg denied Mr. Navarro's request in a letter dated June 22, 2000, which was prepared in both an English and a Spanish version. The reasons given by Ms. Gragg for her refusal to approve Mr. Navarro's leave request were as follows: (1) Mr. Navarro did not request the leave in advance; (2) the leave request form was submitted on June 22, 2000, for leave extending from June 9, 2000, to July 9, 2000, and she could not backdate a personal leave request; and (3) Mr. Navarro did not discuss or provide proper documentation on his leave form. Finally, in the June 22, 2000, letter, Ms. Gragg directed Mr. Navarro to report for work on June 26, 2000. Mr. Navarro wrote a letter to Ms. Gragg dated July 26, 2000, in which he explained that he requested personal leave because he did not feel emotionally stable as a result of his problems and that his personal doctor, Dr. Bogani, had given him documents that showed he approved the leave. Mr. Navarro also advised Ms. Gragg that he was scheduled to have an MRI on June 28, 2000,13 and would receive treatment for his back, depending on the results of the test. Mr. Navarro reminded Ms. Gragg that she had prohibited him from bringing his medication to school and that it was the only medication he took, and that it helped him work "almost normal." The contents of this letter had no effect on Ms. Gragg's decision to deny Mr. Navarro's request for leave without pay. Mr. Navarro's MRI was completed on July 9, 2000, and, on July 10, 2000, Dr. Phillips went over the results with Mr. Navarro. The MRI showed that Mr. Navarro had a disc herniation at L5-S1, which displaced the S1 nerve posteriorally, with severe right foraminal narrowing. In Dr. Phillips' opinion, Mr. Navarro had a serious problem with his back, and he modified Mr. Navarro's work restrictions to provide that he could not lift anything weighing more than 10 pounds. In a letter dated July 10, 2000, sent to Mr. Navarro by certified mail and in both an English and a Spanish version, Ms. Meyer noted that he had not yet reported for his light-duty work assignment, and she reiterated the penalties that could be imposed for his failure to report. On July 14, 2000, Ms. Meyer sent another letter to Mr. Navarro, by certified mail and in both an English version and a Spanish version, advising him that he had been scheduled to report for his light-duty work assignment on June 9, 2000, that he had not done so, and that the missed days would not be approved as related to his workers' compensation claim. Ms. Meyer again urged Mr. Navarro to report for work immediately. Mrs. Navarro telephoned Ms. Meyer's office on July 19, 2000, and spoke with Ms. Riczko about Mr. Navarro's light-duty work assignment. Ms. Riczko told Mrs. Navarro that Mr. Navarro must report to Ms. Meyer's office the next morning at 8:00 a.m. to start his work assignment. Mrs. Navarro said that she would tell her husband. Mr. Navarro reported to Ms. Meyer's office at 8:45 a.m. on July 20, 2000; his wife accompanied him. Mr. Navarro told Ms. Meyer and Ms. Riczko, who was acting as interpreter, that he was not able to work because he was taking pills that made him very lethargic and sleepy. He said that he intended to call Dr. Phillips and ask for a different type of pain medication. Ms. Meyer advised Mr. Navarro that it might be best for him to ask for a leave of absence; Ms. Meyer reiterated that he must report for his light-duty assignment if he did not get approved for a leave of absence. Mr. Navarro was told to report at 8:00 a.m. on July 24, 2000, for his light-duty work assignment. He telephoned at 8:45 a.m. and advised Ms. Riczko that he had taken his wife to the hospital emergency room and needed to stay with her. Ms. Riczko heard nothing further from Mr. Navarro, and he never reported to her office for the light-duty work assignment. After reviewing the results of Mr. Navarro's MRI, Dr. Phillips had requested that Mr. Navarro be examined by a neurosurgeon, and, on August 16, 2000, Dr. Brodner examined Mr. Navarro. Dr. Brodner advised Mr. Navarro that he needed surgery on his back and that there was a 20-percent chance that the surgery would cause paralysis in his legs. As of the date of the hearing, Mr. Navarro had refused the surgery because of this risk. Meanwhile, School Board personnel investigated the allegations made by Ms. Gragg in her telephoned complaint of June 13, 2000, and a report of the investigation was submitted to the School Board's Case Management Review Committee for a determination of probable cause. The committee found probable cause at a meeting held on July 23, 2000, and recommended that Mr. Navarro be terminated from his employment with the School Board. Paul LaChance, the Director of the School Board's Office of Professional Standards, arranged to meet with Mr. Navarro on August 15, 2000, in order to go over the investigation report and the committee's recommendation and to allow Mr. Navarro the opportunity to respond to the charges against him. Mr. Navarro presented Mr. LaChance with a letter written in Spanish, which was later translated into English for Mr. LaChance, in which he offered his explanation for his absences and his version of the events leading up to Ms. Gragg's complaint and the events relating to his failure to report for his light-duty work assignment. Mr. LaChance reviewed Mr. Navarro's letter and requested that Ms. Gragg respond to certain allegations against her that Mr. Navarro had included in the letter. After reviewing Ms. Gragg's response to Mr. Navarro's letter, Mr. LaChance recommended that Mr. Navarro be suspended without pay and that his employment with the School Board be terminated. In a document entitled "Notice of Suspension and Recommendation for Termination of Employment," dated September 8, 2000, and signed by Dr. Marlin, Mr. Navarro was notified that Dr. Marlin would recommend to the School Board that it terminate Mr. Navarro's employment at its September 20, 2000, meeting. The School Board approved Dr. Marlin's recommendation and immediately suspended Mr. Navarro without pay. Mr. Navarro believed that he was not physically or emotionally able to do even light-duty work, and the School Board's records show that Mr. Navarro did not report for either regular work or his light-duty work assignment from June 9, 2000, through September 20, 2000, when he was suspended from his employment. Summary The evidence presented by the School Board is not sufficient to establish with the requisite degree of certainty that Mr. Navarro abused his sick leave privileges. The School Board did not present any evidence to establish that Mr. Navarro was absent for reasons other than medical reasons, and, indeed, the School Board classified Mr. Navarro's absences almost exclusively as sick leave, sick leave charged to annual leave, or sick leave charged to "without pay." There is no question that Mr. Navarro used his sick leave as he earned it, and Ms. Gragg was justified when she directed Mr. Navarro in the March 13, 2000, Verbal Reprimand With a Written Notation to provide medical certifications for any future absences. Mr. Navarro submitted such certifications from Dr. Bogani for most of his absences subsequent to March 13, 2000, although he did not provide medical certifications for his absences on April 5, 6, and 7, 2000; for 4 hours on April 27, 2000; or for five hours on May 22 and May 25, 2000. These lapses are not sufficient to support a finding that Mr. Navarro abused his sick leave privileges, and there is no evidence to establish that Ms. Gragg advised Mr. Navarro that the certifications were insufficient or advised him that he had failed to provide the certifications timely. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Navarro was willfully absent from duty without leave from June 9, 2000, until September 20, 2000, when the School Board suspended him and termination proceedings were initiated. Ms. Meyer advised Mr. Navarro of his obligation to report or face possible disciplinary action in her letter dated June 9, 2000, which was sent to Mr. Navarro in both an English and a Spanish version. Mr. Navarro was repeatedly directed to report for work by Ms. Gragg and Ms. Meyer, both verbally and in writing, and he advised that his failure to report for his light-duty work assignment would jeopardize both his workers' compensation benefits and his employment with the School Board. Credence is given to Mr. Navarro's belief that he was emotionally and physically unable to work subsequent to June 8, 2000, but he failed to explain why he did not apply for a leave of absence until June 22, 2000. Ms. Gragg had advised him to inquire about his eligibility for leave in her reprimand letter of March 13, 2000, and Ms. Meyer urged him to talk with Mr. Camerino's office regarding a leave of absence on several occasions. Mr. Navarro did not apply for personal leave without pay until June 22, 2000, and he requested leave from June 9, 2000, through July 9, 2000. When Ms. Gragg denied the leave, Mr. Navarro did not file a grievance pursuant to the Union Contract, he simply did not report for work. Mr. Navarro was aware of the consequences of his failure to pursue his leave request or to report for work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order sustaining the suspension without pay of Miguel Navarro and terminating his employment with the School Board. DONE AND ENTERED this 22nd day of August, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2001.
The Issue Whether there is just cause for suspending and dismissing Respondent from her employment with Petitioner.
Findings Of Fact Respondent, Rebecca Price (Price), has been an educator for 33 years during which she was employed by Petitioner, Palm Beach County School Board (School Board), for 27 years. At all times pertinent to this proceeding, Price was a Guidance Counselor at John F. Kennedy Middle School (JFK), employed by the School Board pursuant to a Professional Service Contract. In August 1997, Heywood Howard, a former Assistant Principal at JFK, introduced Price to Maurice LeFlore (LeFlore), who had recently been hired by the School Board as a band instructor at JFK. Mr. Howard told Price that LeFlore was a fellow "Rattler," an alumnus of Florida Agricultural and Mechanical University. Because LeFlore had been introduced by Mr. Howard, and was a fellow alumnus and co-worker, Price rented a room to him from August 13, 1997, until the date of LeFlore's arrest in March 1998. Price had a close relationship with LeFlore, but it was not of a romantic nature. She was his landlord, and they occasionally shared meals and watched television together in the evenings. Because LeFlore did not have either a car or a driver's license when he began renting a room from Price, he rode to and from work with Price. It was common knowledge that LeFlore was living at Price's house. On February 27, 1998, JFK students Darria Brooks, Shavontay Brown, and Carolyn Horne discussed with Sherry Sweeting, a teacher at JFK, rumors relating to LeFlore. During the course of the conversation, the students said that they heard that LeFlore had "come onto" a female student in an inappropriate manner. Ms. Sweeting reported the conversation to Lee Hooks, her superior and the Department Chair of Fine Arts at JFK. The principal was not on campus at the time that Mr. Hooks talked with Ms. Sweeting. Mr. Hooks tried to contact the assistant principal, who also was not available. Since some of the students who had talked to Ms. Sweeting were in the eighth grade, Mr. Hooks called Price, who was a guidance counselor for the eighth grade, to his office and told her that he had a situation that he thought she needed to look into. Price went to Mr. Hooks' office, and he told her what Ms. Sweeting had said. Mr. Hooks told Price that she could use his office to talk with the students. Mr. Hooks called Ms. Sweeting and told her to send the students to his office. When Shavontay Brown, Darria Brooks, and Carolyn Horne came to Mr. Hooks' office, he left to teach his class. Mr. Hooks returned to his office for a few seconds during the interview to retrieve some teaching materials. Mr. Hooks did not contact the principal concerning the rumors nor did he call the child abuse hotline. He was not disciplined for failure to report child abuse. Price asked the students to tell her what they had heard. Carolyn Horne told Price that LeFlore liked to flirt. Darria Brooks told Price that according to Shannon White, LeFlore had pushed Ms. White up against the wall in his office and had pressed himself against her. Shavontay Brown told Price that she had heard rumors that LeFlore had rubbed against Ms. White while he and Ms. White were in the band room. Price asked the students if they had seen the incident themselves, and they responded that they had not. She told them that they should not be saying things without knowing if they were true and that students could be suspended for spreading rumors. She essentially told them that the matter was none of their business. Price had Ms. White sent to Mr. Hooks' office to discuss the rumors. Price told Ms. White and the other students that it was a serious matter. She said that LeFlore, who had just graduated, was like a son to her and that such rumors could result in LeFlore losing his job. Ms. White said that LeFlore had pushed her up against the wall and put his hands over hers but that he was just playing. Ms. White told Price that another student, Ryan Spence, was in LeFlore's office playing on the computer and witnessed the incident. According to Price, when she first asked Ms. White if anything had happened, Ms. White said, "sort of." Price told Ms. White that if LeFlore had done the things that were rumored he would have to be punished and Price would have to tell Ms. White's mother what had happened. Ms. White then told Price that nothing at all had happened. Price had Ryan Spence brought to Mr. Hooks' office for an interview while Ms. White was still present. Ms. Spence told Price that she was present in LeFlore's office when she saw Ms. White and LeFlore walk into the office. LeFlore pushed Ms. White up against the wall. While Ms. White was facing the wall with her palms flat on the wall, LeFlore rubbed the front part of his body against her. Price denies that Ms. Spence told her LeFlore had pushed Ms. White against the wall and rubbed his body against Ms. White. Price testified that she asked Mr. Hooks to be a witness to Ms. White's statement that nothing happened. Mr. Hooks denies that he witnessed such a statement. Mr. Hooks was told by Price in the presence of the students that there was nothing to the incident and none of the students interviewed said anything to the contrary. During her interview with students Brooks, Horne, and Brown, Price was upset and angry. She raised her voice at the students, but did not yell or shout. Price had calmed down by the time Ms. White and Ms. Spence came to Hooks' office to be interviewed. Mr. Hooks, who was teaching in the classroom next to his office, did not hear Price shout during the interview. Jacquelina Batista, a guidance counselor at JFK, was told by a student that LeFlore had made inappropriate contact with Ms. White. However, Ms. Batista was not told that there was an eyewitness to the incident. She in turn told Lisa Barry, who was Ms. White's guidance counselor. Ms. Barry agreed to talk with Ms. White. Ms. Batista did not contact the principal nor did she report the rumor to the abuse hotline. No disciplinary actions were taken against Ms. Batista. The Monday following her conversation with Ms. Batista, Ms. Barry asked Ms. White how things were going and if there was anything that she needed to talk about. Without going into anything specific, Ms. Barry said that she had heard about a situation and thought that Ms. White might want to talk about it. Ms. White said that she had already talked to Price and that it was just rumor and gossip. Ms. Barry never specifically mentioned LeFlore during the conversation. Ms. Barry reported her conversation with Ms. White to Mr. Gattozzi, who was the guidance coordinator and Ms. Barry's supervisor. Mr. Gattozzi reported the conversation to the principal. Ms. Barry did not know there was an eyewitness to the incident between LeFlore and Ms. White; she believed that nothing had happened. She was not disciplined. Price stated that she saw Ms. Barry and Ms. White talking and that later on the same day she stopped Ms. Barry in the hallway and asked Ms. Barry what Ms. White had said. According to Price, Ms. Barry assured her that Ms. White had said nothing happened. Ms. Barry denies that she ever discussed Ms. White with Price. Ms. White changed her story after Price began questioning her because she "didn't want the whole situation to get out because---I just wanted to let it go. And I didn't want it to be all out. So I was just saying nothing happened, because I didn't want everybody to start finding out like they did." On March 20, 1998, another student reported that she had been abused by LeFlore. The Riveria Beach Police and School Police conducted an extensive investigation. LeFlore was arrested on eleven counts of lewd assault and confessed to lewd assault on four students, of whom Ms. White was not one. Article II, Section M of the Collective Bargaining Agreement between Palm Beach County Classroom Teachers Association and the School District of Palm Beach County, Florida, provides: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. * * * 7. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. . . . Written Reprimand. . . . Suspension Without Pay. . . . Dismissal. . . . The School Board's policy D-5.30 involving suspected cases of child abuse provides: (1) All school personnel, including teachers, administrators, and noninstructional staff, who know, or have reasonable cause to suspect that a child is an abused or neglected child shall report this information to the principal of the school center. . . . The principal shall report such knowledge or suspicion to the Department of Health and Rehabilitative Services (HRS). * * * (6) Any employee who knowingly and willfully fails to report such case as required . . . may be subject to disciplinary action by the School Board and may be guilty of a misdeamanor [sic] of the second degree, punishable as provided by law. In March 1997, Price had been provided with an "Educator's Resource Manual on Child Abuse," which provides: Reporting child abuse/neglect Your role as a school teacher or official makes you a mandated reporter of child abuse and neglect. This manual gives you information on how to recognize various types of abuse and neglect and behaviors of children that may signal they are being abused and/or neglected. The following is a discussion of the specifics of reporting abuse and some commonly asked questions. When should I report? Whenever you know or suspect that a child is being abused or neglected. You must use your professional training and experience to make the decision. What if I am not sure a child is being abused? It is not necessary for you to prove abuse or neglect. If you are reasonably suspicious, you must report. What if I am wrong? Sometimes mistakes are made but the system must be used. It is better to err on the side of wrongful reporting than to risk the further injury or death to the child. * * * What if my principal or superintendent will not allow me to report? Reporting is a personal responsibility. You do not need the permission of your principal, although you should approach your principal first and seek his/her cooperation. It is your responsibility to report. What if I suspect my principal or teacher of abuse? You must report whenever you suspect abuse or neglect. Remember, as a mandated reporter the law will protect you. How do I report? Call the Florida Abuse Hotline 1-800-962-2873 or local enforcement in case of an emergency. . . . In Price's 27-year career with the School Board, she had has no other disciplinary action taken against her. She has had satisfactory evaluations from the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Rebecca Price violated School Board Rules 6B-1.006(3)(a) and (5)(a), and did not mischaracterize her role in the investigation, and imposing a penalty of suspension without pay for one year retroactive from September 24, 1998. DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 12th day of May, 1999. COPIES FURNISHED: Thomas E. Elfers, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Ronald G. Meyer, Esquire Meyer & Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32301 Dr. Joan Kowel, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether there exists just cause to suspend Respondent from his teaching position for five days, without pay, for "misconduct in office" and "immorality," as alleged in the Administrative Complaint.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Piper High School (Piper)), and for otherwise providing public instruction to school-aged children in the county. At all times material to the instant case, Enid Valdez was the principal of Piper; Patrick Lowe, Robert Godwin, and Sharon Grant were assistant principals at the school; and Donavan Collins was the school's social studies department chair. Respondent has been a social studies teacher at Piper since 2002. He presently holds a professional services contract with the School Board. During the first semester of the 2009-2010 school year, Respondent taught three American History classes at Piper (during the first, second, and fourth periods of the school day). The previous school year, in or around February 2009, Respondent had ordered, in his own name, a 25-copy per issue subscription for the upcoming 2009-2010 school year to "New York Times Upfront" (Upfront), a magazine for high school students published by Scholastic, Inc., that Respondent believed to be an "excellent [learning] tool" from which his students could benefit academically. The total cost of the subscription (Upfront Subscription) was $246.13. Respondent planned to use the magazine in the classes he would be teaching at Piper the following school year. After receiving, in or around August 2009, 25 copies of the September 2009 issue of Upfront, the first issue of the 2009-2010 school year, Respondent distributed them to the students in his three American History classes for their review. He told the students they each would have the option of using Upfront, instead of School Board-provided materials, for class assignments, provided they paid him $3.00 to help cover the cost of the Upfront Subscription. He subsequently asked each student in his three classes whether or not that student wanted to exercise this option and noted on the class roster those students who responded in the affirmative (Upfront Option Students). For the next two or so months, he collected money (in cash) from the Upfront Option Students and recorded each payment he received. On October 22, 2009, using his debit card, Respondent made an initial payment to Scholastic of $124.00 for the Upfront Subscription (that he had ordered in or around February 2009). He made a second and final payment of $122.13 (again using his debit card) on November 3, 2009. The money Respondent collected from the Upfront Option Students was insufficient to cover the $244.13 cost of the Upfront Subscription. Respondent paid the shortfall out of his own pocket. Sometime in early November 2009, Respondent gave the Upfront Option Students their first assignment from the magazine (copies of which Respondent had distributed to the students). During the 2009-2010 school year, Piper had the following policy concerning the collection of money (Piper Collection of Money Policy), which was published in the Piper 2009-2010 Faculty Handbook: Money is never to be left in any classroom, storage cabinet, or office desk. Collected money is the responsibility of the teacher and is deposited with the school bookkeeper by the end of the day. A receipt will be given when the money is deposited. Money cannot be collected by any teacher unless the collection and distribution of the money has been previously discussed, planned, and approved by the principal's designee and the bookkeeper has been informed. All money must be deposited daily with the bookkeeper. (The document referred to in paragraphs 7 and 8 of the Administrative Complaint as "Exhibit A" is a copy of the Piper Collection of Money Policy, as the parties stipulated at hearing.3 See pp. 66 and 67 of the hearing transcript.) Respondent was provided a copy of the Piper 2009-2010 Faculty Handbook prior to the beginning of the 2009-2010 school year. At all times material to the instant case, Respondent was aware of the Piper Collection of Money Policy. Nonetheless, in violation of that policy, he did not obtain, or even seek, the necessary administrative approval to collect money from the Upfront Option Students, nor did he deposit any of the money he collected from these students with the bookkeeper, much less inform her (or any school administrator, for that matter) of his money collection activities. The foregoing notwithstanding, his intent in acting as the conduit through which these students purchased issues of Upfront for use in his classes was to help the students achieve academic success, not to exploit them for his own personal gain or advantage. He never had any intention of doing anything with the money he collected from the students other than using it (as he ultimately did) to help cover the cost of the Upfront Subscription. It was not until on or about October 19, 2009, that the Piper administration first learned about Respondent's money collection activities as a result of discussions that Assistant Principal Lowe had with students in Respondent's classes. After having been briefed by Mr. Lowe regarding what these students had reported, Principal Valdez asked Assistant Principal Grant to speak with Respondent. During his meeting with Ms. Grant, Respondent admitted to collecting money from the Upfront Option Students to help pay for the Upfront Subscription, and he acknowledged that he had not sought approval from anyone in the school administration to do so. On or about October 26, 2009, Principal Valdez sent a Personnel Investigation Request to the School Board's Office of Professional Standards and Special Investigative Unit (SIU) through which she requested that SIU conduct an investigation of the matter. An investigation was authorized by SIU on October 28, 2009, and an SIU investigator was assigned the case a week later. On or about November 3, 2009, Respondent was provided with a letter from Craig Kowalski, the SIU Acting Executive Director, advising Respondent of SIU's "investigation into a complaint . . . regarding an alleged violation [by Respondent] of the Principles of Professional Conduct of the Education Profession in Florida, Rule 6B-1.006(2)(h) [sic],[4] to include the collection of money from students to purchase magazines." After the SIU investigation was completed, an investigative report was prepared and presented to the School Board's Professional Services Committee for its consideration. The Professional Services Committee found "probable cause." A pre-disciplinary conference was then held, after which the Superintendent, on August 10, 2010, issued an Administrative Complaint recommending Respondent's suspension, without pay, "for a period of five (5) days effective from June 3, 2010 through June 9, 2010."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Broward County School Board issue a final order finding that the charges against Respondent have not been sustained, dismissing these charges, and awarding Respondent any "back salary" he may be owed. DONE AND ENTERED this 26th day of July, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2011.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on December 30, 2002.
Findings Of Fact Veita Jackson-Carter is the assistant principal at Eastside High School (Eastside) which is located in Gainesville, Florida, and is part of the Alachua County School District (school district). In the summer of 2002, Petitioner came to Eastside to talk to Ms. Jackson-Carter about employment there. At that initial meeting, Petitioner and Ms. Jackson-Carter discussed instructional positions at Eastside. While Petitioner gave a resume to Ms. Jackson-Carter, Ms. Jackson-Carter informed Petitioner that he needed to submit an employment application with the school district's personnel office. Ms. Jackson-Carter was very interested in hiring Petitioner. However, she explained to Petitioner that while the individual schools make recommendations regarding hiring, the school district actually hires applicants. Petitioner submitted a completed Application for Instructional Position on June 28, 2002, to the school district.2/ Because of her interest in hiring Petitioner, Ms. Jackson-Carter checked with someone in the school district's personnel office on the status of his application for an instructional position. She learned that there was a problem with his obtaining a teaching certificate. During this same period of time, Petitioner met with Marcia Shelton. At that time, Ms. Shelton was a certification specialist with the school district's department of personnel services. She worked with applicants in assisting them in determining eligibility for certification. However, neither she, nor anyone who works for the school district, has the authority to issue teaching certificates or statements of eligibility for teaching certificates as only the Florida Department of Education has the authority to do that. At the initial meeting between Petitioner and Ms. Shelton, Petitioner informed Ms. Shelton that a particular school was interested in hiring him for an instructional position. She began the process of assisting him to determine his eligibility for certification. Petitioner's application contained his educational achievements. He earned a bachelor's degree from Kentucky State University with a major in criminal justice and a minor in political science, and a master's degree with a major in human resource management and a minor in the area of public administration. Ms. Shelton asked for and received copies of Petitioner's academic transcripts. Ms. Shelton's review of the transcripts revealed that Petitioner had a cumulative undergraduate grade point average (GPA) of 2.322. She informed Petitioner that the minimum GPA required for issuance of an initial teaching certificate was 2.5 and that he would not be eligible for certification because the GPA for the courses needed for certification were not high enough. While Petitioner had the course work to meet specialization requirements for political science, the grades were not what was required. In an effort to help Petitioner, Ms. Shelton contacted Jean Morgan with the Bureau of Educator Certification of the Florida Department of Education (Department), to inquire as to whether public administration courses Petitioner had taken could be counted toward those required for certification in political science or social science. Petitioner's own exhibits establish that Ms. Shelton made numerous attempts to assist Petitioner by making repeated inquiries in August 2002 to Ms. Morgan and Ms. Morgan's supervisor, Kathy Hebda, in an effort to find a way for Petitioner to meet the Department's requirements. Ms. Shelton's efforts included faxing course descriptions to the Department for evaluation in an effort to satisfy the Department's certification requirements. Ms. Shelton's efforts, however, on Petitioner's behalf were unsuccessful. That is, she learned from both Ms. Morgan and Ms. Hebda that the Department would not accept the public administration courses to bring up Petitioner's GPA in political science. On August 5, 2002, Petitioner again went to Eastside to meet with Ms. Jackson-Carter. She informed him of some career service positions at Eastside for which he could apply. Petitioner completed and filed a Career Service Application Form dated August 13, 2002, with Respondent. There is an inconsistency in Petitioner's answers to a question regarding criminal background on each application for employment with Respondent. Each application contains a question regarding whether the applicant had ever been found guilty of, regardless of adjudication, or entered a plea of nolo contendere to offenses listed in three categories. On the Application for Instructional Position, Petitioner checked "no" for all three categories: felony, first degree misdemeanor, and second degree misdemeanor involving a minor child or involving violence. He then answered "yes" to the question, "Have you ever been judicially determined to have committed abuse or neglect against a child." The application instructs the applicant that if any question was answered yes, to explain and attach all pertinent documents. Despite having answered yes to one question, Petitioner wrote "N/A" in the blank provided. However, on the Career Service Application Form, he answered "yes" to the category generally entitled "misdemeanor." The application instructs the applicant that if the answer to any of the criminal background questions was "yes," that the applicant must list charge(s) and disposition. In the blank provided to list charge(s) and disposition, Petitioner put "N/A" in the blank provided, despite having answered "yes" to the category entitled "misdemeanor." The application also instructs the applicant to attach all pertinent documents. On or about August 16, 2002, Petitioner again went to Eastside to meet with Ms. Jackson-Carter. He inquired of Ms. Jackson-Carter when he was to report to work. Ms. Jackson- Carter inquired of Petitioner if the school district had offered him a position as she was not aware of any position having been offered to him. The last correspondence in the record from Ms. Shelton to the Department is dated August 29, 2002, in which she notes that the Bureau Chief of the Department's Bureau of Educator Certification was personally reviewing Petitioner's documents. She also noted that "he still has not applied to DOE." In Ms. Shelton's and Dr. Pratt's experience, it is unusual for the bureau chief to become personally involved in such a review. Ms. Shelton received a call from Ms. Hebda and the bureau chief during which Ms. Shelton learned that the bureau chief personally was going to accept the course work to enable Petitioner to meet specialization requirements for a temporary certificate in political science. Ms. Shelton did not have the authority to make that determination that was ultimately made by the bureau chief of the Bureau of Educator Certification. On August 23, 2002, the school district sent a letter to Petitioner informing him that his application for substitute teaching had been approved for the 2002-2003 school year. The letter informed him about a mandatory new employee orientation. It also specified that state law requires that all new employees be fingerprinted. The letter was signed by Josephine Brown, Coordinator, Personnel Services. Being a substitute teacher requires direct contact with students. The position of substitute teacher is not a permanent position with the school district. It is a conditional offer pending cleared fingerprint processing. Dr. Leila Pratt was Director of Personnel Services for the Alachua County School Board in August 2002. She was Ms. Shelton's and Ms. Brown's supervisor. She has since retired. On August 27, 2002, Dr. Pratt attended the criminal history review committee meeting during which Mr. Price was discussed. Of particular concern to Dr. Pratt were certain entries on Mr. Price's criminal history record received from the Florida Department of Law Enforcement and the Federal Bureau of Investigation which Ms. Pratt believed reflected violent behavior. She was concerned that these offenses would make Petitioner ineligible for employment because of statutory and school district policy requirements. She was also concerned about the inconsistencies between the answers provided on the two applications. A Criminal Records form was completed regarding Petitioner as a result of the committee meeting which included the following notations: "criminal possession of handgun (87); possession of handgun (93); DUI & suspended license (2000); violation of KY charges (01). Falsification of application." The recommendation of the committee was termination. The school board issued a Separation of Service form to Petitioner dated and signed by Petitioner and Dr. Pratt August 28, 2002. The form identifies the reason for separation as "background check." Petitioner requested and was given the opportunity to explain his criminal history. On August 29, 2002, he went to Dr. Pratt's office to discuss his criminal background and to provide Dr. Pratt with pertinent documentation. However, the information which Petitioner provided to Dr. Pratt did not satisfy her concerns. On August 29, 2002, Dr. Pratt wrote a letter to Petitioner which stated as follows: Dear Mr. Price: In response to the three charges: criminal possession of a weapon, menacing and assault filed in August 1987, your documentation does not indicate your charges were dropped to a misdemeanor. It indicates that you pled guilty and was sentenced to thirty (30) days confinement. [sic] In response to your charge filed on April 6, 1989 for trespassing on property after a warning, you provided no official documentation from the court records. In response to the charge filed on November 12, 1993 for possession of a handgun by a convicted felon, your documentation does not officially state that your charges were dismissed or that the charges were dropped. We are unable to determine what is meant by the statement, "lack of probable cause" on the paperwork you submitted. In response to the charge filed on April 20, 2000 for DUI and suspended license, your documentation stated the case was dismissed, but there was probable cause for the arrest and your case was remanded back to another court for the disposition. You submitted no documentation as to the final disposition. A restraining protection order was issued from 2000 to 2003 for domestic battery. No official court documentation regarding this charge has been provided. In addition to the information you submitted being incomplete, one of the documents you presented was not an official court document, which is what we requested, official court records. To provide further consideration to your request for employment, official court documents will need to be provided for all of the charges that have been filed. Until this information is received and reviewed, you are not eligible to work for the School Board of Alachua County. According to Ms. Price, official court documents are required of everyone under these circumstances. Even if the court documents had been official, Dr. Pratt's concerns would have remained because of the violent nature of some of the offenses in the documents and the statutory and school district policy requirements. Petitioner did not submit further documentation to Respondent clarifying his criminal history. Petitioner completed an Application for Florida Educator Certificate which was mailed to the Department on August 30, 2002. The Department issued an Official Statement of Status of Eligibility to Petitioner dated May 28, 2003, which explained to Petitioner what was required of him to get a temporary certificate and a professional certificate covering political science for grades 6 through 12. The Official Statement of Status of Eligibility also informs Petitioner that issuance of a certificate will be contingent upon a review of any criminal offense as a result of fingerprint processing. Dr. Pratt characterized Ms. Shelton's efforts on Petitioner's behalf as going "beyond the call of duty." She believes that her entire staff acted appropriately in dealing with Petitioner. Petitioner is an African-American male. At the time of the adverse employment action giving rise to this proceeding, Petitioner was 42 years old. Ms. Jackson-Carter and Dr. Pratt are African-American females. Ms. Shelton is a white female. Beyond Petitioner's allegation of discrimination, Petitioner presented no evidence that his race, sex, or age played any role in any action taken by Respondent regarding Petitioner's eligibility for teacher certification or its decision to terminate his probationary employment as a substitute teacher. The Department's ultimate acceptance of coursework and issuance of a Statement of Status of Eligibility some eight months after the adverse employment action taken by Respondent does not establish that Respondent engaged in discriminatory conduct.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 19th day of December, 2003.
The Issue Whether Petitioner, by pleading guilty to a charge of organized scheme to defraud, in violation of Sections 817.034(4)(a)1. and 777.011, Florida Statutes, committed a “specified offense” under Section 112.3173, Florida Statutes, and forfeited all rights and benefits under the Florida Retirement System.
Findings Of Fact Based on the testimony and documents presented as evidence at the hearing, the following Findings of Fact are made: Petitioner is a retired physical education teacher who is a member of the Florida Retirement System (FRS). Dr. McCoggle entered the Deferred Retirement Option Program (DROP) on or about August 1, 2003, and ended his participation in DROP on June 3, 2005. Respondent is the agency responsible for managing, governing, and administering the FRS. At all times material to the allegations of this case, Petitioner was employed by the Miami-Dade County Public Schools (MDCPS or the school district) as a high school physical education teacher and coach. After ending his participation in DROP in June 2005, Petitioner was issued a warrant for his DROP-accumulated funds, but payment of the warrant was stopped. On July 18, 2005, Petitioner was charged with certain crimes, based on events that occurred while he was a physical education teacher. Specifically, a Miami-Dade County Grand Jury issued an indictment charging Petitioner with one count of grand theft, first degree, in violation of Sections 812.014(1)(2)(a) and 777.011, Florida Statutes, and one count of a scheme to defraud, as defined in Subsection 817.034(3)(d), that constituted organized fraud in violation of Sections 817.034(4)(a)1. and 777.011, Florida Statutes (2005). On November 17, 2005, an amended information filed to supersede the indictment provided: WILLIAM L. McCOGGLE, from on or about JANUARY 1, 1999 to on or about MARCH 31, 2004, in the County and State aforesaid, did unlawfully and feloniously engage in a scheme to defraud as defined by s. 817.034(3)(d), Fla. Stat., by engaging in a systematic, ongoing course of conduct with intent to defraud one or more persons, to wit: MIAMI-DADE COUNTY PUBLIC SCHOOLS, by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act, and did thereby obtain property, to wit: U.S. COINS OR CURRENCY, of an aggregate value of fifty thousand dollars ($50,000.00) or more, the property of MIAMI-DADE COUNTY PUBLIC SCHOOLS, as owner or custodian, in violation of s. 817.034(4)(a)1 and s. 777.011, Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. (Emphasis added.) On November 18, 2005, a plea agreement between Petitioner and the State was filed, in which Petitioner pled guilty to the one count in the amended information and the circuit court entered a judgment adjudicating Petitioner guilty. After notice of the guilty plea and judgment, Respondent’s legal office reviewed grand jury and court documents, determined that Petitioner had been convicted of a specified offense under Section 112.3173, Florida Statutes, and recommended the termination of Petitioner’s rights and benefits under the FRS. On September 6, 2006, Respondent notified Petitioner, by letter, of the forfeiture of his FRS rights and benefits. On September 25, 2006, Petitioner timely sought an administrative review of the agency action. The legal action taken against Petitioner resulted from his involvement, for at least a decade, in arranging for teachers to receive academic credit for state and school district-required teacher certification and recertification. According to the grand jury and Petitioner, he entered into agreements with accredited post-secondary educational institutions for Petitioner on his own, at first, and then through his organization, Move on Toward Education and Training (MOTET), to provide courses to teachers and for the colleges to provide them transcripts. The grand jury found that teachers came to Dr. McCoggle at the high school where he was teaching, after regular school hours and on Saturday mornings, and paid him to sign-up for classes. Dr. McCoggle’s use of school facilities was authorized. Teachers from Miami-Dade, Broward, and Palm Beach Counties participated in the program. The grand jury also found that the transcripts were fraudulently obtained because there were no classes, no tests, no homework, no assignments, and that no teachers attended any classes. As counsel for the Respondent summarized the issues in this case, in his Proposed Recommended Order, any public employee (undisputed) who is convicted of a specified offense (disputed) committed prior to retirement (undisputed) shall forfeit all rights and benefits under any public retirement system of which he or she is a member (undisputed). The evidence supports Petitioner's claim that his guilty plea to a scheme to defraud was not related to the performance of his official duties as a physical education teacher and coach. Petitioner notes that defrauding a public employer is not a "specified offense" unless the fraud is job- related. The grand jury's final report that was introduced as Respondent's Exhibit 1 and the Petitioner's testimony support a conclusion that he charged the teachers fees but took no money directly from the school district. Petitioner notes that a theft is a "specified offense" only if the victim is the public employer. It is the position of the school district that, by pleading guilty to a scheme to defraud, Petitioner pled guilty to theft, and that he committed the theft by assisting teachers in getting paid public funds of the MDCPS to which they were not entitled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order requiring William L. McCoggle to forfeit all rights and benefits under the Florida Retirement System. DONE AND ENTERED this 20th day of March, 2007, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 20th day of March, 2007. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Emily Moore, Esquire Florida Education Association 118 North Monroe Street Tallahassee, Florida 32301 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Respondent committed the violations alleged in the Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida (including, among others, Phillis Wheatley Elementary School (Phillis Wheatley) and Palm Springs Middle School (Palm Springs)), and for otherwise providing public instruction to school-aged children in the county. Respondent is now, and has been since October 1987, employed as a classroom teacher by the School Board. She holds a professional services contract. Respondent first taught for the School Board at Phillis Wheatley. In 1996, she moved to Palm Springs, where she remained until she was "assigned to a paid administrative placement at [the] Region Center I [effective October 4, 2007] pending the resolution of investigative case # N-85085" (referenced in paragraph 14 of the Notice of Specific Charges). Respondent has previously been disciplined by the School Board for using physical means to control student behavior. In 1992, following an investigation during which Respondent "admitted to placing tape on one student's mouth and telling the other to place the tape on his mouth" and "also admitted to hitting a student on the head with a dictionary and tapping another student on the hand with a ruler," she received the following "letter of reprimand" from her principal at Phillis Wheatley: On August 8, 1992, you were charged with conduct unbecoming a School Board employee and battery of students. You violated the Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida, and Dade County School Board Rule 6Gx-13-4A-1.21, "Conduct Unbecoming a School Board Employee." The above infractions were substantiated by the Special Investigative Unit, Case No. 92-00946. You are directed to comply with the procedures outlined in the Chapter 6B- 1.01(3), Code of Ethics of the Education Profess[ion] in Florida, to refrain from demeaning students, punishing them by taping mouths, touching or taping students to discipline them or to demonstrate affection, and to conduct yourself in a professional manner. Any recurrence of the infractions will result in further disciplinary actions. In 1995, Respondent was reprimanded for striking a student with a stack of papers and received the following "Confirmation of Administrative Action" from the Phillis Wheatley principal: Please be advised that after a complete investigation of Case Number 95-12689 done by this administrator the following guidelines must be reviewed with this administrator. Review the faculty handbook pg 18, on Corporal Punishment. Review a copy of School Board Rule 6Gx4A-1.21, Employee Conduct, and Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida. You are to refrain from touching or tapping students to discipline them and you must conduct yourself in a professional manner at all times. Any recurrence of this infraction will result in further disciplinary action. In 2004, after determining that Respondent had "acted inappropriately" when, in anger, she had "grabbed" a student by the "hair yanking [the student's] head backwards," the Palm Springs principal issued Respondent the following written reprimand: On December 11, 2003, you inappropriately disciplined (a) student(s) while waiting in front of the cafeteria. You violated the Contract between the Miami- Dade County Public Schools and the United Teachers of Dade, Article VIII, Section 1. [a]s well as School and Miami-Dade County School Board Rules, 6Gx13-5D-1.07, Corporal Punishment, and 6Gx13-5D-1.08, Code of Student Conduct. It is your responsibility as a classroom teacher to maintain control and discipline of students. However, it is imperative that you follow school and Miami-Dade County School Board rules in doing so. Rules governing student discipline a[re] outlined in the Code of Student Conduct, Board Rule 6Gx13-5D-1.08, faculty handbook, and Promoting and Maintain[ing] a Safe Learning Environment document, and are referenced in the United Teachers of Dade Contract, Article VII, Section I. You are directed immediately to refrain from using any physical means to affect student behavior. You are directed immediately to implement the appropriate procedures for dealing with inappropriate student behavior as stipulated in the documents above[]. The above infraction was substantiated by an Administrative Review, Case Number J08655. You are directed to refrain from using inappropriate procedures in the performance of your assigned duties. You are directed to implement immediately, approved procedures in the performance of your assigned duties. Any recurrences of the above infraction will result in further disciplinary action. As a School Board employee, Respondent is expected to conduct herself in accordance with School Board rules, including the aforementioned School Board Rules 6Gx13-4A-1.21 and 6Gx13- 5D-1.07. At all times material to the instant case, School Board Rule 6Gx13-4A-1.21I has provided as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, 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. At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 has provided, in pertinent part, as follows: Corporal Punishment - Prohibited The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary action depending upon the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion. As an instructional employee of the School Board, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD (UTD Contract). Article V of the UTD Contract addresses the subject of "[e]mployer [r]ights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate bargaining unit employees "for just cause." Article VIII of the UTD Contract addresses the subject of "[s]afe learning environment." Section 1.D. of Article VIII provides as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess." Section 1.B.1.a. of Article XXI provides that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Section 1.B.2. of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) " In the instant case, the School Board is seeking to dismiss Respondent based on conduct in which she allegedly engaged during the 2007-2008 school year. While assigned to Palm Springs during the 2007-2008 school year, Respondent taught three periods of language arts to sixth and seventh grade Spanish-speaking ESOL students. She also had responsibility for a sixth grade homeroom class. Y. L., J. T., and I. M. were sixth grade students at Palm Springs during the 2007-2008 school year. They each had Respondent for homeroom and language arts for a brief time during the beginning of that school year. At all material times during the 2007-2008 school year, Respondent understood that the School Board had a policy "strictly prohibit[ing]" the use of corporal punishment. Nonetheless, on more than one occasion during this time period, Respondent used physical means to redirect Y. L. She grabbed him by the hair and pulled him by the arm, hurting him in the process. She also "grabbed other students by their arms" to control their behavior. Respondent made threats to throw Y. L. and other students out the window if they did not behave. Although Respondent had no intention of carrying out these threats, Y. L. believed that the threats were real and that Respondent meant what she had said. On one occasion, Respondent opened a window, had Y. L. stand next to it, and told him that if he moved at all, she would toss him out the open window. As a disciplinary measure, Respondent had Y. L. pick up his wheel-equipped book bag (filled with textbooks and notebooks for all his classes) and hold it on top of his head for an extended period of time while he was standing in place. Y. L. felt some discomfort in his shoulder when he did this. Afraid of Respondent, Y. L. often "hid[] in the bathroom" at school instead of going to Respondent's classroom. On numerous occasions, Y. L.'s mother had to pick him up from school before the end of the school day because he had vomited. At home, Y. L. had trouble sleeping and refused to eat. He lost approximately 20 pounds (going from 100 pounds down to 80). Y. L. was not the only student that Respondent directed to stand with a filled book bag on his head. J. T. and I. M. were also issued such a directive by Respondent. It happened the first week of the school year on a day when the students remained in their homeroom classes until dismissal because of a power outage that left the school without lights and air conditioning for much of the day. Towards the end of the day (after power had been restored to the school), J. T. and I. M. were talking to one another when they were not supposed to. In response to their transgression, Respondent instructed them to stand in separate corners of the classroom and hold their book bags (which were similar to Y. L.'s) on top of their heads.2 The book bags remained on their heads for a substantial enough period of time to cause them to experience pain. 3 Y. L., J. T., I. M., and their parents complained to the Palm Springs administration about Respondent's disciplinary tactics. In response to Y. L.'s and his mother's complaints, one of the school's assistant principals, Niki Ruiz, interviewed "randomly selected" classmates of Y. L.'s. These students "corroborated what Y. [L.] was saying." On September 26, 2007, the matter was turned over to the School Board's General Investigative Unit (GIU) for investigation. Respondent was removed from the classroom and placed on alternative assignment pending the outcome of the investigation. Following the GIU investigation, the matter was referred to the School Board's Office of Professional Standards. There was a conference-for-the-record held on February 6, 2008, at which Respondent had the opportunity to tell her side of the story. In her remarks, she expressed a disdain for authority when she said, "I'm very professional but I don't stick to rules." The School Board's Superintendent of Schools recommended that the School Board suspend Respondent and initiate termination proceedings against her. The School Board took such action at its May 21, 2008, meeting.
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 terminating her employment as a professional service contract teacher with the School Board for the reasons set forth above DONE AND ENTERED this 16th day of December, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2008.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is Recommended that a Final Order be entered terminating respondent's employment with the Board. DONE AND ENTERED this 30th day of December, 1988, at Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1988.
